Scottish Court of Session Decisions

Lord Justice-Clerk (Alness).—

I.—Mullen.

[After the narrative of the facts quoted supra]—The pursuer now sues the defenders for damages, averring (1) an implied warranty on their part that their ginger beer was free from impure and noxious matter, and (2) negligence on their part. The negligence averred, as I read the pursuer's record, solely relates to the system employed by the defenders in bottling and examining the contents of the bottles sent out by them from their factory. The pursuer's claim, in so far as based on warranty, was expressly given up by his counsel in argument, and the case was argued throughout on the footing that the sole ground of liability attributed to the defenders is their alleged negligence.

The pursuer maintained, in the first place, that that negligence was established in virtue of the maxim res ipsa loquitur. Now, in that connexion the distinction, pointed out by Lord Dunedin in Ballard (at p. 54), between an incident which is relevant to infer negligence and an incident which necessarily infers negligence must be borne in mind. This incident, in my opinion, does not fall within the latter category. The facts proved do not, in my opinion, necessarily demonstrate fault on the part of the defenders.

The function of the doctrine, if I may so design it, cannot in this case be put higher by the pursuer than Erle, C. J., put it in a classical passage, quoted with approval by Lord Shaw in Ballard (at p. 56):—“There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

Now, assuming that the facts proved in this case suggest negligence on the part of the defenders, and even raise a presumption of negligence on their part which they must rebut, I am of opinion that they have discharged that onus. They have proved, in my opinion, not only that they have taken all the precautions which are usual and necessary, but they have, I think, also proved that their system is the best known in the trade. Indeed there is no evidence to the contrary, and no cross-examination directed to the inefficiency of the defenders' system. No doubt, if the system had been proved to be defective, there might have been a presumption of fault against them. But there is no such proof; the evidence is all the other way.

How then does the pursuer's counsel propose to instruct liability on the part of the defenders? Chiefly, if not exclusively, as I understood the argument, by suggesting that there must have been negligence on the part of one of the defenders' servants in carrying out a system which he was constrained to admit has been proved to be excellent in every way.

Now, in the first place, I do not think that the pursuer's record properly raises any such case. As I read his pleadings, they disclose an attack on the defenders' system, and nothing else. There is no articulate or clear averment to the effect that the defenders' servants were negligent; and there is certainly no specification of the matters wherein that negligence consisted. Moreover, as I have said, there is no direct evidence adduced by the pursuer of negligence on the part of any one of the defenders' servants. Had such evidence been tendered, no doubt its admissibility would have been challenged, and it might have been excluded by the Court. Further, there is no cross-examination of the defenders' witnesses suggesting that any one of their servants was negligent.

In these peculiar circumstances it would seem difficult for the pursuer to establish affirmatively that the defenders' servants, or one or more of them, were guilty of fault. He essays to do it, as I understood the argument, thus. He says, the better the defenders' system is proved to have been, the more clearly is it demonstrated that, assuming the mouse to have been in the bottle when it left their factory, its presence there must have been due to the fault of one of their servants.

The theory is ingenious, and, at first sight, plausible, but I cannot regard it as convincing or sound. Let me examine for a moment the proposition on which the argument is based, and see exactly what it connotes. It connotes that the duty of the defenders' servants was to ensure that all sediment was cleaned out of every bottle in their factory before it was refilled and sent out by them. The bottles being dark in colour, it is manifest that the defenders servants concerned could not have detected a mouse in the bottle. At the best it would have represented to them certain foreign matter. There is no suggestion that a mouse or any similar substance at any time during the defenders' trading of over fifty years ever got into a bottle, or that the defenders' servants had any reason to anticipate or guard against such a contingency. The pursuer's case involves this—that the failure of the defenders' servants to detect and remove a certain amount of sediment in a dark bottle demonstrates their fault. The proposition seems to me extravagant, and I cannot subscribe to it. Assuming that one of the brushes used by one of the defenders' servants did not on one occasion penetrate to the very bottom of one bottle, and that some sediment was left there which ultimately turned out to be a decomposing mouse, I am quite unable to conclude that necessarily—and that must be the pursuer's claim—that must have been due to the fault of a servant of the defenders. It may have been. But I cannot affirm that it must have been. And unless the pursuer establishes the last proposition, his case fails. In this connexion I refer to the evidence of the pursuer's witness Millar:—(Q.) “How do you suggest that anybody is going to discover a mouse in a stone ginger beer bottle?” (A.) “The only method I can see is when the mouse comes out of the bottle.” The mouse may have got in and remained in through a mischance, but without negligence.

