House Of Lords Before LonD BucgaiasTrAn, LORD ATxnN, LonD TOAILIN, LORD TELH-NKERTON. atnd LORD The Housr, b, a majority (Lord Buck- master and Lord Tomlin dissenting), allowed this appeal from an interlocutor of the Second Divisioni of the Court of Session inl Scotlanid recalling an interlocutor of the Lord Ordinary, Lord 3Ioncrieff. The appellant, a shop assistant, sought lo recover from the respondent, an aerated water manufacturer, on) the ground of his alleged negligence, ?500 as damages for the injurious effects alleged to have beeri produced on her by the presence of a snail in a bottle of ginger beer manufactured by the respondent and ordered for the appellant in a sJhop in Paisley by a friend of the appellant.. In consenuence of her having drunk part. of the contaminated contents of the bottle the appellant alleged that she contracted a serious illness. The bottle was stated to have been of dark opaque glass, so that the condition of its contents could not be ascertained by inspec- tioII, and to have been closed with a metal cap, wvhile on the side wvas a' label bearing the name of the respondent. The Lord Ordinary rejected the plea in law of the respondent that the appellant's aver- ments were irrelevant and insufficient to support the conclusions of the summons and allowed a proof. The Second Division, by a majority (the Lord Justice-Clerk. Lord Ormidale. and Lord Anderson ; Lord Hunter dissenting), recalled the interlocutor of the Lord Ordinary and dismissed the action. The appeal was heard in December last. M1r. George 3Morton. K.C.. and MIr. W. R. lMilligan (both of the Scottisli Bar) appeared for the appellant; 1r. Normand, K.C. (Solicitor-General for Scotland), lIr. J. L. Clyde (of the Scottish Bar), and Mr. T. Elder Jones (of the English Bar) for the respondent.. JUDGME: T LORD BUCI;%L&sTEL, after stating the facts, said that befcre examining the merits two comments were desirable-(I) that the appel- laut's case rested solely on the ground of a tort based not on fraud but on negligence; and (2) that throughout the appeal the case had been argued oni the basis, undisputed by the Second Division and never questioned by counsel for the appellant or by any of their Lordships, that the English and the Scots law on the subject were identical. It was, therefore, on the Englihli law alone that he had considered the matter and in his opinion it was on the English law alone that in thle circumstances they ought to proceed. The law applicable was the common law and, though its principles were capable of application to meet new conditions not con- templated when tJle law was laid down, yet themselves they could not be changed nor could additions be made to them 'because any particular meritorious case seemed outside their ambit. Lord Buckmaster then discussed a series of authorities, including George v. Skevington (L.R. 5 Ex., 1) and the dicta. of Lord Esher in Heavlen v. Peuder (11 Q.B.D.,. 503, 509), oli which the appellant relied. As to, George v. Skevington, he said that few' cases could have lived so dangerously and lived so long. Lord Sumner in Blacker v. Lake and Elliot (106 L.T., 533) closely examined' its history and he (Lord Buckmaster) agreed with his analysis. Lord Sumner had said that he could not presume to say that it was wvrong, but lie declinied to follow it on the grounid that it was in conflict withl Winterbottoin v. Wright (10 Mr. and W., 109), an authority which was closely applicable to the present case. As to Lord Esher's dictum in Heaven v. Pendler (suprn), Lord Justice Cotton, in whose judg- nient Lord Justice Bowen concurred,.said that he' was unvilling to concuir wvith tthe Masster o' the Rolls in laying dolvn unneces&arilv the larger principle which he entertained, inasmuch as there were many c-ases in which, the prin- ciple was impliedly negatived, and the Lord Justice cited Collis v. Selden (L.R., 3 C.P., 495) and Longmeid v. Holliday (6 Ex., 761). After a furtlher review of the autlcr:ities, Lord Bnckmnaster said that so far as George v. Skevington (supra) and the dicta of Lord Esher in Heaven v. Peander (supra) wvere con- cerned, it was in his' opinion better that thlev should be buried so securely that their per- turbed spirits should Do longer vex the law. In his v iew the authorities were against. the appellant's contentioni and, apart from a.utho- rity. it was difficult to see how any common law proposition coiuld be formulated to slup- port. lier claihio. He was of opinion thiat the appeal should be dismissed. LoIaD To-.ix read a Judgment in which he ettirely agreed witht the reasoniing and con- clusions of Lor(l Bnckinaster. LoUI) ATi;n's ViF-,v Lonn) A'ri'iN, in delivering judgment., said tlha the z7ole question for deteimnination was leg,al: Did :lie averinents made by thle pur- suier in her pleading if true disclose a caluse oi acti:n' . lTe qUestion wIas vhethier tte manuifacturer of an article oft drinik sold by lihn tG a distriibuitor in circuisLtanices which prevented the distributor or the ultimliate pur- chaser or consumller from discoveiing by in. pection any defect was under anIy legal duty to thle ultimate purchaser or colisainer to take meaF*>uable care that the afticle was free from defect likely to' cause injur-y to health. He did not think a. more imlportant problem ha(d occupied