Lord Macmillan Page 7
experts say that they ought to have known." I should doubt indeed if that is really a finding of negligence at all. The case in its facts is very far from the present one and if any principle of general application can be derived from it adverse to the appellant's contention I should be be disposed to approve of such principle. I may add that in White v. Steadman  3 K.B., 340, at p. 348, I find that Lush, J., who was a party to the decision in Blacker v. Lake & Elliott, expressed the view "that a person who has the means of knowledge and only does not know that the animal or chattel which he supplies is dangerous because he does not take ordinary care to avail himself of his opportunity of knowledge is in precisely the same position as the person who knows". As for Bates v. Batey & Co., Ltd., cit. sup., where a ginger beer bottle burst owing to a defect in it which though unknown to the manufacturer of the ginger beer could have been discovered by him by the exercise of reasonable care, Horridge J., there held that the plaintiff, who bought the bottle of ginger beer from a retailer to whom the manufacturer had sold it and who was injured by its explosion, had no right of action against the manufacturer. The case does not advance matters for it really turns upon the fact that the manufacturer did not know that the bottle was defective and this in the view of Horridge J., as he read the authorities, was enough to absolve the manufacturer. I would observe that in a true case of negligence knowledge of the existence of the defect causing damage is not an essential element at all.
This summary survey is sufficient to show what more detailed study confirms that the current authority has by no means always set in the same direction. In addition to George v. Skivington cit. sup. there is the American case of Thomas v. Winchester, 1852, 6 N.Y., 397, which has met with considerable acceptance in this country and which is distinctly on the side of the appellant. There a chemist carelessly issued in response to an order for extract of dandelion, a bottle containing belladonna which he labelled extract of dandelion, with the consequence that a third party who took a dose from the bottle suffered severely. The chemist was held responsible. This case is quoted by Lord Dunedin in giving judgment of the Privy Council in Dominion Natural Gas Co. v. Collins (cit. sup.) as an instance of liability to third parties and I think it was a sound decision.
In the American Courts the law has advanced considerably in the development of the principle exemplified in Thomas v. Winchester. In one of the latest cases in the United States, Macpherson v. Buick Motor Co., 1916, 217 N.Y. 382, the plaintiff who had purchased from a retailer a motor car manufactured by the defendant company was injured in consequence of a defect in the construction of the car and was held entitled to recover damages from the manufacturer. Cardozo, J., the very eminent Chief Judge of the New York Court of Appeals, and now an Associate Justice of the United States Supreme Court, thus stated the law: "There is no claim that the defendant knew of the defect and wilfully concealed it. … The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser. The principle of Thomas v. Winchester is not limited to poisons, explosives and things of like nature, to things which in their normal operation, are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then irrespective of contract, the manufacturer of this thing of danger is under a duty
Lord Macmillan Page 7