The pursuer's contention under this head really involves that it was the duty of the defenders' servants to ensure the complete purity of the contents of their bottles, failing which liability in law would attach to them. But that contention is just another way, it seems to me, of stating the warranty argument, which the pursuer expressly gave up. It is a claim based on the doctrine of insurance. The defenders do not and need not guarantee their system to be infallible. Their only guarantee is that they take ordinary precautions to secure that their products are good. But it does not follow that for every mishap or mischance, however venial, they are liable as for negligence. There are many mischances in life, many accidents, which do not enter or even approximate to the category of negligence. There is no duty, I apprehend, resting upon the defenders to show the precise cause of the unfortunate incident which occurred in this case.

It may well be that the defenders have not excluded the possibility of negligence. That would not be feasible. But they have, I think, excluded the reasonable probability of negligence. To exact of them the former standard would be to go further than the authorities require, and would amount to a guarantee of immunity to the public. I therefore reach the conclusion that the pursuer has failed to prove negligence on the part of the defenders, and that, if the onus be on them to rebut a presumption of negligence which the facts suggest, they have discharged that onus.

But, even if negligence on the part of the defenders is proved, I am not satisfied that the pursuer has proved that they owed a duty to him. If they did not, mere proof of negligence is unavailing, and the action will not lie.—Cf. Clelland, 1911 S. C. 253, at p. 256.

The general principle established by the authorities would seem to be that a man who puts a product manufactured by him on the market has no duty to anyone regarding it except to the person with whom he contracts, unless (a) he knows that the article which he sells is dangerous, and conceals that knowledge from the buyer, in which case he is guilty of a fraud, or (b) he is a dealer in articles which are per se dangerous, e.g., explosives, and gives no warning to the buyer of the fact. The cases cited in the opinion of the learned Sheriff of Lanarkshire document the proposition to which I have referred, and the exceptions to its generality which I have enumerated. I own, however, that I have been unable to discover any adequate authority for the third exception from the general rule which the learned Sheriff mentions, and none was cited by the pursuer in support of it. Now, if that be the law, it leaves the defenders unscathed. They were admittedly unaware that the article sold by them, which is normally safe, was dangerous, and they certainly were not dealers in an article which per se is dangerous. It is impossible to assimilate the position of a dealer in gelignite with the position of a dealer in ginger beer, as Mr Watson, for the pursuer, invited us to do.

The case of George v. Skivington, on which the pursuer relied, has in subsequent cases been treated with scant respect, and I take the liberty of doubting whether it is part of the law of England to-day. But I feel 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 has in law a right to sue them. I prefer to base my judgment on the proposition that the pursuer has failed to prove fault on the part of the defenders.

I may add that I am not satisfied that, in the result, the pursuer is left without a remedy. The mere fact that he may have none does not seem to me relevant to the decision of this case. I will only say, however, that the cases of Morelli, Bristol Tramways Co., and Wren at least suggest that the pursuer may have in law an action against the retailer of the ginger beer.

II.—M'Gowan.

It seems to me that, although in its circumstances the case of M'Gowan presents certain differences from the case of Mullen, the same principles apply and the same result must follow. I do not examine the details of M'Gowan's case. I content myself by saying that it seems to me impossible to hold that, the pursuer in Mullen's case having failed, the pursuer in M'Gowan's case can succeed. If the views which I have expressed are sound, the question of damages does not arise, and, as it was not argued, I express no opinion upon it.

I therefore respectfully advise your Lordships in both cases to assoilzie the defenders from the claims made against them by the pursuers.

Lord Ormidale.—I do not propose again to recite the circumstances which give rise to these two actions. They raise substantially the same questions, and both are laid on delict and not on contract.

