Donoghue v Stevenson

Textual versions of document images

Donoghue v Stevenson – Appeal Papers – Respondent’s Case

Respondent's Case Page 5

View an image of the original document

5  
    This judgment of the Lord Ordinary was reversed by their Lordships of the Second Division on a Reclaiming Note for the Respondent, and the action was dismissed as irrelevant. Three of their Lordships followed the view of the law expressed by them in the mouse cases as above explained, and Lord Hunter, while recognising that the question was really concluded by the views expressed by the other three Judges in the mouse cases, formally repeated the dissent which he had expressed in the cases.
Appendix, p.21.


Appendix, p.23.
    The present Appeal is taken against the decision of the Second Division, but the Respondent respectfully submits that the view of the law taken by the majority of their Lordships of that Division is well founded and should be affirmed.  
    There is no doubt that the Respondent owes ex contractu a duty to each of the retailers to whom he sells his goods, who in turn owe, also ex contractu, a duty to each of their respective customers, a failure in which in either case would properly found an action of damages for breach of contract at the instance of the one contracting party against the other.  
    But the Appellant's case requires that the Respondent should, apart altogether from contract, and in addition to the duty to his various retailers above referred to, owe, to anyone whomsoever into whose hands his wares may at any time, and under any circumstances, come, a duty which entitles them to bring an action against him direct. The Respondent humbly submits that it has been settled by a long course of authorities that he has no such duty.  
    Before adverting to these authorities, however, it may be observed that such a duty, if it existed, would impose a very severe hardship upon traders such as the Respondent, who manufacture for sale to retailers. For this duty would be owed not only to persons with whom these traders deal and  

Respondent's Case Page 5