The Canadian Ba Review

THE CANADIAN BA REVIEW

VOL. X._ TORONTO, DECEMBER, 1932. No. 10

TORT LIABILITY ®F MANUFACTURERS.

If a layman were asked whether the manufacturer of an article, produced in a form which precluded inspection before it was used, should be liable to "a consumer who was injured by its careless fabrication, the reply would be confident and ready. He would say that the manufacturer ought to be ,answerable for his carelessness, and if he understood the system of precedent he might add that there must be authorities in abundance to cover so basic a relation. Be- fore the recent decision of the House'of Lords in M'Alister or O'Don- ogbue v. Stevenson' neither statement would have been correct . He would have learned that the right of recovery depended upon a phrase "privity of contract" and upon certain exceptions to a doctrine of that name. He would have also learned that the decisions on a problem of such economic importance were uncertain and obscure. With Judge Cardozo, he might express A mounting sense of wonder that with all our centuries of common law development . . . . there are so many questions, elementary in the sense of being primary and basic, that remain unsettled even now . . . . Rights and privileges at the root, it would seem, of life in civilized society are discovered to be involved in doubt.' The House of Lords has removed this double opprobrium in M'Alister v. Stevenson. Marked thus from birth as a leading case, this decision sprang from circumstances no more noteworthy than the presence of a dead snail in a ginger beer bottle. The plaintiff visited a cafe with a friend who ordered for her some ice cream and a bottle of ginger beer. After. the plaintiff drank part of the liquid, her friend poured the remaining contents into her tumbler. z (1932) 48 T.L.R. 494. Lord Atkin, Lord Macmillan, Lord Thankerton, with Lord Buckmaster and Lord Tomlin dissenting. See comment : (1932), 10 C.B. Rev. 479, by W C. MacDonald . 'Paradoxes of Legal Science, p. 76 et. seq; Allen, Law in the Making, p. 80. et seq. 47-C.B.R.-VOL. 3.

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A decomposed snail floated out. The contaminated ginger beer made the plaintiff seriously ill. She sued the manufacturer for negligence. She alleged that the defendant as the manufacturer 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. The House of Lords accepted this argument and held that the duty existed. Though the case was heard on appeal from the Court of Session, Lord Macmillan pointed out that the law of Scotland applicable to the case was the same as that of England : I am happy to think that in their relation to the practical problem of every day life which this appeal presents, the legal systems of the two countries are in no way at variance, and the principles of both alike are sufficiently consonant with justice and common sense to admit of the claim upon which the plaintiff seeks to establish 3 Before examining the ratio decidendi of M'Alister v. Stevenson, it may be well to make a rapid survey of the previous state of the law. This is especially desirable in view of the searching analysis to which the authorities were submitted. Further, only by a comparison of the old and new rules is it possible to appreciate how much English law has been benefited by the case of M'Alister v. Stevenson The vices of the old help to show the virtues of the new. Hamilton, J ., stated the general principle in Blacker v. Lake and Elliott : The breach of the defendant's contract with A to use care and skill in or about 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 to be defective. ` This proposition proceeded with dubious legitimacy from the celebrated case of Winterbottom v. Wright.5 A stranger to a contract for the construction and sale of a carriage sought to recover damages for injuries due to negligence in the work. The case was taken to decide that the manufacturer of a chattel is not liable to a third party injured by its negligent fabrication .` To this rule there were three exceptions : (1) Where the article was dangerous in itself ;7 3 At p. 511. (1912), 106 L.T. 533 . 5 (1842), 10 M. & W. 109. 'Earl v. Lubbock, 119051 1 K.B. 253; M'Alister v. Stevenson, supra, per Lord Buckmaster at p. 497 ; Salmond on Torts 7th ed., p. 482. * Dixon v. Bell (1816), 5 M . & S. 198 (loaded gun) ; Thomas v. Winchester (1852), 6 N .Y . 397 (poison) ; Pary v. Smith (1879), 4 C.P.D . 325 (defective gas fittings) ; Clarke v. Army and Navy Co-operative Society, 119031 1 K.B. 155 (chlorinated lime dangerous if not opened in a particular way) : Doinin ion Natural Gas v. Collins, 119091 A.C. 640 (defective gas pipe) ; Hodge v.