It is not disputed that the bottles in which the mice were found were filled with ginger beer at the defenders' factories; but the defenders maintained that the mice were not in their respective bottles when these left their premises, or, indeed, when the bottles were sold to the pursuers by the retail dealers. In my opinion this contention falls to be rejected. The evidence is altogether against the idea of the bottles having been tampered with, and, although the evidence in the Mullen case is not so satisfactory as in the M'Gowan case, I see no reason for disbelieving it or holding that Mullen's claim is in any sense a bogus claim.

The question was mooted whether the pursuers had a right, founded on contract or otherwise, to take proceedings against the retail dealers. My impression is that they had; but it is unnecessary to decide that question in this case, and I reserve my opinion on it.

The only contract in each of the cases was that between the defenders and the retail dealers to whom they supplied the ginger beer; and the leading questions are, first, whether, in the absence of any contractual relation between the pursuers and the defenders, the latter owed a duty to the pursuers, as the consumers of the beer, of taking precautions to see that nothing of a poisonous or deleterious nature was allowed to enter and remain in the bottles; and second, if they did owe such a duty, whether it has been proved by the pursuers that they negligently failed to discharge that duty.

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, 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 ensure 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 from 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.

The only exceptions that have been admitted to the general rule that no such duty exists are (1) when there has been fraudulent misrepresentation on the part of the seller, and (2) when the article sold is dangerous in itself, either by reason of its general character or by reason of its specific condition—if, in the latter case, the danger is known to the seller when the article is sent out by him. There is no suggestion of fraud in the present cases. Ginger beer is not intrinsically dangerous, and it is not averred that the defenders were aware of the deleterious matter having found its way into the two bottles in question.

I do not examine the authorities. Most of them are cited and considered with great particularity by Lord Sumner, then Mr Justice Hamilton, in Blacker v. Lake & Elliott, Limited . But I should like to refer to three cases on which Mr Watson founded strongly, in support of his argument for the pursuers, as illustrating circumstances outside the admitted exceptions in which an action might lie at the instance of a third party between whom and the defender there was no privity of contract—George v. Skivington, The Dominion Natural Gas Co., and Thomas v. Winchester . I think only one—the first—of these can be said to be outside the admitted exceptions, viz., George's case, and I am afraid it falls to be, and always has been, regarded as of little, if any, authority. It purports to decide that a person who makes a hair-wash owes a duty to persons for whose use he sells it to take care that the wash shall not injure those into whose hands it comes and who use it. The grounds of the decision are obscure, and Hamilton, J., thus refers to it in Blacker: “I do not find that the case has ever been expressly affirmed, but I do find that it has been expressly doubted and, in my opinion, it has been dealt with in later cases in a way which comes as near express disaffirmance as is possible without its being expressly over-ruled.” Hamilton and Lush, JJ., in Blacker followed Winterbottom, and dissented from George v. Skivington .

The decision in the Dominion Natural Gas Co. is of greater importance.In that case a gas company had installed, under agreement with a railway company, a gas plant to which railway workmen had access. An explosion occurred, and the workmen were injured. The explosion was due to the negligence of the gas company in omitting to take a simple precaution to prevent the escape of gas. It was held that the workmen, who had no contractual relation with the gas company, were entitled to recover damages from the latter. The passage in Lord Dunedin's judgment (at p. 646) on which Mr Watson relied was as follows:—“The gas company were not occupiers of the premises on which the accident happened. Further, there being no relation of contract between the company and the plaintiffs, the plaintiffs cannot appeal to any defect in the machine supplied by the defendants which might constitute breach of contract. There may be, however, in the case of anyone performing an operation, or setting up or installing a machine, a relationship of duty. What that duty is will vary according to the subject-matter of the things involved. It has, however, again and again been held that, in the case of articles dangerous in themselves, such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity.” There was certainly no privity of contract between those responsible for the explosion which had occurred and the persons injured, but the opinion of the learned Lord with regard to the duty of the gas company does not seem to have any application to something which is subsequently resold by its purchaser to the person who is injured. And, again, although the observations are fairly general, the context clearly shows that Lord Dunedin had in mind things per se of a dangerous character—things, that is, that are admitted to be exceptions to the general rule.

