Lord Atkin Page 9

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of making an essential joint between the container and the vaporiser; that the Defendants did not know that it was dangerous but ought as reasonable men to have known it. Hamilton J. seems to have thought that there was no evidence of negligence in this respect. Lush J. expressly says so and implies "I also think" that Hamilton J. so thought. If so the case resolves itself into a series of important dicta. Hamilton J. says at p 536 that it has been decided in authorities from Winterbottom v. Wright to Earl v. Lubbock that the breach of the Defendants' contract with A, to use care and skill in and about the manufacture or repair of an article does not itself give any cause of action to B when injured by the article proving to be defective in breach of that contract. He then goes on to say how is the case of the Plaintiffs any better when there is no contract proved of which there could be a breach. I think with respect that this saying does not give sufficient weight to the actual issues raised by the pleadings on which alone the older cases are an authority. If the issues raised was an alleged duty created by contract it would have been irrelevant to consider duties created without reference to contract: and contract cases cease to be authorities for duties alleged to exist beyond or without contract. Moreover it is a mistake to describe the authorities as dealing with the breach of care or skill in the manufacture of goods, as contrasted with repair. The only manufacturing case was Langmeid v. Holliday where negligence was not alleged. Hamilton J. recognises that George v. Skivington was a decision which if it remained an authority bound him. He says that without presuming to say it was wrong he cannot follow it because it is in conflict with Winterbottom v. Wright. I find this very difficult to understand: for George v. Skivington was based upon a duty in the manufacturer to take care independently of contract while Winterbottom v. Wright was decided on demurrer in a case where the alleged duty was based solely on breach of a contractual duty to keep in repair and no negligence was alleged. Lush J. says in terms that there are only 3 classes in which a stranger to a contract can sue for injury by a defective chattel: one is fraud, the second is articles dangerous or noxious in themselves where the duty is only to warn, the third is public nuisance. He does not bring the cases represented by Elliott v. Hall (the defective coal wagon) within his classes at all. He says they belong to a totally different class "where the control of premises or the management of a dangerous thing upon premises creates a duty." I have already pointed out that this distinction is unfounded in fact, for in Elliott v. Hall as in Hawkins v. Smith (the defective sack) the defendant exercised no control over the article and the accident did not occur on his premises. With all respect I think that the judgments in the case err by seeking to confine the law to rigid and exclusive categories: and by not giving sufficient attention to the general principle which governs the whole law of negligence in the duty owed to those who will be immediately injured by lack of care. The last case I need refer to is Bates v. Batey Co., Ltd. (1913, 3 K.B. 351), where manufacturers of ginger beer were sued by a plaintiff who had been injured by the bursting of a bottle of ginger beer bought from a shopkeeper who had obtained it from the manufacturers. The manufacturers had bought the actual bottle from its maker, but were found by the jury to have been negligent in not taking proper means to discover whether the bottle was defective or not. Horridge, J., found that a bottle of ginger beer was not dangerous in itself, but that this defective bottle was in fact dangerous; but as the Defendants did not know that it was dangerous they were not liable though by the exercise of reasonable care they could have discovered the defect. This case differs from the present only by reason of the fact that it was not the manufacturers of the ginger beer who caused the defect in the bottle: but on the assumption that