Assessing Liability for Unforeseen Consequences

The case of Cavalier v. Pope involves a landlord's liability for personal injuries caused by the non-repair of an unfurnished house. The wife of the tenant sought damages from the landlord, who had contracted with her husband to repair the house. However, the court held that the wife was not a party to the contract and therefore could not rely on any cause of action for negligence. Additionally, the well-known absence of any duty in respect of letting an unfurnished house prevented her from recovering damages.

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LLM International Business Law
LAWS 7100 Advanced Legal Skills
End of module assessment: Case analysis

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Instructions:
a) This assessment is weighted 100% towards your final module mark. Please
submit your work on or before the deadline stipulated on the assessment forum.
b) Please read the facts and decision in Donoghue v Stevenson [1932] AC 562 in full.
c) You are then required to answer all the questions numbered 1-9. The word
limit is 4000 words. Please note that there is a maximum 10% leverage to
exceed the word count. However, any words over this threshold will result in a
penalty or in the exceeding wordage not being marked by the moderators.
d) The aim of this assignment is an opportunity for you to demonstrate your
understanding and legal skills in undertaking legal research, undertaking analysis
of legal texts, reasoning skills, presenting research, and very importantly the ability
to reference appropriately using the OSCOLA method.
e) You are required to demonstrate the following learning and skills:
 Demonstrate a critical and comprehensive understanding of the
techniques and methods applicable to postgraduate legal research and
legal methodology
 Critically evaluate and demonstrate the ability to conceive, design,
implement and adapt a substantial piece of research with scholarly integrity
 Demonstrate critical, reflective and advanced intellectual engagement
with difficult issues in law
 Analytically integrate knowledge, handle complexity and
formulate judgments with incomplete or limited information
 Critically appraise and communicate your conclusions and the knowledge
and rationale underpinning these, to specialist and non-specialist
audiences clearly and unambiguously
f) You will be assessed based on the following criteria:
The table below provides guidance on the criteria that will be applied by tutors when
marking assessments. There are 5 broad categories – Knowledge & Understanding,
Structure, Argument & Analysis, Research and Presentation. Within those categories,
the left hand column provides examples of the strengths that will gain a good mark
and the right hand column provides examples of the weaknesses that will not! Please
note that these are indicative and are not intended as a comprehensive list of every
feature that could be in a coursework submission. Please note also that the mark you
are awarded reflects the tutor’s overall impression of the coursework submission,
based on these criteria. In other words, while you may receive a high mark there will
almost certainly still be areas of weakness. Equally, you may receive a low mark but
there could still be strengths in your work. You should take note of the feedback, build
on your strengths and learn from and minimize your weaknesses.
Strengths Weaknesses
Knowledge & Understanding - thorough
knowledge of relevant law; issues are clearly
identified; relevant law is accurately applied to the
facts (problem questions); relevant policy issues are
accurately linked to legal issues (essay questions).
Knowledge & Understanding - little knowledge of
relevant law; issues are not clearly identified;
relevant law is not accurately applied to the facts
(problem questions); relevant policy issues are not
accurately linked to legal issues (essay questions).

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Structure - logical progression of argument;
appropriate use of paragraphs and sub-headings;
conclusion relates to main body of answer.
Structure - lacks logical progression of argument;
inappropriate use of paragraphs and sub-headings;
conclusion unrelated to main body of answer.
Argument & Analysis - coherent argument
supported by relevant evidence; shows clarity of
thought; effective and appropriate use of legal
authorities or other academic sources to support
argument.
Argument & Analysis - rambling or incoherent
argument unsupported by relevant evidence; lacks
clarity of thought; ineffective or inappropriate use of
legal authorities or other academic sources to
support argument.
Research - effective use of primary sources (cases,
statutes, official reports); use of academic journal
articles; evidence of wider reading and independent
research (printed and online material).
Research - mainly textbook material; little use of
primary sources (cases, statutes, official reports);
little use of academic journal articles; little evidence
of wider reading or independent research (printed
and
online material).
Presentation - clarity of expression; good use of
language, grammar, spelling; sources
acknowledged, accurate and appropriate
referencing; well presented bibliography
Presentation - lacks clarity of expression; poor use
of language, grammar, spelling; sources
unacknowledged, inaccurate or inappropriate
referencing; poorly presented bibliography or no
bibliography.

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LLM International Business Law
Advanced Legal Skills Assessment
Instructions:
a) This assessment is weighted 100% towards your final module mark. Please
submit your work on or before the deadline provided on the assessment
forum.
b) Please read the facts and decision in Donoghue v Stevenson [1932] AC 562 in
full and then answer the questions below. Please remember to check all
presentation requirements and include a bibliography.
Questions:
1. What were the material facts of the case?
2. What were the legal issues involved?
3. What was the decision of the court?
4. What were the main differences in reasoning between the majority
judgment(s) and the dissenting judgment(s)? Critically assess the
extent to which Aitkin’s judgement accurately reflects the opinion of the
majority judges.
5. What is the ‘neighbour principle’? Explain the term ‘neighbour’ and discuss
where the term might be derived from
6. Critically analyse the development of this principle both in the UK and in
other jurisdictions.
7. Read this article regarding the Oil Industry in Nigeria:
http://www.theguardian.com/world/2010/may/30/oil-spills-nigeria-
niger-delta-shell . Explain how the principles of law from Donoghue v
Stevenson might be relevant to this environmental problem and assess
their effectiveness in regulation the conduct of oil companies.

