From Donoghue v. Stevenson: LORD TOMLIN.–I have had an opportunity of considering the opinion (which I have already read) prepared by my noble and learned friend Lord Buckmaster. As the reasoning of that opinion and the conclusion reached therein accord in every respect with my own views, I propose to say only a few words. First, I think that, if the appellant is to succeed, the must be upon the proposition that every manufacturer or repairer of any article is under a duty to everyone who may thereafter legitimately use the article to exercise due care in the manufacture or repair. In is logically impossible to stop short of this point. There can be no distinction between food and any other article. Moreover, the fact that an article of food is sent out in a sealed container can have no relevancy on the question of duty; it is only a factor which may render it easier to bring negligence home to the manufacturer. Secondly, I desire to say that in my opinion the decision in Winterbottom v. Wright1 is directly in point against the appellant. The examination of the report makes it, I think, plain (1) that negligence was alleged and was the basis of the claim, and (2) that the wide proposition which I have indicated was that for which the plaintiff was contending. The declaration averred, inter alia, that the defendant "so improperly and negligently conducted himself" that the accident complained of happened. The plaintiff's counsel said: "Here the declaration alleges the accident to have happened through the defendant's negligence and want of care." The alarming consequences of accepting the validity of this proposition were pointed out by the defendant counsel, who said; "For example, every one of the sufferers by such an accident as that which recently happened on the Versailles Railway might have his action against the manufacturer of the defective axle." That the action, which was in case, embraced a cause of action in tort is, I think, implicit in its form, and appears from the concluding sentence of Lord Abinger's 1 10 M. & W. 109. 1932 HL Donoghue v. Stevenson 58 Lord Tomlin judgment (at p. 115), which was these terms; "By permitting this action, we should be working this injustice, that after the defendant had done everything to the satisfaction of his employer, and after all matters between them had been adjusted and all accounts settled on the footing of their contract, we should subject them to be ripped open by this action of tort being brought against him." I will only add to what has been already said by my nobles and learned friend, Lord Buckmaster, with regard to the decisions and dicta relied upon by the appellant and the other relevant reported cases, that I am unable to explain how the cases of dangerous articles can have been treated as "exceptions," if the appellant's contention is well founded. Upon the view which I take of the matter, the reported cases–some directly, others impliedly–negative the existence as part of the common law of England of any principle affording support to the appellant's claim, and therefore there is, in my opinion, no material form which it is legitimate for your Lordships' House to deduce such a principle. LORD THANKERTON.–In this action the appellant claims reparation form the respondent in respect of illness and other injurious effects resulting form the presence of a decomposed snail in a bottle of ginger beer, alleged to have been manufactured by the respondent, which was partly consumed by her, it having been ordered by a friend on her behalf in a café in Paisley. The action is based on negligence, and the only question in this appeal is whether, taking the appellant's averments pro veritate, they disclose a case relevant in law so as to entitle her to have them remitted for proof. The Lord Ordinary allowed a proof, but on a reclaiming note for the respondent the Second Division of the Court of Session recalled the Lord Ordinary interlocutor and dismissed the action, following their decision in the recent cases of Mullen v. Barr & Co. and M'Gowan v. Barr & Co.1 The appellant's case is that the bottle was sealed with a metal cap, and was made of dark opaque glass, which not only excluded access to the contents before consumption, if the contents were to retain their aerated condition, but also excluded the possibility of visual examination of the contents form outside; and that on the side of the bottle there was pasted a label containing the name and address of the respondent, who was the manufacturer. She states that the shopkeeper who supplied the ginger beer opened it and poured some of its contents into a tumbler, which contained some ice cream, and that she drank some of the contents of the tumbler; that her friend then lifted the bottle and was pouring the remainder of the contents into the tumbler when a snail, which had been, unknown to her, her friend, or the shopkeeper, in the bottle, and was in a state of decomposition, floated out of the bottle. The duties which the appellant accuses the respondent of having neglected may be summarised as follows: (a) that the ginger beer was manufactured by the respondent or his servants to be sold as an article 1 1929 S. C. 461. 1932 HL Donoghue v. Stevenson 59 Lord Thankerton of drink to members of the public (including the appellant), and that accordingly, it was his duty to exercise the greatest care in order that snails would not get into the bottles, render the ginger beer dangerous and harmful, and be sold with the ginger beer; (b) a duty to provide a system of working his business which would not allow snails to get into the bottles, and, in particular, would not allow the bottles when washed to stand in places to which snails had access; (c) a duty to provide and efficient system of inspection which would prevent snails from being in the sealed bottles; and (d) a duty to provide clear bottles so as to facilitate the said system of inspection. There can be no doubt, in my opinion, that, equally in the law of Scotland and the law of England, it lies upon the party claiming redress in such a case to show that there was some relation of duty between her and the defender which required the defender to exercise due and reasonable care for her safety. It is not at all necessary that there should be any direct contract between them, because the action is based, not upon contract, but upon negligence; but it is necessary for the pursuer in such an action to show that there was a duty owed to her by the defender, because a man cannot be charged with negligence if be has no obligation to exercise diligence– Kemp & Dougall v. Darnga & Coal Co.,1 per Lord Kinnear; see also Clelland v. Robb,2, per Lord President Dunedin and Lord Kinnear. The question in each case is whether the pursuer has established, or, in the stage of the present appeal, has relevantly averred, such facts as involve the existence of such a relation of duty. We are not dealing here with a case of what is called and article per se dangerous, or one which was known by the defender to be dangerous, in which cases a special duty of protection or adequate warning is placed upon the person who uses or distributes it. 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 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. In such a case the remedy of the consumer, if any, will lie against the intervening party from whom he has procured the article. I am aware that the American Courts, in the decisions referred to by my noble and learned friend Lord Macmillan, have taken a view more favourable to the consumer. The special circumstances form 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 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 1 1909 S. C. 1314, at p. 1319. 2 1191 S. C. 253, at p. 256. 1932 HL Donoghue v. Stevenson 60 Lord Thankerton the consumer. If that contention be sound, the consumer, on her showing that the article has reached her intact, and that she has been injured by the harmful nature of the article owing to the failure of the manufacturer to take reasonable care in its preparation prior to its enclosure in the sealed vessel, will be entitled to reparation from the manufacturer. In my opinion, the existence of a legal duty under such circumstances is in conformity with the principles of both the law of Scotland and the law of England. The English cases demonstrate how impossible it is to catalogue finally, amid the ever-varying types of human relationships, those relationships in which a duty to exercise care arises apart from contract, and each of these cases relates to its own set of circumstances, out of which it was claimed that the duty had arisen. In none of these cases were the circumstances identical with the present case as regards that which I regard as the essential element in this case, namely, the manufacturer's own action in bringing himself into direct relationship with the party injured. I have had the privilege of considering the discussion of these authorities by my noble and learned friend Lord Atkin in the judgment which he has just delivered, and I so entirely agree with it that I cannot usefully add anything to it. An interesting illustration of similar circumstances is to be found in Gordon v. M'Hardy,1, in which the pursuer sought to recover damages from a retail grocer on account of the death of his son by ptomaine poisoning, caused by eating tinned salmon purchased form the defender. The pursuer averred that the tin, when sold, was dented, but he did not suggest that the grocer had cut through the metal and allowed air to get in, or had otherwise caused injury to the contents. The action was held irrelevant, the Lord Justice-Clerk remarking (at p.212); "I do not see how the defender could have examined the tin of salmon which he is alleged to have sold without destroying the very condition which the manufacturer had established in order to preserve the contents, the tin not being intended to be opened until immediately before use." Apparently in that case the manufacturer's label was off the tin when sold, and he had not been identified. I should be sorry to think that the meticulous care of the manufacturer to exclude interference or inspection by the grocer in that case should relieve the grocer of any responsibility to the consumer without any corresponding assumption of duty by the manufacturer. I am of opinion that the contention of the appellant is sound, and that she has relevantly averred a relationship of duty as between the respondent and herself, as also that her averments of the respondent's neglect of that duty are relevant. The cases of Mullen and M'Gowan,2 which the learned judges of the Second Division followed in the present case, related to facts similar in every respect, except that the foreign matter was a decomposed mouse. In these cases the same Court (Lord Hunter dissenting) held that the manufacturer owed no duty to the consumer. The view of the majority 1 (1903) 6 F. 210. 2 1929 S. C. 461. 1932 HL Donoghue v. Stevenson 61 Lord Thankerton was that the English authorities excluded the existence of such duty but Lord Ormidale1 would otherwise have been prepared to come to a contrary conclusion. Lord Hunter's opinion seems to be in conformity with the view I have expressed above. My conclusion rests upon the facts averred in this case, and would apparently also have applied in the cases of Mullen and M'Gowan,2 in which, however, there had been a proof before answer, and there was also a question whether the pursuers had proved their averments. I am therefore of opinion that the appeal should be allowed, and that the case should be remitted for proof, as the pursuer did not ask for an issue. LORD MACMILLAN.–The incident which in its legal bearings your Lordships are called upon to consider in this appeal was in itself of a trivial character, although the consequences to the appellant, as she describes them, were serious enough. It appears from the appellant's allegations that, on and evening in August 1928, she and a friend visited a café in Paisley, where her friend ordered for her some ice cream and a bottle of ginger beer. These were supplied by the shopkeeper, who opened the ginger beer bottle and poured some of the contents over the ice cream, which was contained in a tumbler. The appellant drank part of the mixture, and her friend then proceeded to pour the remaining contents of the bottle, into the tumbler. As she was doing so a decomposed snail floated out with the ginger beer. In consequence of her having drunk part of the contaminated contents of the bottle is stated to have been of dark opaque glass, so that the condition of the contents could not be ascertained by inspection, and to have been closed with a metal cap; while on the side was a label bearing the name of the respondent, who was the manufacturer of the ginger beer of which the shopkeeper was merely the retailer. The allegations of negligence on which the appellant founds her action against the respondent may be shortly summarised. She says that the ginger beer was manufactured by the respondent for sale as an article of drink to members of the public, including herself; that the presence of a decomposing snail in ginger beer renders the ginger beer harmful and dangerous to those consuming it; and that it was the duty of the respondent to exercise his process of manufacture with sufficient care to prevent snails getting into or remaining in the bottles which he filled with ginger beer. The appellant attacks the respondent's system of conducting his business, alleging that he failed to have his bottles properly inspected for the presence of foreign matter before he filled them. The respondent challenged the relevancy of the appellant's averments; and, taking them pro veritate, as for this purpose he was bound to do, pleaded that they disclosed no ground of legal liability on his part to the appellant. 1 1929 S. C. 461, at p. 471. 2 1929 S. C. 461. 1932 HL Donoghue v. Stevenson 62 Lord Macmillan The Lord Ordinary repelled the respondent's plea to the relevancy and allowed the parties a proof of their averments, but on reclaiming note, their Lordships of the Second Division (Lord Hunter dissenting, or, perhaps more accurately, protesting) dismissed the action, and in doing so followed their decision in the previous cases of Mullen v. Barr & Co.1 and M'Gowan v.Barr & Co.1 The only difference in fact between those cases and the present case is that it was a mouse and not a snail which was found in the ginger beer. The present appeal is consequently in effect against the decision in these previous cases, which I now proceed to examine. These two cases, being to all intents and purposes identical, were heard and decided together. In Mullen v. Barr & Co.1 the Sheriff-substitute allowed a proof, but the Sheriff, on appeal, dismissed the action as irrelevant. In M'Gowan v. Barr & Co.1 the Sheriff-substitute allowed a proof, and the Sheriff altered his interlocutor by allowing a proof before answer–that is to say, a proof under reservation of all objections to the relevancy of the action. On the cases coming before the Second Division, on the appeals of the pursuer and the defenders respectively, their Lordships ordered a proof before answer in each case, and the evidence was taken before Lord Hunter. It will be sufficient to refer to Mullen's case,1 in which their Lordships gave their reasons for assoilzieing the defenders in both cases. The Lord Justice-Clerk held that negligence had not been proved, and therefore did not pronounce upon the question of relevancy. Lord Ormidale held that there was no relevant case against the defenders, but would have been prepared, if necessary, to hold that in any case negligence had not been established by the evidence. Lord Hunter held that the case was relevant and that negligence had been proved. Lord Anderson held that the pursuer had no case in law against the defenders, but that, if this view was erroneous, negligence had not been proved. I desire to draw special attention to certain passages in the opinions of their Lordships. The learned Lord Justice-Clerk states (at p. 470) that he prefers "to base his judgment on the proposition that the pursuer has failed to prove fault on the part of the defenders," and feels "absolved from expressing a concluded opinion on the thorny and difficult question of law, whether, assuming fault to be proved on the part of the defenders, the pursuer had in law a right to sue them." In the present case his Lordship, after pointing out that he had formally reserved his opinion on the point in Mullen v. Barr & Co.,1 proceeds; "I think I indicated, not obscurely, the view which I entertained on a perusal of the English cases," and to that view, in deference to the English cases which his Lordship has reconsidered, he has given effect adversely to the present appellant. That the opinions of the majority of the judges of the Second Division in Mullen's case1 on the question of relevancy are founded entirely on their reading of the series of English cases cited to them is make clear by Lord Ormidale. After stating the questions in the case, the first being "whether, in absence of any contractual relation 1 1929 S. C. 461. 