In consequence of the nauseating sight of the snail in said circumstances, and of the noxious condition of the said snailtainted ginger beer consumed by her, the pursuer sustained the shock and illness hereinafter condescended on. No action based on fraud can be supported by mere proof of negligence.
Her friend then lifted the said ginger beer bottle and was pouring out the remainder of the contents into the said tumbler when a snail, which had been, unknown to the pursuer, her friend, or the said Mr Minchella, in the bottle, and was in a state of decomposition, floated out of the said bottle. Levy and this case its complete." It is unnecessary to point out emphatically that such a substitution cannot possibly be made.
Admittedly the present case was indistinguishable from the case of Mullen v. Holliday, are concerned, it is, in my opinion, better that they should be buried so securely that their perturbed spirits shall no longer vex the law.
Barr & Co., It was admitted that, on the present question, the law of Scotland and the law of England were the same, and the Second Division had reached their decision upon a consideration of certain English cases. One further case mentioned in argument may be referred to, certainly not by way of authority, but to gain assistance by considering how similar cases are dealt with by eminent judges of the United States. There a chemist issued poison in answer to a request for a harmless drug, and he was held responsible to a third party injured by his neglect.
The said friend ordered for the pursuer ice cream, and ginger beer suitable to be used with the ice cream as an iced drink. The fact in the present case that the ginger beer originally left the premises of the manufacturer on a purchase, as was probably the case, cannot add to, his duty, if such existed, to take care in its preparation.
the Court of Session 13th November 1930.) On 9th April 1929 Mrs Mary M'Alister or Donoghue brought an action against David Stevenson aerated water manufacturer Paisley, in which she claimed £500 as damages for injuries sustained by her through drinking ginger beer which had been manufactured by the defender. 2) "At or about 8.50 on or about the 26th August 1928, the pursuer was in the shop occupied by Francis Minchella, and known as Wellmeadow Café, at Wellmeadow Place, Paisley, with a friend. but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care, should be lent or given by one person, even by the person who manufactured it, to another, the former should be answerable to the latter for a subsequent damage accruing by the use of it." It is true that he uses the words "lent or given" and omits the word "sold," but if the duty be entirely independent of contract and is a duty owed to a third person, it seems to me to be the same whether the article be originally given or sold.
The Court below proceeded on the view that a manufacturer owed no duty to anyone with whom he had no contractual relation, except either where the article manufactured was dangerous in itself or, although not normally dangerous in itself, was known to the manufacturer to be dangerous owing to some defect or for some other reason. Nevertheless, the manufacturer tacitly invited the purchasers to consume the contents of the bottles, and he was liable to the consumer if, through carelessness on his part, the contents were noxious.1 It was true that George v. The principle contended for must be this, that the manufacturer, or indeed the repairer, of any article, apart entirely from contract, owes a duty to any person by whom the article is lawfully used to see that it has been carefully constructed.
That view of a manufacturer's obligation was too narrow, and the question whether a duty of care on the part of the manufacturer existed towards persons with whom he had no contract was one which in each case depended upon the particular circumstances of the case. He further stated that he no longer reserved his opinion upon the question of the liability of the defenders to the pursuer if negligence on their part had been proved, and agreed with the opinions of Lord Ormidale and Lord Anderson that they would not have been liable even if negligent. Skivington Argued for the respondent;–The general rule was that a manufacturer owed no duty to a consumer with whom he had no contract. All rights in contract must be excluded from consideration of this principle; such contractual rights as may exist in successive steps from the original manufacturer down to the ultimate purchaser are ex hypothesi immaterial.
The said bottle was made of dark opaque glass, and the pursuer and her friend had no reason to suspect that the said bottle contained anything else than the aerated water. The general principle of these cases is stated by Lord Sumner (then Hamilton, J.), in the case of Blacker v.
Her friend, acting as aforesaid, was supplied by the said Mr Minchella with a bottle of ginger beer manufactured by the defender for sale to members of the public. It has been suggested that the statement of Parke, B., does not cover the case of negligent construction, but the omission to exercise reasonable care in the discovery of a defect in the manufacture of an article where the duty of examination exists is just as negligent as the negligent construction itself.
The pursuer believes and avers that the defender's system of working his business was defective, in respect that his ginger beer bottles were washed and allowed to stand in places to which it was obvious that snails had freedom of access from outside the defender's premises, and in which, indeed, snails and slimy trails of snails were frequently found. It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect, or where the goods would be of such a nature that a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property.
Further, it was the duty of the defender to provide an efficient system of inspection of said bottles before the ginger beer was filled into them, and before they were sealed. The eases of vendor and purchaser and lender and hirer under contract need not be considered, as the liability arises under the contract, and not merely as a duty imposed by law, though it may not be useless to observe that it seems difficult to import the implied obligation into the contract except in cases in which if there were no contract between the parties the law would according to the rule above stated imply the duty." "The recognised cases" to which the Master of the Rolls refers are not definitely quoted, but they appear to refer to cases of collision and carriage, and the cases of visitation to premises on which there is some hidden danger–cases far removed from the doctrine he enunciates.
In this duty also the defender culpably failed, and the said accident was the direct result of his said failure in duty. The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. The County Court judge and the Divisional Court both held that, even if negligence was proved, the action would not lie. 259):–"The argument of counsel for the plaintiff was that the defendant's servants had been negligent in the performance of the contract with the owners of the van, and that it followed as a matter of law that anyone in their employment, or, indeed, anyone else who sustained an injury traceable to that negligence, had a cause of action against the defendant.