The remaining case of Thomas also, as I understand it, is again an instance of the liability of the wholesale seller of a dangerous thing extending to a purchaser from the retailer. I am against the pursuers, therefore, on this branch of the case.

If I had come to a different conclusion and held that the defenders did owe a duty to the pursuers to take due precaution to keep their bottles free from foreign matter, I should not have held that negligence in the performance of that duty had been brought home to them. My reasons are, shortly, these. In the case of Mullen the fault alleged against them is, in terms, defective system of bottling and examination. In M'Gowan the averments are very general and entirely lacking in specification, and give little notice to the defenders of what they have to meet. But, fairly read, the defenders were entitled, I think, to take them as also an attack on the system of bottling and examination in their factory. “Servants” are, no doubt, referred to, but the personal carelessness of any of the employees is not really made an article of dittay; and this view is confirmed on turning to the proof, for there is nothing in the cross-examination of the defender's witnesses to suggest a charge of personal carelessness on the part of any servant. As an attack on system, the pursuer's case fails. On the evidence, the system is up-to-date and of the best and most approved type. The machinery is well adapted to perform its purpose; and there is abundance of manual labour. It is not said that the system is infallible, and that the exclusion of all possible mischance is absolutely assured; but, so far as humanly possible, every precaution would appear to be taken to prevent foreign and deleterious matter getting into, or remaining in, the bottles. Very many millions of bottles have been filled and examined in the course of the factory's operations, and, while admittedly occasional complaints of a minor description have been made, there is no instance of any mouse having ever before been found in a bottle.

Lord Hunter.—An action of damages was raised in the Sheriff Court of Lanarkshire by Francis Mullen, as tutor and administrator-in-law for his pupil children, John Mullen and Francis Mullen, both residing with him, against A. G. Barr & Co., aerated water manufacturers, Glasgow.

The pursuer had bought from a retail dealer a bottle of brewed ginger manufactured by the defenders, and had given part of the contents to his children to drink. He alleges that the brewed ginger contained deleterious matter which injuriously affected the health of his children. He further alleges that the injurious matter arose from the decomposed body of a mouse which had been allowed to remain in the bottle through the negligence of the defenders or their employees. The Sheriff of Lanarkshire dismissed the action as irrelevant, holding that the defenders owed no duty to the pursuer, with whom they had no contract. An appeal against this decision was taken to this Court.

About the same time an action was raised in the Sheriff Court of Renfrewshire by a Mrs M'Gowan against the firm of Barr & Co., aerated water manufacturers, Greenock, on practically similar grounds. Her allegation was that, in a bottle of brewed ginger manufactured by the defenders and bought by her from a retail dealer, there was the body of a dead mouse, and that by drinking the liquid so contaminated she suffered in health. The ground upon which the pursuer sought to make the defenders liable was similar to that in Mullen's case. The Sheriff of Renfrewshire allowed a proof before answer, and the defenders appealed to the Court of Session. Both appeals were heard before us, and we considered it advisable that the facts should be ascertained before any decision was given upon the defenders' contentions. The proofs so ordered took place before me.

It is clear that, in such actions as the present, the Court ought to require satisfactory and conclusive proof that the deleterious matter was in the bottles when they left the defenders' premises. Personally I was satisfied, on the evidence adduced before me, that the pursuers had discharged the onus so placed upon them. I saw no reason to think that the two cases had their origin in a conspiracy to extract money from the defenders although, at all events in Mullen's case, the injury sustained was so slight that the Pursuer might have been well advised to leave litigation alone. As regards the theories that the mice might have been put in the bottles after they left the defenders' factories, either as a practical joke or with a view to injuring the defenders' business, I have no hesitation in rejecting them. In M'Gowan's case the shopkeeper, from whom the bottle was purchased by the pursuer's son, had got a consignment of brewed ginger from the defenders on the day on which the purchase was made. The bottle sold was one of this consignment, and it had the defenders' tab over the cork, with the defenders' name on it and the price at which the bottle was to be purchased.

The defenders maintained, notwithstanding the proof, as they were quite entitled to do, that the view taken by the Sheriff of Lanarkshire was right, and that no relevant case had been made against them. The pursuer has, of course, no action on contract against the defenders. If there is a right of action it must arise ex delicto, and whether such action lies or not depends on whether the defenders as manufacturers of the article sold were not merely bound to fulfil the terms of their contract with the retail dealers, but owed a duty to members of the public, who might purchase the waters manufactured by them for consumption, to take care that such waters were not contaminated by deleterious ingredients. The defenders put their case as high as this that, whatever gross carelessness might be proved against them, the remedy, if any, of a member of the public who had suffered injury by being poisoned is against the retail dealer from whom he made the purchase. Certain English cases were cited to us in support of the contention that such a right of action exists. I do not propose to examine them, although I doubt whether shopkeepers who sell an article like Barr's brewed ginger, which they have no opportunity of examining for the presence of deleterious matter, would be liable in such an action as the present. In any event, the defenders' liability to the pursuers cannot be determined by the existence or non-existence of such an action. It may of course be that the consumer of brewed ginger, which has acted as a poison to his system because of the presence of deleterious matter therein, has no right of action against anyone.

According to the defenders, all cases where a manufacturer has been held directly liable to a member of the public who has suffered injury fall under one or other of two classes or categories: (first) where the things sold are dangerous in themselves, and (second) where the manufacturer has made a fraudulent misrepresentation as to the character of the article sold, or where he has some special knowledge as to the existence of a source of danger which he has failed to communicate to the purchaser from him. That liability exists in such cases is not doubtful. Several illustrations from decided cases of such liability were cited to us. In the case of Kemp Lord Kinnear refers with approval to a statement by Lopes, J., in Parry v. Smith, where the learned judge says that there may be a right of action founded upon a duty which “attaches in every case where a person is using or is dealing with a highly dangerous thing, which, unless managed with the greatest care, is calculated to cause injury to bystanders. To support such a right of action there need be no privity between the party injured and him by whose breach of duty the injury is caused … It is a misfeasance independent of contract.” As an illustration of the second class of case, Langridge was taken. In that case the defendant sold a gun to the plaintiff's father for the use, to his knowledge, of the plaintiff. The defendant had made a misrepresentation at the time of sale, and was held liable for injury sustained by the plaintiff owing to the gun being defective.

I am by no means satisfied that the defenders' classification, to which I have referred, is exhaustive. In the Dominion Natural Gas Co. Lord Dunedin in delivering the judgment of the Privy Council said (at p. 646): “There being no relation of contract between the company and the plaintiffs, the plaintiffs cannot appeal to any defect in the machine supplied by the defendants which might constitute breach of contract. There may be, however, in the case of anyone performing an operation, or setting up and installing a machine, a relationship of duty. What that duty is will vary according to the subject-matter of the things involved. It has, however, again and again been held that, in the case of articles dangerous in themselves, such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity. The duty being to take precaution, it is no excuse to say that the accident would not have happened unless some other agency than that of the defendant had intermeddled with the matter. A loaded gun will not go off unless someone pulls the trigger, a poison is innocuous unless someone takes it, gas will not explode unless it is mixed with air and then a light is set to it. Yet the cases of Dixon v. Bell, Thomas v. Winchester, and Parry v. Smith are all illustrations of liability enforced.” Although what is there said had reference to a subject dangerous in itself, I do not think that the relationship of duty is necessarily confined to such a class.

In Heaven v. Pender a dockowner supplied and put up a staging outside a ship in his dock, under contract with the shipowner. A workman in the employment of a painter, who had entered into a contract with the shipowner to paint the ship, was injured by falling from the staging, which was in a defective condition. It was held by the Court that the dockowner was liable in damages to the workman, on the ground that there was an implied invitation by the defendants to those employed in painting the ship to use the dock and all appliances provided by him. In the course of his opinion the Master of the Rolls went into the general question of the principle upon which, apart from contract, the relationship between parties may be such as to create a duty to take ordinary care, failure in which may result in liability in damages. After referring to particular circumstances which give rise to such a relationship, he, said (at p. 509): “The proposition which these recognised cases suggest, and which is, therefore, to be deduced from them, is 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 circumstances 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.” It is true that, in subsequent cases, attempts have been unsuccessfully made to extend the principle enunciated by the Master of the Rolls in Heaven v. Pender to circumstances where liability was clearly excluded by previous authority—and it may be that in its practical application qualification of the terms in which the principle is stated may be required. At the same time it appears to me to form a useful guide. In applying the principle to the vendor of goods, the Master of the Rolls says, “whenever one person supplies goods for the purpose of their being used by another person under such circumstances that everyone of ordinary sense would if he thought recognise at once that unless he used 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 a thing.”