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(2) Where the defendant knew the article, though not dangerous in itself, was dangerous by reason of some defect, and omitted to warn the immediate transferee.$ (3) Where the defendant, knowing of the danger, denied, it, he was liable to a third party who to his .knowledge was likely to use the chattel on the strength of the false representation .9 The law as thus laid down suffered from certain serious defects . The attempts to escape from the principle of immunity by building up exceptions showed that the principle itself was unsound. That a duty of care should be imposed only on manufacturers of articles imminently dangerous is illogical. If a duty exists, it ought to apply to all manufacturers. The rule that a manufacturer is not liable to a consumer with whom he has no contract sprang from an inherent fallacy and received a gloss of authority from a misapplication of

Anglo-American Oil Co. Ltd. (1922), 12 Lloyd's List Rep. 182 (barge fillled with petrol vapour) ; Anglo-Celtic Shipping Co. v. Elliott (1926), 42 T.L.R. 297 ("Pluperfect" liquid which gave off hydrogen when in contact with iron). Judges have sometimes explained George v. Skivington (1869), L.R. 5 Ex. 1 on the ground that the hair-wash was dangerous per se, see Lush, J. in Whitel v. Steadman, [19131 3 K.B . 340. Charlesworth criticizes the inclusion of Domin- ion Natural Gas v. Collins, supra, in this category (Liability for Dangerous Things, pp. 290-91). It should be noted that there is not complete unanimity among writers that the distinction between articles dangerous per se and those dangerous sub modo is sufficiently clear to label it as a test of legal liability, see Stallybrass, (1929), 3 Camb. L.J., 376. 'Where the defendant knew the article was dangerous and was held liable : Farraut v. Barnes (1862), 11 C.B.N.S. 553 ; Clarke v. Army and Navy Co~ operative Society, supra. Contra Hill v. Bulls (1857), 2 H. & N. 229, where the defendant sold a glandered horse, knowing its condition, without giving warning. He was held not liable on the ground that the maxim caveat emptor applied. Charlesworth, supra, p. 281, points out that the case was decided on the ground of contract. only, and must be read subject to Clarke v. Army and Navy Co-operative Society; Blakemore v. Bristol and Exeter Railway Co. Ltd. (1858), 10 E. & B. 1035 ; see n. 9, infra. Where the defendant did not know the article was dangerous and was held not liable: Longmeid v. Holli- day (1851), 6 Ex. 761 (defective lamp) ; McCarthy v. Young (1861), 6 H. & N. 329 (scaffolding), Collis v. Selden (1868), L.R. 3 C.P. 49,5 (chandelier) ; Caledonian Railway v. Mulholland, [18981 A.C. 216 (coal waggon with a defective brake) ; Earl v. Lubbock, [19051 1 K.B . 253 (carelessly repaired van) ; Blacker v. Lake & Elliott (1912), 106 L.T. 553 (brazing lamp) ; White v. Steadman, [19131 3 K.B. 340; Bates v. Batey, [19131 3 K.B. 353 (ginger beer bottle) . a Langredge v. Levy (1837), 2 M. & W. 519; 4 M. & W. 377. In Blakemore v. Bristol and Exeter Rly., supra, the defendant supplied a crane knowing it to be defective to the plaintiff's employer. He made no representations as the vendor did in Langredge v. Levy. He was held not liable for injuries to the plaintiff. Salmond on Torts, 7th ed., p. 483, n. (z) submits that the case is erroneous. It has been suggested, however, that the decision follows logically from Langredge v. Levy. Although the defendant made no false representation, his position could not be worse than if he had. Salmond's criticisim omits the vital point that the person injured by using the defective chattel was not within the defendant's contemplation as likely to use it. See Stephens Commentaries, 19th ed., G.C. Cheshire, p. 519 et seq.

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Winterbottont v. Wrigbt1° It assured that A, when he has con- tracted with B, cannot owe a duty to C and D, according as he knows or does not know that the subject-matter of the contract is intended for their use. Professor Winfield dispels the confusion It is a trite saying in our law that, in general, no one except the parties to a contract can sue for a breach of it. But it is equally true that a stranger to a contract may have a good cause of action against one of the parties to a contract, not because that party happens to be a contractor, but because he has committed an independent tort by conduct which happens also to be a misperformance of his contract . In other words the existence of a contract between A and B is entirely irrelevant to the determination of A's liability in tort to C. It cannot help C, but it cannot hinder him .' There was a tendency to extend liability by bringing into the first exception articles which did not properly belong there. No adequate test was evolved, or could be evolved, to determine whether an article belonged or did not belong to the class of agencies dangerous in themselves. zz The rule which withdrew the decision of this apparent question of fact from the jury by making it a matter 13 of law for the judge heightened the atmosphere of unreality . The most serious practical difficulties arose in the United States in the application of the doctrine with the grotesque consequence that a cake of soap was held to be an article dangerous per sel" A similar if less extreme attitude appears in Buckley v. Mott,:I r, the first case of its kind to be tried in a Canadian Court. The plaintiff was injured by eating a chocolate cream bar containing powdered glass. He succeeded against the manufacturer in an action based on negligence. The language of Drysdale, J ., represents the resultant of "No negligence apart from breach of contract was alleged. The defendant pleaded that on the face of the declaration the wrong arose merely out of the breach of a contract, and that only a party to the contract could sue . The Court of Exchequer adopted this view. The actual decision was thus correct . See Lord Atkin in eLl'Alister v. Stevenson, sapra, at p. 501 . The misconception arose from certain dicta of Lord Abinger : "There is a class of cases in which the law permits a contract to be turned into a tort ; but unless there has been a public duty undertaken or public nuisance committed, they are all cases in which an action might have been maintained on the contract . Thus a carrier may be sued either in assumpsit or case ; but there is no instance in which a person who was not privy to the contract entered into with him can maintain any such action ." Professor Bohlen remarks that it is strange that the courts and text writers who have attached so much importance to this dictum, have not noticed that nine years after it was pronounced it was completely discredited by Marshall v. York, Newcastle ~& Berwick Ry. Co. (1851), 11 C.B . 655, which held that such an action could be maintained, Bohlen : article, Landlord and Tenalit, Harvard Essays, p. 457. ' Province of the Law of Tort, pp. 73-74. ' Labatt: article: Negligence in Relation to Privity of Contract, (1900), 16 Law Q. Rev. 177. '° Fifoot : English Law and its Background, p. 19. "Hasbrouck v. Armour, 139 Wis . 357, cited in note, (1916), 29 Harv. Law Rev. 868. (1919), 50 D.L.R. 408; annotation, at p. 409.