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*562 M'Alister (or Donoghue) (Pauper) Appellant; v. Stevenson Respondent.
House of Lords HL
Lord Buckmaster, Lord Atkin, Lord Tomlin , Lord Thankerton, and Lord Macmillan.
1932 May 26.
Negligence--Liability of Manufacturer to ultimate Consumer--Article of Food--
Defect likely to cause Injury to Health.
By Scots and English law alike the manufacturer of an article of food, medicine or the
like, sold by him to a distributor in circumstances which prevent the distributor or
the ultimate purchaser or consumer from discovering by inspection any defect, is
under a legal duty to the ultimate purchaser or consumer to take reasonable care
that the article is free from defect likely to cause injury to health:-
So held,by Lord Atkin, Lord Thankerton and Lord Macmillan; Lord Buckmaster and
Lord Tomlin dissenting.
George v. Skivington (1869) L. R. 5 Ex. 1 approved.
Dicta of Brett M.R. in Heaven v. Pender (1883) 11 Q. B. D. 503, 509-11
considered.
Mullen v. Barr & Co., Ld., and M'Gowan v. Barr & Co., Ld., 1929 S. C. 461
overruled.
APPEAL against an interlocutor of the Second Division of the Court of Session in
Scotland recalling an interlocutor of the Lord Ordinary (Lord Moncrieff).
By an action brought in the Court of Session the appellant, who was a shop assistant,
sought to recover damages from the respondent, who was a manufacturer of
aerated waters, for injuries she suffered as a result of consuming part of the
contents of a bottle of ginger-beer which had been manufactured by the
respondent, and which contained the decomposed remains of a snail. The
appellant by her condescendence averred that the bottle of ginger-beer was
purchased for the appellant by a friend in a café at Paisley, which was occupied
by one Minchella; that the bottle was made of dark opaque glass and that the
appellant had no reason to suspect that it contained anything but pure ginger-
beer; that the said Minchella poured some of the ginger-beer out into a tumbler,
and that the appellant drank some of the contents of the tumbler; that her friend
was then proceeding to pour the remainder of the contents of the bottle into the
tumbler when a snail, which *563 was in a state of decomposition, floated out of
the bottle; that as a result of the nauseating sight of the snail in such
circumstances, and in consequence of the impurities in the ginger-beer which
she had already consumed, the appellant suffered from shock and severe gastro-
enteritis. The appellant further averred that the ginger-beer was manufactured
by the respondent to be sold as a drink to the public (including the appellant);
that it was bottled by the respondent and labelled by him with a label bearing his
name; and that the bottles were thereafter sealed with a metal cap by the
respondent.
She further averred that it was the duty of the respondent to provide a system of
working his business which would not allow snails to get into his ginger-beer
bottles, and that it was also his duty to provide an efficient system of inspection
of the bottles before the ginger-beer was filled into them, and that he had failed

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in both these duties and had so caused the accident.
The respondent objected that these averments were irrelevant and insufficient to
support the conclusions of the summons.
The Lord Ordinary held that the averments disclosed a good cause of action and
allowed a proof.
The Second Division by a majority (the Lord Justice-Clerk, Lord Ormidale, and
Lord Anderson; Lord Hunter dissenting) recalled the interlocutor of the Lord
Ordinary and dismissed the action.
1931. Dec. 10, 11. George Morton K.C. (with him W. R. Milligan) (both of the
Scottish Bar) for the appellant. The facts averred by the appellant in her
condescendence disclose a relevant cause of action. In deciding this question
against the appellant the Second Division felt themselves bound by their previous
decision in Mullen v. Barr & Co., Ld. [FN1] It was there held that in determining
the question of the liability of the manufacturer to the consumer there was no
difference between the law of England and the law of Scotland - and this is not
now disputed - and that the question fell to be determined according to the
English authorities, and the majority of the Court (Lord Hunter dissenting) were of
opinion that in England there was a *564 long line of authority opposed to the
appellant's contention. The English authorities are not consistent, and the cases
relied on by the Court of Session differed essentially in their facts from the
present case. No case can be found where in circumstances similar to the present
the Court has held that the manufacturer is under no liability to the consumer.
The Court below has proceeded on the general principle that in an ordinary case
a manufacturer is under no duty to any one with whom he is not in any
contractual relation. To this rule there are two well known exceptions: (1.) where
the article is dangerous per se, and (2.) where the article is dangerous to the
knowledge of the manufacturer, but the appellant submits that the duty owed by
a manufacturer to members of the public is not capable of so strict a limitation,
and that the question whether a duty arises independently of contract depends
upon the circumstances of each particular case. When a manufacturer puts upon
a market an article intended for human consumption in a form which precludes
the possibility of an examination of the article by the retailer or the consumer, he
is liable to the consumer for not taking reasonable care to see that the article is
not injurious to health. In the circumstances of this case the respondent owed a
duty to the appellant to take care that the ginger-beer which he manufactured,
bottled, labelled and sealed (the conditions under which the ginger-beer was put
upon the market being such that it was impossible for the consumer to examine
the contents of the bottles), and which he invited the appellant to buy, contained
nothing which would cause her injury: George v. Skivington [FN2]; and see per
Brett M.R. in Heaven v. Pender [FN3] and per Lord Dunedin in Dominion Natural
Gas Co. v. Collins & Perkins. [FN4] George v. Skivington [FN5]has not always
been favourably commented on, but it has not been overruled, and it has been
referred to by this House without disapproval: Cavalier v. Pope. [FN6] In the
United States the law is laid down in the same way: Thomas v. Winchester. [FN7]
FN1 1929 S. C. 461.
FN2 L. R. 5 Ex. 1.
FN3 11 Q. B. D. 503, 509 et seq.
FN4 [1909] A. C. 640, 646.
FN5 L. R. 5 Ex. 1.
FN6 [1906] A. C. 428, 433.
FN7 (1852) 6 N. Y. 397.

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*565 [He also referred to Dixon v. Bell [FN8]; Langridge v. Levy [FN9]; Longmeid
v. Holliday [FN10]; Bates v. Batey & Co., Ld. [FN11]; Weld-Blundell v. Stephens.
[FN12]]
FN8 (1816) 5 M. & S. 198.
FN9 (1837) 2 M. & W. 519; (1838) 4 M. & W. 337.
FN10 (1851) 6 Ex. 761.
FN11 [1913] 3 K. B. 351.
FN12 [1920] A. C. 956, 985.
W. G. Normand, Solicitor-General for Scotland (with him J. L. Clyde (of the
Scottish Bar) and T. Elder Jones (of the English Bar)) for the respondent. In an
ordinary case such as this the manufacturer owes no duty to the consumer apart
from contract. Admittedly the case does not come within either of the recognized
exceptions to the general rule, but it is sought to introduce into the law a third
exception in this particular case - namely, the case of goods intended for human
consumption sold to the public in a form in which investigation is impossible. The
reason now put forward by the appellant was no part of Lord Hunter's dissent in
the previous case; nor is there any hint of any such exception in any reported
case. There is here no suggestion of a trap, and there are no averments to
support it. It is said that people ought not to be allowed to put on the market
food or drink which is deleterious, but is there any real distinction between
articles of food or drink and any other article? In Heaven v. Pender [FN13]Brett
M.R. states the principle of liability too widely, and in Le Lievre v. Gould [FN14]
that principle is to a great extent whittled away by the Master of the Rolls himself
and by A. L. Smith L.J. The true ground was that founded on by Cotton and Bowen
L.JJ. in Heaven v. Pender. [FN15] In Blacker v. Lake & Elliot, Ld. [FN16] both
Hamilton and Lush JJ. treat George v. Skivington [FN17]as overruled. Hamilton J.
states the principle to be that the breach of the defendant's contract with A. to
use care and skill in the manufacture of an article does not per se give any cause
of action to B. if he is injured by reason of the article proving defective, and he
regards George v. Skivington [FN18], so far as it proceeds on duty to the ultimate
user, as inconsistent with Winterbottom v. Wright. [FN19] *566 [Counsel also
referred to Pollock on Torts, 13th ed., pp. 570, 571, and Beven on Negligence,
4th ed., vol. i., p. 49.] In England the law has taken a definite direction, which
tends away from the success of the appellant.
FN13 11 Q. B. D. 503.
FN14 [1893] 1 Q. B. 491.
FN15 11 Q. B. D. 503.
FN16 (1912) 106 L. T. 533.
FN17 L. R. 5 Ex. 1.
FN18 L. R. 5 Ex. 1.
FN19 (1842) 10 M. & W. 109.
George Morton K.C. replied.
The House took time for consideration. 1932. May 26.
LORD BUCKMASTER (read by LORD TOMLIN). My Lords, the facts of this case are
simple. On August 26, 1928, the appellant drank a bottle of ginger-beer,
manufactured by the respondent, which a friend had bought from a retailer and
given to her.
…
…
…