Before considering the special facts of the present case so far as bearing upon the question whether or not a relationship of duty exists, it may be well to look briefly at certain of the cases relied on by the parties. The defenders founded upon a series of cases of which Winterbottom v. Wright may be taken as a typical and leading example. In that case a coach-builder had contracted with the Postmaster General to supply coaches for the conveyance of Her Majesty's mails. One of the coaches so supplied broke down because it was defective, and the driver was injured. It was held that he could not recover damages from the coachbuilder. Lord Abinger, C.B., said, “Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences to which I can see no limit would ensue. … By permitting this action we would 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 the 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.” The decision in Winterbottom was approved by the Court of Appeal in England in Earl v. Lubbock and Bates v. Batey & Co. [1913] 3 KB 351, and by a Divisional Court in Blacker v. Lake & Elliott . In all these cases there was not such a relationship established between the parties as, in the absence of contract, to create a duty on the defendant towards the plaintiff, and the claim of damages was too remote to be considered as the direct or natural result of the alleged negligence. Such cases as Cavalier v. Pope and Cameron v. Young do not appear to me to have any bearing upon the present question. They decide that a stranger to a lease cannot found upon a landlord's failure to fulfil obligations undertaken by him under contract with his lessee.

For the pursuer, in addition to the case of the Dominion Natural Gas Co. to which I have referred, George v. Skivington and Thomas were relied on. In the former of these cases a manufacturer of a hair-wash sold it to a man for use by his wife. On an allegation that the defendant had been guilty of negligence in preparing the wash, it was held that an action lay at the instance of the wife, although she was no party to the contract. In the latter case a wholesale chemist sold to a retail chemist, as extract of dandelion, a poisonous drug which had been wrongly labelled owing to the negligence of an employee. The retail chemist sold the drug to a physician, who gave it to one of his patients, who consumed it and thereby suffered in health. It was held by an American Court that the consumer was entitled to claim damages from the wholesale chemist. The case is cited by Lord Dunedin in the Dominion Gas Co. case as an illustration of liability arising independent of contract.

Turning to the facts of the present case one finds that the ginger beer is bottled by the defenders and labelled by them as of their manufacture. The tab over the cork of the bottles indicates the price at which the public are to be entitled to purchase the beer. The retail dealer does not make any examination of the contents of the bottles before exposing them for sale. To open the bottles would be prejudicial to the beer, and the tabs on the corks are intended to give the consumer confidence that the bottles have not been tampered with after they have left the manufacturers' premises. The bottles are so dark in colour as to prevent the retail dealer or the consumer from detecting the presence of foreign or deleterious matter by any ordinarily careful examination of the bottle. The defenders invite the public by advertisement and by their labels to buy ginger beer manufactured by them. In these circumstances I am of opinion that there is such a relationship between the manufacturer and consumer as to impose a duty upon the former to exercise care that the latter does not suffer injury. The duty may not be of the absolute character which rests upon one who deals in goods that are dangerous in themselves; but it is none the less a duty which will give the consumer a claim of damages if he can establish a case of negligence against the manufacturer.

The question that has now to be considered is whether the pursuers have established negligence against the defenders. Counsel for the latter subjected the pursuers' averments to a considerable amount of criticism.