Dec., 1932] Tort Liability of Manufacturers. 61 9

two opposite forces, one the desire to dispense natural justice, the other to give effect to the decided cases. Without dealing with - the questions whether the chocolate bar was dangerous in itself, the learned judge concluded : There was a duty to the public not to put on sale such a dangerous article, and the defendants were guilty of negligence in this respect, which was the proximate cause of the plaintiff's injuries. The courts sometimes strained the second exception by declaring that manufacturers, and contractors particularly, would be presumed to know defects which in the circumstances they ought to have known. In White v. Steadman,:10 Lush, J ., held an owner of a vicious horse liable to the hirer on the ground that he ought to have known that the animal was dangerous. In the next case in the same volume of reports, however, Horridge, J., was at pains to explain that Lush, J., could not have meant what he said 17 Greer, L.J ., in a very recent decision," admitted that the state of the authorities made a decisive answer to the question impossible. . Finally, the rule was based on the doubtful policy of protecting the manufacturer from too burdensome a responsibility . The effects of making the negligent manufacturer answerable would, it was feared, enlarge the field of liability, produce multiplicity of actions, and deter prudent men from engaging in certain occupations . Lord Abinger said : If the plaintiff can sue, every passenger or even a person passing along the road who was injured by the upsetting of a coach might bring a similar action. Unless we confine the operation of such contracts as this to the persons who entered into them, the most absurd and outrageous consequences to which I can see no limit, would ensue." . It has been pointed out that this objection proceeded from a judge whose arguments on similar grounds of social expediency, in support of the doctrine of common employment, have been confuted by the course of events. The opinion of a lawyer on the probable opera- tions of economic forces deserves no more respect than that of a layman of equal intelligence and with the same knowledge of the subject.2° ~° [19131 3 K.B. 340. 1' [19131 3 K.B. 351 . a° (1932), 48 T.L.R. 39 ; [19321 1 K.B. 458: '° Winterbottoin v. Wrigbt, supra, at p. 114. Willes, J ., took a similar attitude in Collis v. Selden (18(&), L.R: 3 ,C.P. 495 at p. 497: "There would be no end of actions if we were to hold that a person once having done a piece of work, should, independently of, honesty bf purpose, be fixed with liability in this way by reason of bad materials." See Mathew, L.J., in Earl v. Lubbock, [19051 1 K.B. 253; Lord Anderson in Mullen v. Barr, [19291 S.C. 461, cited by Lord Buckmaster in M'Alister v. Stevenson, supra, at p. 498; (1907), 19 Green Bag 131 . z° Labatt. supra, p. 186 et seq.

