This is a case, from the legal point of view, of some interest. The plaintiff claims damages from Mrs Buckley and Messrs Osborne, Garrett & Co Ltd, and from Wyrovoys Products Ltd, by reason of the fact that on 20 June 1938, he attended Mrs Buckley's hairdressing establishment and there had his hair dyed with a produce which was manufactured by Wyrovoys Products Ltd, distributed by Ogee Ltd, and rubbed on his head by Mrs Buckley, as a result of which as he alleges, he contracted dermatitis. He claims against Mrs Buckley on contract, and on nothing but contract. His claim against Ogee, Ltd and Wyrovoys Products Ltd, was, in the statement of claim, based on negligence and fraud. Before I deal with the case, it is only right at the very outset, that I should make it quite plain that, so far as there was an allegation of fraud, there was not one scintilla of evidence from start to finish of this case, to support any such allegation, and the allegation was very properly withdrawn without qualification and without reservation by counsel for the plaintiff at the conclusion of the evidence which he had called.
On 20 June, Watson, as I have said, had his hair dyed with this material by Mrs Buckley for reward. As a result of that, beyond a shadow of a doubt, he contracted dermatitis and has suffered damage. No evidence of negligence on the part of Mrs Buckley was adduced and any allegation of lack of care or skill on her part was expressly disclaimed on behalf of the plaintiff.
A Spanish gentleman named Wyrovoys, who had carried on his hair dressing trade at Barcelona, being driven out of Spain, came to London. Ultimately he was introduced to one Osborne, the managing director of Ogee Ltd. Ogee Ltd., is a limited company which, I am told, has carried on business for over a century in the distribution of lotions and various articles of that sort which are found in hairdressers' shops. It is an old-established business, and the present managing director has told me that his own family has been associated with the business since its inception. It is sufficient to say it is an old established,
[1940] 1 All ER 174 at 177 important and highly reputable concern, to which Wyrovoys represented that he had got a hair dye, a secret process which dyed hair successfully and which was safe. He told Osborne that he had used it in Barcelona for 16 years and had never had a complaint as to its harming anyone, and Osborne was interested in the matter.
Ultimately, an agreement was made on 9 January 1938, between trustees for Wyrovoys Products, Ltd, a limited company which on 9 January 1938, had not then come into existence, and Ogee, Ltd. At some time prior to the hearing of the case, the former company went into liquidation. The written agreement provided, in not unfamiliar form, for the appointment of Ogee, Ltd, as the sole selling agents and distributors for a certain geographical territory. The appointment was for 3 years, and the agreement provided the price at which the commodities were to be supplied to the distributors, and contained a clause which left the packing and get-up for sale in the discretion of Ogee, Ltd, subject to the approval of Wyrovoys Products, Ltd. Cl 9 provided that Ogee, Ltd, the distributors, should advertise and push the sale, and cl 11 provided a guarantee by the proprietors—namely, the trustees for the company—that the product was, to the best of their belief, harmless. Before that agreement was signed, Dr Parry, a well-known analyst, had had a specimen of this dye. I should say that the dye is sold in two bottles, one the dye proper, and the other the fixative lotion. Dr Parry had certified that he had examined the sample, and that he found it to be a very efficacious hair dye of a harmless character which might be used without any ill-effects. What Dr Parry examined, however, was the hair dye and the fixative lotion at its 4 per cent solution of a certain acid, and he made the examination on the basis that the 4 per cent solution of this acid was to be diluted to 2 per cent before the lotion was applied to the human head.
In performance of this agreement, Wyrovoys Products, Ltd, appear to have set up a factory. So far as we know, it was somewhere in Great Portland Street, but no one who gave evidence before me saw the factory, or seems to have known who was in charge of the manufacture, or who was supervising. From time to time, however, deliveries were made, the lotion in carboys and the powder in cartons, and the practice was that, when these deliveries to Ogee, Ltd, were made by the manufacturer, the liquid was poured from the carboy into the attractive bottles in which it was distributed to the trade, and the powder or a solution of it was supplied in some other container. This was done by Ogee, Ltd, and it was done, admittedly, without any sort of test being made as to whether the lotion contained a safe proportion of this acid, which, for the purpose of this judgment, I will call chromic acid. I do not suppose that that is technically the right word, from the chemist's point of view, but it has been called so many things, from potassium chromate to chromic acid, that, as I must fix on some name, I will call it chromic acid.
