LLM Advanced Legal Skills: Donoghue v Stevenson Case Analysis

This document presents a comprehensive case analysis of Donoghue v Stevenson, a landmark case in negligence law. The analysis begins with a summary of the material facts, legal issues, and the court's decision. It delves into the differences in reasoning between the majority and dissenting judgments, with a critical assessment of Lord Atkin's judgment. The assignment explores the 'neighbour principle', its origins, and its development in the UK and other jurisdictions. Furthermore, it examines the relevance of Donoghue v Stevenson to the environmental problem of oil spills in Nigeria, assessing the effectiveness of the legal principles in regulating the conduct of oil companies. The analysis includes a detailed examination of the legal principles, critical evaluations of the judgments, and application of the law to a contemporary issue, demonstrating a strong understanding of legal research, analysis, and reasoning.

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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