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LORD ATKIN.
My Lords, the sole question for determination in this case is legal: Do the
averments made by the pursuer in her pleading, if true, disclose a cause of
action? I need not restate the particular facts. The question is whether the
manufacturer of an article of drink sold by him to a distributor, in circumstances
which prevent the distributor or the ultimate purchaser or consumer from
discovering by inspection any defect, is under any legal duty to the ultimate
purchaser or consumer to take reasonable care that the article *579 is free from
defect likely to cause injury to health. I do not think a more important problem
has occupied your Lordships in your judicial capacity: important both because of
its bearing on public health and because of the practical test which it applies to
the system under which it arises. The case has to be determined in accordance
with Scots law; but it has been a matter of agreement between the experienced
counsel who argued this case, and it appears to be the basis of the judgments of
the learned judges of the Court of Session, that for the purposes of determining
this problem the laws of Scotland and of England are the same. I speak with little
authority on this point, but my own research, such as it is, satisfies me that the
principles of the law of Scotland on such a question as the present are identical
with those of English law; and I discuss the issue on that footing. The law of both
countries appears to be that in order to support an action for damages for
negligence the complainant has to show that he has been injured by the breach
of a duty owed to him in the circumstances by the defendant to take reasonable
care to avoid such injury. In the present case we are not concerned with the
breach of the duty; if a duty exists, that would be a question of fact which is
sufficiently averred and for present purposes must be assumed. We are solely
concerned with the question whether, as a matter of law in the circumstances
alleged, the defender owed any duty to the pursuer to take care.
It is remarkable how difficult it is to find in the English authorities statements of
general application defining the relations between parties that give rise to the
duty. The Courts are concerned with the particular relations which come before
them in actual litigation, and it is sufficient to say whether the duty exists in
those circumstances. The result is that the Courts have been engaged upon an
elaborate classification of duties as they exist in respect of property, whether real
or personal, with further divisions as to ownership, occupation or control, and
distinctions based on the particular relations of the one side or the other,
whether manufacturer, salesman or landlord, customer, tenant, stranger, and so
on. *580 In this way it can be ascertained at any time whether the law
recognizes a duty, but only where the case can be referred to some particular
species which has been examined and classified. And yet the duty which is
common to all the cases where liability is established must logically be based
upon some element common to the cases where it is found to exist. To seek a
complete logical definition of the general principle is probably to go beyond the
function of the judge, for the more general the definition the more likely it is to
omit essentials or to introduce non- essentials. The attempt was made by Brett
M.R. in Heaven v. Pender [FN79], in a definition to which I will later refer. As
framed, it was demonstrably too wide, though it appears to me, if properly
limited, to be capable of affording a valuable practical guide.
FN79 11 Q. B. D. 503, 509.
At present I content myself with pointing out that in English law there must be,
and is, some general conception of relations giving rise to a duty of care, of which
the particular cases found in the books are but instances. The liability for
negligence, whether you style it such or treat it as in other systems as a species
of "culpa," is no doubt based upon a general public sentiment of moral
wrongdoing for which the offender must pay. But acts or omissions which any

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moral code would censure cannot in a practical world be treated so as to give a
right to every person injured by them to demand relief. In this way rules of law
arise which limit the range of complainants and the extent of their remedy. The
rule that you are to love your neighbour becomes in law, you must not injure
your neighbour; and the lawyer's question, Who is my neighbour? receives a
restricted reply. You must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your neighbour. Who, then,
in law is my neighbour? The answer seems to be - persons who are so closely
and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question. This appears to me to be the doctrine of
Heaven v. Pender [FN80], *581 as laid down by Lord Esher (then Brett M.R.)
when it is limited by the notion of proximity introduced by Lord Esher himself and
A. L. Smith L.J. in Le Lievre v. Gould. [FN81] Lord Esher says: "That case
established that, under certain circumstances, one man may owe a duty to
another, even though there is no contract between them. If one man is near to
another, or is near to the property of another, a duty lies upon him not to do that
which may cause a personal injury to that other, or may injure his property." So
A. L. Smith L.J.: "The decision of Heaven v. Pender [FN82]was founded upon the
principle, that a duty to take due care did arise when the person or property of
one was in such proximity to the person or property of another that, if due care
was not taken, damage might be done by the one to the other." I think that this
sufficiently states the truth if proximity be not confined to mere physical
proximity, but be used, as I think it was intended, to extend to such close and
direct relations that the act complained of directly affects a person whom the
person alleged to be bound to take care would know would be directly affected
by his careless act.
That this is the sense in which nearness of "proximity " was intended by Lord
Esher is obvious from his own illustration in Heaven v. Pender [FN83] of the
application of his doctrine to the sale of goods. "This " (i.e., the rule he has just
formulated) "includes the case of goods, etc., supplied to be used immediately
by a particular person or persons, or one of a class of persons, where it would be
obvious to the person supplying, if he thought, that the goods would in all
probability be used at once by such persons before a reasonable opportunity for
discovering any defect which might exist, and where the thing supplied would be
of such a nature that a neglect of ordinary care or skill as to its condition or the
manner of supplying it would probably cause danger to the person or property of
the person for whose use it was supplied, and who was about to use it. It would
exclude a case in which the goods are supplied under circumstances in which it
would be a chance by whom they would be used *582 or whether they would be
used or not, or whether they would be used before there would probably be
means of observing any defect, or where the goods would be of such a nature
that a want of care or skill as to their condition or the manner of supplying them
would not probably produce danger of injury to person or property." I draw
particular attention to the fact that Lord Esher emphasizes the necessity of goods
having to be "used immediately" and "used at once before a reasonable
opportunity of inspection. " This is obviously to exclude the possibility of goods
having their condition altered by lapse of time, and to call attention to the
proximate relationship, which may be too remote where inspection even of the
person using, certainly of an intermediate person, may reasonably be interposed.
With this necessary qualification of proximate relationship as explained in Le
Lievre v. Gould [FN84], I think the judgment of Lord Esher expresses the law of
England; without the qualification, I think the majority of the Court in Heaven v.
Pender [FN85]were justified in thinking the principle was expressed in too
general terms. There will no doubt arise cases where it will be difficult to
determine whether the contemplated relationship is so close that the duty arises.
But in the class of case now before the Court I cannot conceive any difficulty to
arise. A manufacturer puts up an article of food in a container which he knows
will be

