Donoghue v Stevenson

Textual versions of document images

Donoghue v Stevenson – Appeal Papers – Judgments

Lord Atkin Page 7

View an image of the original document

7

right; no duty to the plaintiff arose out of the contact; and the duty of the defendant under the contract with the Postmaster-General to put the coach in good repair could not have involved those 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 Langmeid v. Holliday (1851) 6 Ex. 761, the dicta in which have had considerable effect in subsequent decisions. In that case the declaration in case alleged that the plaintiff, Frederick Langmeid, 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 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. 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 Baron Martin 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. Baron Parke, 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 anyone 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, 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 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 Baron Parke 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

Lord Atkin Page 7