assume that care had been taken, and the defendant must have known at the time of creating the source of danger that third persons were likely to come into contact with it by the licence or direction of the person to whom the user of the chattel temporarily appertained, or for whom the work was done, as the case might be, and so coming were likely to rely on care having been taken (a). Where, however, the circumstances are such as to render it unreasonable for the plaintiff to assume that care has been taken no action will lie, if by reason of his reliance he has been injured. Thus, if a person were poisoned by drinking the contents of a medicine bottle, which he had found lying in a cupboard, upon the faith of the contents corresponding with the label, which bore the name of a harmless medicine, he could not be heard to complain, even though the contents so drunk were the very contents with which the bottle was originally sold, for no reasonable person finding a strange bottle would infer that there was a necessary correspondence between the label and the contents at the time of his finding it. So where certain customers of the plaintiff, a ketchup manufacturer, were in the habit of consigning to him empty casks by the defendants' railway, which the plaintiff filled with ketchup and returned, and the defendants, knowing the purpose for which the casks were so sent to the plaintiff, on one occasion carelessly sent him some wrong casks, not belonging to the customers, and which had contained turpentine, whereupon the plaintiff, without making any examination of the casks, filled them with ketchup, which was spoiled, the defendants were held not liable, on the ground that the plaintiff's conduct was unreasonable, and that the defendants, at the time of delivering the casks, were not bound to assume that the plaintiff would fill them without examining them (b). But in order to render a person liable for carelessly issuing a dangerous thing which causes damage to third persons who deal with it on the basis that it may be safely dealt with, the thing must have been dealt with in the manner intended by the party issuing it, or at all events, in a manner contemplated by him as one in which it was not unlikely that it would be dealt with. Thus (a) Caledonian R. Co. v. Mulholland, (1898) A. C. 216. C.T. (b) Cunnington v. Great Northern R. Co., (1833) 49 L. T. N. S. 392, 37 must be one of a class of persons 66 the defendant in the case of Heaven v. Pender, above referred to, would have been under no liability towards a person who used the staging for a purpose which would have subjected the ropes to a greater strain than they would have been subjected to if Injured party used for the purpose of painting the ship. Again, if a thing though dangerous if used by one class of persons, is not dangerous if used by another, the party issuing it will not be responsible for damage resulting from its use unless he contemplated its being used by the clsss of persons to which the plaintiff belonged (a). Suppose, for example, a chemist sells to a customer a drug, without any knowledge of the purpose to which it is to be applied, which is fit for a grown person, and that drug is afterwards given by the purchaser to a child, and does injury, it could not be contended that the chemist was liable" (b). But subject to these limitations, that the plaintiff must have acted reasonably in assuming that care had been taken to prevent injury, and that the thing must have been used in the mode in which, and by the kind of person by whom, it was intended to be, or contemplated as likely to be used, it seems that the party negligently issuing the dangerous thing will be liable to any person who may be injured by reason of that negligence, whoever that person may be (c). And it is apprehended that this rule applies wherever the case falls within any one of the three classes above mentioned (d), in which the party issuing the dangerous thing would (a) And à fortiori this rule applies when the article was not intended for the food of man: Wieland v. Butler Hogan, (1904) 73 L. J. K. B. 513. (b) Per Pigott, B., George v. Skivington, (1869) L. R. 5 Ex. p. 4. (c) In the above cited case of Heaven v. Pender, ((1883) 11 Q. B. D. pp. 510, 515), it is said that where a person supplies goods for use, the law (apart from contract) imposes an obligation to take care that they are in a condition to be safely used only where they are intended to be used immediately. This, however, must be read in connection with the class of goods with which the Court was then dealing, goods which were likely to deteriorate with lapse of time, by exposure to the weather or other causes, and with respect to which, if an accident happened only after a considerable interval of time, it would be right to caution the jury against finding that their original faulty condition was the cause of the accident. Where, however, it can be demonstrated that no change has taken place in the condition of the goods in the interval between the supply and the accident, the length of that interval must be perfectly immaterial. If, for instance, a chemist supplies a poison in a sealed bottle as and for a harmless drug, and the purchaser does not open it for a year, the lapse of time cannot affect the liability of the vendor, for length of time cannot convert one drug into another, though it may convert a sound rope into a rotten one. (d) pp. 468 sqq. be liable to the immediate person to whom he issued it, that is to say, that it applies not merely where the thing was issued under a contract for consideration, but also where the party issuing it knew of some concealed source of danger, or was a person of such known superior skill as would naturally induce the other party to rely upon it. Where the original transaction under which the dangerous Loan of dangerous thing is issued is a gift, it is presumed that the donor will stand chattel. in precisely the same position as a vendor, and will be liable to any third persons to whom the donee may give, lend, or sell the subject-matter of the gift, for any injury resulting from his nondisclosure of any dangerous quality which he may know that it possesses. But where the original transaction is a loan it seems that the rule is otherwise, for the