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opened by the actual consumer. There can be no inspection by any purchaser
and no reasonable preliminary inspection by the consumer. Negligently, in the
course of preparation, he allows the contents to be mixed with poison. It is said
that the law of England and Scotland is that the poisoned consumer has no
remedy against the negligent manufacturer. If this were the result of the
authorities, I should consider the result a grave defect in the law, and so contrary
to principle that I should hesitate long before following any decision to that effect
which had not the authority of this House. I would point out that, in the assumed
state of the authorities, not only would the consumer have no remedy against
the *583 manufacturer, he would have none against any one else, for in the
circumstances alleged there would be no evidence of negligence against any one
other than the manufacturer; and, except in the case of a consumer who was
also a purchaser, no contract and no warranty of fitness, and in the case of the
purchase of a specific article under its patent or trade name, which might well be
the case in the purchase of some articles of food or drink, no warranty protecting
even the purchaser-consumer. There are other instances than of articles of food
and drink where goods are sold intended to be used immediately by the
consumer, such as many forms of goods sold for cleaning purposes, where the
same liability must exist. The doctrine supported by the decision below would not
only deny a remedy to the consumer who was injured by consuming bottled beer
or chocolates poisoned by the negligence of the manufacturer, but also to the
user of what should be a harmless proprietary medicine, an ointment, a soap, a
cleaning fluid or cleaning powder. I confine myself to articles of common
household use, where every one, including the manufacturer, knows that the
articles will be used by other persons than the actual ultimate purchaser -
namely, by members of his family and his servants, and in some cases his
guests. I do not think so in of our jurisprudence as to suppose that its principles
are so remote from the ordinary needs of civilized society and the ordinary
claims it makes upon its members as to deny a legal remedy where there is so
obviously a social wrong.
FN80 11 Q. B. D. 503, 509.
FN81 [1893] 1 Q. B. 491, 497, 504.
FN82 11 Q. B. D. 503, 509.
FN83 11 Q. B. D. 503, 510.
FN84 [1893] 1 Q. B. 491.
FN85 11 Q. B. D. 503.
It will be found, I think, on examination that there is no case in which the
circumstances have been such as I have just suggested where the liability has
been negatived. There are numerous cases, where the relations were much more
remote, where the duty has been held not to exist. There are also dicta in such
cases which go further than was necessary for the determination of the particular
issues, which have caused the difficulty experienced by the Courts below. I
venture to say that in the branch of the law which deals with civil wrongs,
dependent in England at any rate entirely upon the application by judges of
general principles also *584 formulated by judges, it is of particular importance to
guard against the danger of stating propositions of law in wider terms than is
necessary, lest essential factors be omitted in the wider survey and the inherent
adaptability of English law be unduly restricted. For this reason it is very
necessary in considering reported cases in the law of torts that the actual decision
alone should carry authority, proper weight, of course, being given to the dicta of
the judges.
In my opinion several decided cases support the view that in such a case as the
present the manufacturer owes a duty to the consumer to be careful. A direct
authority is George v. Skivington. [FN86] That was a decision on a demurrer to a
declaration which averred that the defendant professed to sell a hairwash made

11
by himself, and that the plaintiff Joseph George bought a bottle, to be used by his
wife, the plaintiff Emma George, as the defendant then knew, and that the
defendant had so negligently conducted himself in preparing and selling the
hairwash that it was unfit for use, whereby the female plaintiff was injured. Kelly
C.B. said that there was no question of warranty, but whether the chemist was
liable in an action on the case for unskilfulness and negligence in the
manufacture of it. "Unquestionably there was such a duty towards the purchaser,
and it extends, in my judgment, to the person for whose use the vendor knew the
compound was purchased." Pigott and Cleasby BB. put their judgments on the
same ground. I venture to think that Cotton L.J., in Heaven v. Pender [FN87],
misinterprets Cleasby B.'s judgment in the reference to Langridge v. Levy. [FN88]
Cleasby B. appears to me to make it plain that in his opinion the duty to take
reasonable care can be substituted for the duty which existed in Langridge v.
Levy [FN89] not to defraud. It is worth noticing that George v. Skivington
[FN90]was referred to by Cleasby B. himself, sitting as a member of the Court of
Exchequer Chamber in Francis v. Cockrell [FN91], and was recognized by him as
based on an ordinary duty to take care. It was also affirmed by Brett M.R. *585 in
Cunnington v. Great Northern Ry. Co. [FN92], decided on July 2 at a date
between the argument and the judgment in Heaven v. Pender [FN93], though, as
in that case the Court negatived any breach of duty, the expression of opinion is
not authoritative. The existence of the duty contended for is also supported by
Hawkins v. Smith [FN94], where a dock labourer in the employ of the dock
company was injured by a defective sack which had been hired by the
consignees from the defendant, who knew the use to which it was to be put, and
had been provided by the consignees for the use of the dock company, who had
been employed by them to unload the ship on the dock company's premises. The
Divisional Court, Day and Lawrance JJ., held the defendant liable for negligence.
Similarly, in Elliott v. Hall [FN95], the defendants, colliery owners, consigned coal
to the plaintiff's employers, coal merchants, in a truck hired by the defendants
from a wagon company. The plaintiff was injured in the course of unloading the
coal by reason of the defective condition of the truck, and was held by a
Divisional Court, Grove and A. L. Smith JJ., entitled to recover on the ground of
the defendants' breach of duty to see that the truck was not in a dangerous
condition. It is to be noticed that in neither case was the defective chattel in the
defendants' occupation, possession or control, or on their premises, while in the
latter case it was not even their property. It is sometimes said that the liability in
these cases depends upon an invitation by the defendant to the plaintiff to use
his chattel. I do not find the decisions expressed to be based upon this ground,
but rather upon the knowledge that the plaintiff in the course of the
contemplated use of the chattel would use it; and the supposed invitation
appears to me to be in many cases a fiction, and merely a form of expressing the
direct relation between supplier and user which gives rise to the duty to take
care. A very recent case which has the authority of this House is Oliver v. Saddler
& Co. [FN96]In that case a firm *586 of stevedores employed to unload a cargo
of maize in bags provided the rope slings by which the cargo was raised to the
ship's deck by their own men using the ship's tackle, and then transported to the
dockside by the shore porters, of whom the plaintiff was one. The porters relied
on examination by the stevedores and had themselves no opportunity of
examination. In these circumstances this House, reversing the decision of the
First Division, held that there was a duty owed by the stevedore company to the
porters to see that the slings were fit for use, and restored the judgment of the
Lord Ordinary, Lord Morison, in favour of the pursuer. I find no trace of the
doctrine of invitation in the opinions expressed in this House, of which mine was
one: the decision was based upon the fact that the direct relations established,
especially the circumstance that the injured porter had no opportunity of
independent examination, gave rise to a duty to be careful.

