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Appendix Page 16



Lord Moncrieff


preparation to avoid negligence and exercise care. If and in so far as such a supplementary duty is recognised to exist, I find that it is traced by Sir John Salmond in the 7th edition of his Law on Torts at page 484, to a distinction between misfeasance and nonfeasance which is not recognised in this connection by the law of Scotland. At page 482 the learned author, whose work, as I was told from the Bar, had been referred to with approval by an eminent English Judge, expresses regret 'that so narrow a view has been taken as to the liabilities of those who negligently put dangerous chattels in circulation to the hurt of other persons.' He describes the result of the rule established by Earl v. Lubbock as 'sufficiently remarkable'; while at page 486 he refers to the authorities on the question as 'unsatisfactory and inconsistent'; and again on the following page, in reference to Blacker v. Lake & Elliot, Limited, and Bates v. Batey & Company, he says, 'It is difficult to accept these decisions as containing a satisfactory statement of the law on this important point.' So far as I am free to refuse, I would find myself reluctant to borrow from an ultra Scottish system and apply a doctrine of law which is so characterised by one of its own qualified legal writers.

    On the assumption that there was a doctrine of English law which had been determined on these lines, it was conceded by Mr Normand that no decision had been pronounced by the Courts in Scotland which made that doctrine part of the Scottish system of law. He could only refer to certain observations by learned Judges which had been pronounced obiter in the course of Opinions delivered in cases which were decided upon other grounds. Thus Lord Shand in the case of Caledonian Railway Company v. Warrick, 25 R. (H.L.) 1, at page 7, took a distinction between the railway wagon there in question and 'an instrument noxious or dangerous in itself.' As regards such an instrument, however, he reserved his

Appendix Page 16

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