Skip to the content

Lord Macmillan Page 4


happen without any personal default in A or A's servants) that is not of itself sufficient to make A liable to C, a stranger to the contract, for consequential damage. This, and only this, is the substance of the perfectly correct decision of the Court of Exchequer in Winterbottom v. Wright (cit. sup.) and Longmeid v. Holliday (1851, 6 Ex. 761). In each case the defendant delivered under a contract of sale or hiring a chattel which was in fact unsafe to use but in the one case it was not alleged, in the other was alleged but not proved, to have been so to his knowledge. In each case a stranger to the contract using the chattel - a coach in the one case, a lamp in the other - in the ordinary way came to harm through its dangerous condition and was held not to have any cause of action against the purveyor. Not in contract, for there was no contract between these parties; not in tort, for no bad faith or negligence on the defendant's part was proved."

    Where, as in cases like the present, so much depends upon the avenue of approach to the question it is very easy to take the wrong turning. If you begin with the sale by the manufacturer to the retail dealer, then the consumer who purchases from the retailer is a once seen to be a stranger to the contract between the retailer and the manufacturer and so disentitled to sue upon it. There is no contractual relation between manufacturer and the consumer and thus the plaintiff if he is to succeed is driven to try to bring himself within one or other of the exceptional cases where the strictness of the rule that none but a party to a contract can found on a breach of that contract has been mitigated in the public interest as it has been in the case of a person who issues a chattel which is inherently dangerous or which he knows to be in a dangerous condition. If on the other hand you disregard the fact that the circumstances of the case at one stage include the existence of a contract of sale between the manufacturer and the retailer and approach the question by asking whether there is evidence of carelessness on the part of the manufacturer and whether he owed a duty to be careful in a question with the party who has been injured in consequence of his want of care, the circumstance that the injured party was not a party to the incidental contract of sale becomes irrelevant and his title to sue the manufacturer is unaffected by that circumstance. The appellant in the present instance asks that her case be approached as a case of delict not as a case of breach of contract. She does not require to invoke the exceptional cases in which a person not a party to a contract has been held to be entitled to complain of some defect in the subject matter of the contract which has caused him harm. The exceptional case of things dangerous in themselves or known to be in a dangerous condition has been regarded as constituting a peculiar category outside the ordinary law both of contract and of tort. I may observe that it seems to me inaccurate to describe the case of dangerous things as an exception to the principle that no one but a party to a contract can sue on that contract. I rather regard this type of case as a special instance of negligence where the law exacts a degree of diligence so stringent as to amount practically to a guarantee of safety.

    With these preliminary observations I turn to the series of English cases which is said to compose the consistent body of authority on which we are asked to non-suit the appellant. It will be found that in most of them the facts were very different from the facts of the present case and did not give rise to the special relationship and consequent duty which in my opinion is the deciding factor here. Dixon v. Bell, 1816, 5 M. & S. 198 is the starting point. There a maidservant was sent to fetch a gun from a neighbour's house; on the way back she pointed it at a child and the gun went off and injured the child. The owner of the gun was held liable for the injury to the child on the ground that he should have seen that the charge was drawn before he entrusted the gun to the maid-.

Lord Macmillan Page 4

Back to index