Lord Macmillan Page 1

M’ALISTER or DONOGHUE (pauper)

v.

DAVID STEVENSON

Lord Macmillan.

MY LORDS,

    The incident which in its legal bearings your Lordships are called upon to consider in this appeal was in itself of a trivial character, though the consequences to the appellant, as she describes them, were serious enough. It appears from the appellant's allegations that on an 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 the appellant alleges that she contracted a serious illness. 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 kept his bottles in premises to which snails had access and 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.

    The Lord Ordinary repelled the respondent's plea to the relevancy and allowed the parties a proof of their averments, but on a 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. and McGowan v. Barr & Co., 1929 S.C. 461. 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.