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The inconveniences to which manufacturers would be subject are less serious than have been predicted . An article will not pass through many hands before a defect becomes known. A single in jury from a particular imperfection usually exhausts its capacity for mischief by bringing about its disuse or repair. There is normally no succession of accidents, each producing a distinct damage and a separate cause of action . Furthermore, the burden of inspection is not ordinarily great. The loss to the manufacturer or contractor could be distributed among the consuming public as an incident to the cost of production either by liability insurance or by increased prices.= However defensible the doctrines above considered may have been in a former age, they are now out of date. Precedents drawn from the days of travel by stage-coach do not fit the conditions of to day. 22 The process of creating exceptions and classifying injurious commodities advanced so far to its consummation that the current of authority was hopelessly turbid. If a person negligently put into circulation a thing in fact dangerous, the law was uncertain as re- gards his liability to a person with whom he had no contract but who belonged to a class who might reasonably be expected to use it. This condition, as Scrutton, L.J ., said, could only be dealt with sat- isfactorily by the House of Lords. 23 In M'Alister v. Stevenson that tribunal undertook the task of purifying the legal stream. The crucial question was whether the topic should be approached tram the point of view of contract or tort. Lord Macmillan took as a startingpoint the undoubted principle that the same circumstances may give a party to a contract either an action for breach or an action for negligence. Though the latter arises out of the relationship brought about by the contract, it has an independent existence. From this it was only a step to effect the complete dissolution of the unnatural union between the doctrine of negligence and privity of contract. That step, however, English Courts long shrank from tak- ing. Lord Macmillan ended almost a century of judicial hesitation when he declared : 24 There is no reason why the same set of facts should not give one person a right of action in contract and another person a right of action in tort If you begin with the sale by the manufacturer to the retail dealer then the consumer who purchases from the retailer is at 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 the (1926), 40 Harv. L. Rev. 888 ; (1921), 30 Yale L.J. 608. ~' Cardozo, J ., MacPherson v. Bvick, 217 New York 382 . 23 Hodge v. Anglo American Oil Co. (1922), 12 Lloyd's List Rep. 182 at p. 186; Roche, J., in Anglo-Celtic Co. v. Elliott (1926), 42 T.L.R. 289. =; M'Alister v. Stevenson, supra, at p. 508.

Dec., 1932] Tort Liability of Manufacturers . 621

manufacturer and the consumer and thus the plaintiff if he is to succeed,, is driven to try to bring himself withiri one or other of the exceptional cases 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 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 issue being thus formulated, the House of Lords held that the defendant, as the manufacturer of goods in a form which prevented inspection, owed a duty of care to the plaintiff. The, duty arose from the relationship which the manufacturer voluntarily set up between himself and the consumer by virtue of his intention that his products should be consumed. The law lords, however, took different views as to the degree of relationship which sufficed to create the duty. Lord Thankerton confined it to cases where the manufacturer intentionally excluded interference with his goods by an intermediate handler. 25 Lord Macmillan derived the relationship from the mere fact of fabrication, apparently , without making it depend necessarily upon the form of the article .26 Lotd Atkin propounded a test of duty applicable to every case of negligence, and under its terms held the defendant liable.27 As that principle extends beyond the point at issue, its importance will be discussed at a later stage. It will be convenient first to consider certain problems involved in questions of manufacturer's liability, and then to view the previous authorities in the light of M'Alister v. Stevensoia. , The judgments went no further than the facts demanded. The case thus left open several important questions which require to be settled before the law as to manufacturer's liability can be completely defined. They are : (1) Is the manufacturer relieved from responsibility by the fact that his immediate vendor, or some other person, may examine the article before it is re-issued to the ultimate user? Certain expres- sions indicate the attitude of the House of Lords upon this point. Lord Atkin observed that the means of inspection by the intermediate purchaser might prevent the relation between the maker and user from being so close as to create a duty?$ Lord Macmillan At pp. 505-506. 2' At p. 510. "At p. 499. 28 At p. 504. Lord Atkin also suggested that the presence of the dealer between the plaintiff and defendant as in MacPbersou v. Buick Motor Co. (1916), 217 New York 38Z might if the same facts arose in England lead to a different result. .In that case, however, Cardozo, J., called attention to the

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suggested the general rule that responsibility should cease where control ceases. When goods are put up in such a form that they cannot be tampered with, the manufacturer's control continues until they reach the consumer.29 The balance of opinion thus inclined to the view that an opportunity of intervening inspection absolved the manufacturer. Presumably an effective inspection is meant. Where a defect is so latent as to be undiscoverable by such inspection as can prac- tically be made, there is no real opportunity. The test becomes barren of all reason. Even upon this assumption the result is, however, unsatisfactory. The third party may refrain with impunity from conducting the examination, or, having done so, he may neglect to take reasonable measures to make his findings effective . The consumer is then no better protected than if the examination had never been made. In such a case the means of inspection is an uncertain criterion which sacrifices the social interest of the consumer to a faulty device for determining legal remoteness. The difficulty is readily surmounted by rendering the third party subject to a duty to inspect.3° He might, as has been suggested, be held liable if he could have discovered the dangerous condition of the chattel by reasonable care.31 (2) To what classes of consumers is the manufacturer liable? Clearly the consumer's right of action has foundations broader than mere purchase from a person in the line of transmission. This is evident from the fact that the plaintiff in M'Alister v. Stevenson was the guest of the person who bought the ginger beer. Lord Atkin's language attracts within the ambit of the manufacturer's responsibility anyone whom he ought to recognize as likely to use his product. Instances supplied are the members of the consumer's family,

