Lord Atkin Page 8

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consumer. It is noteworthy that he only refers to “letting or giving” chattels, operations known to the law where the special relations thereby created have a particular bearing on the existence or non-existence of a duty to take care. Next in this chain of authority come George v. Skivington. 1869, L.R. 5, Ex. 1, and Heaven v.Pender, 1883, 11 Q.B.D. 503, which I have already discussed. The next case is Earl v. Lubbock, 1905, 1 K.B. 253. The plaintiff sued in the County Court for personal injuries due to the negligence of the defendant. The plaintiff was a driver in the employ of a firm who owned vans. The defendant, a master wheelwright, had contracted with the firm to keep their vans in good and substantial repair. The allegation of negligence was that the defendant's servant had negligently failed to inspect and repair a defective wheel, and had negligently repaired the wheel. The learned County Court judge had held that the Defendant owed no duty to the Plaintiff, and the Divisional Court, Lord Alverstone, L.C.J., Wills and Kennedy. J.J., and the Court of Appeal agreed with him. The Master of the Rolls, Sir R. Henn Collins, said that the case was concluded by Winterbottom v. Wright, 10 M. & W. 109. In other words, he must have treated the duty as alleged to arise only from a breach of contract; for as has been pointed out that was the only allegation in Winterbottom v. Wright, negligence apart from contract being neither averred nor proved. It is true that he cites with approval the dicta of Lord Abinger in that case: but obviously I think his approval must be limited to those dicta so far as they related to the particular facts before the Court of Appeal: and to cases whee as Lord Abinger says the law permits a contract to be turned into a tort. Stirling, L.J., it is true said that to succeed the Plaintiff must bring his case within the proposition of the majority in Heaven v. Pender that any one who without due warning supplies to others for use an instrument which to his knowledge is in such a condition as to cause danger is liable for injury. I venture to think that the Lord Justice is mistakenly treating a proposition which applies one test of a duty as though it afforded the only criterion.

    Mathew, L.J., appears to me to put the case on its proper footing when he says at p. 259 the argument of the Plaintiff was that the Defendant's servants had been negligent in the performance of the contract with the owners of the van and that it followed as a matter of law that any one in this employment had a cause of action against the Defendant. “It is impossible to accept such a wide proposition and indeed it is difficult to see how if it were the law trade could be carried on.” I entirely agree. I have no doubt that in that case the Plaintiff failed to show that the repairer owed any duty to him. The question of law in that case seems very different to that raised in the present case. The case of Blacker v. Lake & Elliot Ltd. 1912 (104 L.T. 533) approaches more nearly the facts of this case. I have read and re-read it having unfeigned respect for the authority of the two learned judges, Hamilton and Lush J.J., who decided it: and I am bound to say I have found difficulty in formulating the precise grounds upon which the judgment was given. The Plaintiff had been injured by the bursting of a brazing lamp which he had bought from a shopkeeper who had bought it from the manufacturer, the Defendant. The Plaintiff had used the lamp for 12 months before the accident. The case was tried in the County Court before that excellent lawyer, the late Judge Sir Howland Roberts. That learned judge had directed the jury that the Plaintiff could succeed if the Defendants had put upon the market a lamp not fit for use in the sense that a person working it with reasonable care would incur a risk which a properly constructed lamp would not impose upon him. The jury found that the lamp was defective by reason of an improper system