In the 19th century, an action for
negligence was only available if there was a particular relationship between the injured person and the person said to be negligent. The most common founding of the relationship was that of contract, but only where both people were party to the same contract, referred to as
privity of contract. Thus in
Winterbottom v Wright, Winterbottom had a contract with the
Postmaster-General to drive a mail coach, while Wright had a contract with the Postmaster-General to maintain the mail coach. Wright performed his contract negligently and a wheel fell off the coach and Winterbottom was injured. The
Court of Exchequer held that because Winterbottom and Wright were not parties to the same contract, such that Wright had no liability in negligence. There was no privity of contract where goods were sold by an intermediary, or where the goods were bought on behalf of another. There were some exceptions, such as
Langridge v Levy where the seller fraudulently misrepresented that the gun was safe, knowing that the gun was bought on behalf of the buyers son, and
George v Skivington where a chemist negligently compounded a bottle of hair shampoo, knowing it was to be used by the plaintiff's wife. In 1932 the law of negligence however was radically altered by the
House of Lords in the decision of
Donoghue v Stevenson, where
Lord Atkin held that the particular relationships that had hitherto been held to give rise to a
duty of care were but instances of a general rule that a person owed a duty of care who ought reasonably have been contemplated as being closely and directly affected by the actions.
Facts In June 1931 Dr Grant purchased two pairs of woollen underwear and two singlets from
John Martin's There was nothing to say the underwear should be washed before wearing and Dr Grant did not do so. He suffered a skin irritation within nine hours of first wearing them. Dr Grant applied
calamine lotion, but continued to wear the underwear for the rest of the week. He then wore the second pair for the next week and washed the first pair. This was in an era when changing his underwear only once a week was "the ordinary custom of ordinary people". Dr Grant also sued the manufacturer, Australian Knitting Mills, alleging that they had been negligent in failing to take reasonable care in the preparation of the garments. The garments in question were alleged to contain an excess of sulphur compounds, variously described as sulphur dioxide and
sulphites.
Supreme Court of South Australia The case was heard in the
Supreme Court of South Australia before
Murray CJ over 20 days in November and December 1932 . The issues to be determined in the case were whether the underwear caused Dr Grant's dermatitis, whether Dr Grant relied on the salesman's skill & judgment, giving rise to the statutory warranty the underwear was fit for purpose, and the extent of the manufacturer's duty of care to the ultimate consumer. Murray CJ accepted evidence that the dermatitis was caused by exposure to sulphur compounds, holding that the manufacturer owed a duty of care to the consumer because (1) it intended the underwear would reach the consumer for wear in the same condition as when it left the manufacturer, (2) there was no reasonable possibility of testing for the presence of sulphur compounds and (3) Australian Knitting Mills knew that the absence of reasonable care in the preparation of the garments would result in an injury to the purchaser's health. The judgment does not articulate what a reasonable manufacturer would have done differently. Dr Grant was awarded £2,450 in damages. Starke J agreed with the findings of Murray CJ that (1) the manufacturing process was the source of some of the sulphur content, but it was not possible to determine the proportion, agreed with Dixon J, in this case writing a short concurring judgement. and the Australian barrister Wilbur Ham , who had represented them before the High Court and had made the journey to London for the hearing. The headnote writer in the authorised reports of
Donoghue v Stevenson expressed the duty of care as being confined to ‘the manufacturer of an article of food, medicine or the like’, an argument that was adopted for Australian Knitting Mills in seeking to distinguish the case from one in which an item of clothing was to be worn externally. The other way in which they sought to distinguish
Donoghue v Stevenson the sealed bottle intentionally excluded interference with or examination of the ginger beer before it reached the consumer, whereas the clothing bought by Dr Grant "might be handled and inspected by others before reaching the" consumer. ==Privy Council==