lender of a chattel does not as a rule contemplate the borrower lending it again to third parties, a loan being in its nature personal, and it being intended that the thing lent shall be returned in statu quo. Though the lender is as towards his immediate borrower liable for non-disclosure of dangerous qualities, he is under no corresponding liability towards strangers to whom the borrower may lend the thing. Therefore, where the defendants, a railway company, were possessed of a crane at one of their stations, the gratuitous use of which crane they allowed to the consignees of goods sent by rail to such station, and the servants of a consignee, who were engaged in using the crane, requested a passer-by to assist in raising it, and whilst he was so doing the chain of the crane being defective broke and killed him, the defendants were held not liable to his representatives, although the defective condition of the chain which was the cause of the accident was known to them (a). Winterbottom v. Wright and Longmeid v. Holliday discussed. There are two cases which have sometimes been regarded as Cases of negativing the view above put forward (b), but on examination it will be seen that they in reality do not. The first is Winterbottom v. Wright (c). There a declaration was held bad on demurrer which alleged that the defendant had contracted with the Post (a) Blakemore v. Bristol & Exeter R. Co., (1858) 8 E. & B. 1035; and see Earl v. Lubbock (1905) 1 K. B. 253. (b) pp. 471 sqq. master-General to provide a coach to carry the mails along a certain line of road, and had agreed that during the contract the coach should be in a fit and secure condition for the purpose, that one Atkinson had contracted with the Postmaster to supply horses and coachmen for the coach, that the plaintiff hired himself to Atkinson to drive the coach, and that the defendant so negligently conducted himself and so disregarded his contract, that while the plaintiff was driving the coach it broke down in consequence of certain latent defects in its condition, and the plaintiff was thrown off and injured. But the statement that the accident was caused by a latent defect is inconsistent with its having been the result of negligence. It is quite consistent with that decision that had the defendant been the manufacturer of the coach, and negligently constructed it of improper materials, the plaintiff would have had a good cause of action. There was there, as between the defendant and the Postmaster, assumed, rightly or wrongly (a), to exist an absolute contract to provide a sound coach, and the declaration was nothing more than an attempt to sue on that contract by a person who was a total stranger to it. The other case is that of Longmeid v. Holliday (b), where the defendant sold a lamp to the plaintiff's husband to be used by him and his wife, which lamp, upon being used in the ordinary way, owing to its defective construction burst and injured the plaintiff. The jury having found that the defendant, who did not himself manufacture the lamp, sold it in good faith and in ignorance of the defect, it was sought to rest the claim upon the breach of an implied warranty of fitness which it was assumed (c) existed towards the husband. The Court held that the plaintiff could not recover; but this again was merely an attempt to sue on a contract by a person not party to it. There was no suggestion of any negligence on the part of the defendant, and on this ground Kelly, C.B., distinguished the case in George v. Skivington (d). The decision itself cannot be regarded as any authority for the proposition stated in the headnote, that a (a) See Redhead v. Midland R. Co., (1869) L. R. 4 Q. B. 379. (b) (1851) 6 Exch. 761; see also Gordon v. Me Hardy, (1903) 6 F. 210 Ct. of Sess. (c) As to the law on this point, see Sale of Goods Act, 1893 (56 & 57 Viet. c. 71), s. 14. (d) (1869) L. R. 5 Ex. p. 4. tradesman who contracts with an individual for the sale to him of an article to be used for a particular purpose by a third person is not, in the absence of fraud, liable for injury caused to such person by some defect in the construction of the article (a). Indeed the notion that fraud on the part of the vendor would in such a case better the position of the plaintiff, seems to be founded on a misconception; for it is essential in an action for fraud that the defendant should have intended to deceive the plaintiff (b), and it is obvious that in such a case as Longmeid v. Holliday the defendant did not so intend, for he had nothing to gain by the plaintiff's using the lamp at all (c). In all the cases above referred to the injury which the plaintiff Distinction where injury complained of as the result of his using the thing issued by the not physical. defendant in the manner intended was a physical injury. In Cann v. Willson (d) an attempt was made to extend the principle of those cases to a case in which the injury resulting from the intended user was, from the very nature of the thing, not physical, but pecuniary, only. There, an intending mortgagor, at the request of the plaintiff, the intending mortgagee, applied to the defendants, a firm of valuers, for a valuation of the property proposed to be mortgaged, and the defendants, knowing that the valuation was intended for the use of the mortgagee, negligently over-valued the property, whereby, on the mortgage being carried out, the plaintiff sustained damage. Chitty, J., held the defendants liable on the principle of George v. Skivington (e). He was of opinion that as the valuation, if used in the way in which it was intended to be used, would be likely to produce damage unless it was carefully made, it was just as much a dangerous thing as was the hair-wash in the case referred to. However, in Scholes v. Brook (f), where a similar question arose, Romer, J. refused to follow Cann v. Willson. He there said, "Cases have been cited which, it is said, establish such a liability. But, apart from Cann v. Willson, it appears to me that the authorities may be divided into two classes. One of those classes is where one (a) And see ante, pp. 471 sqq. (b) See Peek v. Gurney, (1873) L. R. 6 H. L. 377. (e) See discussion on this subject below, at P. 545. (d) (1888) 39 Ch. D. 39. But see (ƒ) (1891) 63 L. T. N. S. 837. |