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Appendix Page 14



Lord Moncrieff


that there had been no breach of a duty of diligence on the part of the maker and seller of a lamp, which had exploded and caused injury to others than the party to the contract, appears to have recognised that a different decision might have been required in the case of an article which should have been 'in its nature dangerous.' In Blacker v. Lake & Elliot, Limited, cited supra, there appears to have been a difference of opinion between the two learned Judges who constituted the Court. Holding that the question whether an article was or was not dangerous per se fell to be decided by the Court as a question of law. Hamilton, J. (afterwards Lord Sumner) found in law that a paraffin brazing-lamp was not a dangerous article. Incidentally I may be allowed to say that I myself would have preferred the finding of the jury who had come to an opposite conclusion on the facts. Taking the view he took, however, the learned Judge, under reference to 'authorities from Winterbottom v. Wright, 10 M. & W. 109, to Earl v. Lubbock, 91 L.T. Rep. 830; 1905 1 K.B. 253,' decided the case upon the view that the jury had been misdirected when they were charged to regard as relevant mere acts of negligence on the part of the maker towards the user of the lamp. I have already endeavoured to distinguish the cases upon which this opinion proceeds. On the other hand, Lush, J., preferred to take the case on the footing that the brazing-lamp fell within the class of chattels which are 'dangerous in themselves.' Upon this view the learned Judge recognised that one or other of three special duties might attach to the defender. Among these duties, so far as here in point, was a duty not to misrepresent the real nature of an article towards persons who should make use of it. This duty would only arise if the real nature of the article was not apparent on the fact of it, and would be discharged once a warning had been given to the recipient. The liability of one who deals in dangerous articles, as measured

Appendix Page 14

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