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there should be any direct contract between them, because the action is not based upon contract, but upon negligence; but it is necessary for the pursuer in such an action to show there was a duty owed to her by the defender, because a man cannot be charged with negligence if he has no obligation to exercise diligence — Kemp & Dougall v. