Lord Tomlin

McALISTER or DONOGHUE (pauper)

v.

STEVENSON

Lord Tomlin.

MY LORDS,

    I have had an opportunity of considering the opinion prepared by my noble and learned friend Lord Buckmaster which I have already read. As the reasoning of the opinion and the conclusions reached therein accord in every respect with my own views, I propose to say only a few words.

    First I think that if the appellant is to succeed it must be upon the proposition that every manufacturer or repairer of any article is under a duty to everyone who may thereafter legitimately use the article to exercise due care in the manufacture or repair. It is logically impossible to stop short of this point. There can be no distinction between food and any other article. Moreover the fact that an article of food is sent out in a sealed container can have no relevancy on the question of duty. It is only a factor which may render it easier to bring negligence home to the manufacturer.

    Secondly I desire to say that in my opinion the decision in Winterbottom v. Wright, 10 M: & W. 109, is directly in point against the appellant.

    The examination of the report makes it, I think, plain (1) that negligence was alleged and was the basis of the claim, and (2) that the wide proposition which I have indicated was that for which the plaintiff was contending.

    The declaration averred (inter alia) that the defendant “so improperly and negligently conducted himself” that the accident complained of happened.

    The plaintiff’s counsel said, “here the declaration alleges the accident to have happened through the defendant’s negligence and want of care.”

    The alarming consequences of accepting the validity of this proposition were pointed out by the defendant’s counsel, who said, “For example, every one of the sufferers by such an accident as that which recently happened on the Versailles Railway might have his action against the manufacturer of the defective axle.”

    That the action which was in case embraced a cause of action in tort is I think implicit in its form and appears from the concluding sentence of Lord Abinger’s judgment, which was in these terms: “By permitting this action we should be working this injustice, that after the defendant had done everything to the satisfaction of his employer and after all matters between them had been adjusted and all accounts settled on the footing of their contract, we should subject them to be ripped open by this action of tort being brought against him.”

    I will only add to what has been already said by my noble and learned friend Lord Buckmaster with regard to the decisions and dicta relied upon by the appellant, and the other relevant reported cases that I am unable to explain how the cases of dangerous articles can have been treated as “exceptions” if the appellant’s contention is well founded. Upon the view which I take of the matter the reported cases, some directly, others impliedly, negative the existence as part of the Common Law of England of any principle affording support to the appellant’s claim, and therefore there is in my opinion no material from which it is legitimate for your Lordships’ House to deduce such a principle.