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Lord Atkin Page 11


Maitland (1856) 6 E. & B. 470), but it is also a duty owed independently of contract. e.g. to the carrier's servant (Fanrant v. Barnes 11 C.B.N.S. 563). So far as the cases afford an analogy they seem to support the proposition now asserted. I need only mention to distinguish two cases in this House which are referred to in some of the cases which I have reviewed. Caledonian Railway Co. v. Warwick 1898 A.C. 216 in which the appellant company were held not liable for injuries caused by a defective brake on a coal wagon conveyed by the railway company to a point in the transit where their contract ended and where the wagons were taken over for haulage for the last part of the journey by a second railway company on which part the accident happened. It was held that the first railway company were under no duty to the injured workman to examine the wagon for defects at the end of their contractual haulage. There was ample opportunity for inspection by the second railway company. The relations were not proximate. In the second Cavalier v. Pope (1906 A.C. 428) the wife of the tenant of the house let unfurnished sought to recover from the landlord damages for personal injuries arising from the non-repair of the house on the ground that the landlord had contracted with her husband to repair the house. It was held that the wife was not a party to the contract: and that the well-known absence of any duty in respect of the letting an unfurnished house prevented her from relying on any cause of action for negligence.

In the most recent case Bottomley v. Bannister (1932) 101 L.J. K.B. 46 an action under Lord Campbell's Act the deceased man the father of the plaintiff has taken an unfurnished house from the defendants who had installed a gas boiler with a special gas burner which if properly regulated required no flue. The deceased and his wife were killed by fumes from the apparatus. The case was determined on the ground that the apparatus was part of the realty and that the landlord did not know of the danger: but there is a discussion of the case on the supposition that it was a chattel. Greer L.J. at p. 54 states with truth that it is not easy to reconcile all the authorities: and that there is no authority on the Court of Appeal that a person selling an article which he did not know to be dangerous can be held to a person with whom he has made no contract by reason of the fact that reasonable inquiries might have enabled him to discover that the article was in fact dangerous. When the danger is in fact occasioned by his own lack of care then in cases of proximate relationship this case will I trust apply the deficiency.

It is always a satisfaction to an English lawyer to be able to test his application of fundamental principles of the common law by the development of the same doctrines by the lawyers of the Courts of the United States. In that country I find that the law appears to be well established in the sense in which I have indicated. The mouse had emerged from the ginger beer bottle in the U.S. before it appeared in Scotland but there it brought a liability upon the manufacturer. I must not in this long judgment do more than refer to the illuminating judgment of Cardozo J. in McPherson v. Buick Motor Co. in the New York Court of Appeals (1916) 217 N.Y. 382 in which he states the principles of the law as I should desire to state them and reviews the authorities in other States than his own. Whether the principle he affirms would apply to the particular facts of that case in this country would be a question for consideration if the case arose. It might be that the course of business by giving opportunities of examination to the immediate purchaser or otherwise prevented the relation between manufacturer and the user of the car being so close as to create a duty. But the American decision would undoubtedly lead to a decision in favour of the pursuer in the present case.

Lord Atkin Page 11

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