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Appendix Page 6



Lord Moncrieff


this element will be to impose a duty and not to originate or conclude a relation. I do no doubt, nor was it disputed by Counsel for the defender, that, in a question with persons alleging a proper interest, a duty to make inspection as required attached to the defender as a manufacturer of fluids to be used as beverages. I am unhesitatingly of opinion that those who deal with the production of food or produce fluids for beverage purposes ought not to be heard to plead ignorance of the active danger which will be associated with their products, as a consequence of any imperfect observation of cleanliness at any stage in the course of the process of manufacture. The danger of infection is such as is or should be known in every domestic kitchen and still room. Tainted food when offered for sale is, in my opinion, amongst the most subtly potent of 'dangerous goods', and to deal in or prepare such food is highly relevant to infer a duty. I fail to see why the fact that the danger has been introduced by an act of negligence and does not advertise itself, should release the negligent manufacturer from a duty, or afford him a supplementary defence.

    Whether such products should or should not be classed as 'dangerous goods', I am, in any event, of opinion that it is a wrongful act to sell, in order that others may purchase and consume, articles which have been exposed through negligence to a practical risk of contracting a dangerous taint. More especially in cases in which the articles are distributed in sealed bottles, I regard this wrong as having been committed by the manufacturers against the destined sufferer, being none other than the consumer, for whose use the product was in fact prepared. Although he has no title upon contract, unless indeed in such a case the retailer be regarded as the manufacturer's agent for distribution, a litigant so qualified appears to me to be entitled to found upon a breach of the direct duty towards himself with which the manufacturer falls to be

Appendix Page 6

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