LIABILITY FOR DANGEROUS

CHATTELS

FINAL DRAFT SUBMITTED IN PARTIAL FULFILLMENT OF COURSE TITLED

Law Of Torts FOR COMPLETION OF B.A.LLB. (HONS.) IN

ACADEMIC YEAR 2018-19

Submitted by – Vinita Kumari Submitted to –

Roll no – 1982 Faculty of Law Of Torts
1st Semester, B.A.LLB. (Hons.) Mrs. Sushmita Singh

25TH September 2018

Chanakya National Law University

Nyaya Nagar, Mithapur, Patna (Bihar)

1|Page
 DECLARATION

I, Vinita Kumari, hereby declare that the work reported in B.A. LL.B (Hons.)

project report titled “Liability For Dangerous Chattels” submitted at Chanakya

National Law University, Patna is an authentic record of my work carried out

under the supervision of Mrs. Sushmita Singh. I have not submitted this work

from elsewhere and I am fully responsible for the contents of my project report.

VINITA KUMARI
ROLL NO. – 1982
B.A. LLB. (Hons.)
1st semester

2|Page
 ACKNOWLEDGEMENT

The researcher takes this opportunity to express her profound gratitude and deep

regards to her guide Mrs. Sushmita Singh, for her exemplary guidance, monitoring

and constant encouragement throughout the course of this project. The blessing, help

and guidance given by her time to time shall carry the researcher a long way in the

journey of life on which the researcher is about to embark.

The success and final outcome of this project required a lot of guidance and assistance

from many people and I am extremely privileged to have got this all along the

completion of this project. Last, but not the least, I am thankful to all the members of

my family, friends and teachers without whose assistance and encouragements I could

not have completed my thesis.

VINITA KUMARI

3|Page
 TABLE OF CONTENT

INTRODUCTION ................................................................................................ 5

RESEARCH QUESTION ..................................................................................... 6

RESEARCH OBJECTIVES ................................................................................. 7

HYPOTHESIS ...................................................................................................... 8

RESEARCH METHODOLOGY.......................................................................... 9

1. LIABILITY TOWARDS THE TRANSFEREE .......................................... 10

2. LIABILITY FOR FRAUD AND NEGLIGENCE ....................................... 12

3. DUTY OF A PERSON IN POSSESSION AND MANAGEMENT OF

DANGEROUS CHATTELS .............................................................................. 15

4. CONCLUSION............................................................................................. 17

BIBLIOGRAPHY ............................................................................................... 18

4|Page
 INTRODUCTION

It has often been pointed out that the implications of the two great House of Lords cases in
our modern law of tort are conflicting, and that when an English court is faced with facts
which fall within the area of their contact, it will find great difficulty in coming to a decision
which squares with them both. Such was the position of the Court of Appeal in Candler v.
Crane, Christmas. & Co.1 last year. The "Neighbors”) doctrine of Lord Atkin, supported as it
was by the majority in the House of Lords in Donoghue v. Stevenson,2 can and has been
taken as justification. for extending the range of liability in negligence, so that it has at last
been invoked to support an action by a plaintiff who suffered financial loss through a public
accountant's negligent misstatement, On the other hand, there is implicit in the language of
the Lords of Appeal in Derry v. Peek3 the proposition that misstatement lies properly in the
realm of deceit and that persons who rely upon statements in business transactions should be
protected from dishonesty but not from mere carelessness.

When the chattel is transferred under a contract, the liability of the parties is regulated by the
term of the contract. The terms or stipulations in a contract may be express or implied. For
example, in a contract of sale of goods, there is, in certain case, 4 an implied condition that the
goods shall be reasonably fit for the purpose for which they are required by the buyers. If the
goods contain harmful ingredients causing damage to the purchaser, the seller is liable for
that.

One might repeat the words of Professor Paton: "After all, why should we tract the
implication of Dery v. Peek with greater reverence than the implication of Donoghrte v.
Stevenson However, the arguments for and against the relegation of Dery v. Peek to the
position of leading case on the internal content and not on the external range of a deceit
action are lucidly and comprehensively laid out in such recent valuable articles as those of
Professor Paton5 Mr. Justice Fullagar of the High Court of Australia,' and Dr. W. L. Morison,
and indeed in the judgments of the Court of Appeal in Candler v. Crane, Christmas Q Co.
itself.

