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Appendix Page 15


by Lush, J., thus involves a duty to give warning of latent dangers but does not involve any duty of exercising diligence in the preparation of the article. In the view which he took of the case, on the other hand, Hamilton, J., while recognising that such a supplementary liability might exist, preferred to reserve the question of its measure for a case in which a decision should be required. These cases accordingly appear to me to fall short of deciding that the suggested distinction is a proper one. The latter case, however, affords some authority for the wider proposition that by the law of England no duty to avoid negligence attaches apart from contract whether the article be or be not dangerous per se. The case of Bates v. Batey & Company, Limited, 1913, 3 K.B. 351, is, on the other hand, directly in pint as an authority for the proposition which is in question. In that case a Judge of first instance found that a bottle containing ginger beer, although not an article dangerous per se, had been rendered dangerous through the negligence of the defendant before it came into the hands of the plaintiff. A danger introduced by negligence in contrast with a danger inherent in the article appears to have afforded the ground for giving judgment for the defendants. The reasoning upon which the judgment proceeds is only in point if the existence of an inherent danger would have led to an opposite result.

    Upon these authorities it was argued, and I am not prepared, or indeed qualified, to negative the argument, that the law of England finds the foundation of any liability to exercise diligence in the preparation for purposes of sale of articles other than 'dangerous articles' in the law of contract only and not in the law of tort. Although there are indications of views pointing in this direction, I am not entirely satisfied that even in the case of dangerous articles that system of law recognises a duty other than such duties as have their origin in contract, which enjoins manufacturers or vendors in the course of



Lord Moncrieff

Appendix Page 15

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