Lord Thankerton Page 1

M’ALISTER or DONOGHUE (pauper)

v.

DAVID STEVENSON

Lord Thankerton.

MY LORDS,

    In this action the Appellant claims reparation from the Respondent in respect of illness and other injurious effects resulting from the presence of a decomposed snail in a bottle of gingerbeer, alleged to have been manufactured by the Respondent, and which was partially 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's interlocutor and dismissed the action, following their decision in the recent cases of Mullen v. Barr & Co. and McGowan v. Barr & Co., 1929 S.C. 461.

    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 from 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 gingerbeer, 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 gingerbeer was manufactured by the Respondent or his servants to be sold as an article 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 gingerbeer dangerous and harmful, and be sold with the gingerbeer, (b) a duty to provide a system of working his business which would not allow snails to get into the sealed 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 an efficient system of inspection, which would prevent snails getting into 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 of England it lies upon the party claiming redress in such a case to shew 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