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Appellant's Case Page 16

Appellant's Case



    On the above averments their Lordships of the Second Division of the Court of Session (Lord Hunter dissenting) have held, reversing the judgment of the Lord Ordinary, that the Appellant has failed to state a relevant case, and have accordingly dismissed the action.

Mullen v. Barr & Co., Ltd., 1929 S.C. 461

Parry v. Smith, 1879 4 C.P.D. 325

Langridge v. Levy, 1837 2 M. & W. 519; 4 M. & W. 337
    In reaching this conclusion their Lordships, adhering to the opinions which they expressed in a previous case, which on the question of relevancy was indistinguishable from the present, proceeded on the general principle that a third party may not found upon the breach of a contract to which he is not a party, and that in the circumstances there is no relevant averment of liability ex delicto. Admittedly exceptions are found where the things sold by a manufacturer are per se dangerous, and also where a fraudulent misrepresentation as to the character of the article has been made by the manufacturer.
George v. Skivington, 1869 L.R. 5 Ex. 1

Thomas v. Winchester, 1852 57 Amer. Dec. 455

Heaven v. Pender, 1883 11 Q.B.D. 503

Dominion Natural Gas Co. v. Collins, 1909 A.C. 640
The Appellant humbly maintains that the duty owed by a manufacturer to members of the public who purchase his goods through a retailer is not capable of so strict a limitation. She contends that where anyone performs an operation, such as the manufacture of an article, a relationship of duty independent of contract may in certain circumstance arise, the extent of such duty in every case depending on the particular circumstances of the case.
  She maintains that in the present case the Respondent owed her a duty to take reasonable care that ginger-beer which he manufactured, bottled, labelled and sealed, and invited her to buy, did not contain substances likely to cause her injury. The argument for the existence of such a duty is strengthened by the fact that the Respondent so regulated his business that his products were put on the market under conditions which made it impossible for the retailer to interfere in any way with the contents of his bottles, or for the retailer or purchaser to examine their contents. The fact that the article sold was intended for human consumption, and was therefore capable

Appellant's Case Page 16

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