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Appendix Page 7


charged in law; being nothing more exacting than a duty of taking all reasonable precautions to ensure that an ostensible food be not replaced by a latent and actual poison. I may add that I would be prepared to find an additional link to complete the relation between manufacturer and consumer, upon proof of the fact as now averred that the filled and sealed bottles were issued under labels bearing the name of the defender. The issue of such a label would, in my opinion, offer a direct invitation to the consumer to rely on any particular reputation which is claimed by the manufacturer; as well as afford a general advertisement that all proper diligence in preparation, or at least such diligence as would satisfy a competitive standard, had been observed. This averment is, however, denied, but need not in my opinion be accepted or rejected before answer on the relevancy. I would regard the fact, if proved, as going no further than to afford supplementary material to support my judgment.

    I understood Counsel for the defender to challenge only the generality of the application of these propositions, and only by this road to challenge the soundness of the propositions themselves. It was conceded, on the one hand, that in the presence of a danger antecedent and unrelated to the negligence although in a possible if remote relation with the event, the propositions would apply. In the absence of such a danger on the other hand, the surviving negligence would cease to furnish a cause of action. The argument, proceeding as it did on a distinction which I do not find easy to place under any recognised chapter of Scottish juridical thinking, may be summarised (or rather, perhaps, be expanded) as follows: A public interest not having been infringed, it was maintained that, apart from fraudulent or misleading representation, and subject to a single exception in one particular set of circumstances, a manufacturer of goods had no duty to avoid



Lord Moncrieff

Appendix Page 7

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