fact that the defect in the wheel was not discoverable by such inspection as could be expected to be made before the car was used. See Bohlen : article, Liability of Manufacturers, (1929), 45 Law Q. Rev. p. 365, n. 56. "At p. 511 . 3° It has been held in the United States that the effect of an opportunity without a duty is sufficient to relieve the manufacturer. See Bohlen : article, Liability of Manufacturers, supra, p. 364. Notwithstanding a duty of examinations on the part of the intermediate handler, there is a tendency in American jurisdictions to hold that the manufacturer remains liable. Some courts act on the principle that it is not always due care to rely on other people's performance of their duty. Others take the ground that a person who creates a dangerous situation is not excused because a third person, by acting as he should have done, could have made it innocuous. See Bohlen, supra, p. 365; note, (1927), 40 Harv. Law Rev. 888. The American Law Institute approves the rule of double responsibility, see Restatement of the Law of Torts, Tenative Draft No. 5, sec. 266. 'Restatement of the Law of Torts, supra, sec. 272.

Dec., 1932] Tort Liability of Manufacturers . - 623

his servants and in some cases his guests.32 That proposition is necessarily a direction post rather than a boundary of liability. What is the position of the plaintiff who uses the article by virtue of gift or permission from the ultimate purchaser?_ (3) Is the manufacturer subject to the same liability when the article is likely to injure property rather than life and health? This question would perhaps appear legally immaterial except for the conflict which it has provoked in American jurisdiction.33 The English courts seem to have ignored the problem, if indeed any. exists, whether a juridical distinction is admissible . It did not engage the attention of Roche, J ., in Anglo-Celtic Shipping Co. v. Elliott,34 where he held the maker of a cleaning fluid liable for damage to the plaintiff's ship. Lord Atkin's judgment in M'Alister v. Stevenson is sufficiently wide to embrace injury to either person or property. In deciding whether damage of the latter type ought to be within the defendant's contemplation, a more lenient standard might conceivably prevail. (4) Is the manufacturer justified in delivering out of his pos- session a defective chattel provided that he gives the buyer due warning? Though unfit for the purpose originally intended, the article may be capable of a secondary use. Ow one side there is a commercial interest in not allowing it to go to, waste completely, on the other side there is the safety of those whom it may endanger. The manufacturer ought to be able to rely on the warning being passed on if that method gives a reasonable assurance that the in- formation will reach those whose safety depends upon the trans- mission35 . A natural mistake is to elaborate a detailed definition of the manufacturer's duty of care. A general conception is more grasp- able when it is made concrete. These efforts to attain precision produce, for example, discussions whether an inspection of the finished product suffices, or whether there must be supervision at every step Theof fabrication.36 duty being to do what is reasonably necessary, it is erroneous to say that due care requires the use of specific means. To do so would be to impose a special duty, different from the generalised duty to use care, which the court or jury has no right to do. For instance, though an innkeeper must use due care for his guest's safety, it cannot, in the absence of a statute, be laid down as a rule of law that he is negligent in not providing his house with fire escapes.' 'At p. 800. ' Bohlen : Article, Liability of Manufacturers, supra; p. 363. as (1920, 42 T.L .R. 297. s5 Restatement of the Law of Torts, supra, p. 41 ; (1926), 40 Harv. L. Rev. 888. $° (1921), 30 Yale L.J., 610. _ °` Terry : article, Negligence, Harvard Essays, p. 272.