1
[1951] 2 X.B. 164.
2
[1032] A.C. 562.
3
(1888) 14 A.C. 337
4
Sec. 16(1), Sale of Goods Act, 1930 (India): Sec 14(1) English Sale Of Goods Act, 1893.
5
Liability in Tort for Negligent Misstatements," (1947) 25 Can.B.R. 123
‘

5|Page
 RESEARCH QUESTION

I. If ‘x’ transfers a dangerous chattel to ‘y’ and ‘y’ transfers the same to ‘z’. If ‘z’

is injured by it, then how far ‘z’ can be made ‘x’ liable for that?

II. What are the criteria to set the liability of the transferor towards the ultimate

transferee?

III. In what circumstances the liability towards the immediate transferee or the

ultimate transferee can be imposed?

IV. How the rule applied in Donoghue v. Stevenson?

V. What are the reasonable duties of a person in possession of dangerous chattels?

6|Page
 RESEARCH OBJECTIVES

I. The researcher tends to differentiate between the liability towards the

immediate transferee and the liability towards the ultimate transferee.

II. To analyze the duties of a person in possession and management of dangerous

chattels.

III. To analyze the importance of unfair Contract Terms Act, 1977 in England and

the Consumer Safety Act, 1987.

7|Page
 HYPOTHESIS

The researcher presumes that –

I. When a person transfer goods to another person under a contract, his liability

arises only under the law of contract, not also he can be made liable in tort for

negligence.

II. A person cannot be made liable if the chattels transferred from one person to

another by way of gift or loan.

8|Page
 RESEARCH METHODOLOGY

The researcher will be relying on doctrinal method of research to complete the project

and the researcher will be relying on both primary and secondary sources to complete

the project.

This study has been designed keeping in view the objectives, scope as well as research

questions of the study. The methodology of research differs according to the subject

and problem under study.

I. Primary Sources : Acts and articles relating to the topic, case laws, case study,

legislature, statutory provisions.

II. Secondary sources : Books and library sources, websites.

9|Page
 1. LIABILITY TOWARDS THE TRANSFEREE

The chattels may be transferred from one person to another either under a contract or by gift
or loan. When the chattel is transferred under a contract, the liability of the parties is
regulated by the term of the contract. The terms or stipulations in a contract may be express
or implied. For example, in a contract of sale of goods, there is, in certain case,6 an implied
condition that the goods shall be reasonably fit for the purpose for which they are required by
the buyers. If the goods contain harmful ingredients causing damage to the purchaser, the
seller is liable for that. Thus, when the woollen underwears causes dermatitis to the buyer
because of excess of certain chemicals in them,7 a hot water bottle burst when it was being
properly used,8 and the milk caused disease because it contained typhoid germs,9 the seller
was held responsible for the same.

While making a contract the parties are free to negative the liability which could otherwise
arise. The case of Ward v. Hobbs,10 explains the points. In that case, the defendant sold a
herd of pigs to the plaintiff. The pigs had been suffering from typhoid fever. The defendant
knew this fact but he did not disclose the same and sold those pigs “with all faults”. Those
pigs and also some of the plaintiff’s other pigs, which got infected with the diseases, died.
The House of Lords held that the defendants were not liable for that.

When a dangerous article is transferred under a contract of bailment, the responsibility of the
bailor will vary accordingly to the fact whether the contract is one for hire or is a mere
gratuitous bailment. In a contact of bailment, when the goods bailed for hire expose the bailee
to extraordinary risk, the bailer is responsible for the loss of caused by such goods, it is
immaterial whether the bailor was aware of such fault in the goods bailed or not. In case of
gratuitous bailment, on the order hand, the duty of the bailor is to disclose those faults of
which he is aware and which materially interfere with the use of them and or expose the
bailee to extraordinary risk.11 In Hyman v. Nye & Sons,12 the plaintiff hired a carriage and
horses from the defendant for a particular journey. Due to defective bolt in the carriage it was
upset, as a consequence of which the plaintiff was injured. Since the carriage was not

6
Sec. 16(1), Sale of Goods Act, 1930 (India): Sec 14(1) English Sale Of Goods Act, 1893.
7
Grant v. Australian knitting Mills Ltd., (1936) A.C. 85.
8
Priest v. Last, (1903) 2 K.B. 148
9
Frost v. Aylesbury Dairy co., (1905) 1 K.B. 608.
10
(1878) 1 A.C. 13.
11
Sec .150, Indian Contract Art, 1872.
12
(1888) 6 Q.B.D. 685.