12
FN86 L. R. 5 Ex. 1.
FN87 11 Q. B. D. 517.
FN88 4 M. & W. 337.
FN89 4 M. & W. 337.
FN90 L. R. 5 Ex. 1.
FN91 L. R. 5 Q. B. 501, 515.
FN92 (1883) 49 L. T. 392.
FN93 11 Q. B. D. 517.
FN94 (1896) 12 Times L. R. 532.
FN95 (1885) 15 Q. B. D. 315.
FN96 [1929] A. C. 584.
I should not omit in this review of cases the decision in Grote v. Chester and
Holyhead Ry. [FN97] That was an action on the case in which it was alleged that
the defendants had constructed a bridge over the Dee on their railway and had
licensed the use of the bridge to the Shrewsbury and Chester Railway to carry
passengers over it, and had so negligently constructed the bridge that the
plaintiff, a passenger of the last named railway, had been injured by the falling of
the bridge. At the trial before Vaughan Williams J. the judge had directed the jury
that the plaintiff was entitled to recover if the bridge was not constructed with
reasonable care and skill. On a motion for a new trial the Attorney-General (Sir
John Jervis) contended that there was misdirection, for the defendants were only
liable for negligence, and the jury might have understood that there was an
absolute liability. The Court of Exchequer, after consulting the trial judge as to his
direction, refused the rule. This case is said by Kelly C.B., in Francis v. Cockrell
[FN98] in the Exchequer Chamber, to have been decided upon an implied
contract with every person lawfully using the bridge that it was *587 reasonably
fit for the purpose. I can find no trace of such a ground in the pleading or in the
argument or judgment. It is true that the defendants were the owners and
occupiers of the bridge. The law as to the liability to invitees and licensees had
not then been developed. The case is interesting, because it is a simple action on
the case for negligence, and the Court upheld the duty to persons using the
bridge to take reasonable care that the bridge was safe.
FN97 (1848) 2 Ex. 251.
FN98 L. R. 5 Q. B. 505.
It now becomes necessary to consider the cases which have been referred to in
the Courts below as laying down the proposition that no duty to take care is owed
to the consumer in such a case as this.
In Dixon v. Bell [FN99], the defendant had left a loaded gun at his lodgings and
sent his servant, a mulatto girl aged about thirteen or fourteen, for the gun,
asking the landlord to remove the priming and give it her. The landlord did
remove the priming and gave it to the girl, who later levelled it at the plaintiff's
small son, drew the trigger and injured the boy. The action was in case for
negligently entrusting the young servant with the gun. The jury at the trial before
Lord Ellenborough had returned a verdict for the plaintiff. A motion by Sir William
Garrow (Attorney-General) for a new trial was dismissed by the Court, Lord
Ellenborough and Bayley J., the former remarking that it was incumbent on the
defendant, who by charging the gun had made it capable of doing mischief, to
render it safe and innoxious.
FN99 5 M. & S. 198.
In Langridge v. Levy [FN100] the action was in case, and the declaration alleged
that the defendant, by falsely and fraudulently warranting a gun to have been
made by Nock and to be a good, safe, and secure gun, sold the gun to the

13
plaintiff's father for the use of himself and his son, and that one of his sons,
confiding in the warranty, used the gun, which burst and injured him. Plea not
guilty and no warranty as alleged. The report is not very satisfactory. No
evidence is reported of any warranty or statement except that the gun was an
elegant twist gun by Nock. The judge left to the jury whether the defendant had
warranted the gun *588 to be by Nock and to be safe; whether it was in fact
unsafe; and whether the defendant warranted it to be safe knowing that it was
not so. The jury returned a general verdict for the plaintiff. It appears to have
been argued that the plaintiff could recover wherever there is a breach of duty
imposed on the defendant by contract or otherwise, and the plaintiff is injured by
reason of its breach; by this is meant apparently that the duty need not be owed
to the plaintiff, but that he can take advantage of the breach of a duty owed to a
third party. This contention was negatived by the Court, who held, however, that
the plaintiff could recover if a representation known to be false was made to a
third person with the intention that a chattel should be used by the plaintiff, even
though it does not appear that the defendant intended the false representation
to be communicated to him; see per Parke B. [FN101]The same view was
adopted by the Exchequer Chamber, the user by the plaintiff being treated by the
Court as one of the acts contemplated by the fraudulent defendant. It is
unnecessary to consider whether the proposition can be supported in its widest
form. It is sufficient to say that the case was based, as I think, in the pleading,
and certainly in the judgment, on the ground of fraud, and it appears to add
nothing of value positively or negatively to the present discussion. Winterbottom
v. Wright [FN102] was a case decided on a demurrer. The plaintiff had demurred
to two of the pleas, as to which there was no decision by the Court; but on the
hearing of the plaintiff's demurrer the Court, in accordance with the practice of
the day, were entitled to consider the whole record, including the declaration,
and, coming to the conclusion that this declaration disclosed no cause of action,
gave judgment for the defendant: see Sutton's Personal Actions at Common Law,
p.
113. The advantage of the procedure is that we are in a position to know the
precise issue at law which arose for determination. The declaration was in case,
and alleged that the defendant had contracted with the Postmaster-General to
provide the mail-coach to convey *589 mails from Hartford to Holyhead and to
keep the mails in safe condition; that Atkinson and others, with notice of the said
contract, had contracted with the Postmaster-General to convey the road mail-
coach from Hartford to Holyhead; and that the plaintiff, relying on the said first
contract, hired himself to Atkinson to drive the mail-coach; but that the
defendant so negligently conducted himself and so utterly disregarded his
aforesaid contract that the defendant, having the means of knowing, and well
knowing, all the aforesaid premises, the mail-coach, being in a dangerous
condition, owing to certain latent defects and to no other cause, gave way,
whereby the plaintiff was thrown from his seat and injured. It is to be observed
that no negligence apart from breach of contract was alleged - in other words, no
duty was alleged other than the duty arising out of the contract; it is not stated
that the defendant knew, or ought to have known, of the latent defect. The
argument of the defendant was that, on the face of the declaration, the wrong
arose merely out of the breach of a contract, and that only a party to the contract
could sue. The Court of Exchequer adopted that view, as clearly appears from the
judgments of Alderson and Rolfe BB. There are dicta by Lord Abinger which are
too wide as to an action of negligence being confined to cases of breach of a
public duty. The actual decision appears to have been manifestly right; no duty to
the plaintiff arose out of the contract; and the duty of the defendant under the
contract with the Postmaster-General to put the coach in good repair could not
have involved such direct relations with the servant of the persons whom the
Postmaster-General employed to drive the coach as would give rise to a duty of
care owed to such servant. We now come to Longmeid v. Holliday [FN103], the
dicta in which have had considerable effect in subsequent decisions. In that case