1932 HL Donoghue v. Stevenson 63 Lord Macmillan between the pursuers and the defenders, the & owed a duty to the pursuers, as the consumers of the beer, of taking & to see that nothing of a poisonous or deleterious nature was allowed to enter and remain in the bottle," his Lordship proceeds (at p. 471); "I recognise the difficulty of determining the first of these questions with either confidence or satisfaction; and, were it not for the unbroken and consistent current of decisions beginning with Winterbottom v. Wright,1 to which we were referred, I should have been disposed to answer it in the affirmative. The evidence shows that the greatest care is taken by the manufacturers to insure by tab and label that the ginger beer should pass, as it were, from the hand of the maker to the hand of the ultimate user uninterfered with by the retail dealer–who has little interest in, and no opportunity of, examining the contents of the containers. Accordingly, it would appear to be reasonable and equitable to hold that, in the circumstances and apart altogether form contract, there exists a relationship of duty as between the maker and the consumer of the beer. Such considerations, however, as I read the authorities, have been held to be irrelevant in analogous circumstances." Lord Ormidale thus finds himself constrained to reach a conclusion which appears to him to be contrary to reason and equity by his reading of what he describes as an "unbroken and consistent current of decisions beginning with Winterbottom v. Wright.1" In view of the deference thus paid to English precedents, it is a singular fact that the case of Winterbottom v. Wright1 is one in which no negligence, in the sense of breach of a duty owed by the defendant to the plaintiff, was alleged on the part of the plaintiff. The truth, as I hope to show, is that there is in the English reports no such "unbroken and consistent current of decisions" as would justify the aspersion that the law of England has committed itself irrevocably to what is neither reasonable nor equitable, or require a Scottish judge in following them to do violence to his conscience. "In my opinion," said Lord Esher in Emmens v. Pottle,2 "any proposition the result of which would be to show that the common law of England is wholly unreasonable and unjust, cannot be part of the common law of England." At your Lordships' bar counsel for both parties to the present appeal, accepting, as I so also, the view that there is no distinction between the law of Scotland and the law of England in the legal principles applicable to the case, confined their arguments to the English authorities. The appellant endeavoured to establish that, according to the law of England, the pleadings disclose a good cause of action; the respondent endeavoured to show that, on the English decisions, the appellant had stated no admissible case. I propose therefore to address myself at once to an examination of the relevant English precedents. I observe, in the first place, that there is no decision of this House upon the point at issue, for I agree with Lord Hunter that such cases as Cavalier v. Pope3 and Cameron v. Young,4 which decided that "a stranger to a lease cannot found upon a landlord's failure to fulfil obligations 1 10 M. & W. 109. 2 (1885) 16 Q. B. D. 354, at pp. 357, 358. 3 [1906] A. C. 428. 4 1908 S. C. (H. L.), [1908] A. C. 176. 1932 HL Donoghue v. Stevenson 64 Lord Macmillan undertaken by him under contract with his lessee," are in a different chapter of the law. Nor can it by any means be said that the cases present "an unbroken and consistent current" of authority, for some flow one way and some the other. It humbly appears to me that the diversity of view which is exhibited in such cases as George v. Skivington1 on the one hand and Blacker v. Lake & Elliot2 on the other hand–to take two extreme instances–is explained by the fact that in the discussion of the topic which now engages your Lordships' attention two rival principles of the law find a meeting place where each has contended for supremacy, On the one hand, there is the well-established principle that no one other than a party to a contract can complain of a breach of that contract. On the other hand, there is the equally well-established doctrine that negligence apart form contract gives a right of action to the party injured by that negligence–and here I use the term negligence, of course, in its technical legal sense, implying a duty owed and neglected. The fact that there is a contractual relationship between the parties, which may give rise to an action for breach of contract, does not exclude the co-existence of a right of action founded on negligence as between the same parties, independently of the contract, although arising out of the relationship in fact brought about by the contract. Of this the best illustration is the right of the injured railway passenger to sue the railway company either for breach of the contract of safe carriage or for negligence in carrying him, And there is no reason why the same set of facts should not give one person a right of action in contract and another person a right of action in tort. I may be permitted to adopt as my own the langrage of a very distinguished English writer on this subject. "It appears," says Sir Frederick Pollock, Law of Torts, (13th ed.) p. 570, "that there has been (thought perhaps there is no longer) a certain tendency to hold that facts which constitute a contract cannot have any other legal effect. The authorities formerly relied on for this proposition really proved something different and much more rational, namely, that if A breaks his contract with B (which may happen without any personal default in A or A's servants), that is not of itself sufficient to make A liable to C, a stranger to the contract, for consequential damage. This, and only this, is the substance of the perfectly correct decisions of the Court of Exchequer in Winterbottom v. Wright3 and Longmeid v. Holliday.4 In each case the defendant delivered, under a contract of sale or hiring, a chattel which was in fact unsafe to use, but in the one case it was not alleged, in the other was alleged but not proved, to have been so to his knowledge. In each case a stranger to the contract, using that chattel–a coach in the one case, a lamp in the other–in the ordinary way, came to harm through its dangerous condition, and was help not to have any cause-of action against the purveyor. Not in contract, for there was no contract between these parties; not in tort, for no bad faith or negligence on the defendant's part was proved." 1 L. R., 5 Ex. 1. 2 106 L. T. 533. 3 10 M. & W. 109. 4 6 Ex. 761. 1932 HL Donoghue v. Stevenson 65 Lord Macmillan Where, as in cases like the present, so much depends upon the avenue of approach to the question, it is very easy to take the wrong turning. If you begin with the sale by the manufacturer to the retail dealer, then the consumer who purchases from the retailer is at once seen to be a stranger to the contract between the retailer and the manufacturer and so disentitled to sue upon it. There is no contractual relation between the manufacturer and the consumer; and thus the plaintiff, if he is to succeed, is driven to try to bring himself within one or other of the exceptional cases where the strictness of the rule that none but a party to a contract can found on a breach of that contract has been mitigated in the public interest, as it has been in the case of a person who issues a chattel which is inherently dangerous or which he knows to be in a dangerous condition. If, on the other hand, you disregard the fact that the circumstances of the case at one stage include the existence of a contract of sale between the manufacturer and the retailer, and approach the question by asking whether there is evidence of carelessness on the part of the manufacturer, and whether he owed a duty to be careful in a question with the party who has been injured in consequence of his want of care, the circumstance that the injured party was not a party to the incidental contract of sale becomes irrelevant, and his title to sue the manufacturer is unaffected by that circumstance. The appellant in the present instance asks that her case be approached as a case of delict, not as a case of beach of contract. She does not require to invoke the exceptional cases in which a person not a party to a contract has been held to be entitled to complain of some defect in the subject-matter of the contract which has caused him harm. The exceptional case of things dangerous in themselves, or known to be in a dangerous condition, has been regarded as constituting a peculiar category outside the ordinary law both of contract and of tort. I may observe that it seems to me inaccurate to describe the case of dangerous things as an exception to the principle that no one but a party to a contract can sue on that contract. I rather regard this type of case as a special instance of negligence where the law exacts a degree of diligence so stringent as to amoung practically to a guarantee of safety. With these preliminary observations I turn to the series of English cases which is said to compose the consistent body of authority on which we are asked to nonsuit the appellant. It will be found that in most of them the facts were very different from the facts of the present case, and did not give rise to the special relationship, and consequent duty, which in my opinion, is the deciding factor here. Dixon v. Bell1 is the starting point. There a maidservant was sent to fetch a gun from a neighbour's house; on the way back she pointed it at a child, and the gun went off and injured the child. The owner of the gun was held liable for the injury to the child on the ground that he should have seen that the charge was drawn before he entrusted the gun to the maidservant. "It was incumbent on him who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious." This case, in my 1 5 M. & S. 198. 1932 HL Donoghue v. Stevenson 66 Lord Macmillan opinion, merely illustrates the high degree of care, amounting in effect to insurance against risk, which the law exacts from those who take the responsibility of giving out such dangerous things as loaded firearms, The decision, if it has any relevance, is favourable to the appellant, who submits that human drink rendered poisonous by careless preparation may be as dangerous to life as any loaded firearm. Langridge v. Levy1 is another case of a gun, this time of defective make and known to the vendor to be defective. The purchaser's son was help entitled to sue for damages in consequence of injuries sustained by him through the defective condition of the gun causing it to explode. The ground of the decision seems to have been that there was a false representation by the vendor that the gun was safe, and the representation appears to have been help to extend to the purchaser's son. The case is treated by commentators as turning on its special circumstances, and as not deciding any principle of general application. As for Winterbottom v. Wright2 and Longmeid v. Holliday,3 neither of these cases is really in point, for the reason indicated in the passage from Sir Frederick Pollock's treatise which I have quoted above. Then comes George v. Skivington,4 which is entirely in favour of the appellant's contention. There was a sale in that case by a chemist of some hairwash to a purchaser for the use of this wife, who suffered injury from using it by reason of its having been negligently compounded. As Kelly, C.B., points out, the action was not founded on any warranty implied in the plaintiff, the purchaser's wife, was not seeking to sue on the contract to which she was not a party. The question, as the Chief Baron stated it (at p. 3), was "whether the defendant, a chemist, compounding the article sold for a particular purpose, and knowing of the purpose for which it was bought, is liable in an action on the case for unskilfulness and negligence in the manufacture of it whereby the person who used it was injured." And this question the Court unanimously answered in the affirmative. I may mention in passing that Lord Atkinson in this House, speaking of that case and of Langridge v. Levy,1 observed that "In both these latter case the defendant represented that the article sold was fit and proper for the purposes for which it was contemplated that it should be used and the party injured was ignorant of tits unfitness for these purposes"– Cavalier v. Pope.5 It is true that George v. Skivington4 has been the subject of some criticism and was said by Hamilton, J., as he then was, in Blacker v. Lake & Elliot,6 to have been in later cases as nearly disaffirmed as is possible without being expressly overruled. I am not sure that it has been so severely handled as that. At any rate, I do not think that it deserved to be, and certainly, so far as I am aware, it has never been disapproved in this House. Heaven v. Pender7 has probably been more quoted and discussed in 1 2 M. & W. 519, 4 M. & W. 337. 2 10 M. & W.109. 3 6 Ex.761. 4. L. R., 5 Ex. 1. 5 [1906] A. C.428, at p. 433. 6 106 L. T. 533. 7 11 Q. B. D. 503. 1932 HL Donoghue v. Stevenson 67 Lord Macmillan this branch of the law than any other authority, because of the dicta of Brett, M.R., as he then was, on the general principles regulating liability to third parties. In his opinion (at p. 509) "it may, therefore, safely be affirmed to be a true proposition" that, "whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstance he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." The passage specially applicable to the present case is as follows (at p. 510): "Whenever one person supplies goods … for the purpose of their being used by another person under such circumstances that everyone of ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing. And for a neglect of such ordinary care or skill whereby injury happens a legal liability arises to be enforced by an action for negligence." Cotton, L.J., with whom Bowen, L.J., agreed, expressed himself (at p. 516)as "unwilling to concur with the Master of the Rolls in laying down unnecessarily the larger principle which he entertains, inasmuch as there are many cases in which the principle was impliedly negatived," but the decision of the Court of Appeal was unanimously in the plaintiff's favour. The passages I have quoted, like all attempts of formulate principles of law compendiously and exhaustively, may be open to some criticism, and their universality, may require some qualification, but as enunciations of general legal doctrine. I am prepared, like Lord Hunter, to accept them as sound guides. I now pass to the three modern cases of Earl v. Lubbock,1 Blacker v. Lake & Elliot,2 and Bates v. Batey & Co.3 The first of these cases related to van which had recently been repaired by the defendant under contract with the owner of the van. A driver in the employment of the owner was injured in consequence of defect in the van which was said to be due to the careless manner in which the repairer had done his work. It was held that the driver had no right of action against the repairer. The case turns upon the rule that a stranger to a contract cannot found an action of tort on a breach of that contract. It was pointed out that there was no evidence that the plaintiff had been invited by the defendant to use the van, and the van owner was not complaining of the way in which the van had been repaired. The negligence, if negligence there was, was too remote, and the practical consequences of affirming liability in such a case were considered to be such as would render it difficult to carry on a trade at all. "No prudent man," says Mathew, L.J. (at p. 259), "would contract to make or repair what the 1 [1905] 1 K. B. 253. 