Lord Buckmaster Page 3
From this general rule there are two well-known exceptions—
(1) In the case of an article dangerous in itself and (2) where the article not in itself dangerous is in fact dangerous due to some defect or for any other reason, and this is known to the manufacturer.
As to (1), in the case of things dangerous in themselves, there is, in the words of Dunedin L. "a peculiar duty to take precaution imposed on those of send forth or instal such articles when it is necessarily the case that other parties will come within their proximity" — Dominion Gas Coy. v. Collins, 1909, A.C., 640. And as to (2) this depends on the fact that the knowledge of the danger creates the obligation to warn, and its concealment is in the nature of fraud.
In this case no one can suggest the gingerbeer was an article dangerous in itself, and the words of Lord Dunedin show that the duty attaches only to such articles, for I read the words "a peculiar duty" as meaning a duty peculiar to the special class of subject mentioned.
Of the remaining cases George v. Skivington is the one nearest to the present and without that case and the statement of Cleasby B. in Francis v. Cockrell, L.R. 5 Q.B. 501, at p. 515, and the dicta of Lord Esher M.R. in Heaven v. Pender, 11 Q.B.D., 503 at pp. 509 et seq., the Appellants would be destitute of authority. George v. Skivington related to the sale of a noxious hairwash and a claim made by a person who had suffered from its use based on it having been negligently compounded was allowed. It is remarkable that Langridge v. Levy was used in support of the claim and influenced the judgment of all the parties to the decision: both Kelly B. and Piggot B. stressed the fact that the article had been purchased to the knowledge of the Defendant for the use of the Plaintiff as in Langridge v. Levy, and Cleasby B. who, realising that Langridge v. Levy was decided on the ground of fraud, said: "Substitute the word 'negligent' for 'fraud' and the analogy between Langridge v. Levy and this case is complete".
It is unnecessary to point out too emphatically that such a substitution cannot possibly be made. No action based on fraud can be supported by mere proof of negligence.
I do not propose to follow the fortunes of George v. Skivington; few cases can have lived so dangerously and lived so long. Sumner L. in the case of Blacker v. Lake & Elliot, 106, L.T., 533., closely examines its history and I agree with his analysis. He said that he could no presume to say that it was wrong but he declined to follow it on the ground which is I think firm that it was in conflict with Winterbottom v. Wright.
In Francis v. Cockrell the Plaintiff had been injured by the fall of a stand on a race course for a seat in which he had paid. The Defendant was part-proprietor of the stand and acted as receiver of the money. The stand had been negligently erected by a contractor though the Defendant was not aware of the defect. The Plaintiff succeeded. The case has no bearing upon the present but in the course of his judgment Cleaby B. made the following observation:—
"The point that Mr. Matthews referred to last was raised in the case of George v. Skivington where there was an injury to one person, the wife, and a contract of sale with another person, the husband. The wife was considered to have a good cause of action and I would adopt the view which the Lord Chief Baron took in that case. He said there was a duty to the vendor to use ordinary care in compounding the article sold and that this extended to the person for whose
Lord Buckmaster Page 3