[1940] 1 All ER 174 at 178 I ought to say that actually the sample which was submitted to Dr Parry for analysis contained 4 per cent of this chromic acid, and, on dilution, before being put on to the customer's head, if the directions were complied with, it would be reduced to 2 per cent. I was told in evidence that the most important and essential stipulation—namely, that the chromic acid was not to exceed 4 per cent in the lotion—was merely mentioned as between Ogee Ltd, and the manufacturers at a general conversation, but the percentage of chromic acid was never the subject-matter of a particular clause in the written agreement, nor was this particular percentage ever reduced to writing or brought to the mind of the manufacturers other than by word of mouth, and one cannot help thinking that, in dealing with a limited company such as Wyrovoys Products, Ltd, were—after all, human beings come and go—it was a very grave omission that written confirmation of, and insistence on, the importance of this 4 per cent limit was non-existent.
Having taken over delivery of this in the way they did, and having put it up in the cartons and bottles for distribution to the trade, Ogee, Ltd, proceeded to advertise the commodity somewhat extensively. An advertisement appeared in the Hairdressers' Weekly Journal, a work which, although perhaps of rather more interest to the particular trade than to the general public, is registered as a newspaper. The issue of 4 June 1938, contained, among other references to this product, a full-page advertisement on pp 2376, 2377. I will not read it all, but on the lefthand page, it is important to observe, we see this:
'Mark your next hair dye order “Melereon” the safe harmless hair dye.'
Then on the righthand page we are told that this preparation:
'… has no ifs or buts; is a hair dye that will not harm the most sensitive skin, the hair dye that positively needs no preliminary tests.'
That advertisement appeared in a newspaper controlled by Ogee, Ltd. It was an advertisement which they themselves approved and prepared, and for which they were responsible in every sense of the word, and it was thus that this preparation was launched on the world.
In 1938, Watson, like most of us, found he was not getting any younger. He is a waiter by occupation, and he found that, the older you get and the older you look, the harder it is to get a job, so, very sensibly, when patches of grey appeared in his hair, he adopted the practice of going to Mrs Buckley, who carries on an old-established hairdressing business, and having this slight infirmity removed. On 20 June 1938, he went to Mrs Buckley for that purpose. Mrs Buckley had got in a supply of this new hair dye. She had the advertisement in the Hairdressers' Weekly Journal, and she had one or two little brochures. These are both in evidence, and contain a certain amount of directions as to the use of this hair dye. They lay considerable emphasis on the fact that “It is the harmless hair dye” and that “It combines the qualities of colour and safety.” It is said in the brochure:
'It has been claimed before but this time [in large print] it is true. It is new.
[1940] 1 All ER 174 at 179 It is different from any hair dye previously put on the market. It contains no poison, toxic, or harmful ingredient. [Then, in large print] Since “Melereon” is harmless, no previous test is required.'
It was suggested by the plaintiff that, when Mrs Buckley dyed his hair, she expressly warranted to him that the hair dye was harmless. The evidence does not support that at all. Watson came in to have his hair done, and, instead of using the other dye which she had used before, Mrs Buckley told him that she had a new hair dye in the shop. She showed Watson the advertisement in the Hairdressers' Weekly Journal, and the brochure, and Watson read them and was impressed. Mrs Buckley told Watson that she had not put this hair dye to any test, and that she had had no experience of it in action. There it was, with the advertisement and the registered name “Melereon,” and that is all she knew about it. Watson decided that he would give it a trial, and accordingly Mrs Buckley set to work. I am quite satisfied that Mrs Buckley carried out the directions for the application of this dye carefully and scrupulously, in accordance with the pamphlet which she received from the distributors, and, as I have said, no suggestion of negligence or lack of skill was made against her. Watson left, and immediately afterwards developed a sharp attack of dermatitis. He was confined to hospital for some time, and suffered very considerable pain and discomfort. He has made an excellent recovery, and I do not think that the ill-effects of this mishap are permanent in any shape or form. There can be no doubt that the cause of the dermatitis was the application of the dye, or, rather, not so much the actual dye as the lotion which was applied afterwards, and which formed part of the product which Ogee, Ltd, distributed.