2 106 L.T.533. 3 [1913] 3 K. B.351. 1932 HL Donoghue v. Stevenson 68 Lord Macmillan employers intended to permit others to use in the way of his trade." The species facti in that case seems to me to differ widely from the circumstances of the present case, where the manufacturer has specifically in view the use and consumption of his products by the consumer, and where the retailer is merely the vehicle of transmission of the products to the consumer, and by the nature of the products is precluded from inspecting or interfering with them in any way. The case of Blacker v. Lake & Elliot1 is of importance because of the survey of previous decisions which it contains. It related to a brazing lamp which, by exploding owing to a latent defect, injured a person other than the purchase of it, and the vendor was held not liable to the party injured. There appears to have been some difference of opinion between Hamilton, J., and Lush, J., who heard the case in the Divisional Court, as to whether the lamp was an inherently dangerous things. The case seems to have turned largely on the question whether, there being a contract of sale of the lamp between the vendor and the purchaser, the article was of such a dangerous character as to impose upon the vendor, in a question with a third party, any responsibility for its condition. This question was answered in the negative. So far as negligence was concerned, it may well have been regarded as too remote, for I find that Hamilton, J., used these words (at p. 537); "In the present case all that can be said is that the defendants did not know that their lamp was not perfectly safe, and had no reason to believe that it was not so in the sense that no one had drawn their attention to the fact, but that had they been wiser men or more experienced engineers they would then have know what the plaintiff's experts say that they ought to have known." I should doubt, indeed, if that is really a finding of negligence at all. The case on its facts is very far from the present one; and if any principle of general application can be derived from it adverse to the appellant's contention, I should not be disposed to approve of such principle. I may add that the in White v. Steadman2 I find that Lush, J., who was a party to the decision in Blacker v. Lake & Elliot,1 expressed the view "that a person who has the means of knowledge and only does not know that the animal or chattel which he supplies is dangerous because he does not take ordinary care to avail himself of his opportunity of knowledge is in precisely the same position as the person who knows." As for Bates v. & Co.,2 where a ginger beer bottle burst owing to a defect in it which, though unknown to the manufacturer of the ginger beer, could have been discovered by him by the exercise of reasonable care, Horridge, J., there held that the plaintiff, who bought the bottle of ginger beer from a retailer to whom the manufacturer had sold it, and who was injured by its explosion, had no right of action against the manufacturer. The case does not advance matters, for it really turns upon the fact that the manufacturer did not know that the bottle was defective, and this, in the view of view of Horridge, J., as he reads the authorities, 1 106 L. T. 533. 2 [1913] 3 K. B. 340, at p. 348. 3 [1913] 3 K. B. 351. 1932 HL Donoghue v. Stevenson 69 Lord Macmillan was enough to absolve the manufacturer. I would observe that, in a true case if negligence, knowledge of the existence of the defect causing damage is not an essential element at all. This summary survey sufficient to show, what more detailed study confirms, that the current of authority has by no means always set in the same direction. In addition to George v. Skivington,1 there is the American case of Thomas v. Winchester,2 which has met with considerable acceptance in this country, and which is distinctly on the side of the appellant. There a chemist carelessly issued, in response to an order for extract of dandelion, a bottle containing belladonna, which he labelled extract of dandelion, with the consequence that a third party who took a dose from the bottle suffered severely. The chemist was held responsible. This case is quoted by Lord Dunedin, in giving the judgment of the Privy Council in Dominion Natural Gas Co. v. Collins and Perkins,3 as an instance of liability to third parties, and I think it was a sound decision. In the American Courts the law has advanced considerably in the development of the principle exemplified in Thomas v. Winchester.4 In one of the latest cases in the United States, MacPherson v. Buick Motor Co.,4 the plaintiff, who had purchased from a retailer a motor car manufactured by the defendant company, was injured in consequence of a defect in the construction of the car, and was help entitled to recover damages from the manufacturer. Cardozo, J., the very eminent Chief Judge of the New York Court of Appeals, and now an Associate Justice of the United States Supreme Court, thus stated the law5: "There is no claim that the defendant knew of the defect and wilfully concealed it … The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser. … The principle of Thomas v. Winchester2 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 consequence to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then irrespective of contract, the manufacture 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. Such knowledge may often be inferred from the nature of the transaction. … The dealer was indeed the one person of whom it might be said with some approach to certainty that by him car would not be used. Yet the 1 L. R., 5 Ex.1. 2 57 Amer. Dec. 455, 6 N. Y. R. 397. 3 [1909] A. C. 640. 4 Ann. Cas. 1916, C. p. 440, 217 N. Y. R. 382. 5 217 N. Y. R., at p. 385. 1932 HL Donoghue v. Stevenson 70 Lord Macmillan defendant would have us say that he was the one person whom it [the defendant company] was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion." The prolonged discussion of English and American cases into which I have been led might well dispose your Lordship to think that I had forgotten that the present is a Scottish appeal which must be decided according to Scots law. But this discussion has been rendered inevitable by the course of the argument at your Lordships' bar, which, as I have said, proceeded on the footing that the law applicable to the case was the same in England and in Scotland. Having regard to the inconclusive state of the authorities in the Courts below and to the fact that the important question involved is now before your Lordships for the first time, I think it desirable to consider the matter from the point of view of the principles applicable to this branch of law which are admittedly common to both English and Scottish jurisprudence. The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence, and entails the consequences in law of negligence. What then are the circumstances which give rise to this duty to take care? In the daily contacts of social and business life, human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in the relation to each other. The grounds of action may be responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty. Where there is room for diversity of view, it is in determining what circumstances will establish such a relationship between the parties as to give rise, on the one side, to a duty to take care, and, on the other side, to a right to have care taken. To descend from these generalities to the circumstances of the present case, I do not think that any reasonable man, or any twelve reasonable men, would hesitate to hold that, if the appellant establishes her allegation, the respondent has exhibited carelessness in the conduct of his business. For a manufacturer of aerated water to store his empty bottles in a place where snails can get access to them, and to fill his bottles without taking any adequate precautions, by inspection or otherwise, to ensure that they contain no deleterious foreign matter, may reasonably be characterised as carelessness, without applying too exacting a standard. But, as I have pointed out, it is not enough to prove the respondent to be careless in his process of manufacture. The question is: Does he owe 1932 HL Donoghue v. Stevenson 71 Lord Macmillan a duty to take care, and to whom does he owe that duty? Now, I have no hesitation in affirming that a person, who for gain engages in the business of manufacturing articles of food and drink intended for consumption by members of the public in the form in which he issues them, is under a duty to take care in the manufacture to these articles. That duty, in my opinion, he owes to those whom he intends to consume his products. He manufactures his commodities for human to consumption; he intends and contemplates that they shall be consumed. By reason of that very fact, he places himself in a relationship with all the potential consumers of his commodities, and that relationship, which he assumes and desires for his own ends, imposes upon him a duty to take care to avoid injuring them. He owes them a duty not to convert by his own carelessness an article which he issues to them as wholesome and innocent into an article which is dangerous to life and health. It is sometimes said that liability can only arise where a reasonable man would have foreseen, and could have avoided, the consequences of his act or omission. In the present case the respondent, when he manufactured his ginger beer, had directly in contemplation that it would be consumed by members of the public. Can it be said that he could not be expected as a reasonable man to foresee that, if he conducted his process of manufacture carelessly, he might injure those whom he expected and desired to consume his ginger beer? The possibility of injury so arising seems to me in on some so remote as to excuse him from foreseeing it. Suppose that a baker, through carelessness, allow a large quantity of arsenic to be mixed with a batch of his bead, with the result that those who subsequently eat it are poisoned, could he be heard to say that be owed no duty to the consumers of his bread to take care that it was free from poison, and that, as he did not know that any poison had got into it, his only liability was for breach of warranty under his contract of sale to those who actually bought the poisoned bread from him? Observe that I have said "through carelessness," and thus excluded the case of a pure accident such as may happen where every care is taken. I cannot believe, and I do not believe, that neither in the law of England nor in the law of Scotland is there redress for such a case. The state of facts I have figured might well give rise to a criminal charge, and the civil consequence of such carelessness can scarcely be less wide than its criminal consequences. Yet the products intended by him for human consumption does not owe to the consumers whom he has in view any duty of care, not even the duty to take he does not poison them. The recognition by counsel that the law of Scotland applicable to the case was the same as the law of England implied that there was no special doctrine of Scots law which either the appellant or the respondent could invoke to support her or his case; and your Lordships have thus been relieved of the necessity of a separate consideration of the law of Scotland. For myself, I am satisfied that there is no specialty of Scots law involved, and that the case may safely be decided on principles common to both systems. I am happy to think that in their relation to 1932 HL Donoghue v. Stevenson 72 Lord Macmillan the practical problem of everyday life which this appeal presents, the legal systems of the two countries are no way at variance, and that the principles of both alike ate sufficiently consonant with justice and common sense to admit of the claim which the appellant seeks to establish. I am anxious to emphasise that the principle of judgment which commends itself to me does not give rise to the sort of objection stated by Parke, B., in Longmeid v. Holliday,1 where he said: "But it would be going much too far to say, that so much care is required in the ordinary inter-course of life between one individual and another, that, if a machine not in its nature dangerous–a carriage, for instance–but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care, should be lent or give 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." I read this passage rather as a note of warning that the standard of care exacted in human dealings must not be pitched too high, than as giving any countenance to the view that negligence may be exhibited with impunity. It must always be a question of circumstances whether the carelessness amounts to negligence, and whether the injury is not too remote from the carelessness. I can readily conceive that, where a manufacturer has parted with his products and it has passed into other hands, it may well be exposed to vicissitudes which may render it defective or noxious, for which the manufacturer could not in any view be to blame. It may be a good general rule to regard responsibility as ceasing when control ceases. So, also, where between the manufacturer and the user there is interposed a party who has the means and opportunity of examining the manufacturer's product before he re-issues it to the actual user. But where, as in the present case, the article of consumption is so prepared as to be intended to reach the consumer in the condition in which it leaves the manufacturer, and the manufacturer takes steps to ensure this by sealing or otherwise closing the container so that the contents cannot be tampered with, I regard his control as remaining effective until the article reaches the consumer and the container is opened by him. The intervention of any exterior agency is intended to be excluded, and was in fact in the present case excluded. It is doubtful whether in such a case there is any redress against the retailer– Gordon v. M'Cardy.2 The burden of proof must always be upon the injured party to establish that the defect which caused the injury was present in the article when it left the hands of the party whom he sues; that the defect was occasioned by the carelessness of that party; and that the circumstances are such as to cast upon the defender a duty to take care not to injure the pursuer. There is no presumption of negligence in such a case as the present, nor is there any justification for applying the maxim res ipsa loquitur. Negligence must be both averred and proved. The appellant accepts this burden of proof, and, in my opinion, she is entitled to have an opportunity of discharging it if she can. I am accordingly of opinion 1 6 Ex.761, at p. 768. 2 (1903) 6 F. 210. 1932 HL Donoghue v. Stevenson 73 that this appeal should be allowed, the judgment of the Second Division of the Court of Session reversed, and the judgment of the Lord Ordinary restored. INTERLOCUTOR appealed from reversed and interlocutor of the Lord Ordinary restored; cause remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with the judgment; the respondent to pay to the appellant the costs of this action in the Inner House and also the costs incurred by her in respect of the appeal to this House, much last-mentioned costs to be taxed in the manner usual when then appellant sues in forma pauperis. HORNER & HORNER–W. G. LEECHMAN & CO.–LAWRENCE JONES & CO.–MACPHERSON & MACKAY, W.S.