14
the declaration in case alleged that the plaintiff, Frederick Longmeid, had bought
from the defendant, the maker and seller of "the Holliday lamp," a lamp to be
used by himself and his wife Eliza in the plaintiff's shop; that the defendant *590
induced the sale by the false and fraudulent warranty that the lamp was
reasonably fit for the purpose; and that the plaintiff Eliza, confiding in the said
warranty, lighted the lamp, which exploded, whereby she was injured. It is
perhaps not an extravagant guess to suppose that the plaintiffs' pleader had
read the case of Langridge v. Levy. [FN104] The jury found all the facts for the
plaintiffs except the allegation of fraud; they were not satisfied that the
defendant knew of the defects. The plaintiff Frederick had already recovered
damages on the contract of sale for breach of the implied warranty of fitness. The
declaration made no averment of negligence. Verdict was entered at the trial by
Martin B. for the plaintiff, but with liberty to the defendant to move to enter the
verdict for him. A rule having been obtained, plaintiff's counsel sought to support
the verdict on the ground that this was not an action for a breach of duty arising
solely from contract, but for an injury resulting from conduct amounting to fraud.
Parke B., who delivered the judgment of the Court, held that, fraud having been
negatived, the action could not be maintained on that ground. He then went on
to discuss cases in which a third person not a party to a contract may sue for
damages sustained if it is broken. After dealing with the negligence of a surgeon,
or of a carrier, or of a firm in breach of contract committing a nuisance on a
highway, he deals with the case where any one delivers to another without notice
an instrument in its nature dangerous, or under particular circumstances, as a
loaded gun, and refers to Dixon v. Bell [FN105], though what this case has to do
with contract it is difficult to see. He then goes on: "But it would be going much
too far to say that so much care is required in the ordinary intercourse of life
between one individual and another, that, if a machine not in its nature
dangerous - a carriage for instance - but which might become so by a latent
defect entirely unknown although discoverable by the exercise of ordinary care,
should be lent or given by one person, even by the person who manufactured it,
to another, the former should be answerable *591 to the latter for a subsequent
damage accruing by the use of it." It is worth noticing how guarded this dictum
is. The case put is a machine such as a carriage, not in its nature dangerous,
which might become dangerous by a latent defect entirely unknown. Then there
is the saving, "although discoverable by the exercise of ordinary care,"
discoverable by whom is not said; it may include the person to whom the
innocent machine is "lent or given." Then the dictum is confined to machines
"lent or given" (a later sentence makes it clear that a distinction is intended
between these words and "delivered to the purchaser under the contract of
sale"), and the manufacturer is introduced for the first time, "even by the person
who manufactured it." I do not for a moment believe that Parke B. had in his
mind such a case as a loaf negligently mixed with poison by the baker which
poisoned a purchaser's family. He is, in my opinion, confining his remarks
primarily to cases where a person is seeking to rely upon a duty of care which
arises out of a contract with a third party, and has never even discussed the case
of a manufacturer negligently causing an article to be dangerous and selling it in
that condition whether with immediate or mediate effect upon the consumer. It is
noteworthy that he only refers to "letting or giving" chattels, operations known to
the law, where the special relations thereby created have a particular bearing on
the existence or non-existence of a duty to take care. Next in this chain of
authority come George v. Skivington [FN106] and Heaven v. Pender [FN107],
which I have already discussed. The next case is Earl v. Lubbock. [FN108] The
plaintiff sued in the county court for personal injuries due to the negligence of
the defendant. The plaintiff was a driver in the employ of a firm who owned vans.
The defendant, a master wheelwright, had contracted with the firm to keep their
vans in good and substantial repair. The allegation of negligence was that the
defendant's servant had negligently failed to inspect and repair a defective
wheel,

15
and had negligently repaired the wheel. The learned county court *592 judge
had held that the defendant owed no duty to the plaintiff, and the Divisional
Court (Lord Alverstone L.C.J., Wills and Kennedy JJ.) and the Court of Appeal
agreed with him. The Master of the Rolls, Sir R. Henn Collins, said that the case
was concluded by Winterbottom v. Wright. [FN109] In other words, he must have
treated the duty as alleged to arise only from a breach of contract; for, as has
been pointed out, that was the only allegation in Winterbottom v. Wright
[FN110], negligence apart from contract being neither averred nor proved. It is
true that he cites with approval the dicta of Lord Abinger in that case; but
obviously I think his approval must be limited to those dicta so far as they
related to the particular facts before the Court of Appeal, and to cases where, as
Lord Abinger says, the law permits a contract to be turned into a tort. Stirling L.J.,
it is true, said that to succeed the plaintiff must bring his case within the
proposition of the majority in Heaven v. Pender [FN111], that any one who,
without due warning, supplies to others for use an instrument which to his
knowledge is in such a condition as to cause danger is liable for injury. I venture
to think that the Lord Justice is mistakenly treating a proposition which applies
one test of a duty as though it afforded the only criterion.
FN100 2 M. & W. 519; 4 M. & W. 337.
FN101 2 M. & W. 531.
FN102 10 M. & W. 109.
FN103 6 Ex. 761.
FN104 2 M. & W. 519; 4 M. & W. 337.
FN105 5 M. & S. 198.
FN106 L. R. 5 Ex. 1.
FN107 11 Q. B. D. 503.
FN108 [1905] 1 K. B. 253.
FN109 10 M. & W. 109.
FN110 10 M. & W. 109.
FN111 11 Q. B. D. 503.
Mathew L.J. appears to me to put the case on its proper footing when he says
[FN112] the argument of the plaintiff was that the defendant's servants had been
negligent in the performance of the contract with the owners of the van, and that
it followed as a matter of law that any one in this employment had a cause of
action against the defendant. "It is impossible to accept such a wide proposition,
and, indeed, it is difficult to see how, if it were the law, trade could be carried
on." I entirely agree. I have no doubt that in that case the plaintiff failed to show
that the repairer owed any duty to him. The question of law in that case seems
very different from that raised in the present case. The case of Blacker v. Lake &
Elliot, Ld. [FN113], approaches more nearly the facts of this case. I have read and
re-read *593 it, having unfeigned respect for the authority of the two learned
judges, Hamilton and Lush JJ., who decided it, and I am bound to say I have found
difficulty in formulating the precise grounds upon which the judgment was given.
The plaintiff had been injured by the bursting of a brazing lamp which he had
bought from a shopkeeper who had bought it from the manufacturer, the
defendant. The plaintiff had used the lamp for twelve months before the
accident. The case was tried in the county court before that excellent lawyer the
late Sir Howland Roberts. That learned judge had directed the jury that the
plaintiff could succeed if the defendants had put upon the market a lamp not fit
for use in the sense that a person working it with reasonable care would incur a
risk which a properly constructed lamp would not impose upon him. The jury
found that the lamp was defective by reason of an improper system of making an
essential joint between the container and the vaporizer; that the defendants did
not know that it was dangerous, but ought as reasonable men to have known it.
Hamilton J. seems to have thought that there was no evidence of negligence in
this respect.

