M'Alister or Donoghue (Pauper) v Stevenson

CourtHouse of Lords
Docket NumberNo. 5., Parliamentary Archives, HL/PO/JU/4/3/873
JudgeLord Buckmaster, Lord Tomlin, Lord Atkin, Lord Thankerton, Lord Macmillan
Judgment Date26 May 1932
JurisdictionEngland & Wales

[1932] UKHL J0526-1

HOUSE OF LORDS

Lords Present

Lord Buckmaster

Lord Atkin

Lord Tomlin

Lord Thankerton

Lord Macmillan

Parliamentary Archives, HL/PO/JU/4/3/873

M'Alister or Donoghue (Pauper)
Appellant
and
Stevenson.
Respondent
1

Lord Buckmaster (read by Lord Tomlin

MY LORDS,

2

The facts of this case are simple.

3

On August 26th, 1928, the Appellant drank a bottle of ginger beer, manufactured by the Respondent, which a friend had bought from a retailer and given to her. The bottle contained the decomposed remains of a snail which were not and could not be detected until the greater part of the contents of the bottle had been consumed. As a result she alleged and, at this stage her allegations must be accepted as true, that she suffered from shock and severe gastro enteritis. She accordingly instituted the proceedings against the manufacturers which have given rise to this appeal.

4

The foundation of her case is that the Respondent, as the manufacturers of an article intended for consumption and contained in a receptacle which prevented inspection owed a duty to her as consumer of the article to take care that there was no noxious element in the goods, that they neglected such duty and are consequently liable for any damage caused by such neglect. After certain amendments which are now immaterial, the case came before the Lord Ordinary who rejected the plea in Law of the Respondent and allowed a proof. His interlocutor was revoked by the second Division of the Court of Session from whose judgment this appeal has been brought.

5

Before examining the merits two comments are desirable -

6

(1) That the Appellant's case rests solely on the ground of a tort based not on fraud but on negligence; and

7

(2) that throughout the appeal the case has been argued on the basis, undisputed by the Second Division and never questioned by counsel for the Appellants or by any of your Lordships, that the English and the Scots law on the subject are identical.

8

It is, therefore, upon the English law alone that I have considered the matter and in my opinion it is on the English law alone that in the circumstances we ought to proceed.

9

The law applicable is the common law and, though. its principles are capable of application to meet new conditions not contemplated when the law was laid down, yet themselves they cannot be changed nor can additions be made to them because any particular meritorious case seems outside their ambit.

10

Now the common law must be sought in law books by writers of authority and in the judgments of the Judges entrusted with its administration. The law books give no assistance because the work of living authors (however deservedly eminent cannot be used as authorities though the opinions they express may demand attention, and the ancient books do not assist. I turn therefore to the decided cases to see if they can be construed so as to support the Appellant's case. One of the earliest is the case of Langridge v. Levy, 2 M. & W.,519. It is a case often quoted and variously explained. There a man sold a gun which he knew was dangerous for the use of the purchaser's son. The gun exploded in the son's hands and he was held to have a right of action in tort against the gunmaker. How far it is from the present case can be seen from the judgment of Parke B. who in delivering the judgment of the Court used these words

"We should pause before we make a precedent by our decision which would be an authority for an action against the vendors even of such instruments and articles as are dangerous in themselves at the suit of any person whomsoever into whose hands they might happen to pass and who should be injured thereby, and in Longmeid v. Holliday 5 Ex., 761, the same eminent Judge points out that the earlier case was based on a fraudulent misstatement, and he expressly repudiates the view that it has any wider application.

The case of Langridge v. Levy, therefore, can be dismissed from consideration with the comment that it is rather surprising it has so often been cited for a proposition it cannot support.

The case of Winterbottom v. Wright, 10 M. & W., 109, is, on the other hand, an authority that is closely applicable. Owing to negligence in the construction of a carriage it broke down and a stranger to the manufacture and sale sought to recover damages for injuries which he alleged were due to negligence in the work, and it was held that he had no cause of action. This case seems to me to show that the manufacturer of any article is not liable to a third party injured by negligent construction for there can be nothing in the character of a coach to place it in a special category. It may be noted also that in this case Alderson B. said "The only safe rule is to confine the right to recover to those who enter into the contract. If we go one step beyond that there is no reason why we should not go fifty."

11

Longmeid v. Holliday was the case of a defective lamp sold to a man whose wife was injured by its explosion. The vendor of the lamp against whom the action was brought was not the manufacturer so that the case is not parallel to the present, but the statement of Baron Parke in his judgment covers the case of manufacturer for he said:

"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."

12

It is true that he uses the words "lent or given" and omits the word; "sold", but if the duty be entirely independent of contract and is a duty owed to a third person, it seems to me the same whether the article be originally given or sold. The fact in the present case that the ginger beer originally left the premises of the manufacturer on a purchase as was probably the case cannot add to his duty, if such existed, to take care in its preparation.

13

It has been suggested that the statement of Baron Parke does not cover the case of negligent construction but the omission to exercise reasonable care in the discovery of a defect in the manufacture of an article where the duty of examination exists is just as negligent as the negligent construction itself.

14

The general principle of these cases is stated by Lord Sumner in the case of Blacker v. Lake & Elliot, 106, L.T. 533, in these terms:

"The breach of the Defendant's contract with A. to use care and skill in the manufacture or repair of an article does not of itself give any cause of action to B. when he is injured by reason of the article proving defective."

15

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. Until the case of George v. Skivington, L.R., 5 Ex., 1, I know of no further modification of the general rule.

16

As to (1), in the case of things dangerous in themselves, there is, in the words of Lord Dunedin, "a peculiar duty to take precaution imposed on those who 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.

17

In this case no one can suggest the ginger beer 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.

18

Of the remaining cases George v. Skivington is the one nearest to the present and without that case and the statement of Baron Cleasby 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. 500 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 Pigott 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".

19

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.

20

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 not 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.

21

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...

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