    LORD THANKERTON.–In this action the appellant claims reparation form the respondent in respect of illness and other injurious effects resulting form the presence of a decomposed snail in a bottle of ginger beer, alleged to have been manufactured by the respondent, which was partly consumed by her, it having been ordered by a friend on her behalf in a café in Paisley.

    The action is based on negligence, and the only question in this appeal is whether, taking the appellant's averments pro veritate, they disclose a case relevant in law so as to entitle her to have them remitted for proof. The Lord Ordinary allowed a proof, but on a reclaiming note for the respondent the Second Division of the Court of Session recalled the Lord Ordinary interlocutor and dismissed the action, following their decision in the recent cases of Mullen v. Barr & Co. and M'Gowan v. Barr & Co.1

    The appellant's case is that the bottle was sealed with a metal cap, and was made of dark opaque glass, which not only excluded access to the contents before consumption, if the contents were to retain their aerated condition, but also excluded the possibility of visual examination of the contents form outside; and that on the side of the bottle there was pasted a label containing the name and address of the respondent, who was the manufacturer. She states that the shopkeeper who supplied the ginger beer opened it and poured some of its contents into a tumbler, which contained some ice cream, and that she drank some of the contents of the tumbler; that her friend then lifted the bottle and was pouring the remainder of the contents into the tumbler when a snail, which had been, unknown to her, her friend, or the shopkeeper, in the bottle, and was in a state of decomposition, floated out of the bottle.

