Respondent's Case Page 8

8

case. As to the first exception, ginger beer is obviously not per se dangerous. It is impossible, as the Lord Justice Clerk said in Mullen v. Barr & Co., to assimilate the position of a dealer in gelignite with the position of a dealer in ginger beer. And there would be scant logical justification for holding that ginger beer containing a snail, the slight of which may cause a merely temporary sickness in one consumer is, per se dangerous, while a patent lamp with a defect which may cause an explosion injuring half a dozen people is held not to be per se dangerous. As to the second exception, it is not, and cannot be, alleged that the Respondent knew of the presence of the snail in the bottle in question and committed a fraud on the public in launching such a mixture on the world.

    The general rule, therefore, which negatives the existence of any duty by the Respondent towards the Appellant, applies, it is submitted, in the present case, as the majority of their Lordships of the Second Division have held.

    The opinion of the learned Lord Ordinary to the contrary runs counter to the consistent body of authority both in Scotland and in England above referred to, and appears to deny both the general principle and its exceptions, at any rate so far as Scotland is concerned. Such a distinction between the law of Scotland and the law of England respectfully appears to the Respondent to be consonant neither with reason nor with the cases decided in the two countries. There seems no justification for a distinction between the two systems in a department of law far removed from the specialties of either; and, apart from the Lord Ordinary's opinion in this case, there is no hint in the decided cases of the existence of such a distinction. In general, it may be affirmed that there is no distinction between the law of Scotland and the law of England as to the persons who owe a duty or as to the persons to whom the duty is owed. The specialties which differentiate the two systems of law in the domain of negligence