10 | P a g e
reasonably fit for the purpose for which it was hired, the defendant was held liable. Lindley,
J. said that the defendant had a duty “to supply a carriage as fit for the purpose for which it is
hired as care and skill can render it and if it breaks down, it becomes incumbent on the person
who has let it out to shoe that the breakdown was in the proper sense of the word an accident,
not preventable by any care or skill.”13

When a person transfers goods to another person under a contract, his liability arises not only
under the law of contract but there can also be concurrent liability in tort for negligence. In
Clarke v. Army and Navy Co-operative Society Ltd.,14 the plaintiff purchased a tin of
chlorinated lime from the defendant’s store. When the plaintiff tried to open it in the usual
way by prising the lid off with a spoon, the content flew on to her face and injured her eyes.
The defendant knew of this danger nut negligently omitted to warm the plaintiff about that.
The defendants were held liable in tort towards her.

In case of transfer by way of gift or gratuitous loan, it was thought that there was no liability
of the donor or the lender of the article except for failure to give warning in respect for the
defects actually know to him.15 It is now believed that “the decision in Donoghue v.
Steveson makes the earlier cases on gift quite out of date”16 and the gratitude’s nature of the
transfer by itself not make a difference in the transferor’s liability.17

13
(1869) 4 Q.B. 379.
14
(1903) 1 K.B. 155.
15
Coughlin v. Gillision, (1899) 1 Q.B. 145.
16
Hawkins v. Coulsdon & purley U.D.C., (1954) 1 Q.B. 319.
17
Marsh, “The liability of the gratuitous transferor: A comparative survey” (1950) 66 L.Q.R. 39.

11 | P a g e
 2. LIABILITY FOR FRAUD AND NEGLIGENCE

It is often said that there can be no negligence in the abstract. This enigmatic phrase has its
true frame of reference in the classification of conduct and not in the imposition of liability,
Its ambiguity is traceable to the damnosa hereditas of the old forms of pleading, to the double
meaning of the word “negligence.” No one can point to an act and say, ignorant of its
circumstances and consequences that it was in law a negligent act. The supreme proof of this
lies in the infant cases like Yachuk v. Oliver Blais18 where an act which would certainly
have constituted contributory negligence in an adult did not deprive a child of his remedy.
The careless character of the act must be ascertained by reference to some consequence of it :
we use the test of whether a reasonable man would have foreseen the harmful consequences
which someone in plaintiff’s position might suffer as a criterion of the quality of defendant’s
conduct. But the further question, whether defendant should be liable for the consequences of
his admittedly careless conduct, is a separate matter.19 The fixing of the nexus which will
finally impose liability on a man guilty of careless conduct towards the victim of its
consequences is a different inquiry altogether. In the normal case of manufactured goods the
same test of foresight gives the radius required by the social need, for it covers the ultimate
consumer or user.20 But this coincidence is the result of the expediency of the same test being
suitable for both inquiries: it is not a necessary element of all liability for negligent conduct.
There is no reason why the law, having, selected a satisfactory test for the type of conduct it
deems blameworthy, should not adopt a wider or narrower test for the establishment of the
duty-nexus which will connect the careless conduct in law with the harm suffered (and this
time, unlike the passive connection made to fix defendant’s conduct as careless, an active
onerary one). Whether it does so or not is entirely a matter of sociological expediency. To
take a wider test is to abandon all incidence of the retributive principle and to trespass into
the preserves of strict liability.
Many injuries are not the result of intentional or willful actions against the injured party but
may be the unavoidable results of an advanced society and complex technology. However, in
some situations, while the injuries are unintended they are caused by a standard of conduct
that is less than that which is necessary to protect people from an unreasonable risk of harm.

18
[1949] A:C. 386.
19
Law of Negligoicc, 2nd ed., 1947 14-16.
20
255 N.Y. 170 nt 179

12 | P a g e
Defendant sent plaintiff, a chemistry teacher, on the latter's request, a free set of oil samples
showing various forms of oil products. To insure safe shipment, defendant had substituted
water for kerosene. Although it labeled the vial "kerosene", it in no way informed plaintiff of
the substitution. After displaying the exhibit to the class, plaintiff poured the contents of this
vial over some metallic sodium. This is the usual laboratory method for preserving the metal.
Water, unlike kerosene, reacts violently with sodium. The explosion which resulted destroyed
plaintiff's eye. Plaintiff brought suit for the injury and recovered in the court below.
21
Defendant, contending that these facts show no negligence on its part, appealed. Held, that
there was sufficient evidence to carry the case to the jury.' The court, in its application of the
law of negligence and proximate cause, employs what is, in effect, the well-known approach
of the Polemic. case2. In confronting the problem, the court says: "The real question is
whether the defendant's act, in substituting water for kerosene without any warning of the
substitution, is sufficiently unnatural to make an issue properly to be submitted to the jury on
the question of reasonableness of its conduct."22 The court upholds the right of the jury to
find the mislabeling unreasonable even though its particular consequences are surprising,
citing a number of cases in which damages were awarded where the precise injury which
resulted was just as surprising.