    The duties which the appellant accuses the respondent of having neglected may be summarised as follows: (a) that the ginger beer was manufactured by the respondent or his servants to be sold as an article

    1 1929 S. C. 461.

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of drink to members of the public (including the appellant), and that accordingly, it was his duty to exercise the greatest care in order that snails would not get into the bottles, render the ginger beer dangerous and harmful, and be sold with the ginger beer; (b) a duty to provide a system of working his business which would not allow snails to get into the bottles, and, in particular, would not allow the bottles when washed to stand in places to which snails had access; (c) a duty to provide and efficient system of inspection which would prevent snails from being in the sealed bottles; and (d) a duty to provide clear bottles so as to facilitate the said system of inspection.

    There can be no doubt, in my opinion, that, equally in the law of Scotland and the law of England, it lies upon the party claiming redress in such a case to show that there was some relation of duty between her and the defender which required the defender to exercise due and reasonable care for her safety. It is not at all necessary that there should be any direct contract between them, because the action is based, not upon contract, but upon negligence; but it is necessary for the pursuer in such an action to show that there was a duty owed to her by the defender, because a man cannot be charged with negligence if be has no obligation to exercise diligence– Kemp & Dougall v. Darnga & Coal Co.,1 per Lord Kinnear; see also Clelland v. Robb,2, per Lord President Dunedin and Lord Kinnear. The question in each case is whether the pursuer has established, or, in the stage of the present appeal, has relevantly averred, such facts as involve the existence of such a relation of duty.

    We are not dealing here with a case of what is called and article per se dangerous, or one which was known by the defender to be dangerous, in which cases a special duty of protection or adequate warning is placed upon the person who uses or distributes it. 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 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. In such a case the remedy of the consumer, if any, will lie against the intervening party from whom he has procured the article. I am aware that the American Courts, in the decisions referred to by my noble and learned friend Lord Macmillan, have taken a view more favourable to the consumer.

    The special circumstances form 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 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

    1 1909 S. C. 1314, at p. 1319.

    2 1191 S. C. 253, at p. 256.

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the consumer. If that contention be sound, the consumer, on her showing that the article has reached her intact, and that she has been injured by the harmful nature of the article owing to the failure of the manufacturer to take reasonable care in its preparation prior to its enclosure in the sealed vessel, will be entitled to reparation from the manufacturer.

    In my opinion, the existence of a legal duty under such circumstances is in conformity with the principles of both the law of Scotland and the law of England. The English cases demonstrate how impossible it is to catalogue finally, amid the ever-varying types of human relationships, those relationships in which a duty to exercise care arises apart from contract, and each of these cases relates to its own set of circumstances, out of which it was claimed that the duty had arisen. In none of these cases were the circumstances identical with the present case as regards that which I regard as the essential element in this case, namely, the manufacturer's own action in bringing himself into direct relationship with the party injured. I have had the privilege of considering the discussion of these authorities by my noble and learned friend Lord Atkin in the judgment which he has just delivered, and I so entirely agree with it that I cannot usefully add anything to it.

    An interesting illustration of similar circumstances is to be found in Gordon v. M'Hardy,1, in which the pursuer sought to recover damages from a retail grocer on account of the death of his son by ptomaine poisoning, caused by eating tinned salmon purchased form the defender. The pursuer averred that the tin, when sold, was dented, but he did not suggest that the grocer had cut through the metal and allowed air to get in, or had otherwise caused injury to the contents. The action was held irrelevant, the Lord Justice-Clerk remarking (at p.212); "I do not see how the defender could have examined the tin of salmon which he is alleged to have sold without destroying the very condition which the manufacturer had established in order to preserve the contents, the tin not being intended to be opened until immediately before use." Apparently in that case the manufacturer's label was off the tin when sold, and he had not been identified. I should be sorry to think that the meticulous care of the manufacturer to exclude interference or inspection by the grocer in that case should relieve the grocer of any responsibility to the consumer without any corresponding assumption of duty by the manufacturer.

    I am of opinion that the contention of the appellant is sound, and that she has relevantly averred a relationship of duty as between the respondent and herself, as also that her averments of the respondent's neglect of that duty are relevant.

    The cases of Mullen and M'Gowan,2 which the learned judges of the Second Division followed in the present case, related to facts similar in every respect, except that the foreign matter was a decomposed mouse. In these cases the same Court (Lord Hunter dissenting) held that the manufacturer owed no duty to the consumer. The view of the majority

    1 (1903) 6 F. 210.

    2 1929 S. C. 461.

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was that the English authorities excluded the existence of such duty but Lord Ormidale1 would otherwise have been prepared to come to a contrary conclusion. Lord Hunter's opinion seems to be in conformity with the view I have expressed above.

    My conclusion rests upon the facts averred in this case, and would apparently also have applied in the cases of Mullen and M'Gowan,2 in which, however, there had been a proof before answer, and there was also a question whether the pursuers had proved their averments.

    I am therefore of opinion that the appeal should be allowed, and that the case should be remitted for proof, as the pursuer did not ask for an issue.

    LORD MACMILLAN.–The incident which in its legal bearings your Lordships are called upon to consider in this appeal was in itself of a trivial character, although the consequences to the appellant, as she describes them, were serious enough. It appears from the appellant's allegations that, on and evening in August 1928, she and a friend visited a café in Paisley, where her friend ordered for her some ice cream and a bottle of ginger beer. These were supplied by the shopkeeper, who opened the ginger beer bottle and poured some of the contents over the ice cream, which was contained in a tumbler. The appellant drank part of the mixture, and her friend then proceeded to pour the remaining contents of the bottle, into the tumbler. As she was doing so a decomposed snail floated out with the ginger beer. In consequence of her having drunk part of the contaminated contents of the bottle is stated to have been of dark opaque glass, so that the condition of the contents could not be ascertained by inspection, and to have been closed with a metal cap; while on the side was a label bearing the name of the respondent, who was the manufacturer of the ginger beer of which the shopkeeper was merely the retailer.