16
Lush J. expressly says so and implies - "I also think" - that Hamilton J. so thought.
If so, the case resolves itself into a series of important dicta. Hamilton J. says
[FN114] that it has been decided in authorities from Winterbottom v. Wright
[FN115] to Earl v. Lubbock [FN116] that the breach of the defendants' contract
with A., to use care and skill in and about the manufacture or repair of an article,
does not itself give any cause of action to B. when injured by the article proving
to be defective in breach of that contract. He then goes on to say, how is the
case of the plaintiffs any better when there is no contract proved of which there
could be a breach. I think, with respect, that this saying does not give sufficient
weight to the actual issues raised by the pleadings on which alone the older
cases are an authority. If the issue raised was an alleged duty created by
contract, it would have been *594 irrelevant to consider duties created without
reference to contract; and contract cases cease to be authorities for duties
alleged to exist
beyond or without contract. Moreover, it is a mistake to describe the authorities
as dealing with the failure of care or skill in the manufacture of goods, as
contrasted with repair. The only manufacturing case was Longmeid v. Holliday
[FN117], where negligence was not alleged. Hamilton J. recognizes that George
v. Skivington [FN118] was a decision which, if it remained an authority, bound
him. He says that, without presuming to say it was wrong, he cannot follow it,
because it is in conflict with Winterbottom v. Wright. [FN119]I find this very
difficult to understand, for George v. Skivington [FN120]was based upon a duty in
the manufacturer to take care independently of contract, while Winterbottom v.
Wright [FN121] was decided on demurrer in a case where the alleged duty was
based solely on breach of a contractual duty to keep in repair, and no negligence
was alleged. Lush J. says in terms that there are only three classes of cases in
which a stranger to a contract can sue for injury by a defective chattel: one is
that of fraud; the second of articles dangerous or noxious in themselves, where
the duty is only to warn; the third of public nuisance. He does not bring the cases
represented by Elliott v. Hall [FN122](the defective coal wagon) within his classes
at all. He says they belong to a totally different class, "where the control of
premises or the management of a dangerous thing upon premises creates a
duty." I have already pointed out that this distinction is unfounded in fact, for in
Elliott v. Hall [FN123], as in Hawkins v. Smith [FN124] (the defective sack), the
defendant exercised no control over the article and the accident did not occur on
his premises. With all respect, I think that the judgments in the case err by
seeking to confine the law to rigid and exclusive categories, and by not giving
sufficient attention to the general principle which governs the whole law of
negligence in the duty owed *595 to those who will be immediately injured by
lack of care. The last case I need refer to is Bates v. Batey & Co., Ld. [FN125],
where manufacturers of ginger-beer were sued by a plaintiff who had been
injured by the bursting of a bottle of ginger-beer bought from a shopkeeper who
had obtained it from the manufacturers. The manufacturers had bought the
actual bottle from its maker, but were found by the jury to have been negligent
in not taking proper means to discover whether the bottle was defective or not.
Horridge J. found that a bottle of ginger-beer was not dangerous in itself, but this
defective bottle was in fact dangerous; but, as the defendants did not know that
it was dangerous, they were not liable, though by the exercise of reasonable care
they could have discovered the defect. This case differs from the present only by
reason of the fact that it was not the manufacturers of the ginger-beer who
caused the defect in the bottle; but, on the assumption that the jury were right in
finding a lack of reasonable care in not examining the bottle, I should have come
to the conclusion that, as the manufacturers must have contemplated the bottle
being handled immediately by the consumer, they owed a duty to him to take
care that he should not be injured externally by explosion, just as I think they
owed a duty to him to take care that he should not be injured internally by
poison or other noxious thing. I do not find it necessary to discuss at length the
cases dealing with duties where the thing is dangerous, or, in the narrower
category,

