Donoghue v Stevenson

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Donoghue v Stevenson – Appeal Papers – Judgments

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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." Cotton, L.J., with whom Bowen, L.J., agreed, expressed himself as "unwilling to concur with the Master of the Rolls in laying down unnecessarily the larger principle which he entertains inasmuch as there are many cases in which the principle was impliedly negatived," but the decision of the Court of Appeal was unanimously in the plaintiff's favour. The passages I have quoted like all attempts to formulate principles of law compendiously and exhaustively may be open to some criticism and their universality may require some qualification but as enunciations of general legal doctrine I am prepared, like Lord Hunter, to accept them as sound guides. I now pass to the three modern cases of Earl v. Lubbock [1905], 1 K.B. 253, Blacker v. Lake & Elliot, cit. sup. and Bates v. Batey & Co., Ltd. [1913], 3 K.B. 351. The first of these cases related to a van which had recently been repaired by the defendant under contract with the owner of the van. A driver in the employment of the owner was injured in consequence of a defect in the van which was said to be due to the careless manner in which the repairer had done his work. It was held that the driver had no right of action against the repairer. The case turns upon the rule that a stranger to a contract cannot found an action of tort on a breach of that contract. It was pointed out that there was no evidence that the plaintiff had been invited by the defendant to use the van and the van owner was not complaining of the way in which the van had been repaired. The negligence, if negligence there was, was too remote and the practical consequences of affirming liability in such a case were considered to be such as would render it difficult to carry on a trade at all. "No prudent man," says Mathew, L.J., "would contract to make or repair what the employers intended to permit others to use in the way of his trade." The species facti in that case seems to me to differ widely from the circumstances of the present case where the manufacturer has specifically in view the use and consumption of his products by the consumer and where the retailer is merely the vehicle of transmission of the products to the consumer and by the nature of the products is precluded from inspecting or interfering with them in any way. The case of Blacker v. Lake & Elliot (cit. sup.) is of importance because of the survey of previous decisions which it contains. It related to a brazing lamp which, by exploding owing to a latent defect, injured a person other than the purchaser of it and the vendor was held not liable to the party injured. There appears to have been some difference of opinion between Hamilton, J., and Lush, J., who heard the case in the Divisional Court, as to whether the lamp was an inherently dangerous thing. The case seems to have turned largely on the question whether, there being a contract of sale of the lamp between the vendor and the purchaser, the article was of such a dangerous character as to impose upon the vendor in a question with a third party any responsibility for its condition. This question was answered in the negative. So far as negligence was concerned, it may well have been regarded as too remote, for I find that Hamilton, J., used these words at p. 537:— "In the present case all that can be said is that the defendants did not know that their lamp was not properly safe and had no reason to believe that it was not so, in the sense that no one had drawn their attention to the fact, but that had they been wiser men or more experienced men they would then have known what the plaintiff's

Lord Macmillan Page 6