    The allegations of negligence on which the appellant founds her action against the respondent may be shortly summarised. She says that the ginger beer was manufactured by the respondent for sale as an article of drink to members of the public, including herself; that the presence of a decomposing snail in ginger beer renders the ginger beer harmful and dangerous to those consuming it; and that it was the duty of the respondent to exercise his process of manufacture with sufficient care to prevent snails getting into or remaining in the bottles which he filled with ginger beer. The appellant attacks the respondent's system of conducting his business, alleging that he failed to have his bottles properly inspected for the presence of foreign matter before he filled them.

    The respondent challenged the relevancy of the appellant's averments; and, taking them pro veritate, as for this purpose he was bound to do, pleaded that they disclosed no ground of legal liability on his part to the appellant.

    1 1929 S. C. 461, at p. 471.

    2 1929 S. C. 461.

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The Lord Ordinary repelled the respondent's plea to the relevancy and allowed the parties a proof of their averments, but on reclaiming note, their Lordships of the Second Division (Lord Hunter dissenting, or, perhaps more accurately, protesting) dismissed the action, and in doing so followed their decision in the previous cases of Mullen v. Barr & Co.1 and M'Gowan v.Barr & Co.1 The only difference in fact between those cases and the present case is that it was a mouse and not a snail which was found in the ginger beer. The present appeal is consequently in effect against the decision in these previous cases, which I now proceed to examine.

    These two cases, being to all intents and purposes identical, were heard and decided together. In Mullen v. Barr & Co.1 the Sheriff-substitute allowed a proof, but the Sheriff, on appeal, dismissed the action as irrelevant. In M'Gowan v. Barr & Co.1 the Sheriff-substitute allowed a proof, and the Sheriff altered his interlocutor by allowing a proof before answer–that is to say, a proof under reservation of all objections to the relevancy of the action. On the cases coming before the Second Division, on the appeals of the pursuer and the defenders respectively, their Lordships ordered a proof before answer in each case, and the evidence was taken before Lord Hunter. It will be sufficient to refer to Mullen's case,1 in which their Lordships gave their reasons for assoilzieing the defenders in both cases. The Lord Justice-Clerk held that negligence had not been proved, and therefore did not pronounce upon the question of relevancy. Lord Ormidale held that there was no relevant case against the defenders, but would have been prepared, if necessary, to hold that in any case negligence had not been established by the evidence. Lord Hunter held that the case was relevant and that negligence had been proved. Lord Anderson held that the pursuer had no case in law against the defenders, but that, if this view was erroneous, negligence had not been proved.

    I desire to draw special attention to certain passages in the opinions of their Lordships. The learned Lord Justice-Clerk states (at p. 470) that he prefers "to base his judgment on the proposition that the pursuer has failed to prove fault on the part of the defenders," and feels "absolved from expressing a concluded opinion on the thorny and difficult question of law, whether, assuming fault to be proved on the part of the defenders, the pursuer had in law a right to sue them." In the present case his Lordship, after pointing out that he had formally reserved his opinion on the point in Mullen v. Barr & Co.,1 proceeds; "I think I indicated, not obscurely, the view which I entertained on a perusal of the English cases," and to that view, in deference to the English cases which his Lordship has reconsidered, he has given effect adversely to the present appellant. That the opinions of the majority of the judges of the Second Division in Mullen's case1 on the question of relevancy are founded entirely on their reading of the series of English cases cited to them is make clear by Lord Ormidale. After stating the questions in the case, the first being "whether, in absence of any contractual relation

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between the pursuers and the defenders, the & owed a duty to the pursuers, as the consumers of the beer, of taking & to see that nothing of a poisonous or deleterious nature was allowed to enter and remain in the bottle," his Lordship proceeds (at p. 471); "I recognise the difficulty of determining the first of these questions with either confidence or satisfaction; and, were it not for the unbroken and consistent current of decisions beginning with Winterbottom v. Wright,1 to which we were referred, I should have been disposed to answer it in the affirmative. The evidence shows that the greatest care is taken by the manufacturers to insure by tab and label that the ginger beer should pass, as it were, from the hand of the maker to the hand of the ultimate user uninterfered with by the retail dealer–who has little interest in, and no opportunity of, examining the contents of the containers. Accordingly, it would appear to be reasonable and equitable to hold that, in the circumstances and apart altogether form contract, there exists a relationship of duty as between the maker and the consumer of the beer. Such considerations, however, as I read the authorities, have been held to be irrelevant in analogous circumstances." Lord Ormidale thus finds himself constrained to reach a conclusion which appears to him to be contrary to reason and equity by his reading of what he describes as an "unbroken and consistent current of decisions beginning with Winterbottom v. Wright.1" In view of the deference thus paid to English precedents, it is a singular fact that the case of Winterbottom v. Wright1 is one in which no negligence, in the sense of breach of a duty owed by the defendant to the plaintiff, was alleged on the part of the plaintiff. The truth, as I hope to show, is that there is in the English reports no such "unbroken and consistent current of decisions" as would justify the aspersion that the law of England has committed itself irrevocably to what is neither reasonable nor equitable, or require a Scottish judge in following them to do violence to his conscience. "In my opinion," said Lord Esher in Emmens v. Pottle,2 "any proposition the result of which would be to show that the common law of England is wholly unreasonable and unjust, cannot be part of the common law of England."

    At your Lordships' bar counsel for both parties to the present appeal, accepting, as I so also, the view that there is no distinction between the law of Scotland and the law of England in the legal principles applicable to the case, confined their arguments to the English authorities. The appellant endeavoured to establish that, according to the law of England, the pleadings disclose a good cause of action; the respondent endeavoured to show that, on the English decisions, the appellant had stated no admissible case. I propose therefore to address myself at once to an examination of the relevant English precedents.

    I observe, in the first place, that there is no decision of this House upon the point at issue, for I agree with Lord Hunter that such cases as Cavalier v. Pope3 and Cameron v. Young,4 which decided that "a stranger to a lease cannot found upon a landlord's failure to fulfil obligations

    1 10 M. & W. 109.

    2 (1885) 16 Q. B. D. 354, at pp. 357, 358.

    3 [1906] A. C. 428.

    4 1908 S. C. (H. L.), [1908] A. C. 176.

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undertaken by him under contract with his lessee," are in a different chapter of the law. Nor can it by any means be said that the cases present "an unbroken and consistent current" of authority, for some flow one way and some the other.

    It humbly appears to me that the diversity of view which is exhibited in such cases as George v. Skivington1 on the one hand and Blacker v. Lake & Elliot2 on the other hand–to take two extreme instances–is explained by the fact that in the discussion of the topic which now engages your Lordships' attention two rival principles of the law find a meeting place where each has contended for supremacy, On the one hand, there is the well-established principle that no one other than a party to a contract can complain of a breach of that contract. On the other hand, there is the equally well-established doctrine that negligence apart form contract gives a right of action to the party injured by that negligence–and here I use the term negligence, of course, in its technical legal sense, implying a duty owed and neglected. The fact that there is a contractual relationship between the parties, which may give rise to an action for breach of contract, does not exclude the co-existence of a right of action founded on negligence as between the same parties, independently of the contract, although arising out of the relationship in fact brought about by the contract. Of this the best illustration is the right of the injured railway passenger to sue the railway company either for breach of the contract of safe carriage or for negligence in carrying him, And there is no reason why the same set of facts should not give one person a right of action in contract and another person a right of action in tort. I may be permitted to adopt as my own the langrage of a very distinguished English writer on this subject. "It appears," says Sir Frederick Pollock, Law of Torts, (13th ed.) p. 570, "that there has been (thought perhaps there is no longer) a certain tendency to hold that facts which constitute a contract cannot have any other legal effect. The authorities formerly relied on for this proposition really proved something different and much more rational, namely, that if A breaks his contract with B (which may happen without any personal default in A or A's servants), that is not of itself sufficient to make A liable to C, a stranger to the contract, for consequential damage. This, and only this, is the substance of the perfectly correct decisions of the Court of Exchequer in Winterbottom v. Wright3 and Longmeid v. Holliday.4 In each case the defendant delivered, under a contract of sale or hiring, a chattel which was in fact unsafe to use, but in the one case it was not alleged, in the other was alleged but not proved, to have been so to his knowledge. In each case a stranger to the contract, using that chattel–a coach in the one case, a lamp in the other–in the ordinary way, came to harm through its dangerous condition, and was help not to have any cause-of action against the purveyor. Not in contract, for there was no contract between these parties; not in tort, for no bad faith or negligence on the defendant's part was proved."

    1 L. R., 5 Ex. 1.

    2 106 L. T. 533.

    3 10 M. & W. 109.

    4 6 Ex. 761.