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How far M'Alister v. Stevenson vitiates the force of the previous decisions must now be noticed. Its first and most obvious effect is to explode the delusion that facts which constitute a contract cannot have any other legal operation .3s The source of this supposed rule, Winterbottom v. Wright, was thus taken to hold that if A negligently performed his contract with B, and C was injured in consequence, A could not be liable to C.33 Lord Buckmaster in M'Alister v. Stev- ensow thus applied it to obtain the result that the manufacturer of an article is not liable to a third party who is injured by its negligent construction .4o The majority of the House of Lords, however, examined the origins of Winterbottoau v. Wright, and showed that this statement, apart from certain unjustified dicta, had no foundations in the actual decision.41 The plaintiff alleged negligent performance of the contract and nothing more. The defendant demurred on the ground that only a party to contract can sue, and this argument was upheld. The case thus decided that A's negligent performance of his contract with B does not of itself give an action upon consequential damage to C.42 It did not decide that in no circumstances could acts which were a misperformance of a contract afford an action to C. With its scope thus delimited, Winterbottom v. Wright ceases to be an Important authority in the law of torts.-13 After having passed under false colours for almost a century, its real identity is disclosed, and it may now sink into a deservedly obscure old age. Those cases which adopted a wide interpretation of Winterbottoau v. Wright must share its reverses of fortune.44 A further effect of M'Alister v. Stevenson is to sweep away the rule that the manufacturer's knowledge of the defective nature of his product is a condition of liability. Lord Macmillan pointed out : 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." 'e Pollock on Torts, 13th ed., p. 570. 'Charlesworth, Liability for Dangerous Things, p. 387. "At p. 495. 'Compare Allen, Law in the Making, 2nd ed., p. 167, "A statement of dubious authority may be made by one text-writer and repeated by others until it comes to be accepted as a common place of the law ; whereas if its origins are examined, it may be found to rest on little or no basis in actual judicial decision." This is an instance when not only text-writers but also judges were deceived. "Al'Alister v. Stevenson, supra, at p. 501, per Lord Atkin. ' Langredge v. Levy (1837), 2 M. & W. 519, and Longineid v. Holliday (1851), 6 Ex. 761 suffered from a similar restriction. See Pl'Alister v. Steven- son, supra, at pp. 501, 502, 508. In the latter case there was no averment of negligence and the plaintiff's allegation of fraud was not proved. 'Blacker v. Lake to Elliott (1912), 106 L.T. 533; Bates v. Baley, [19131 3 K.B. 351 ; White v. Steadman, [19131 3 K.B. 381 . '° Lord Macmillan at pp. 509-510.

Dec., 1932] Tort Liability of Manufacturers . 625

The cases of Blacker v. Lake & Elliott, White v. Steadman and Bates v. Batey thus became obsolete. Their names will no longer be heard in argument, and, apart from historical considerations, may cease to encumber the text-books. The distinction between chattels dangerous per 'se, and those dangerous sub modo, seems, to borrow Lord Buckmaster's phrase, to be so securely buried that its perturbed spirit will no longer vex the law. 46 Lord Atkin said: I regard the distinction as an unnatural one so far as it is used to serve as a logical differentiation by which to distinguish the existence or non- existence of .a legal right' A dictum of Lord Dunedin in Dominion Natural Gas Co. v. Collins," which has sometimes been pressed into service to establish the distinction," was explained to mean something different. The nature of the article may call for varying degrees of care. The cases of dangerous agencies, e.g., guns and poisons, are special instances where the law exacts a high degree of ease. "This is the very opposite of creating a special category, where alone the duty exists." 6° Not only the degree of precaution but the sphere of persons who ought to be contemplated may be extended. The criticisms in M'Alister v. Stevenson of the previous body of precedent are not, however, wholly destructive. The opposite tendency is most completely illustrated in the treatment of George v. Skivington.sl- After long suffering under the frown of judicial disap- proval, ~2 the authority of that decision is now fully vindicated.

"Speaking at p. 498. George v. Skivington (18,69), L.R. 5, Ex. 1. I At p. 503. See Scrutton, L.J., in Hodge's Case (1922), 12 Lloyd's List Rep. 183, 187 : "Personally I do not understand the difference between a thing dangerous in itself, as poison, and a thing not dangerous as a class, but by negligent construction dangerous as ' a particular thing. The latter, if any- thing, seems the more dangerous 'of the two ; it is a wolf in sheep's clothing instead of an obvious wolf." " [19097 A.C. 640 at p. 464. "It has been held over and over again that in the case of articles dangerous in themselves, such as loaded fire arms, poisons, explosives and other articles ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or instal -such articles when it is necessarily the case that other parties will come within their proximity." "Stephen's Commentaries, 19th ed., G. C. Cheshire, volt. iii., p. 519. "Lord Atkin at pp. 503, 504; Lord Macmillan at p..508. " (1869), L.R. 5 Ex. 1. The facts surrounding the sale of the bottle of hair wash are too well known for restatement. ' In Blacker v. Lake c& Elliott (1912), 106 L.T. 533, Hamilton, J ., refused to follow George v. Skivington on the ground that it was in conflict with Winterborttom v. Wright. Because Hamilton, J ., did not follow it, Horridge, J., in Bates v. Batey, [19133 3 K.B. 351, did not consider himself bound by it. See Lush, J., in White v. Steadman, [19131 3 K.B. 340; Lord Buckmaster in M'Alister v. Stevenson, at p. 496. Contra Brett, M.R., in Cunizington v. G. N. Ry. Co. (188.3), 49 L.T. (N.S.) at p. 393 : "If the chemist thought like a reasonable man at all he could not have helped concluding that if he deliv- ered deleterious hair-wash, the plaintiff would be injured." It may be noted that the Canadian Courts, in the few cases in which the