their Lordships in their judicial capacity: important botlh because of its bear- ing on public health and' because of the prac' tical test whiclh it applied to the system of law uiider which it atose. The case had to 'be deteminined in accordance withl Scots lawv: but it; liad been a matter of agreement betvween Ccunscl who argued the case, and it appeared to- be the basis of the judgments of the Judges of the Ccurt, of Session, that for the pulposes of determining this problem the law of Scot- laid and of Eingliand were the same. He spoke withl little authority on this point, but his owvn researchl satisfied hinm that the pri:iciples of the lawv of Scotland on such .a qllestionl as the present were identical with those of English law: and he discussed the issue on that footing. The law of botlh coun- iries appeared to be that, to suipport an action for damages for negligence, the complainanit had to shlow that he had been injured by the breach of a duty owed to him in the circum- stances by the dlefendant to take reasonable care to avoid such injury. In the present ca,s thev were uot concerned iith the breach cf the duty; if a duty existed that, would be a question of fact which was sufriciently averred anid for present plurposes must be assumed. They were solely concerned with the question. wvhether as a matter of law in the circumn- stances alleged the defeiider owed any duty to the pursuer to take care. It was remarkable how difricult it was to find in the English autliorities statements of general applicationi deliniing the relations between parties thlat gave rise to the duty. The Courts were concerned wcith the particular relations which came before them in actual litigation, anri it was sufilcient to sav whether the duty existed. in those circumstances. The result was that the Courts had beeni engaged on au elaborate classification of duties as they existed in respect of property whether real or personal with further divisions as to ownership, occupa- tion, or control, and distinctions based oii the particular relations of the one side or the other, whether mianufacturer, salesman, or landlord, customer. tenant, stranger, and so on. In thlat way it could be ascertained at any time whether tlle law recognized a duty, but only where thle case could be referred to some particular species w-hch had been examined and classified. And yet the duty, whichl was com- mon to all the cases where liability was esta- blished, must logically. be based on some element common to the' cases whlere it was found to exist. To seek a complete logical definition of the gelieral principle w as probably to go. beyond time funetion of the Judge, for the more general the deflnition the more likely it was to omit essentials or introduce non- essentials. Tile attempt was made by Lord Eshier in Heaven v. Pender (supra) in a definition to wlichl he would later refer. As framed it was demonstrably too wvide, thouglh it appeared to him if properly limited to be capable of affording a valuable practical guide. At preseint he contented hinmself with point- inig out that in English law tlhere must be and was some general conception of relations giving rise to a duty of care, of which the particular cases found in the bopoks were biut instances. The liability for neglgence, whether one styled it sIclh or treated it, as in other systems, as a species of culpa, was no doubt based on a general public rentiment of moral wrong- doing for which the offender must pay. But' acts or omissions which any moral code would censure could not in a 'practical. world be treated so as to give a riglt to every person injured by them to demand relief. In that way rules of law arose whichl limited the range of complainants and the extent of' their gemnedy. 'Ttic role that one was to love oLne's neighbour became in law one must not injure oties neighbour, and the lawyers' ques- tion who was oue's neighbour received a restricted reply. One must take reasonable care to avoid acts or omissiofis which one could reasonably foresee wouId be likely to injure one's neighbour. WVho then in law was one's neiglhbour I? The answer seemed to be persons vho were so closely and directly affected by one's act that one ought reasonably to have them in contemplation as being so affected wheu directing one's mind to the acts or omissions wvhfih were called in question. That appeared to him to be the doctrine in Heaven v. Pender (5upra) as laid down by Lord Esher 'when it was limited by the notion of proximity introduced by Lord Esher himself and Lord Justice A. L. Smith in Le Lievre v. Gould ([1893) 1 Q.B. 491). A NECESSAUY QU.ALIFICAkTION Witl- that necessary qualiflcation of proxi- maite relationship as explait;ed in Le Lievre v. Goulid. he thought that the judgment of Lord Esher expressed the law of England; without the qualification he thought that the majority of the Court in Heaven v. Pender (supra) were justified in thinking the principle as expressed in too general terms. There would no doubt arise cases where it would be difficult to determine whether the contemplated rela- tionship was so close that the duty arose. But in the class of case now before the Court he could not comceive any difficulty to arise. A manufacturer put up aii article of food in a container which he knew woould be opened by