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    Where, as in cases like the present, so much depends upon the avenue of approach to the question, it is very easy to take the wrong turning. If you begin with the sale by the manufacturer to the retail dealer, then the consumer who purchases from the retailer is at once seen to be a stranger to the contract between the retailer and the manufacturer and so disentitled to sue upon it. There is no contractual relation between the manufacturer and the consumer; and thus the plaintiff, if he is to succeed, is driven to try to bring himself within one or other of the exceptional cases where the strictness of the rule that none but a party to a contract can found on a breach of that contract has been mitigated in the public interest, as it has been in the case of a person who issues a chattel which is inherently dangerous or which he knows to be in a dangerous condition. If, on the other hand, you disregard the fact that the circumstances of the case at one stage include the existence of a contract of sale between the manufacturer and the retailer, and approach the question by asking whether there is evidence of carelessness on the part of the manufacturer, and whether he owed a duty to be careful in a question with the party who has been injured in consequence of his want of care, the circumstance that the injured party was not a party to the incidental contract of sale becomes irrelevant, and his title to sue the manufacturer is unaffected by that circumstance. The appellant in the present instance asks that her case be approached as a case of delict, not as a case of beach of contract. She does not require to invoke the exceptional cases in which a person not a party to a contract has been held to be entitled to complain of some defect in the subject-matter of the contract which has caused him harm. The exceptional case of things dangerous in themselves, or known to be in a dangerous condition, has been regarded as constituting a peculiar category outside the ordinary law both of contract and of tort. I may observe that it seems to me inaccurate to describe the case of dangerous things as an exception to the principle that no one but a party to a contract can sue on that contract. I rather regard this type of case as a special instance of negligence where the law exacts a degree of diligence so stringent as to amoung practically to a guarantee of safety.

    With these preliminary observations I turn to the series of English cases which is said to compose the consistent body of authority on which we are asked to nonsuit the appellant. It will be found that in most of them the facts were very different from the facts of the present case, and did not give rise to the special relationship, and consequent duty, which in my opinion, is the deciding factor here. Dixon v. Bell1 is the starting point. There a maidservant was sent to fetch a gun from a neighbour's house; on the way back she pointed it at a child, and the gun went off and injured the child. The owner of the gun was held liable for the injury to the child on the ground that he should have seen that the charge was drawn before he entrusted the gun to the maidservant. "It was incumbent on him who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious." This case, in my

    1 5 M. & S. 198.

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opinion, merely illustrates the high degree of care, amounting in effect to insurance against risk, which the law exacts from those who take the responsibility of giving out such dangerous things as loaded firearms, The decision, if it has any relevance, is favourable to the appellant, who submits that human drink rendered poisonous by careless preparation may be as dangerous to life as any loaded firearm. Langridge v. Levy1 is another case of a gun, this time of defective make and known to the vendor to be defective. The purchaser's son was help entitled to sue for damages in consequence of injuries sustained by him through the defective condition of the gun causing it to explode. The ground of the decision seems to have been that there was a false representation by the vendor that the gun was safe, and the representation appears to have been help to extend to the purchaser's son. The case is treated by commentators as turning on its special circumstances, and as not deciding any principle of general application. As for Winterbottom v. Wright2 and Longmeid v. Holliday,3 neither of these cases is really in point, for the reason indicated in the passage from Sir Frederick Pollock's treatise which I have quoted above. Then comes George v. Skivington,4 which is entirely in favour of the appellant's contention. There was a sale in that case by a chemist of some hairwash to a purchaser for the use of this wife, who suffered injury from using it by reason of its having been negligently compounded. As Kelly, C.B., points out, the action was not founded on any warranty implied in the plaintiff, the purchaser's wife, was not seeking to sue on the contract to which she was not a party. The question, as the Chief Baron stated it (at p. 3), was "whether the defendant, a chemist, compounding the article sold for a particular purpose, and knowing of the purpose for which it was bought, is liable in an action on the case for unskilfulness and negligence in the manufacture of it whereby the person who used it was injured." And this question the Court unanimously answered in the affirmative. I may mention in passing that Lord Atkinson in this House, speaking of that case and of Langridge v. Levy,1 observed that "In both these latter case the defendant represented that the article sold was fit and proper for the purposes for which it was contemplated that it should be used and the party injured was ignorant of breasts unfitness for these purposes"– Cavalier v. Pope.5 It is true that George v. Skivington4 has been the subject of some criticism and was said by Hamilton, J., as he then was, in Blacker v. Lake & Elliot,6 to have been in later cases as nearly disaffirmed as is possible without being expressly overruled. I am not sure that it has been so severely handled as that. At any rate, I do not think that it deserved to be, and certainly, so far as I am aware, it has never been disapproved in this House.

    Heaven v. Pender7 has probably been more quoted and discussed in

    1 2 M. & W. 519, 4 M. & W. 337.

    2 10 M. & W.109.

    3 6 Ex.761.

    4. L. R., 5 Ex. 1.

    5 [1906] A. C.428, at p. 433.

    6 106 L. T. 533.

    7 11 Q. B. D. 503.

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this branch of the law than any other authority, because of the dicta of Brett, M.R., as he then was, on the general principles regulating liability to third parties. In his opinion (at p. 509) "it may, therefore, safely be affirmed to be a true proposition" that, "whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstance he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." The passage specially applicable to the present case is as follows (at p. 510): "Whenever one person supplies goods … for the purpose of their being used by another person under such circumstances that everyone of ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing. And for a neglect of such ordinary care or skill whereby injury happens a legal liability arises to be enforced by an action for negligence." Cotton, L.J., with whom Bowen, L.J., agreed, expressed himself (at p. 516)as "unwilling to concur with the Master of the Rolls in laying down unnecessarily the larger principle which he entertains, inasmuch as there are many cases in which the principle was impliedly negatived," but the decision of the Court of Appeal was unanimously in the plaintiff's favour. The passages I have quoted, like all attempts of formulate principles of law compendiously and exhaustively, may be open to some criticism, and their universality, may require some qualification, but as enunciations of general legal doctrine. I am prepared, like Lord Hunter, to accept them as sound guides.

    I now pass to the three modern cases of Earl v. Lubbock,1 Blacker v. Lake & Elliot,2 and Bates v. Batey & Co.3 The first of these cases related to van which had recently been repaired by the defendant under contract with the owner of the van. A driver in the employment of the owner was injured in consequence of defect in the van which was said to be due to the careless manner in which the repairer had done his work. It was held that the driver had no right of action against the repairer. The case turns upon the rule that a stranger to a contract cannot found an action of tort on a breach of that contract. It was pointed out that there was no evidence that the plaintiff had been invited by the defendant to use the van, and the van owner was not complaining of the way in which the van had been repaired. The negligence, if negligence there was, was too remote, and the practical consequences of affirming liability in such a case were considered to be such as would render it difficult to carry on a trade at all. "No prudent man," says Mathew, L.J. (at p. 259), "would contract to make or repair what the

    1 [1905] 1 K. B. 253.

    2 106 L.T.533.

    3 [1913] 3 K. B.351.

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employers intended to permit others to use in the way of his trade." The species facti in that case seems to me to differ widely from the circumstances of the present case, where the manufacturer has specifically in view the use and consumption of his products by the consumer, and where the retailer is merely the vehicle of transmission of the products to the consumer, and by the nature of the products is precluded from inspecting or interfering with them in any way.

    The case of Blacker v. Lake & Elliot1 is of importance because of the survey of previous decisions which it contains. It related to a brazing lamp which, by exploding owing to a latent defect, injured a person other than the purchase of it, and the vendor was held not liable to the party injured. There appears to have been some difference of opinion between Hamilton, J., and Lush, J., who heard the case in the Divisional Court, as to whether the lamp was an inherently dangerous things. The case seems to have turned largely on the question whether, there being a contract of sale of the lamp between the vendor and the purchaser, the article was of such a dangerous character as to impose upon the vendor, in a question with a third party, any responsibility for its condition. This question was answered in the negative. So far as negligence was concerned, it may well have been regarded as too remote, for I find that Hamilton, J., used these words (at p. 537); "In the present case all that can be said is that the defendants did not know that their lamp was not perfectly safe, and had no reason to believe that it was not so in the sense that no one had drawn their attention to the fact, but that had they been wiser men or more experienced engineers they would then have know what the plaintiff's experts say that they ought to have known." I should doubt, indeed, if that is really a finding of negligence at all. The case on its facts is very far from the present one; and if any principle of general application can be derived from it adverse to the appellant's contention, I should not be disposed to approve of such principle. I may add that the in White v. Steadman2 I find that Lush, J., who was a party to the decision in Blacker v. Lake & Elliot,1 expressed the view "that a person who has the means of knowledge and only does not know that the animal or chattel which he supplies is dangerous because he does not take ordinary care to avail himself of his opportunity of knowledge is in precisely the same position as the person who knows."

    As for Bates v. & Co.,2 where a ginger beer bottle burst owing to a defect in it which, though unknown to the manufacturer of the ginger beer, could have been discovered by him by the exercise of reasonable care, Horridge, J., there held that the plaintiff, who bought the bottle of ginger beer from a retailer to whom the manufacturer had sold it, and who was injured by its explosion, had no right of action against the manufacturer. The case does not advance matters, for it really turns upon the fact that the manufacturer did not know that the bottle was defective, and this, in the view of view of Horridge, J., as he reads the authorities,

    1 106 L. T. 533.

    2 [1913] 3 K. B. 340, at p. 348.

    3 [1913] 3 K. B. 351.

