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Cardozo Print E-mail

cardozo_intro.jpgMany excellent articles and presentations have been written or given touching upon Donoghue v Stevenson [1932] AC 562. The attention so given is entirely appropriate. The decision, especially Lord Atkin’s judgment, has been cited on countless occasions and has had a profound influence on Anglo-Australian law. But it is also worthwhile to spare a moment to reflect on a decision cited by the House of Lords in Donoghue v Stevenson, and the Judge behind that decision. The decision was MacPherson v Buick Motor Co, 217 NY 382, 111 NE 1050 (NY 1916), and the Judge behind it was Justice Benjamin N Cardozo.

In MacPherson v Buick Motor Co, it was held by the influential New York Court of Appeals in 1916 that a manufacturer of an automobile owed a duty of care in tort to a consumer injured whilst driving the vehicle, notwithstanding the absence of privity of contract.

First, a little about the man, Benjamin Cardozo.

Life and career of Cardozo J

B enjamin Nathan Cardozo, of Sephardic Jewish/Spanish-Portuguese heritage, was born in New York City on 24 May 1870 to Rebecca Nathan and Albert Cardozo. He had a twin sister, and they had four other siblings. His grandfather had been nominated a Justice of the New York Supreme Court, but died before he took office. Benjamin Cardozo’s own father was in fact a New York Supreme Court Justice, but he resigned amidst a judicial corruption scandal. This had a profound effect on Benjamin, who was determined to restore his family’s name.

Benjamin’s mother died in 1879, when he was still quite young.

At age 15, Cardozo attended Columbia College, where he earned his Bachelor’s degree followed by a Master’s in Political Science. Then, in 1889, he attended Columbia Law School. He was by all accounts a brilliant student. After two years there, he passed the New York Bar exam in 1891 and began practising law in New York City alongside his brother. He remained in practice with Simpson, Warren and Cardozo until 1913. He gained an esteemed reputation in commercial law.

In 1913, having practised for about 23 years, Cardozo was elected to a 14 year term on the New York Supreme Court, due to start on 1 January 1914. But in February 1914, he was appointed as a temporary Judge on the New York Court of Appeals, the State’s highest court. In 1917, Cardozo J became a permanent member of the Court of Appeals. In 1926, he was elected to a 14 year term as Chief Judge of that Court.

After having served 18 years on the Court of Appeals, Cardozo CJ resigned in 1932 to take up an appointment as an Associate Justice of the Supreme Court of the United States. Even though he was a Democrat, he was appointed by the Republican President, Herbert Hoover. His appointment was met with universal acclaim. The Senate confirmed his appointment by a unanimous vote.

Cardozo J was on the US Supreme Court for six years, supporting a number of Franklin D Roosevelt’s New Deal initiatives, as a member of the so-called “Three Musketeers” along with Justices Brandeis and Stone.

He suffered a heart attack in 1937 and a stroke in 1938. He passed away, aged 68, on 9 July 1938, in Port Chester, Rye, New York State.

He had never married. He was a modest man of high principles, loved by his colleagues.

In addition to his many influential judicial decisions, he was a prolific extra-judicial writer. Amongst other works, he is particularly renowned for his work “Nature of the Judicial Process” (1921), designed for judges but which is standard reading for American law students.

MacPherson v Buick Motor Co

Donald MacPherson’s 1911 Buick collapsed on the road to Saratoga Springs when he was driving just 8 miles per hour. He was thrown out and injured. One of the wheels contained defective wood, and the spokes had “crumbled into fragments”. Mr MacPherson had bought the Buick from a retailer. The retailer had bought the car from Buick Motor Co. Buick Motor Co was the manufacturer of the vehicle, though it had purchased the wheel as a component part from Imperial Wheel Co of Michigan. There was evidence that the defect could have been discovered by Buick Motor Co had it carried out a reasonable inspection. The Supreme Court held that Buick Motor Co was liable in negligence to Mr MacPherson, which decision was upheld by the Supreme Court Appellate Division. By majority, the Court of Appeals held that the decision of the Appellate Division should be affirmed.

