Donoghue v Stevenson

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Donoghue v Stevenson – Appeal Papers – Judgments

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servant. "It was incumbent on him who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious." This case in my opinion merely illustrates the high degree of care, amounting in effect to insurance against risk, which the law exacts from those who take the responsibility of giving out such dangerous things as loaded firearms. The decision if it has any relevance is favourable to the appellant who submits that human drink rendered poisonous by careless preparation may be as dangerous to life as any loaded firearm. Langridge v. Levy 1837, 2 M. & W. 519; 4 M. & W. 337, is another case of a gun, this time of defective make and known to the vendor to be defective. The purchaser's son was held entitled to sue for damages in consequence of injuries sustained by him through the defective condition of the gun causing it to explode. The ground of the decision seems to have been that there was a false representation by the vendor that the gun was safe, and the representation appears to have been held to extend to the purchaser's son. The case is treated by commentators as turning on its special circumstances and as not deciding any principle of general application. As for Winterbottom v. Wright (cit. sup.) and Longmeid v. Holliday (cit. sup.), neither of these cases is really in point for the reason indicated in the passage from Sir Frederick Pollock's treatise which I have quoted above. Then comes George v. Skivington, 1869, L.R. 5 Ex. 1, which is entirely in favour of the appellant's contention. There was a sale in that case by a chemist of some hair wash to a purchaser for the use of his wife, who suffered injury from using it by reason of its having been negligently compounded. As Kelly C.B. points out the action was not founded on any warranty implied in the contract of sale between the vendor and the purchaser, and the plaintiff, the purchaser's wife, was not seeking to sue on the contract to which she was not a party. The question, as the Chief Baron stated it, was "whether the defendant, a chemist, compounding the article sold for a particular purpose and knowing of the purpose for which it was bought is liable in an action on the case for unskilfulness and negligence in the manufacturer of it whereby the person who used it was injured." And this question the Court unanimously answered in the affirmative. I may mention in passing that Lord Atkinson in this House speaking of that case and Langridge v. Levy (cit. sup.) observed that "in both these latter cases the defendant represented that the article sold was fit and proper for the purposes for which it was contemplated that it should be used and the party injured was ignorant of its unfitness for these purposes." It is true that George v. Skivington has been the subject of some criticism and was said by Hamilton, J., as he then was, in Blacker v. Lake & Elliot, 1912, 106 L.T. 533, to have been in later cases as nearly disaffirmed as is possible without being expressly overruled. I am note sure that it has been so severely handled as that. At any rate I do not think that it deserved to be and certainly, so far as I am aware, it has never been disapproved in this House. It has been cited in a judgment of the Privy Council by Lord Dunedin without any indication of disapproval (Dominion Natural Gas Co. v. Collins [1909], A.C. 640, at p. 646). Heaven v. Pender, 1883, 11 Q.B.D. 503, has probably been more quoted and discussed in this branch of the law than any other authority, because of the dicta of Sir Baliol Brett, M.R., as he then was, on the general principles regulating liability to third parties. In his opinion "it may safely be affirmed to be a true proposition" that "whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." The passage specially applicable to the present case is as follows:— "Whenever one person supplies goods … for the purpose of their being used by

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