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Appendix Page 18



Lord Moncrieff


    The facts considered by the Court in that case were almost identical with the facts of the present case. Lord Ormidale formulated as a question for decision, 'Whether in the absence of any contractual relation between the pursuers and the defenders, the latter owed a duty to the pursuers as the consumers of the beer, of taking precautions to see that nothing of a poisonous or deleterious nature was allowed to enter and remain in the bottles.' As himself advised, Lord Ormidale would have answered this question in the affirmative, but found in the same authorities as those which have already been referred to in this opinion an 'unbroken and consistent current of opinion' which constrained him to answer it in the negative. On the same authorities his Lordship recognised that a duty of taking such precautions would have existed if the article sold had been dangerous in itself. Although Lord Ormidale concurred with his brethren in deciding the case upon another ground, this opinion is available to the defenders' Counsel as direct authority for the proposition which they advanced. The opinion of Lord Hunter, on the other hand, is directly to the contrary. Lord Anderson deals with this matter by referring on page 479 of the report to a concession by the pursuers which I do not find easy to reconcile with the third sub-head of the summary of their argument as printed upon page 465 of the report. The Lord Justice-Clerk reserved his opinion; and the decision of the case proceeded upon the footing that negligence, if relevant, had not been proved.

    Upon this view of the authorities and of the dicta which have been pronounced by learned Judges in Scottish cases, and under further reference to the expressions of opinion by Lord Dunedin in the Dominion Natural Gas Company, Limited v. Collins & Perkins, and Oliver v. Saddler & Company, upon which I have already commented, I am of opinion that there is no authority in Scotland

Appendix Page 18

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