Previously, it had been the rule in New York, based on the English decision of Winterbottom v Wright (1842) 10 M & W, 152 ER 402, that a manufacturer’s liability for negligence only extended to purchasers with whom they were in privity of contract. That English case concerned a horse drawn carriage. The New York cases recognised an exception to that rule, where the product was “inherently dangerous”, the leading example of which was a case concerning poison which had been wrongly labelled as dandelion extract: Thomas v Winchester, 6 NY 397 (NY 1852). But as the trial judge had summed up to the jury in MacPherson v Buick, “an automobile is not an inherently dangerous vehicle”. The then Chief Judge also noted in dissent that an automobile moving at only 8 miles an hour “was not any more dangerous to the occupants of the car than a similarly defective wheel would be to the occupants of a carriage drawn by a horse at the same speed”.

In MacPherson v Buick, however, Cardozo J, in delivering the leading judgment, closely analysed the cases said to be authority for the exception, pointing out the inconsistencies and uncertainties to which the exception gave rise, and the illogicality of the distinction between products inherently dangerous and those which were dangerous because of negligent construction. He also referred to the need of the law to keep a-pace with developing technology. He considered that what those earlier cases in fact decided needed to be re-visited. He said:

“The question to be determined is whether the defendant owed a duty of care and vigilance to any one but the immediate purchaser... We hold, then, that the principle of Thomas v Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable... There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer... If he is negligent, where danger is foreseen, a liability will follow.”

His Honour found those factual matters to be made out in that case. Cardozo J observed, “The dealer was indeed the one person of whom it might be said with some approach to certainty that, by him the car would not be used.” He noted more generally that “it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered.” But proximity or remoteness were not a problem in the instant case when the above mentioned factors were present.

These pronouncements do not seem all that remarkable to the modern day Anglo-Australian lawyer.

Donoghue v Stevenson

It is not surprising that MacPherson v Buick should have been referred to, and cited by, the House of Lords. MacPherson v Buick was the first common law case dealing with the product liability owed to a consumer by a manufacturer of mass produced products and upholding a duty of care in negligence.

Lord Atkin had this to say (at pages 598-9):

“It is always a satisfaction to an English lawyer to be able to test his application of fundamental principles of the common law by the development of the same doctrines by the lawyers of the Courts of the United States. In that country I find that the law appears to be well established in the sense in which I have indicated. The mouse had emerged from the ginger-beer bottle in the United States before it appeared in Scotland, but there it brought a liability upon the manufacturer. I must not in this long judgment do more than refer to the illuminating judgment of Cardozo J in MacPherson v Buick Motor Co in the New York Court of Appeals, in which he states the principles of the law as I should desire to state them, and reviews the authorities in other States than his own. Whether the principle he affirms would apply to the particular facts of that case in this country would be a question for consideration if the case arose. It might be that the course of business, by giving opportunities of examination to the immediate purchaser or otherwise, prevented the relation between manufacturer and the user of the car being so close as to create a duty. But the American decision would undoubtedly lead to a decision in favour of the pursuer in the present case.”

This was high praise indeed.

The qualification by Lord Atkin in the penultimate sentences in that paragraph was unnecessary, because Cardozo J indicated at several points in his judgment, that the principle would not apply if there was, and was known to be, a reasonable opportunity for intermediate examination or examination before use.

Lord Atkin then continued to state the principle as it applied to English and Scots law (at page 599):

“... a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care”.

This was masterful in its reduction of the principle to one sentence.

Even if Lord Atkin only “drew support for his own approach” [1] from MacPherson v Buick, the latter decision still had an influence on the result as is evident from Lord Atkin’s glowing praise.

Of course, there is much more to Lord Atkin’s speech than a statement of and upholding of the principle of a manufacturer’s product liability to a consumer. It has been pointed out there are similarities between Lord Atkin’s neighbour principle and the judgment of Cardozo CJ in the case of Palsgraf v Long Island Railway Co, 248 NY 339 (1928). [2] But it is unlikely Lord Atkin was aware of that case, as Palsgraf was evidently not cited in argument, and it is not referred to in any of the judgments, in Donoghue v Stevenson.

Moving on to other Law Lords, the above passage from Cardozo J’s judgment was set out by Lord MacMillan (one of the other majority Judges in Donoghue v Stevenson) at [1932] AC 562, 617-8. That also speaks volumes.

Lord Buckmaster, in dissent in Donoghue v Stevenson, distinguished MacPherson v Buick on the basis that it was a decision that “a motor-car might reasonably be regarded as a dangerous article”: [1932] AC 562, 577. Lords Atkin and MacMillan did not agree with that interpretation of MacPherson v Buick, with Lord Atkin referring (as had Cardozo J) to the illogicality of the distinction between a thing dangerous in itself, and a thing which becomes dangerous by negligent construction (see pages 595-6 of [1932] AC). The fact that Lord Buckmaster felt the need to distinguish a decision from another jurisdiction is testament to the force of its reasoning.

Whether Cardozo J expanded the exception in Thomas v Winchester or laid down a new principle altogether does not matter. They are one and the same thing as a matter of practice. Cardozo J so expanded the “exception” to the point where the privity rule, if not “cut out and extirpated altogether”, was “left with the shadow of continued life, but sterilized, truncated, impotent for harm”: Nature of the Judicial Process, pp98-9.

Cardozo J’s legacy

What is remarkable about MacPherson v Buick Motor Co is not only the significance of what it decided, and the fact that it was the first case to so decide. It is also the fact that it was decided in 1916 barely two years after Cardozo J’s appointment to the Court of Appeals, whilst he was still a temporary judge, and the fact that it was a majority decision, in which Cardozo J’s judgment was given notwithstanding the strong dissent of the then Chief Judge, Willard Bartlett.

Indeed, Cardozo J’s boldness and eloquent writing style are amongst the reasons why Cardozo J/CJ’s judgments have had such a profound effect, not only in the United States but also elsewhere.

MacPherson v Buick is not the only occasion where the judgments of Cardozo J/CJ are cited by Anglo-Australian courts. An austlii search of “Cardozo” in the High Court of Australia directory alone produced a staggering 100 results, including his decisions from a wide range of contexts, as well as his extra-judicial writings.

A few of the more well known examples however are:

  • Wood v Lucy, Lady Duff-Gordon , 222 N.Y. 88; 118 N.E. 214 (N.Y. 1917) (“The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view to-day. A promise may be lacking, and yet the whole writing may be ‘instinct with an obligation,’ imperfectly expressed. If that is so, there is a contract”);

  • Loucks v Standard Oil, 120 NE 198, 201 (NY 1918) ("The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors, unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal");
  • Beatty v Guggenheim, 225 NY 380 (NY 1919) (“A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee”);
  • Wagner v International Ry Co, 133 NE 437 (NY 1921) (“Danger invites rescue”);
  • Meinhard v Salmon, 249 NY 458, 164 NE 545 (NY 1928) (“A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behaviour ... the level of conduct for fiduciaries [has] been kept at a higher level than that trodden by the crowd”);
  • Ultramares Corp v Touche, 174 NE 441 (NY 1932) (no duty of care where it would lead to “a liability in an indeterminate amount for an indeterminate time to an indeterminate class”);
  • Baldwin v GAF Selig Inc, 294 US 511 (1935) (“The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division");
  • Palko v Connecticut, 302 US 319 (1937) (freedom of speech is "the matrix, the indispensable condition, of nearly every other form of freedom").

As Lord Atkin shows us all by his example, we should not be reluctant to look to American authorities where relevant. There are many instances where Anglo-Australian law has been influenced by American law, and there is no reason why this should not continue to be so. This is not only at the common law level, but also at the statutory (including constitutional) level. For example, it is not widely known that the Judicature Acts 1873-1875 were influenced by the “Field” Code of Civil Procedure (NY) of 1848, which abolished the forms of action as well as the procedural distinction between suits in equity and actions at law. That followed upon the abolition of the Court of Chancery as a separate court in New York State in 1846. The Field Code preceded the Common Law Procedure Act of 1852.

The above is not to say that cross fertilisation is a one way street. Nor is it to say that we should always reach the same conclusions. But the way American lawyers have grappled with similar problems means that their jurisprudence has been and can continue to be of assistance in resolving disputes according to our own standards. As Cardozo J himself observed in of Loucks v Standard Oil, 120 NE 198, 201 (NY 1918), “We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home”.

Stephen Lee



[1] Chapman, The Snail and the Ginger Beer: The singular case of Donoghue v Stevenson, Wildy, Simmonds & Hill, 2010, p42.

[2] Knapp, International Encyclopaedia of Comparative Law (Martinus Nijhoff 1983), p71.


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