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Appendix Page 19


for refusing to a party who has sustained injury as a direct result of the negligence of the manufacturer of goods designed to reach him through retail dealers, a right of action founded on a negligent omission to introduce proper safeguards, or to exercise due diligence to exclude infection of the articles in the course of manufacture. I am not satisfied that a distinction is taken by the law of England upon this matter between goods which are or are not dangerous per se. If such a distinction be taken, I fail to find a warrant for it whether in logic or in expediency; and as the question appears to be entirely open, I decline to decide that any such distinction forms part of the law of Scotland.

    Applying that law as I have endeavoured to formulate it, to the case set forth in the pursuer's averments, I find a sufficient disclosure of (1) a danger of infection of the goods in the course of manufacture inferring a duty to exercise care, (2) a destination of the goods which brought the pursuer within the probable incidence of the danger and so completed a relation inferring a title to sue, and (3) a breach of the duty resulting in injury from which the breach was not disassociated by any intervening originating cause. These averments are in my opinion relevant, and as this question of law arises antecedently and is independent of any question remaining to be solved upon consideration of the facts. I shall repel the First Plea in Law stated by the defender.

    I may add that i find the propriety of taking this course confirmed by a consideration of consequences. I regard the argument ab inconveniente, while of very doubtful substantive value, as readily available to furnish a test. Agreeing, as I do, with Lord Hunter in questioning whether the pursuer could obtain a remedy against the proprietor of the cafe who supplied the ginger-beer (see Mullen cited supra, per Lord Hunter at



Lord Moncrieff

Appendix Page 19

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