Prior to June 1936, the plaintiff had been in the habit of having her hair treated by the defendant, Mrs Senior, with henna, to colour it. Once a fortnight she had been to the defendant's, Mrs Senior's, shop. The visits were alternately for an application of henna and a shampoo. A fortnight before 2 June, the defendant, Mrs Senior, suggested to the plaintiff that she should have her hair dyed with Oloxo, a liquid dye which the defendant, Mrs Senior, had bought from the defendant company, Oloxo Ltd. The plaintiff was unwilling to have this dye used on her head, giving as her reason that so many liquid dyes caused skin trouble. She asked if it was safe. The defendant, Mrs Senior, said it was quite safe and perfectly harmless. The plaintiff said she would think about it, and decide before she came back in a fortnight. On 2 June, she came back, and the defendant, Mrs Senior, inquired if she had decided. The plaintiff again asked if it was safe, and again the defendant, Mrs Senior, said that it was safe for the plaintiff to use. On this assurance, the plaintiff agreed to have Oloxo applied, and to pay the defendant's, Mrs Senior's, charge for the application. I have no doubt that it was intended by both parties that that assurance that the Oloxo was safe for the plaintiff should be a warranty, and an essential term of the contract for its application to the plaintiff's head by the defendant, Mrs Senior, for reward. The result of the application was that the plaintiff developed an acute and a very painful attack of dermatitis, her scalp, neck and face swelling, and the irritation spreading over her body, and affecting her nerves, so that she still suffers from some nervous affection.
[1937] 3 All ER 524 at 526 The defendant, Mrs Senior, had purchased the Oloxo from the defendant company, Oloxo Ltd. That company is registered in England with a nominal capital of £100 in £1 shares, of which 13 are issued and 10 of those shares are held, through a nominee, by the manufacturers of the Oloxo Inc, in New York. Oloxo Ltd, is the selling company in England, controlled by the American corporation.
Oloxo Ltd, sent a traveller to call on Mrs Senior, and I accept Mrs Senior's evidence of what took place. At the interview with that salesman, one Leslie Briggs, he informed her that a set of lectures and demonstrations on hair-colouring was then being arranged by Oloxo Ltd, and that she could attend those lectures if she gave an order for one guinea's worth of the Oloxo hair-dye. Leslie Briggs admitted that Mrs Senior was anxious about the safety of Oloxo, and told him she did not use certain dyes because she did not think them safe. Mrs Senior said, and I accept it, that he told her that Oloxo was safe. Upon that assurance, she gave her order for one guinea's worth. Without that assurance, I am satisfied she would not have given her order.
The contract between Mrs Senior and Oloxo Ltd, was, I am satisfied, that, in consideration of her giving an order for one guinea's worth of the Oloxo dye, Oloxo Ltd, warranted it was safe, and undertook to permit her free attendance at the lectures and provide her with one case of bottles of Oloxo. The traveller informed Mrs Senior, when this had been arranged, that her order must go to a wholesale hairdressers' sundriesman, as Oloxo Ltd, did not sell direct to a hairdresser. It is suggested that the order form for one guinea's worth of Oloxo was addressed to Messrs Watts, who are hairdressers' sundriesmen. In these circumstances, it is urged that Oloxo Ltd, did not contract with Mrs Senior, or sell her the Oloxo which did harm, but that she bought from Messrs Watts. I am of opinion that she did contract with Oloxo Ltd, for her supply, in the terms I have mentioned, and that the addressing of the order to Messrs. Watts was merely the method of carrying out the contract made by Oloxo Ltd, with Mrs Senior. It was machinery chosen by Oloxo Ltd, to suit its own organisation and methods of business. It did not alter or transfer the contract it had made. It merely gave effect to it. The fact that Messrs Watts accepted Mrs Senior's order, and that there was also privity between her and Messrs Watts, does not seem to me to exclude the continued efficacy of the contract made between Oloxo Ltd, and Mrs Senior.
