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Appendix Page 12



Lord Moncrieff


Learned Lords who founded the liability of the respondents upon a special assumption of responsibility for the safety of the rope during the second operation, as implied from (1) the recognition by all parties of the need of inspection, (2) the limitation of the opportunity of inspection, and (3) the sufficiency of the interest of the respondents in the quick dispatch of the subsequent operation in order that they might obtain re-delivery of the rope; to the alternative explanation which required an element of danger in the operation which should be in proper contrast with the danger present in the case of Caledonian Railway Company v. Warwick, cited. The case of Oliver v. Saddler & Company, appears to me to be special within its group only in so far as an original control with corresponding responsibility was regarded as continuing, notwithstanding a transfer of the article for use in a subsequent operation which was directed by strangers. Elliott v. Hall, L.R. 15 Q.B.D. 315, may be similarly explained. These cases, as also the case of Kemp & Dougall v. Darngavil Coal Company, Limited, 1909 S.C. 1314, appear to me to have no special concern with the element of danger, but to have been determined on an application of the doctrine of proximate cause. In my opinion the case of Winterbottom v. Wright, 1842, 10 M. & W. 109, is only another illustration of the same legal principle. I would in any case have regarded that case as too special in its circumstances to afford authority for the support of any principle of general application. In any event it clearly appears to me to be entirely remote in this connection. The plaintiff did not claim against the defendant as manufacturer or supplier of the coach. For aught that appears in the case the coach may have been perfect when supplied; but the supplier of the coach entered into a supplementary contract under which he became bound to repair and maintain it. He thus undertook for the Postmaster-General those duties,

Appendix Page 12

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