Donoghue v Stevenson
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Donoghue v Stevenson – Appeal Papers – Judgments
Lord Buckmaster Page 4
use he knew it was purchased and their duty having been violated and he having failed to use reasonable care was liable in an action at the suit of the third person."
It is difficult to appreciate what is the importance of the fact that the vendor knew who was the person for whom the article was purchased unless it be that the case was treated as one of fraud and that without this element of knowledge it could not be brought within the principle of Langridge v. Levy. Indeed this is the only view of the matter which adequately explains the references in the judgments in George v. Skivington to Langridge v. Levy and the observations of Cleaby B. upon George v. Skivington.
The dicta of Lord Esher M.R. in Heaven v. Pender are rightly relied on by the Appellant.
The material passage is as follows:
"The proposition which these recognised cases suggest and which is therefore to be deduced from them is that wherever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other a duty arises to use ordinary care and skill to avoid such danger. … Let us apply this proposition to the case of one person supplying goods or machinery or instruments or utensils or the like for the purpose of their being used by another person but with whom there is no contract as to the supply. The proposition will stand thus: whenever one person supplies goods or machinery or the like for the purpose of their being used by another person under such circumstances that everyone of ordinary sense would if he thought recognise at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it there will be danger of injury to the person or property of him for whose use the thing is supplied and who is to use it a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing. And for a neglect of such ordinary care or skill whereby injury happens a legal liability arises to be enforced by an action for negligence. This 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 it 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 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. The cases of vendor and purchaser and lender and hirer under contract need not be considered, as the liability arises under the contract and not merely as a duty imposed by law, though it may not be useless to observe that it seems difficult to import the implied obligation into the contract except in cases in which if there were no contract between the parties the law would according to the rule above stated imply the duty."
"The recognised cases" to which the Master of the Rolls refers are not definitely quoted, but they appear to refer to cases of
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