The Oloxo was not as warranted. It was not safe for application to the head for the purpose for which it was sold, both by Oloxo Ltd, to the defendant, Mrs Senior, and by Mrs Senior to the plaintiff. It was a dangerous and injurious thing to apply to the plaintiff's head. Oloxo Ltd, knew it was not safe. Mr Armitage, the managing director, said that he regarded it as a dangerous preparation to use without a skin test. Mr Briggs, the northern representative of the company, said that he would regard it as dangerous without a skin
[1937] 3 All ER 524 at 527 test. It was known by the responsible personnel of Oloxo Ltd, that it might be injurious to any person whose skin was susceptible to that which the liquid contained, and that the only way in which a hairdresser could know whether it would turn out to be injurious to a particular customer was by making a skin test.
It is clear from the booklet issued with the boxes of Oloxo that the defendant company well knew that Oloxo might injure anyone whose skin was susceptible to the irritating agent which the analytical expert, called by the defendant, Oloxo Ltd, said was present in Oloxo as its dye basis. In those circumstances, Oloxo Ltd, supplied it to Mrs Senior, for use by her upon the heads of her customers. Oloxo Ltd, not only failed to give warning that it was dangerous to use on the head without first making a skin test, but also gave an express warranty that it was safe. Cotton LJ, in Heaven v Pender, said at p 517:
'Anyone … who without due warning supplies to others for use an instrument or thing which to his knowledge, from its construction or otherwise, is in such a condition as to cause danger, not necessarily incident to the use of such an instrument or thing, is liable for injury caused to others by reason of his negligent act.'
The Oloxo was, in the circumstances that I have found, sold, as part of the contract made by Oloxo Ltd, with Mrs Senior, to Mrs Senior, a hairdresser, for use, and expressly for use, as a dyeing agent on the heads of customers of the hairdresser. Oloxo Ltd, knew it would be so used, and it knew that it was dangerous to use it in that way without a test. Unless it gave warning that a test was necessary, it committed, in my opinion, a breach of the duty which it owed in those circumstances.
The matter went further, for it not only failed to warn the hairdresser that it was dangerous to use the Oloxo on the head of a customer without a test, but it also expressly warranted that Oloxo was safe. In those circumstances, it was, in acting in that way, assisting to bring about the application of that Oloxo to the head of the customer without there being any test made by the hairdresser. It appears to me that, when Mrs Senior did with the Oloxo that which she was intended by Oloxo Ltd, to do with it, upon the basis of the warranty that it had given in respect of that Oloxo that it was safe, and it turned out to be injurious to the head of the customer (the plaintiff in this case) the injury which the customer sustained was in the direct line of consequence from the breach of duty of which Oloxo Ltd, had been guilty.
In those circumstances, it appears to me that there is a responsibility made out in tort on the part of Oloxo Ltd, at the suit of the plaintiff. It has been urged that there is another principle in the law of torts on which Oloxo Ltd, is responsible. My attention is called to the statement of that principle in Blacker v Lake & Elliot Ltd. Lush J, says, at p 540:
'The second case in which the vendor may be liable is when the chattel itself belongs to that specific class of things which are noxious or dangerous in themselves. In such a case if the vendor sells the chattel to one person contemplating or knowing that it will be used by another, he is under a duty towards the person who he knows will use it not to misrepresent its real nature.'
[1937] 3 All ER 524 at 528 In Cavalier v Pope, Collins MR, adopted this point of view. In discussing George v Skivington, he said at pp 761, 762:
'In this latter case there is neither fraud, misrepresentation, nor warranty, nor the handing over possession of a thing known to be dangerous without warning. There is nothing but remissness in carrying out a contract. The defendant himself was not even aware that such a contract had been made, and there is no evidence that the agent made any misrepresentation or did not intend, if this were material, that what he promised should be performed. I need therefore, say no more upon this point than that I cordially concur in the learned judge's view; neither is it necessary to consider whether, even if she was entitled to claim the benefit of the contract, the damages which she claimed could be treated as flowing from the breach.'