It has been argued that, on that, Mrs Buckley is not liable to Watson in contract. It is quite plain that this was not a sale of goods, pure and simple. It was a contract for reward—I ought to have said, of course, that Mrs Buckley was paid for what she did in the ordinary way—whereby Mrs Buckley undertook to dye Watson's hair, and I do not think Watson relied on any representation which Mrs Buckley made in relation to this hair product, because she did not make any, beyond the fact that there it was, and there was the advertisement, which Watson read. No doubt, I think, Watson, probably unconsciously, or subconsciously, felt confident that anything he found at Mrs Buckley's establishment would come from a reliable origin, as, indeed, this particular commodity did.
It has been argued on behalf of Mrs Buckley that any implied warranty there might be, must, on the evidence in this case, be negatived by the fact that she told Watson, as she did, that she had not tried this stuff herself and that it was new to her. In my view, although I think the point one of very considerable interest, I do not think that that represents the law. I have been referred to G H Myers & Co v Brent Cross Service Co, which, in my judgment, establishes that in such
[1940] 1 All ER 174 at 180 transactions as this, which is really half the rendering of service and, in a sense, half the supply of goods, the implied warranty is no less than it would be in the case of the sale of goods simply.
Perhaps before I dispose of the claim against Mrs Buckley I ought to continue the narrative of facts. The plaintiff, owing to obvious difficulties, was not in a position to prove the analysis of the particular bottle that was used on Watson's head, but counsel for the distributors admitted that, actually, the percentage of chromic acid in the bottle was 10 per cent. In my judgment, on the evidence, there is no doubt whatever that, although some heads, or scalps, are tougher than others, a 10 per cent solution (and, to save constant repetition, when I say 10 per cent or 4 per cent, whichever it may be, by the time it reaches the head must be divided by two) is dangerous, and a hair dye that contains a lotion with a 10 per cent solution of chromic acid is not a hair dye which is merchantable as a hair dye.
I do not think that Watson relied upon Mrs Buckley's knowledge of the preparation. I am quite satisfied that he did not, but, none the less, although Mrs Buckley said, “All I know about this thing is what the advertisement says, and I have not used it,” in my view there is an implied warranty, or it is an implied term of the contract, that, when I go into a hairdresser's shop and say I want my hair done, the hairdresser will apply to my head something which is a hair dye, and not something which, in this particular case, through no conceivable fault or negligence on the part of Mrs Buckley, was in fact a poisonous and harmful substance. I think that this particular bottle had got out of the category of what one might call an imperfect hair dye and was not really fit to be used as a hair dye at all. The acid was much too strong, and I think that Mrs Buckley, in treating Watson's head, under the relationship which was contractual, notwithstanding the fact that she told him what I have already stated, impliedly warranted that what she was rubbing into his head was merchantable hair dye. I do not think she represented, or warranted, or can be taken to have warranted, that it would dye his hair well, or ill, or this colour or that colour. I do not think the implied warranty went any further than that she contracted to rub into his hair something which was fit for hair dye. In fact, it was not. In those circumstances, I think that Watson is entitled to judgment against Mrs Buckley on that basis alone.
The second question, and it is very interesting, is the question of judgment against the distributors. I need not discuss, and do not intend to discuss, the position as between the plaintiffs and Wyrovoys Products, Ltd. That company has not appeared. It has gone into liquidation, and apparently it is a matter of no importance whether or not judgment is recovered against it.
In order to succeed against Ogee, Ltd, the plaintiff has to prove three things. He has to prove—I am not speaking perhaps in strictly technical legal language—(i) carelessness in fact, (ii) duty owed to him, in the
[1940] 1 All ER 174 at 181 particular circumstances of this particular case, by Ogee, Ltd, and (iii) breach of that duty, if it exists, and the consequences of that.
