Skip to the content

Appendix Page 4



Lord Moncrieff


customary and necessary safeguards. He is stated to have failed to exercise proper care over the bottles destined to be filled with ginger-beer, and to have further failed to provide an efficient system of inspection of the bottles after they had been filled, and before they had been sealed. The defender did not challenge the relevancy, if only they had been stated at the instance of a party having a right to complain, of these averments of fault or of resulting loss or damage. He maintained as his sole ground of defence upon relevancy that, as a proposition of law, he could not in his position be charged by one occupying the position of the pursuer, with a duty of avoiding negligence and of exercising care in the manufacture of the goods. He supported his first Plea in Law only by arguing as general proposition that, in the case of the manufacture of goods (unless in the case of 'dangerous goods') distributed for subsequent sale by retail traders, the duty of diligence did not extend (unless in that one particular case) so as to be owing from the manufacturer to the eventual purchaser of the goods. If I found myself entitled to arrive at my decision upon general principles and without reference to authority, I would not have regarded this question of law as presenting any exceptional difficulty.

    In order to find a claim for reparation, the course of juridical reasoning require the presence of three principle elements—(First) A general duty owing by the wrongdoer to qualified sufferers of which the wrongdoer is in breach; (Second) A relation between the wrongdoer and the sufferer which brings the latter within the consideration of the discharge of the duty. I do not think I require, although I would prefer, to rely on the authority of the classic but disputed passage in the Opinion of the Master of the Rolls in Heaven v. Pender, 11 Q.B.D. 503, at 509, in order to affirm that such relation (whatever may be its consequence) is complete,

Appendix Page 4

Back to index