Each of these cases cited by the court as illustrating situations in which the injury was
surprising involves an act with regard to some article, substance, or condition which is
usually accepted as actually or potentially dangerous in itself: dry ice,23 gasoline,24 street
pavement,6 electric transformer7 soda water bottle,8 and auto wheel.9. The two sections of
the America Law Institute's Restatement of the Law of Torts cited by the court'0 likewise
seem to contemplate action with regard to such an article, substance, or condition. To have
brought the instant case under the rule of "dangerous article-surprising consequence" which
these authorities illustrate, the court must have found most unusual circumstances to establish
that conduct here in relation to water was dangerous. The factual set-up the mislabeling water
for kerosene, the possibility of laboratory use, the chance of some harm through such use, et
cetera-under which the conduct thus becomes dangerous, even as under more usual

21
Pease v. Sinclair Refining Co. (C. C. A. 2, 1939) 104 F. (2d) 183. Contributory negligence, the second point on
which appeal was made, also failed.
22
Pease v. Sinclair Refining Co. (C. C. A. 2, 1939) 104 F. (2d) 183 186. Italics supplied
23
New York Eskimo Pie Corp. v. Rataj (C. C. A. 3, 1934) 73 F. (2d) 184.
24
Parnell v. Holland Furnace Co. (1932) 260 N. Y. 604, 184 N. E. 112 aff'g 234 App. Div. 567, 256, N. Y. S. 323.

13 | P a g e
circumstances conduct with regard to gasoline and the like becomes dangerous, makes this
case virtually unique.

The line which divides the facts of the instant case from one in which the defendant's acts
violate no duty and create no unreasonable risk is a fine one at best. This is illustrated by the
distinction which the court seems to draw between the word "unnatural" as used in the
passage quoted above and the word "unusual" as employed by the court when it says, "This,
therefore, is one of those cases where not unusual human conduct produces results so
unexpected and tragic as to startle and amaze."'" Is the substition of water under the
circumstances "not unusual," but, nevertheless "unnatural"? The opinion is of added interest
because it is one of the first by Judge Charles E. Clark, lately Dean of the Yale School of
Law. It is characterized by a clear style, analytical approach, a refreshing frankness, and by
the absence of the dogmatic formulae to which courts sometimes resort when confronted by
problems in this field. Judge Clark's use of law review literature, 25 treatise material,26 and,
particularly, of the American Law Institute's restatement of the law,27 is worthy of passing
comment.

25
Gregory, Proximate Cause in Negligence-A Retreat from "Rationalization" (1938) 6 U. of Chi. L. Rev. 36.
26
Street, The Foundations of Legal Liability (1906).
27
Restatement, Torts, (1934).

14 | P a g e
 3. DUTY OF A PERSON IN POSSESSION AND
MANAGEMENT OF DANGEROUS CHATTELS
Each member of our society has a duty to act in a manner that avoids an unreasonable risk of
harm to others. The standard that determines the nature of the duty of care is both objective
and flexible and depends on the specific circumstances surrounding the injury. For example,
the standard of care in most situations is that of a "reasonable person (man) of ordinary
prudence in similar circumstances." That is, a thoughtful, cautious and risk averse individual
who avoids placing others in unreasonable danger. From this definition it can be observed
that the nature of the circumstances can affect the standard of care; an emergency situation
will be considered differently to another where there is sufficient time for reflection and
thoughtful action. In addition, the personal characteristics of the defendant are an issue and
his/her behavior is considered with respect to a reasonable person of similar age, intelligence,
and experience. Physical disabilities also are considered but mental deficiencies do not
relieve a person from the "reasonable man" standard.
Under certain conditions, a special duty may arise for the defendant to protect the plaintiff
from harm. Such duties can originate from many sources; including contractual relationships
and professional duties. For example, a contract can establish a higher standard and both
clients and third parties can sue a professional for the incompetent performance of
professional work that was the proximate cause of their injuries. Recent court decisions also
have established that an affirmative duty exists to protect passengers and guests from the
foreseeable and wrongful acts of third parties, greatly extending the general duty to aid and
protect others from third parties.
The doctrine of strict liability is the third primary component of tort liability. Strict liability
arises for a defendant that engages in particular types of activities that are potentially harm-
producing, and despite the fact that the person did not intend harm and took every measure
within his/her power to prevent injury to the plaintiff. The application of strict liability is a
relatively new theory of law and reflects an emerging social policy that the risks associated
with a particular activity should be carried by those parties who "pursue it", instead of by
people who are merely exposed to the risk. Although the previously discussed defense of
contributory negligence is generally held NOT to be a valid defense for strict liability,
assumption of risk by the plaintiff may be accepted by the court and prevent recovery.