First of all, was there negligence in fact? In my judgment, there was, beyond any shadow of doubt. When I say negligence, I do not mean actionable negligence. I mean carelessness. I need not detail the facts at length. One has to take everything into consideration. Ogee, Ltd, were not dealing with an old-established manufacturer who had been supplying them for years. They were, in essence, dealing with a gentleman who had emerged quite unexpectedly from Spain. Although at an interview they stipulated 4 per cent of the chromic acid—a matter of vital importance in connection with the hair dye, as I have said—that stipulation was never reduced to writing. It was never made a term of the agreement between them and the manufacturers. The percentage was never confirmed in a letter. They never saw where it was manufactured. They took no steps to ascertain under what sort of supervision the manufacture was carried on. When deliveries were made, no test of any sort, kind or description was made. I am not suggesting that they ought to have tested every consignment. Perhaps it would have been enough, I do not know, if they had made a sample test here and there. I was told that the test could have been made, and that it took 30 seconds. In fact, however, there was no test at all of the deliveries. Last, but by no means least, this commodity, of which they knew singularly little, and in connection with which they had taken no steps whatever to ensure that the deliveries of the commodity were in accordance with the stipulated article, was put out to the trade and to the world as being the hair dye which, in contradistinction to every other hair dye, was absolutely safe and harmless, could not harm the most sensitive skin, and positively needed no preliminary tests. I need not labour the matter. That, in my judgment, was carelessness. Before committing their name to such an assertion to all and sundry, they should have taken far greater care to ensure that that assertion was based on solid ground. In fact, nothing, or virtually nothing, was done to see that what was being distributed by them was this absolutely safe commodity. As the result of that carelessness, Watson has been severely injured. He read the advertisement. He told me that he was interested by the advertisement, and that it was because of the advertisement that he had the dye used, believing what he was told, and he suffered accordingly.
The very interesting question which arises is whether or not there was a duty, and I have been referred to M'Alister (or Donoghue) v Stevenson. It was pointed out that there are certain passages in the opinions in the House of Lords which tell very strongly in favour of this defendant. The material passages are in the opinion of Lord Thankerton at p 603, and in the opinion of Lord Atkin, at p 599. Lord Thankerton says, at pp 602, 603:
'The present case is that of a manufacturer and a consumer, with whom he has no contractual relation, of an article which the manufacturer did not know to be
[1940] 1 All ER 174 at 182 dangerous, and, unless the consumer can establish a special relationship with the manufacturer, it is clear, in my opinion, that neither the law of Scotland nor the law of England will hold that the manufacturer has any duty towards the consumer to exercise diligence.'
I will not read the rest of the passage, nor will I read the opinion of Lord Atkin, more particularly the passage at p 599.
It seems to me that one reason why carelessness plus injury is insufficient and the law demands a duty as well is that, where a manufacturer manufactures an article, and, it may be, months or years afterwards, that article, by reason of the careless manufacture, does harm to the consumer, it is extraordinarily difficult to put one's finger on the tortious act of which the plaintiff in such an action would complain. The selling of the article is not the act of the manufacturer or the agent. The article itself has ceased to be the property of the manufacturer, or under his control, and, because of that, that may well be the foundation of the undoubted principle that, where the manufacturer has parted with his property and put it in circulation all over the world, unless the consumer who is ultimately harmed by something which the manufacturer has negligently done can establish the special relationship with the manufacturer, then, under the law of this country, no action for tort will lie.
How can that special relationship be established? Lord Thankerton tells us at p 603, Lord Atkin explains at p 599. Lord MacMillan concurred with Lord Thankerton. I need not read all the passages, but Lord Thankerton says, at p 603:
'The special circumstances from which the appellant claims that such a relationship of duty should be inferred may, I think, be stated thus—namely, that the respondent, in placing his manufactured article of drink upon the market, has intentionally so excluded interference with, or examination of, the article by any intermediate handler of the goods between himself and the consumer that he has, of his own accord, brought himself into direct relationship with the consumer, with the result that the consumer is entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the consumer.'
In a few words: “The manufacturer has, of his own accord, brought himself into direct relationship with the consumer.”
If Ogee, Ltd, had been the manufacturers, I should have held without difficulty here that, by this advertisement which Watson saw (it is unnecessary to consider what would have been the case if he had not seen it, or if the contents had not been imparted by someone who had, for, in this case, he saw the advertisement), and upon which he relied, Ogee, Ltd, if they had been the manufacturers, of their own accord would have brought themselves into direct relationship with the consumer. It is said that here, although the manufacturers would owe such a duty, the distributors, being distributors and not manufacturers, are absolved. It seems to me that that statement must be qualified. The number of cases in which a distributor would owe a duty must, I think, be comparatively few. As it has been said, duty is not duty in the abstract. One does not have to search for the duty in vacuo, but one has to look at
[1940] 1 All ER 174 at 183 the facts and decide whether or not the law attaches a duty out of those facts, or to those facts.