I think those averments leave much to be desired in the way of precision, but I am unable to assent to the view that the only case on record is defective systems in the cleaning of the bottles. The pursuers appear to me to be entitled to found upon negligence of the defenders' employees, and I do not think their averments can fairly be read as excluding such negligence. In a case like the present it would be manifestly unfair to require of the pursuers as a condition of success that they should specify the individual to whom they impute negligence or even the exact form of negligence. They are entitled to say that bottles of ginger beer which leave the defenders' premises ought not to contain decomposing animal matter in the shape of dead mice, and that their presence can only be accounted for either on the footing that the system of cleaning the bottles adopted by the defenders is defective or by carelessness on the part of some one or more of the employees in not detecting their presence and ejecting them. The defenders led evidence to the effect that the system of cleaning their bottles is the most satisfactory known to the trade; but from the description given by the witness I think foreign matter may fail to be ejected from a bottle because of a partial breakdown at some stage of the machinery; and that imperfect observation on the part of the employees may allow it to remain undetected. It may seem a very improbable thing that mice should find their way into bottles in the process of filling them with brewed ginger, and the defenders maintained that such a thing was unheard of. On the other hand, one of the witnesses for the pursuer, who had considerable experience of bottling, referred to the possibility of mice being in bottles as one of the things that had to be watched. I think the fact of mice being in the defenders' bottles when they left their factories can only be accounted for on the footing of negligence. In my opinion, therefore, the pursures are entitled to recover damages from the defenders.

As regards the amount of damages which should be awarded I express no opinion. In view of the importance and difficulty of the question of liability we thought it better that the assessment of damages should be postponed. I was also responsible for the suggestion, made in view of the circumstance that I heard the evidence, that agreement upon amount might be reached so as to avoid discussion upon it. It could not, in any event, be large. In the absence of agreement, however, parties would be entitled to be heard before a decision is pronounced.

Lord Anderson.—In these cases two points were taken at the debate, one of which raises a question of law and the other a question of fact. The question of law is whether the defenders owed a duty to the pursuers so as to make them liable to the pursuers in damages for the negligent discharge of their duty. The question of fact is: Assuming the existence of such a duty, has negligence on the part of the defenders been proved?

I shall deal first with the question of law. The pursuers suggested that a distinction fell to be made between a manufactured commodity which was a food or drink and other manufactured commodities, but I have been unable to find any authority for this differentiation. In my opinion manufactured articles of food and drink are in the same position, in the eye of the law, in reference to the matter now under consideration, as other manufactured commodities. It was conceded by the pursuers that the general rule of law was against their contention that the defenders were liable to them for negligence. There was no privity of contract between the defenders and the pursuers. The contract of the defenders was with the retailers who sold the ginger beer to the pursures. In circumstances such as these the general rule would seem to be that breach of a manufacturer's contract with A to use care in the manufacture of an article does not of itself give a cause of action B who injured by reason of the article proving to be defective, in breach of the contract.—Per Hamilton, J., in Blacker, 106 L. T. 533, at p. 536. Illustrations of this general rule are to be found in the leading case of Winterbottom, also in Earl, and Bates. In Winterbottom Lord Abinger, C.B., in giving judgement observed (p. 114), “Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.” Lord Abinger gave no example of what he had in mind by this expression, but, in a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. It is obvious tat, if such responsibility attached to the defenders, they might be called on to meet claims of damages which they could not possibly investigate or answer.

To the above general rule, however, there are two recognised exceptions. (1) Where an article dangerous in itself is manufactured, there is a duty on the maker to inform the retailer that the article is dangerous, and, if he fails to do so, or represents that the article is safe, he is liable as for negligence, or it may be as for fraud, to a member of the public injured by using the article—Langridge. The much discussed case of George v. Skivington would seem to fall within this exception. (2) Where an article, not ordinarily dangerous, is in point of fact dangerous, and this is known to the maker, he is bound to intimate this dangerous condition of the article to the retailer, and, if this is not done, a member of the public who uses the article and sustains injury has a claim against the maker on the ground of negligence—Heaven v. Pender, 11 Q. B. D. 503, per Cotton, L.J., at p. 517; Farrant, 11 C. B. (N. S.) 553; Lush, J., in Blacker, 106 L. T. 533, at p. 540; Dominion Natural Gas Co., [1909] A. O. 640. The pursuers endeavoured to bring their cases within this exception, on the ground that ginger beer, ordinarily innocuous, became noxious when contaminated with a dead mouse. But it has not been proved that the defenders knew of the presence of the mice in the bottles, and, as the bottles were made of opaque glass, it cannot be asserted that they ought to have known that the two bottles contained dead mice. If it had been established that the presence of a dead mouse in a bottle of ginger beer was an ordinary occurrence, Pursuers would have been in a position to maintain that special precautions ought to have been taken to prevent the mice getting into the bottles or for discovering their presence in the bottles. But the evidence discloses that the chances are many millions to one against the happening of what has occurred in the present cases. It seems to me therefore that, as the pursuers have failed to bring the cases under one of the exceptions to the general rule, and as that rule is admittedly against them, they have failed to show that the defenders owed to them any duty of care. On the question of law, therefore, I am prepared to sustain the contentions of the defenders.

