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Respondent's Case Page 7


    The Respondent, on the other hand, respectfully submits that it is now firmly established both in English and Scottish law that in the ordinary case (which this is) the supplier or manufacturer of an article is under no duty to anyone with whom he is not in contractual relation. As was said by Baron Parke in Longmeid v. Holliday: 'It would be going much too far to say that so much care is required in the ordinary intercourse of life between one individual and another that if a machine not in its nature dangerous but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care, should be lent or given by one person, even by the manufacturer, to another, the former should be answerable to the latter for the subsequent damage accruing by the use of it.' This general principle has been consistently and uniformly applied both in Scotland and in England for very many years, and excludes the view now contended for by the Appellant.

    To this general rule, however, there are two well-recognised exceptions. In the first place, if the manufacturer is dealing in articles per se dangerous, such as firearms or poisons, he is bound to give warning of this fact to the public generally, and, as a manufacturer of such an article owes to the public a duty of care, he will be liable for negligence. In the second place, though the article be not per se dangerous, if the manufacturer knows it to be in a dangerous condition but, none the less, launches it on the world in that condition without warning, he is liable for resulting injuries, on the ground that the possession of the knowledge of danger imposes upon him a duty not limited to the person to whom he sells the article. He is, in effect, committing a fraud on the public, and any member of the public so defrauded has a remedy against him.

    The Appellant in the present case cannot allege and does not aver that either of these exceptions applies to the present

1851, 6 Ex. 761, at 767-8.

Winterbottom v. Wright, 1842, 10 M & W. 109:
Campbell v. A. & D. Morrison, 1982, 19 R. 282:
Caledonian Rail. Co. v. Warwick, 1897, 25 R. H.L. 1: 1898, A.C. 216:
Kemp & Dougall v. Darngaeil Coal Co. Ltd., 1909, S.C. 1314:
Cameron v. Young, 1908, S.C., H.L. 7:
Cavalier v. Pope, 1906. A.C. 428:
Earl v. Lubbock, 1905, 1 K.B. 253:
Blacker v. Lake & Elliot Ltd., 1912, 106 L.T. 533:
Bates v. Batey & Co., Ltd., 1913, 3 K.B. 351:
Mullen v. Barr & Co. Ltd., 1929 S.C. 461:

Thomas v, Winchester, 6 N.Y. 397: 57 Am. Dec. 455:
Farrant v. Barnes 1862, 11 C.B.N.S. 553:
Parry v. Smith. 1879, L.R.4 C.P.D. 325:
Levy v. Langridge 1838, 4 M. & W.337:
Dominion Natural Gas Co. Ltd. v. Collins & Perkins, 1909 A.C. 640

Respondent's Case Page 7

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