Donoghue v Stevenson

Textual versions of document images

Donoghue v Stevenson – Appeal Papers – Judgments

Lord Atkin Page 5

View an image of the original document

5

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 Chapman v. Sadler Co., 1929 A.C. 584. In that case a firm of stevedores employed to unload a cargo of maize in bags provided the role 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 stevedores 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.

    I should not omit in this review of cases the decision in Grote v. Chester and Holyhead Railway (1848) 2 Ex. 251. 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 in the Exchequer Chamber (1870) L.R. 5 Q.B. at p. 505 to have been decided upon an implied contract with every person lawfully using the bridge that it was 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.

    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, 1816 5 M. S. 198, the defendant had left a loaded gun at his lodgings and sent his servant, a mulatto girl aged about 13 or 14, 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.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.

    In Langridge v. Levy (1837) 2 M. W. 519 (1838) 4 M. W. 337 the action was in case and the declaration alleged that the

Lord Atkin Page 5