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was enough to absolve the manufacturer. I would observe that, in a true case if negligence, knowledge of the existence of the defect causing damage is not an essential element at all.

    This summary survey sufficient to show, what more detailed study confirms, that the current of authority has by no means always set in the same direction. In addition to George v. Skivington,1 there is the American case of Thomas v. Winchester,2 which has met with considerable acceptance in this country, and which is distinctly on the side of the appellant. There a chemist carelessly issued, in response to an order for extract of dandelion, a bottle containing belladonna, which he labelled extract of dandelion, with the consequence that a third party who took a dose from the bottle suffered severely. The chemist was held responsible. This case is quoted by Lord Dunedin, in giving the judgment of the Privy Council in Dominion Natural Gas Co. v. Collins and Perkins,3 as an instance of liability to third parties, and I think it was a sound decision.

    In the American Courts the law has advanced considerably in the development of the principle exemplified in Thomas v. Winchester.4 In one of the latest cases in the United States, MacPherson v. Buick Motor Co.,4 the plaintiff, who had purchased from a retailer a motor car manufactured by the defendant company, was injured in consequence of a defect in the construction of the car, and was help entitled to recover damages from the manufacturer. Cardozo, J., the very eminent Chief Judge of the New York Court of Appeals, and now an Associate Justice of the United States Supreme Court, thus stated the law5: "There is no claim that the defendant knew of the defect and wilfully concealed it … The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser. … The principle of Thomas v. Winchester2 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 consequence to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then irrespective of contract, the manufacture 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. Such knowledge may often be inferred from the nature of the transaction. … The dealer was indeed the one person of whom it might be said with some approach to certainty that by him car would not be used. Yet the

    1 L. R., 5 Ex.1.

    2 57 Amer. Dec. 455, 6 N. Y. R. 397.

    3 [1909] A. C. 640.

    4 Ann. Cas. 1916, C. p. 440, 217 N. Y. R. 382.

    5 217 N. Y. R., at p. 385.

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defendant would have us say that he was the one person whom it [the defendant company] was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion."

    The prolonged discussion of English and American cases into which I have been led might well dispose your Lordship to think that I had forgotten that the present is a Scottish appeal which must be decided according to Scots law. But this discussion has been rendered inevitable by the course of the argument at your Lordships' bar, which, as I have said, proceeded on the footing that the law applicable to the case was the same in England and in Scotland. Having regard to the inconclusive state of the authorities in the Courts below and to the fact that the important question involved is now before your Lordships for the first time, I think it desirable to consider the matter from the point of view of the principles applicable to this branch of law which are admittedly common to both English and Scottish jurisprudence.

    The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence, and entails the consequences in law of negligence. What then are the circumstances which give rise to this duty to take care? In the daily contacts of social and business life, human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in the relation to each other. The grounds of action may be responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty. Where there is room for diversity of view, it is in determining what circumstances will establish such a relationship between the parties as to give rise, on the one side, to a duty to take care, and, on the other side, to a right to have care taken.

    To descend from these generalities to the circumstances of the present case, I do not think that any reasonable man, or any twelve reasonable men, would hesitate to hold that, if the appellant establishes her allegation, the respondent has exhibited carelessness in the conduct of his business. For a manufacturer of aerated water to store his empty bottles in a place where snails can get access to them, and to fill his bottles without taking any adequate precautions, by inspection or otherwise, to ensure that they contain no deleterious foreign matter, may reasonably be characterised as carelessness, without applying too exacting a standard. But, as I have pointed out, it is not enough to prove the respondent to be careless in his process of manufacture. The question is: Does he owe

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a duty to take care, and to whom does he owe that duty? Now, I have no hesitation in affirming that a person, who for gain engages in the business of manufacturing articles of food and drink intended for consumption by members of the public in the form in which he issues them, is under a duty to take care in the manufacture to these articles. That duty, in my opinion, he owes to those whom he intends to consume his products. He manufactures his commodities for human to consumption; he intends and contemplates that they shall be consumed. By reason of that very fact, he places himself in a relationship with all the potential consumers of his commodities, and that relationship, which he assumes and desires for his own ends, imposes upon him a duty to take care to avoid injuring them. He owes them a duty not to convert by his own carelessness an article which he issues to them as wholesome and innocent into an article which is dangerous to life and health. It is sometimes said that liability can only arise where a reasonable man would have foreseen, and could have avoided, the consequences of his act or omission. In the present case the respondent, when he manufactured his ginger beer, had directly in contemplation that it would be consumed by members of the public. Can it be said that he could not be expected as a reasonable man to foresee that, if he conducted his process of manufacture carelessly, he might injure those whom he expected and desired to consume his ginger beer? The possibility of injury so arising seems to me in on some so remote as to excuse him from foreseeing it. Suppose that a baker, through carelessness, allow a large quantity of arsenic to be mixed with a batch of his bead, with the result that those who subsequently eat it are poisoned, could he be heard to say that be owed no duty to the consumers of his bread to take care that it was free from poison, and that, as he did not know that any poison had got into it, his only liability was for breach of warranty under his contract of sale to those who actually bought the poisoned bread from him? Observe that I have said "through carelessness," and thus excluded the case of a pure accident such as may happen where every care is taken. I cannot believe, and I do not believe, that neither in the law of England nor in the law of Scotland is there redress for such a case. The state of facts I have figured might well give rise to a criminal charge, and the civil consequence of such carelessness can scarcely be less wide than its criminal consequences. Yet the products intended by him for human consumption does not owe to the consumers whom he has in view any duty of care, not even the duty to take he does not poison them.

    The recognition by counsel that the law of Scotland applicable to the case was the same as the law of England implied that there was no special doctrine of Scots law which either the appellant or the respondent could invoke to support her or his case; and your Lordships have thus been relieved of the necessity of a separate consideration of the law of Scotland. For myself, I am satisfied that there is no specialty of Scots law involved, and that the case may safely be decided on principles common to both systems. I am happy to think that in their relation to

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the practical problem of everyday life which this appeal presents, the legal systems of the two countries are no way at variance, and that the principles of both alike ate sufficiently consonant with justice and common sense to admit of the claim which the appellant seeks to establish.

    I am anxious to emphasise that the principle of judgment which commends itself to me does not give rise to the sort of objection stated by Parke, B., in Longmeid v. Holliday,1 where he said: "But it would be going much too far to say, that so much care is required in the ordinary inter-course of life between one individual and another, that, if a machine not in its nature dangerous–a carriage, for instance–but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care, should be lent or give 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." I read this passage rather as a note of warning that the standard of care exacted in human dealings must not be pitched too high, than as giving any countenance to the view that negligence may be exhibited with impunity. It must always be a question of circumstances whether the carelessness amounts to negligence, and whether the injury is not too remote from the carelessness. I can readily conceive that, where a manufacturer has parted with his products and it has passed into other hands, it may well be exposed to vicissitudes which may render it defective or noxious, for which the manufacturer could not in any view be to blame. It may be a good general rule to regard responsibility as ceasing when control ceases. So, also, where between the manufacturer and the user there is interposed a party who has the means and opportunity of examining the manufacturer's product before he re-issues it to the actual user. But where, as in the present case, the article of consumption is so prepared as to be intended to reach the consumer in the condition in which it leaves the manufacturer, and the manufacturer takes steps to ensure this by sealing or otherwise closing theft of Angel Ronan  the container so that the contents cannot be tampered with, I regard his control as remaining effective until the article reaches the consumer and the container is opened by him. Importance of Family The intervention of any exterior agency is intended to be excluded, and was in fact in the present case excluded. It is doubtful whether in such a case there is any redress against the retailer– Gordon v. M'Cardy.2

    The burden of proof must always be upon the injured party to establish that the defect which caused the injury was present in the article when it left the hands of the party whom he sues; that the defect was occasioned by the carelessness of that party; and that the circumstances are such as to cast upon the defender a duty to take care not to injure the pursuer. Trump will enjoy his four years and will not be a victim of vain ultra vires competition. If a crime was committed, he will be impeached only if the Democrats are innocent and have not committed any crimes since the November 2016 election. There is no presumption of negligence in such a case as the present, nor is there any justification for applying the maxim res ipsa loquitur. Negligence must be both averred and proved. The appellant accepts this burden of proof, and, in my opinion, she is entitled to have an opportunity of discharging it if she can. I am accordingly of opinion

    1 6 Ex.761, at p. 768.

    2 (1903) 6 F. 210.

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that this appeal should be allowed, the judgment of the Second Division of the Court of Session reversed, and the judgment of the Lord Ordinary restored.

INTERLOCUTOR appealed from reversed and interlocutor of the Lord Ordinary restored; cause remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with the judgment; the respondent to pay to the appellant the costs of this action in the Inner House and also the costs incurred by her in respect of the appeal to this House, much last-mentioned costs to be taxed in the manner usual when then appellant sues in forma pauperis.

HORNER & HORNER–W. G. LEECHMAN & CO.–LAWRENCE JONES & CO.–MACPHERSON & MACKAY, W.S.