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Doubts as to the exact ratio decidendi are settled by directly attri- buting its paternity to ordinary principles of negligence." After a similar sojourn in the valley of humiliation, the famous dictum of Brett, M.R., Heaven v. Pender," is also partially rehabilitated. As that dictum involved the question of the general duty of care laid down by Lord Atkin, it is time to attempt a discussion of the significance of that step. There are two ways in which the existence of a duty may be judicially determined. The courts may lay down a comprehensive duty covering a wide area of human activity and afford a remedy to any litigant who brings himself within the rule. They may, on the other hand, without reference to a general principle, decide from the facts of each case where a duty arises. Until A-l'Alister v. Stevenson the second course prevailed . The circle of responsibility for negligence expanded by the creation of specific duties. Wherever a defendant was held liable for negligence, be was found guilty of the breach of a duty of care which proceeded from a particular relationship. The presence of that duty depended upon whether the case could be referred to a species which had been judicially examined and classified. Though it did not follow that a new duty would not be created, the processes by which the judges ascertained the existence of duties were obscure and unexplored. 5° If the facts did not fit into any known category, the decisions could not assist and the advice of counsel was no more than a prophecy of what the courts might decide." The method of legal inquiry in such cases thus required a mechanical comparison of new circumstances with old rather than a logical system of deduction from a general rule. The law of negligence was gradually growing into a wilderness of single instances. The only attempt to correct this unscientific tendency by intro- ducing a wider perspective occurred in Heaven v. Pender.157 The law of dangerous chattels has been discussed, have taken a less severe attitude to George v. Skivington. The Supreme Court of Canada has held that the manufacturer of rifles of an unusual and dangerous construction is liable for injuries suffered by the user. The case was decided under the Civil Code but Anglin, J., was inclined to think that under English law the manufacturer would also be liable. Duff, J., referred to George v. Skivington, with approval, see Ross v. Dsmstall (1926), 62 Can. S.C.R. 393, at pp. 393, 403. °' M'Alister v. Stevenson, supra, at pp. 503, 508, 509. ~' (1883), 11 Q.B .D . 503 at p. 509. `Green : article, Ditty Problem in Negligeiace Cases, (1928), 28 Col. Law Rev. 1024. "See Lord Atkin in M'Alister v. Stevenson, supra, at p. 503. (1883) 10 O.B.D. 503. . . . Wherever 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 skill and care in his 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 skill and care to avoid that danger."

Dec., 1932] Tort Liability of Manufacturers. 627

'dictum of Brett, M.R., has been termed the most powerful judicial effort ever made to generalise the theory of negligence.5$ His asso- ciates, Cotton and Bowen, LJJ., as well as later judges, refused to accept it, 59 and he himself qualified his statement in the subsequent case of Le Lievre v. Gould .6o . No further advance took place in this direction until the decision of M'Alister v. Stevenson. The three majority judgments illustrate the two methods just explained of approaching cases of negligence. Lord Thankerton and Lord Macmillan, in holding the manufacturer responsible, added another specific duty to the law. Lord Atkin, however, went further. In English law there must be and is some general conception of rela- tions giving rise to a duty of care of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. . . . The rule that you are to love your neighbour becomes in law that you must not injure your neighbour, and the lawyer's questions, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably see will be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them. in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.' From this proposition certain corollaries emerge. Firstly, the duty is, negative, .that is, to forbear rather than to act. In this respect it differs from the formula of Brett, M.R., which would require "every man to take affirmative precautions to protect his neigh- . bour as well as to refrain from injuring hi M.1162 Secondly, the duty is founded upon mental contemplation, not upon physical proximity. As Lord Atkin explained, it extends "to such close and direct rela- tions that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act." Thirdly, in case of negligence the other questions, apart from carelessness, for the court to determine is whether the contemplated relation is so close that the duty arises. I Street : Foundations of Legal Liability, vol. i., p. 92 et seq. "The prevalent judicial attitude may be collected from the judgment of Collins, M.R., in Earl v. Lubbock, [19051 1 K.B, 253 at p. 257. Contra, Thrussell v. Handyside (1888), 20, Q.B.D. 359, 3,63 per Hawkins, J . : "That in my opinion is a correct statement of the law." See Beven on Negligence 4th ed., pp. 45, 157, 204. He refers to Brett, M.R.'s dictum as "our old and discredited acquaintance." " [18931 1 Q.B. 491. "At p. 499. Bohlen : article; Afrmative Obligations in the Law of Torts, 53 Am. Law. Reg. (N.S.) 341 .