17
belongs to a class of things which are dangerous in themselves. I regard the
distinction as an unnatural one so far as it is used to serve as a logical
differentiation by which to distinguish the existence or non-existence of a legal
right. In this respect I agree with what was said by Scrutton L.J. in Hodge & Sons
v. Anglo-American Oil Co. [FN126], a case which was ultimately decided on a
question of fact. "Personally, I do not understand the difference between a thing
dangerous in itself, as poison, and a thing not dangerous as a class, but by
negligent construction dangerous as a particular thing. The latter, if anything,
*596 seems the more dangerous of the two; it is a wolf in sheep's clothing
instead of an obvious wolf." The nature of the thing may very well call for
different degrees of care, and the person dealing with it may well contemplate
persons as being within the sphere of his duty to take care who would not be
sufficiently proximate with less dangerous goods; so that not only the degree of
care but the range of persons to whom a duty is owed may be extended. But
they all illustrate the general principle. In the Dominion Natural Gas Co., Ld. v.
Collins and Perkins [FN127] the appellants had installed a gas apparatus and
were supplying natural gas on the premises of a railway company. They had
installed a regulator to control the pressure and their men negligently made an
escape-valve discharge into the building instead of into the open air. The railway
workmen - the plaintiffs - were injured by an explosion in the premises. The
defendants were held liable. Lord Dunedin, in giving the judgment of the Judicial
Committee (consisting of himself, Lord Macnaghten, Lord Collins, and Sir Arthur
Wilson), after stating that there was no relation of contract between the plaintiffs
and the defendants, proceeded: "There may be, however, in the case of anyone
performing an operation, or setting up and installing a machine, a relationship of
duty. What that duty is will vary according to the subject-matter of the things
involved. It has, however, again and again been held that in the case of articles
dangerous in themselves, such as loaded firearms, poisons, explosives, and other
things ejusdem generis, there is a peculiar duty to take precaution imposed upon
those who send forth or install such articles when it is necessarily the case that
other parties will come within their proximity." This, with respect, exactly sums
up the position. The duty may exist independently of contract. Whether it exists
or not depends upon the subject-matter involved; but clearly in the class of
things enumerated there is a special duty to take precautions. This is the very
opposite of creating a special category in which alone the duty exists. I may add,
though it obviously would *597 make no difference in the creation of a duty, that
the installation of an apparatus to be used for gas perhaps more closely
resembles the manufacture of a gun than a dealing with a loaded gun. In both
cases the actual work is innocuous; it is only when the gun is loaded or the
apparatus charged with gas that the danger arises. I do not think it necessary to
consider the obligation of a person who entrusts to a carrier goods which are
dangerous or which he ought to know are dangerous. As far as the direct
obligation of the consignor to the carrier is concerned, it has been put upon an
implied warranty: Brass v. Maitland [FN128]; but it is also a duty owed
independently of contract, e.g., to the carrier's servant: Farrant v. Barnes.
[FN129] So far as the cases afford an analogy they seem to support the
proposition now asserted. I need only mention to distinguish two cases in this
House which are referred to in some of the cases which I have reviewed.
Caledonian Ry. Co. v. Mulholland or Warwick [FN130], in which the appellant
company were held not liable for injuries caused by a defective brake on a coal
wagon conveyed by the railway company to a point in the transit where their
contract ended, and where the wagons were taken over for haulage for the last
part of the journey by a second railway company, on which part the accident
happened. It was held that the first railway company were under no duty to the
injured workmen to examine the wagon for defects at the end of their contractual
haulage. There was ample opportunity for inspection by the second railway
company. The relations were not proximate. In the second (Cavalier v. Pope

18
[FN131]), the wife of the tenant of a house let unfurnished sought to recover
from the landlord damages for personal injuries arising from the non-repair of the
house, on the ground that the landlord had contracted with her husband to repair
the house. It was held that the wife was not a party to the contract, and that the
well known absence of any duty in respect of the letting an unfurnished house
prevented her from relying on any cause of action for negligence.
FN112 [1905] 1 K. B. 259.
FN113 106 L. T. 533.
FN114 106 L. T. 536.
FN115 10 M. & W. 109.
FN116 [1905] 1 K. B. 253.
FN117 6 Ex. 761.
FN118 L. R. 5 Ex. 1.
FN119 10 M. & W. 109.
FN120 L. R. 5 Ex. 1.
FN121 10 M. & W. 109.
FN122 15 Q. B. D. 315.
FN123 15 Q. B. D. 315.
FN124 12 Times L. R. 532.
FN125 [1913] 3 K. B. 351.
FN126 (1922) 12 Ll. L. Rep. 183, 187.
FN127 [1909] A. C. 640, 646.
FN128 (1856) 6 E. & B. 470.
FN129 (1862) 11 C. B. (N. S.) 553, 563.
FN130 [1898] A. C. 216.
FN131 [1906] A. C. 428.
*598 In the most recent case (Bottomley v. Bannister [FN132]), an action under
Lord Campbell's Act, the deceased man, the father of the plaintiff, had taken an
unfurnished house from the defendants, who had installed a gas boiler with a
special gas-burner which if properly regulated required no flue. The deceased and
his wife were killed by fumes from the apparatus. The case was determined on
the gound that the apparatus was part of the realty and that the landlord did not
know of the danger; but there is a discussion of the case on the supposition that
it was a chattel. Greer L.J. states with truth that it is not easy to reconcile all the
authorities, and that there is no authority binding on the Court of Appeal that a
person selling an article which he did not know to be dangerous can be held liable
to a person with whom he has made no contract by reason of the fact that
reasonable inquiries might have enabled him to discover that the article was in
fact dangerous. When the danger is in fact occasioned by his own lack of care,
then in cases of a proximate relationship the present case will, I trust, supply the
deficiency.
FN132 [1932] 1 K. B. 458; (1932) 101 L. J. (K. B.) 46, 54.
It is always a satisfaction to an English lawyer to be able to test his application of
fundamental principles of the common law by the development of the same
doctrines by the lawyers of the Courts of the United States. In that country I find
that the law appears to be well established in the sense in which I have
indicated. The mouse had emerged from the ginger-beer bottle in the United
States before it appeared in Scotland, but there it brought a liability upon the
manufacturer. I must not in this long judgment do more than refer to the
illuminating judgment of Cardozo J. in MacPherson v. Buick Motor Co.in the New
York Court of Appeals [FN133], in which he states the principles of the law as I
should desire to state them, and reviews the authorities in other States than his
own. Whether the principle he affirms would apply to the particular facts of that
case in this country

19
would be a question for consideration if the case arose. It might be that the
course of business, by giving opportunities *599 of examination to the
immediate purchaser or otherwise, prevented the relation between manufacturer
and the user of the car being so close as to create a duty. But the American
decision would undoubtedly lead to a decision in favour of the pursuer in the
present case.
FN133 217 N. Y. 382.
My Lords, if your Lordships accept the view that this pleading discloses a relevant
cause of action you will be affirming the proposition that by Scots and English law
alike a manufacturer of products, which he sells in such a form as to show that
he intends them to reach the ultimate consumer in the form in which they left
him with no reasonable possibility of intermediate examination, and with the
knowledge that the absence of reasonable care in the preparation or putting up
of the products will result in an injury to the consumer's life or property, owes a
duty to the consumer to take that reasonable care.
It is a proposition which I venture to say no one in Scotland or England who was
not a lawyer would for one moment doubt. It will be an advantage to make it
clear that the law in this matter, as in most others, is in accordance with sound
common sense. I think that this appeal should be allowed.
Representation
Agents for the appellant: Horner & Horner, for W. G. Leechman & Co., Glasgow
and Edinburgh.
Agents for the respondent: Lawrence Jones & Co., for Niven, Macniven & Co.,
Glasgow, and Macpherson & Mackay, W.S., Edinburgh.
Interlocutor of the Second Division of the Court of Session in Scotland reversed
and interlocutor of the Lord Ordinary restored. Cause remitted back to the Court
of Session in Scotland to do therein as shall be just and consistent with this
judgment. The respondent to pay to the appellant the costs of the action in the
Inner House and also the costs incurred by her in respect of the appeal to this
House, such last mentioned costs to be taxed in the manner usual when the
appellant sues in forma pauperis. Lords' Journals, May 26, 1932.
(c) Incorporated Council of Law Reporting For England & Wales
[1932] A.C. 562