the actual consumer. There could be no in- spectioni by any purchaser and no reasonable preliminary inspection by tlie consumer. Negligently in the course of preparation lie allowed the conteats to be mixed with poison. It was said that the law of England and Scotland was that the poisoned consumer had no remedy against the negligent manufacturer. If that wvere the result of the authorities he would consider the result a grave defect in the law; and so contrary to principle that he would hesitate long before foll6wing any decision to that effect which had not the authority of that. House. He would po'.nt out that in the assumed state of the authorities not only would the consumer have no remedy against the manu- facturer, he would have none against anyone else; for in the. circumstances alleged there would be no ev.dence of negligence against anyone other than the manufacturer; and ex- cept in the case of a consumer who was also a purchaser no contract -and no warranty of fitness; and in the case of the purchase .of a ,specific article under its patent or trade name, hwhich might well be the case in the purchase of some articles of food or drink, no warranty protecting even the purebaser-consumer. There Cvere other instances than of articles of food gnd drink where goods were sold intended to 1i, used immediately bv the consumer, such as many forms of goods sold for cleaning pur- poses, when the same liability must exist, Tbo doctrine supported by the decision below wobld not only deny a .zremedy to the con- sunmer who was injured bv consuming bottled beer or chocolates poisoned by the negligence - of tie manufacturer, but also to the user ot mwhat slhould be a harmless proprietary medi- cine, au ointment, a soap, a cleaning fluid, or cleaning powder. AlcTIcLEs OF HoussIsOLD UsrS He confined himself to articles of common houseAold use. where everyone, including the mnanuixsturer, knew that the articles would be used l4v other persons than the actual ulti- mate pyirchaser--namely, by members of his family and his servants, and in some cases his guests. He did not think so ill of their jurisprudence as to suppose that its principles were so remote from the ordinary needs of civilized society and the ordinary claims it made on1 its members as to deny a legal remedy vhere there was so obviously a social wronlg. It would be found, he thought, on examina- tion tlhat there was no case in which the cir- cutistances had been such as he bad just sug- gested where the liability had been negatived. There werxe nmmerous cases where the rela- tions were much more remote where the dutv had been held not to exist. There wvere also dicta in such cases which went farther thant vas necessary- for thle determinationl of the particular issues which had caused the difficulty experierWced by the Courts below. He veutured to say t.hat ii. the branch of the law which dealt with civil wrongs, dependent in Englaiin at any rate entirely on the appli- Cation bv Judge-. of general principles also forinulated by Ju'ges. it was of particular im- portance to guard against t-lic danger of stating propositions df ls in nider terms thaii was necessary; lest essenitial factors be omitted in the wider survey, and the inherent adaptabilitv of English law be unduly restricted. For that reason it was very necessary in c6nsidering reported cases in the law of torts that. tle actual decis4in alone should carrv authority proper weigXit, of course, being given to thle dicta of the Judges. His Lordship thlien referred to several authoritieoi wvhicli, in his opinion, supported tle view -that in suchl-a case as the present thlc nallu-Ctuieu` owed a dutv to the conrsumner to be care'ul, and distiriguislhed certain otber a-ithorit s rieemed to inI ie C!ourt below as layiug drevol tle prloosition litCt iLo such( dutY existed. In condusion.he said that if iheir Lordslhips accepted the vie-w tlhat thle appellant's lll-ad- iug disOlcaed a reAwvanl. cause of action -thev would be affirnlitii thc propositioll. tlat by Scots anal Eniglish law alike a iia:iunifacturer of products wvhich lie sold i;I sUclI a iform aIS to( show that lie intenrded tleml to reach the udltinate comisunmer ii the forum in which thiev left him, withm no reasonable possibility of inteirniedliate exauniation, anid with the kiiow- ledge that thie abseiice of reasoinable care in thle preparatiaju or putting uip of tIme products was likely to result in injury to tie consumuer,'s life oi property. owve(d a duty to the consumer to take thai, reasonable care. It vas a pro- position that he ventured to sav no one in Scotland or Englanid wlho wvas not a lawyer would for one nioiieiit doubt. It would be inl advantage to make it clear that the lawv in this matter, as in most. others, was in accordance with sound coiminomi sellse. He thought that the appeal shiould be allowed. LORD TsAIc.AN1RToq anid LORD MACMILLAN delivered judgmnemit agreeing that the appeal should be allowed. Solicitors.-31essrs. Horner and Ho1rner, for M1essrs. lV. G. Leechmau and Co., Glasgow and Edinburglh: Mlessrs. Lawrence Jones and Co., for M1essrs. Niven, Macniven anid Co., Glasgow, and 3Messrs. Mlacpherson and Alackay, W.S., Edinburgh. HOURSE OF LORDS DEAD SNAIL IN GINGER-1EER BOTTLE: LIABILITY OF 'MANUFACTURER P ALISTER OR DONOGHUE (PAUPER) V. STEVENSON