Lord Buckmaster Page 7

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There a chemist issued poison in answer to a request for a harmless drug and he was held responsible to a third party injured by his neglect.

    It appears to me that the decision might well rest on the principle that he in fact sold a drug dangerous in itself, none the less so because he was asked to sell something else, and on this view the case does not advance the matter.

    In another case of Macpherson v. Buick Motor Co., 1916, 217 N.Y. 382, where a manufacturer of a defective motor car was held liable for damages at the instance of a third party, the learned Judge appears to base his judgment on the view that a motor car might reasonably be regarded as a dangerous article.

    In my view, therefore, the authorities are against the Appellant's contention, and apart from authority it is difficult to see how any common law proposition can be formulated to support her claim.

    The principle contended for must be this: that the manufacturer or indeed the repairer of any article, apart entirely from contract, owes a duty to any person by whom the article is lawfully used to see that it has been carefully constructed. All rights in contract must be excluded from consideration of this principle, for such rights undoubtedly exist in successive steps from the original manufacturer down to the ultimate purchaser, embraced in the general rule that an article is warranted as reasonably fit for the purpose for which it is sold. Nor can the doctrine be confined to cases where inspection is difficult or impossible to introduce. This conception is simply to misapply to tort doctrines applicable to sale and purchase.

    The principle of tort lies completely outside the region where such considerations apply and the duty, if it exists, must extend to every person who, in lawful circumstances uses the article made. There can be no special duty attaching to the manufacture of food, apart from that implied by contract or imposed by statute. If such a duty exists it seems to me it must cover the construction of every article, and I cannot see any reason why it should not apply to the construction of a house. If one step why not fifty? Yet if a house be, as it sometimes is, negligently built, and in consequence of that negligence the ceiling falls and injures the occupier or any one else, no action against the builder exists according to the English law, although I believe such a right did exist according to the laws of Babylon. Were such a principle known and recognised, it seems to me impossible, having regard to the numerous cases that must have arisen to persons injured by its disregard, that with the exception of George v. Skivington, no case directly involving the principle has ever succeeded in the Courts, and were it well known and accepted much of the discussion of the earlier cases would have been waste of time.

    In Mullin v. Barr, 1929 S.C. p. 461, a case indistinguishable from the present, excepting upon the ground that a mouse is not a snail, and necessarily adopted by the Second Division in their judgment, Lord Anderson says this:

    "In a case like the present where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. It is obvious that if such responsibility attached to the Defenders, that might be called on to meet claims of damages which they could not possibly investigate or insure."

    In agreeing, as I do, with the judgment of Lord Anderson, I desire to add that I find it hard to dissent from the emphatic nature of the language with which his judgment is clothed. I am of opinion that this Appeal should be dismissed, and I beg to move your Lordships accordingly.