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Appendix Page 10



Lord Moncrieff


case the defendent was found liable to a workman employed in premises within which he had introduced, by faulty installation of a machine, a permanent element of damage establishing a continuing act of negligence. In respect of this negligence, in contrast with the immunity which might have been claimed by a proprietor of the heritable structure, the defendant was found to be in a relation with the occupants or inmates of the premises which conferred upon these latter a cause of action; some unexplained distinction (which I venture to regard as salutary in this branch of its application) being apparently open between such real and personal delinquents. (See Cameron v. Young, 1908 S.C. H.L. 7). The particular machine with which that case was concerned was an appliance for the supply of gas. Such a machine being ostensibly an instrument of danger, this element was referred to by Lord Dunedin as simplifying the problem with which the Tribunal had to deal. I see no reason, however, to question the propriety of a similar judgment, although the appliance which had been installed should have been innocuae utilitatis. The injury followed from the permanent misplacing of an escape pipe, and not from any danger associated with the machine itself or the use of the machine. If a steam-pipe had been fitted by the defender as part of the installation of an ordinary domestic bath, and a bather who had not been a party to the contract had been injured by an escape of steam, I find no reason in the observations of Lord Dunedin to suppose that a cause of action would have been refused to him. The case itself, however, affords a relevant illustration of the recognition of a relation inferring a liability which springs from tort and not from contract.

    The defender relied on a group of cases of which the Caledonian Railway Company v. Warwick, 25 R. (H.L.) 1, may be taken as an example. In that case a railway wagon, the property of one railway company, was handed over by that

Appendix Page 10

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