Now, before that passage and that principle can be applied to this case, one must decide whether this article falls within the category of chattels which is subject to those words. In other words, was this an article of a dangerous nature, which Oloxo Ltd, knew to be dangerous? Well, as I have said in the course of this case, I find it very difficult to know exactly what is intended by the words “chattel of a dangerous nature.” Strictly speaking, of course, an inanimate chattel has not a nature, but, without being too nice about words, I can think of only the wild animal as something which has a dangerous nature. Most inanimate things become dangerous only if, in certain circumstances, they are likely to be employed dangerously. This article in question is a very good example of the difficulties that arise in determining whether or not this article shall be put into the category of articles dangerous in their nature. It had, inherent in it, a danger. It is quite true, I think, on the evidence, that, in the vast majority of cases, the article might be used without ill effect. But the danger that was inherent in this article was that nobody could tell, unless a skin test was made, whether or not an individual person on whom it was to be used would suffer.
It seems to me that when Oloxo Ltd, with that knowledge, sells that article for application to the heads of all and sundry, who might contract, in the application of that article to their heads, some skin trouble, and when it gives no warning that, unless a skin test was made, it was dangerous, it must be held to have been selling an article which comes within the category of a thing dangerous in itself. The danger was in it, and it was a chemical danger, which could not be known or apparent to any user of the article. It was none the less existent for every user merely because, in large numbers of cases, the danger resulted in no injury, because any user might be susceptible.
I think that, in addition to the reasons I have given for holding the defendant, Oloxo Ltd, liable to the plaintiff in tort for the breach of duty of which it was guilty, it is liable upon this principle enunciated by Lush J, in Blacker v Lake & Elliot Ltd. It handed over an article which it knew was dangerous, in the sense that it might be dangerous to any user, and one could ascertain whether it would be dangerous to the user only by making a skin test. It handed it over,
[1937] 3 All ER 524 at 529 for use on persons, to a hairdresser who was ignorant of that quality in its nature, without warning the hairdresser. Thereby it committed a breach of duty, not only to the person with whom it contracted, but also to all the persons, and the plaintiff was one, who, to its knowledge, might use it.
In the circumstances, I think that the plaintiff is entitled to recover in contract against Mrs Senior, and in tort against Oloxo Ltd; and that, for the reasons I have given, Mrs Senior is entitled to damages against Oloxo Ltd, for breach of warranty, and for breach of the contract which I have indicated, and which, in my view, it made in the case of Mrs Senior. I think that Mrs Senior's claim against Oloxo Ltd, is truly for damages for breach of its contract with her. I do not think there was a term included in it that it would indemnify her, because I think that the contract was made with Oloxo Ltd, and completely made with it before there was given to her that assurance that it would indemnify her. I am satisfied that Mr Armitage, on behalf of Oloxo Ltd, at the lectures, which were subsequent to the making of the contract, attended by Mrs Senior, did assure every hairdresser present that Oloxo Ltd, enjoyed a unique position in relation to the hairdressers who bought Oloxo from it, in that it was willing to indemnify, and did indemnify, the hairdressers against any claim which arose through the use of Oloxo. But it has, of course, gone back on that representation. I do not think, as I have said, that it was made at the time when it can be deemed to be a part of the contract made between Oloxo Ltd, and Mrs Senior. I do not think it matters. I think the measure of damages to which Mrs Senior is entitled, and to which she would be entitled in an action overt, is quite rightly stated to be such damages as she has to pay to the plaintiff, and the costs to which she has been put through the claims being made upon her, provided that such costs have been reasonably incurred, in the circumstances.
In my view, all the costs that Mrs Senior has incurred in this matter have been reasonably incurred. (His Lordship then dealt with the question of damages.)