Lord Buckmaster Page 1

M’ALISTER or DONOGHUE (Pauper)

v.

STEVENSON

Lord Buckmaster.

MY LORDS,

    The facts of this case are simple.

    On August 26th, 1928, the Appellant drank a bottle of ginger beer, manufactured by the Respondent, which a friend had bought from a retailer and given to her. The bottle contained the decomposed remains of a snail which were not and could not be detected until the greater part of the contents of the bottle had been consumed. As a result she alleged and, at this stage her allegations must be accepted as true, that she suffered from shock and severe gastro enteritis. She accordingly instituted the proceedings against the manufacturers which have given rise to this appeal.

    The foundation of her case is that the Respondent, as the manufacturers of an article intended for consumption and contained in a receptacle which prevented inspection owed a duty to her as consumer of the article to take care that there was no noxious element in the goods, that they neglected such duty and are consequently liable for any damage caused by such neglect. After certain amendments which are now immaterial, the case came before the Lord Ordinary who rejected the plea in Law of the Respondent and allowed a proof. His interlocutor was revoked by the second Division of the Court of Session from whose judgment this appeal has been brought.

    Before examining the merits two comments are desirable — (1) That the Appellant's case rests solely on the ground of a tort based not on fraud but on negligence; and (2) that throughout the appeal the case has been argued on the basis, undisputed by the Second Division and never questioned by counsel for the Appellants or by any of your Lordships, that the English and the Scots law on the subject are identical. It is, therefore, upon the English law alone that I have considered the matter and in my opinion it is on the English law alone that in the circumstances we ought to proceed.

    The law applicable is the common law and, thought its principles are capable of application to meet new conditions not contemplated when the law was laid down, yet themselves they cannot be changed nor can additions be made to them because any particular meritorious case seems outside their ambit.

    Now the common law must be sought in law books by writers of authority and in the judgments of the Judges entrusted with its administration. The law books give no assistance because the work of living authors however deservedly eminent cannot be used as authorities though the opinions they express may demand attention, and the ancient books do not assist. I turn therefore to the decided cases to see if they can be construed so as to support the Appellant's case. One of the earliest is the case of Langridge v. Levy, 2 M. & W., 519. It is a case often quoted and variously explained. There a man sold a gun which he knew was dangerous for the use of the purchaser's son. The gun exploded in the son's hands and he was