But, even if this view is erroneous, I am of opinion that the pursuers have failed to prove that the defenders were negligent. As negligence is co-related to duty, the first matter to be considered is the nature of the duty which the pursuers maintain is owed to them by the defenders. There is a notable difference in the averments of duty made in the respective actions. In the case of Mullen what is averred is, in effect, that the duty of the defenders was to “ensure” that no bottle of ginger beer which contained deleterious matter should leave their premises. No such duty, implying as it does that the defenders should undertake the impossible, can, in my opinion, be laid upon them. In the case of M'Gowan there is what I regard as a more accurate averment of duty, when it is alleged that the defenders failed to take proper precautions to avoid what occurred. But the pursuers have entirely failed to substantiate this averment by proof. They led no evidence to show that the machinery used by the defenders was out of date, defective, or inadequate, or that the employees were unskilled or insufficient in number. On the other hand, the defenders proved that their machinery was up-to-date and adequate for its purpose, and that their employees were capable and sufficient in number. An argument was advanced for the pursuers, which seemed plausible, but which, in my opinion, was fallacious. It was argued that the more perfect the defenders' machinery was made out to be, the more irresistible was the inference that there must have been negligence on the part of one or more of the employees. The fallacy of this contention consists in this, that it assumes perfection of system if the human element properly plays its part. Now, it is not maintained by any witness that the defenders' system, if properly applied, ensures perfection. Even on the assumption that the human element duly plays its part, it is conceded by the defenders that deleterious matter may get into a bottle or fail to be dislodged therefrom. The proper inference, therefore, is not perfection, but extreme unlikelihood of such an occurrence as did take place. The just conclusion seems to me to be this—that, for some unaccountable and unexplained reason, the mice, which had crept into the empty bottles, maintained their position therein during the process of filling despite all proper precautions for ensuring purity of manufacture. In other words, the pursuers, in my opinion, were injured as the result of inevitable accident, and not as the consequence of any proved negligence. I assume in the pursuers' favour that the mice were in the bottles when they left the defenders' works, and that the bottles came into the pursuers' possession in the condition in which they were when sold by the defenders to the retailers. I do not think that, on the evidence, any other conclusion than this can be reached.

As the pursuers were unable to prove, positivè, any negligence on the part of the defenders, they were compelled to base their claims on the presumption arising from the principle of res ipsa loquitur. To that contention the defenders made two rejoinders, each of which, in my opinion, is well founded. It was maintained, in the first place, that the maxim did not apply to the circumstances of those cases. To use the language of Lord Dunedin in the case of Ballard, the circumstances in the present cases do not necessarily infer negligence, but are merely relevant to do so. “If the defenders,” says Lord Dunedin, “can show a way in which the accident may have occurred without negligence, the cogency of the fact of the accident by itself disappears, and the pursuer is left as he began, namely, that he has to show negligence.” It seems to me that, in the present cases, the defenders have shown that what took place might have happened, and in point of fact did happen, without negligence on their part. The second answer made by the defenders was that, assuming that the maxim did apply and that a presumption of negligence on their part was thereby raised, it was open to them to rebut that presumption; and, on the evidence, that they had conclusively done so. The evidence led for the defence seems to me to substantiate this contention. I am satisfied, on that evidence, that the defenders conducted the operations whereby the two bottles were filled with due care and without negligence.

On the question of fact, therefore, as well as on that of law, my judgment is for the defenders. It follows that they must be assoilzied in both actions.