15 | P a g e
Strict liability applies to two types of activity: abnormally dangerous (ultra hazardous)
activities and the manufacture/ sale of defective or unreasonably dangerous goods/products.
Activities that involve a considerable potential for injury that cannot be eliminated by taking
reasonable care (such as the demolition of buildings, stunt flying, crop dusting etc.) may
constitute a basis for strict liability if the following conditions are met with respect to an
activity. A manufacturer is negligent if an injury results when the design of a product does
not attain a standard of design that the court determines is reasonable. The standard of
reasonableness is determined by an examination of the reasonable foresee ability of injury
resulting from the design, including:
I. The magnitude of the foreseeable harm.
II. The standard of the industry practices that were in effect at the time of production.
III. The state of the art of scientific and technical knowledge at the time of production.
IV. Compliance with government standards.
V. The social utility of the product.
Many courts may seek to integrate these factors in a risk-return framework. Defenses (and
underlying considerations) include the prohibitive cost of designing the product differently
(or the fact that there is no better way of designing it) and the existing design already has
considerable value to society.

16 | P a g e
 4. CONCLUSION

When the chattel is transferred under a contract, the liability of the parties is regulated by the
term of the contract. The terms or stipulations in a contract may be express or implied. For
example, in a contract of sale of goods, there is, in certain case, 28 an implied condition that
the goods shall be reasonably fit for the purpose for which they are required by the buyers. If
the goods contain harmful ingredients causing damage to the purchaser, the seller is liable for
that. . In Clarke v. Army and Navy Co-operative Society Ltd.,29 the plaintiff purchased a
tin of chlorinated lime from the defendant’s store. When the plaintiff tried to open it in the
usual way by prising the lid off with a spoon, the content flew on to her face and injured her
eyes. The defendant knew of this danger nut negligently omitted to warm the plaintiff about
that. The defendants were held liable in tort towards her. In case of transfer by way of gift or
gratuitous loan, it was thought that there was no liability of the donor or the lender of the
article except for failure to give warning in respect for the defects actually know to him.30

It is submitted that the normal test of foresight is inapplicable, and that in this respect the
duty, if it be recognized at all, should differ sharply from that owed in respect of chattels. The
manufacturer of chattels is liable to any person whom he ought reasonably to have
foreseenmight be injured by the dangerous chattel.

Each member of our society has a duty to act in a manner that avoids an unreasonable risk of
harm to others. The standard that determines the nature of the duty of care is both objective
and flexible and depends on the specific circumstances surrounding the injury. For example,
the standard of care in most situations is that of a "reasonable person (man) of ordinary
prudence in similar circumstances." That is, a thoughtful, cautious and risk averse individual
who avoids placing others in unreasonable danger. From this definition it can be observed
that the nature of the circumstances can affect the standard of care; an emergency situation
will be considered differently to another where there is sufficient time for reflection and
thoughtful action. In addition, the personal characteristics of the defendant are an issue and
his/her behavior is considered with respect to a reasonable person of similar age, intelligence,
and experience. Physical disabilities also are considered but mental deficiencies do not
relieve a person from the "reasonable man" standard.

28
Sec. 16(1), Sale of Goods Act, 1930 (India): Sec 14(1) English Sale Of Goods Act, 1893.
29
(1903) 1 K.B. 155.
30
Coughlin v. Gillision, (1899) 1 Q.B. 145.

17 | P a g e
 BIBLIOGRAPHY

BOOKS AND ARTICLES

I. Law of Torts by Ratanlal and Dhiraj lal

II. Law of Torts by Dr. Shivani Verma
III. Law of Torts by R.K. Bangia
IV. Introduction to the Law of Torts And Consumer Protection by Avtar Singh &
Harpreet Kaur
V. Torts—Negligence—Liability of Supplier of Chattels—Dangerous Substance,
25 Wash. U. L. Q. 134 (1939).
VI. Chattels and Certificate in the Law of Negligence By R. G. Wilson.

INTERNET SOURCES
I. www.scholarspace.in
II. www.ausii.edu
III. www.cambridge.org
IV. www.law.nyu.edu
V. www.legal.un.org
VI. www.justia.com

18 | P a g e