Donoghue v Stevenson
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Donoghue v Stevenson – Appeal Papers – Judgments
Lord Atkin Page 10
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. My Lords, I do not find it necessary to discuss at length the cases dealing with duties where a thing is dangerous, or in the narrower category 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 Hope & Son v. Anglo American Oil Co. (1922), 12 Lloyds List 183 at p. 187, 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 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., Ltd. v. Collins & Perkins 1909 A.C. 640 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: “They 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 particular duty to take precaution imposed upon those who send forth or instal such articles where 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 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. My Lords, 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.
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