Lord Buckmaster Page 2

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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 mis-statement, 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."

    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 Parke B. 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 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."

    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 gingerbeer 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.

    It has been suggested that the statement of Parke B. 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.

    The general principle of these cases is stated by Sumner L. 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."