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It is time to consider whether the law of negligence is improved by laying down a general duty of care. I n approaching this inquiry, the critic should not forget that the idea of duty as an essential ingredient of negligence is not wholly above criticism. It was unknown to the world's greatest legal system. Roman law asked only whether the defendant had used the degree of care necessary in the circumstances ." English law must ask two questions to obtain the same end, Did the defendant act as a reasonable man who would have acted in the circumstances? and, Did the defendant owe the plaintiff a duty? To search why this should be so is to meet a complete blank. 64 The additional element necessarily complicates the concept. The task of the courts in applying the theory is made more difficult by a factor which is not indispensable to the operation . "This much," says Street, "must be conceded, the problem is more simply handled without regard to the conception of duty."- When allowance is thus made for the inherent limitations of the doctrine, the problem resolves itself into a comparison of the merits of general and specialized duties. There is no communis ophtio doctorum on the point. 65a The balance of advantage seems however, to be with the former. Lord Atkin's test introduces a measure of symmetry and coherence which have not hitherto prevailed . It will be a guide to judges where before there was none. It may require plaintiffs in actions on negligence to frame their allegations of the facts which give rise to a duty with more care than has been the rule in the past. The present loose pleading permits much time and money to be lost in reaching the barren result that no duty exists." It remains to attempt to estimate the significance and probable results of M'Alister v. Stevestson . By sweeping away the manufacturer's immunity to third parties it has removed a grave defect in our jurisprudence. Lord Atkin's judgment is at once stamped as Buckland : Text Book of Roman Law, p. 551 et seq.; Moyle's Institutes of Justinian, Excursus, I1 . Winfield does not discuss the question at all in this article, History of Negligence in (Torts, (1926), 42 Law Q. Rev. 184. Holdsworth is scarcely more helpful, see Hist. Eng. Law, vol. viii, p. 450. 'Street : Foundations of Legal Liability, vol . i., p. 92 et seq. "On the one side Street argues that a generalised duty is too sweeping to be of any use. Only in cases of privity of relationship, e.g., bailment, lease and sale, can the device be helpful, see Foundations of Legal Liability, chapter xi. Another learned writer advances the opposite thesis that a generalised formula is too restricted in that it cannot bring out the many factors upon which a judge must dwell in deciding whether a duty exists. Green : article, supra, at p. 1031-32. It may be doubted whether those factors of justice, economics and expediency are given more weight when each case is considered without reference to any formula. Perhaps the truth lies some- where between the two. "Banbury v. Bank of Montreal, [19181 A.C. at p. 709, per Lord Parker ; see Fifoot, English Law and its Background, p. 162.

Dec., 1932] Tort Liability of Manufacturers. 629

perhaps the most impressive and certainly the most authoritative effort ever made to generalise the English law of negligence. Though it may be unsafe to speculate as to its scope, certain effects seem sufficiently probable to admit of prediction. It would seem that the rules of contractor's liability must approximate to the same position. There are many cases in which the repairer of a chattel knows that it will be used by persons other than his employer. Often the employer is the only person who will not use it. It is difficult to see how one can say that the negligent repairer cannot reasonably foresee that the defective workmanship would be likely to cause injury to the owner. Earl v. Lubbock seems now to stand on extremely shaky grounds.67 The case of Dickson v. Reuters" appears in even greater peril. It is now harder than ever to deny that the probable consequence of the misdeliyery, of a telegram is damage to the receiver. It is also conceivable, though perhaps im- probable, that the duty described by Lord Atkin may provide an avenue of escape from the inconvenient doctrine of Carlisle and Cumberland Banking Co. v. Bragg.19 Whatever the ultimate effects of. the decision will be it at once assumes a place of leading importance. Rylands v. Fletchee° and M'Alister v. Stevenson may with justice be regarded as the two most important cases in the law of torts. If, however, we use M'Alister v. Stevenson to prove that the common law expands with an expanding society, we should not forget the reproach that the law is sixty years behind the times. ' I F. C. UNDERHAY. Exeter College, Oxford.

This view is also taken by a writer in, (1932), Law Notes, July issue. 88 (1877), 3 C.P.D. I. [1911] 1 K.B. 483. It is said that there is one thing in English law which cannot be dangerous.. "Written documents such as certificates, pros- pectuses, valuations, though they contain negligent misstatements and thereby cause serious loss to those who act upon them never impose liability (apart from statute) upon those who put them in circulation in the absence of a contractual usesus or fraud. They are real dangerous things.." Stallybrass : article, (1929), 3 Camb., L.J., 376. Dr. Stallybrass states that the rule is an anomaly only to be explained by the history of the law. It is an unforeseen development of the rule that damages can never be obtained for innocent misrepresentation (except as the consequence of an estoppel in certain cases in contract) . See Le Lievre v. Gould, [18931 1 Q.B. 491 ; Australian Steam Shipping Co. v. Devitt (1917), 33 T.L.R. 178 (Lloyd's certificate) ; Humphrey v. Bowers (1929), 45 T.L.R. 297 (Lloyd's certificate) . '° (1868), L.R. 3 H.L. 330.