The initial tortious act or careless act—carelessness would be better—was the putting of the 10 per cent solution into the lotion, and for that the distributors were not responsible. The manufacturers were not their agents. They had no direct control over the manufacturers, and I have to ask myself whether, in law, as between this consumer and this distributor, having regard to all the circumstances of the case, there is a duty. It is extremely difficult to arrive at a legal decision without some guidance as to the sort of test one applies as to whether or not there is a duty. I think I am thrown back on the words of Lord Thankerton in M'Alister (or Donoghue) v Stevenson. I do not think that it matters whether the man is a manufacturer or whether he is a distributor. It seems to me to be the same in the case of a person through whose hands there has passed a commodity which ultimately reaches a consumer to his detriment. Where that person has intentionally so excluded interference with, or examination of, the article by the consumer, then he has, of his own accord, brought himself into direct relationship with that consumer so as to be responsible to the consumer for any injury the consumer may sustain as a result of the distributor's negligence. The duty is there.
The question is now whether or not it was the negligence of the distributor which did the damage. I think that it was. I do not think that the distributor can escape liability for gross carelessness, where the consumer has been injured, by saying: “The initial mistake was made by someone for whose actions I am not responsible.” I think that, if there had been any doubt as to the duty (the two questions are really interdependent, but assume the duty was there) the plaintiff here could have sued both defendants. The negligent act of the manufacturer was putting in the acid in too strong a solution. The negligent acts of the distributor were the various acts and omissions and representations which intervened between the manufacture of the article and its reaching Watson.
If this view is wrong, however, I think that there is another ground on which the distributor is liable. I think that this hair dye was an article which was dangerous in itself. Unquestionably, a 10 per cent solution is dangerous in itself, but I do not think that that is the proper test. I think that the proper test which I have to apply is whether or not the 4 per cent solution which Ogee, Ltd, the distributors, thought was contained in the bottle, although they were wrong, was dangerous in itself. On the evidence, it seems to me to be perfectly plain that, although a 4 per cent solution will not harm most people, it will harm quite a few, and, therefore, it would be dangerous indiscriminately to use a hair dye containing that strength of acid without carrying out certain tests to see whether the particular person on whom the dye was to be used would be affected by it. I think that it is impossible for the defen-
[1940] 1 All ER 174 at 184 dants here to say that hair dyes are not dangerous. The whole point of their brochures and pamphlets is that hair dyes are dangerous, and what they say is that this hair dye, unique among all other hair dyes on the market, is perfectly safe.
It seems to me that, when they know that the thing they are putting on the market is of a class which is dangerous, although they claim that theirs is the exception to the rule, and know, particularly here, that the hair dye, the solution, the percentage which they think they are putting on the market, is dangerous in fact to quite a percentage of people by whom it will be used, then I think they fall under that principle which demands an unusual standard of care in putting abroad a dangerous article, and which does create a duty between any person by whom the dangerous article is distributed and the consumer who is ultimately injured by reason of some carelessness for which the distributor or manufacturer is responsible.
I think that this article was additionally dangerous. I refer to the observations of Scrutton LJ, about the wolf being a dangerous beast, and the wolf in sheep's clothing even more dangerous, and it is really difficult to think of a better example of a wolf in sheep's clothing than a hair dye being put out to the world containing, as this did, 10 per cent of the acid, but believed to contain 4 per cent of the acid, coupled with an advertisement that it was, at last, the perfect, completely harmless hair dye—for which, apparently, the world has been waiting for centuries—so much so that it could not harm the most sensitive skin, and, for that reason, because it was absolutely safe (and the brochure says that in the plainest terms), no preliminary tests of any description were required. It seems to me that there is the perfect example of the wolf in sheep's clothing, and I am not sure that a more apt parallel would not be to describe this as a sheep which the distributors had made as dangerous as a wolf, and, if that is so, then this thing was doubly dangerous. It was dangerous because it was dangerous in fact, and it was more dangerous still because everybody was assured that it was perfectly safe.
On both grounds I am satisfied that counsel for the plaintiff has made good the cause of action against the distributors, both on the principle extended to the facts of this case, or applied to this case, as laid down in M'Alister (or Donoghue) v Stevenson, and also on the principle that this was, on the facts of the case, a dangerous thing to put into circulation by the distributors.