Lord Atkin Page 4

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Courts below. I venture to say that in the branch of the law which deals with civil wrongs, dependent in England at any rate entirely upon the application by judges of general principles also formulated by judges, it is of particular importance to guard against the danger of stating propositions of law in wider terms than is necessary, lest essential factors be omitted in the wider survey, and the inherent adaptability of English law be unduly restricted. For this reason it is very necessary in considering reported cases in the law of torts that the actual decision alone should carry authority proper weight of course being given to the dicta of the judges.

    In my opinion several decided cases support the view that in such a case as the present the manufacturer owes a duty to the consumer to be careful. A direct authority is George v. Skivington (1869) L.R. 5 Ex. 1. That was a decision on a demurrer to a declaration which averred that the defendant professed to sell a hairwash made by himself and that the plaintiff Joseph George bought a bottle to be used by his wife, the plaintiff Emma George, as the defendant then knew and that the defendant had so negligently conducted himself in preparing and selling the hairwash that it was unfit for use whereby the female plaintiff was injured. Kelly C.B. said that there was no question of warranty but whether the chemist was liable in an action on the case for unskilfulness and negligence in the manufacture of it; "Unquestionably there was such a duty towards the purchaser and it extends in my judgment to the person for whose use the vendor knew the compound was purchased." Piggot & Cleasby B.B. put their judgments on the same ground. I venture to think that Fry L.J. in Heaven v. Pender 12 Q.B.D. at p. 517 misinterprets Cleasby B.'s judgment in the reference to Langridge v. Levy 4 M. & W. 377. Cleasby B. appears to me to make it plain that in his opinion the duty to take reasonable care can be substituted for the duty which existed in Langridge v. Levy not to defraud. It is worth noticing that George v. Skivington was referred to by Cleasby B. himself sitting as a member of the Court of Exchequer Chamber in Francis v. Cockrell (1870) (L.R. 5 Q.B. at p. 515) and was recognised by him as based on an ordinary duty to take care. It was also affirmed by Lord Esher M.R. in Cunnington v. South Western Railway Co., 1883 49 L.T. 392, decided on July 2nd at a date between the argument and the judgment in Heaven v. Pender, though as in that case the Court negatived any breach of duty the expression of opinion is not authoritative. The existence of the duty contended for is also supported by Hawkins v. Greville (1896) 12 T.L.R. 532, where a dock labourer in the employ of the Dock Co. was injured by a defective sack which had been hired by the consignees from the defendant who knew the use to which it was to be put, and had been provided by the consignees for the use of the Dock Company, who had been employed by them to unload the ship on the Dock Company's premises. The Divisional Court, Day and Lawrence J.J., held the defendant liable for negligence. Similarly in Elliott v. Hall (1885) 15 Q.B.D. 315 the defendants, colliery owners, consigned coal to the plaintiff's employers, coal merchants, in a truck hired by the defendants from a wagon company. The plaintiff was injured in the course of unloading the coal by reason of the defective condition of the truck and was held by a Divisional Court, Grove and A. L. Smith J.J., entitled to recover on the ground of the defendant's breach of duty to see that the truck was not in a dangerous condition. It is to be noticed that in neither case was the defective chattel in the defendant's occupation, possession or control or on their premises, while in the latter case it was not even their property. It is sometimes said that the liability in these cases depends upon an invitation by the defendant to the plaintiff to use his chattel. I do not find the decisions expressed to be based upon this ground but rather upon the knowledge that the plaintiff in the course of the contemplated use of the chattel would use it: