Appendix Page 21 et seq. - Second Division opinions
2. — OPINION OF THE JUDGES OF THE SECOND DIVISION OF THE COURT OF SESSION, delivered when giving Judgment on 13th November 1930.
(1) The LORD JUSTICE-CLERK (LORD ALNESS)
My Lords, the rubric in Mullen's case (1929 S.C. 461), the facts of which are familiar to your Lordships, bears that it was 'Held, dissenting Lord Hunter, that the defenders fell to be assoilzied; per Lord Ormidale and Lord Anderson (the Lord Justice Clerk reserving his opinion) on the ground that, as the defenders neither knew that the contents of the bottle were dangerous, nor were dealers in articles per se dangerous, they owed no duty to the consumers, who had not contracted with them.' And then the rubric goes on to say that the majority of the Court held that there was no negligence proved on the part of the defenders. That part of the rubric however does not concern us at this stage of this case.
Well, now, when one turns to the Opinions, one finds that both Lord Ormidale and Lord Anderson expressed very clear views to the effect which the rubric bears. Indeed, Lord Ormidale proceeded upon the view in deciding the case against the defenders. For myself — If I may be pardoned for a moment referring to what I said — it is quite true that, as the rubric bears, I formally reserved my opinion upon the topic, saying, 'I feel absolved from expressing a concluded opinion on the thorny and difficult question of law whether, assuming fault to be proved on the part of the defenders, the pursuer has in law a right to sue them. I prefer to base my judgment on the proposition that the pursuer has failed to
Appendix Page 21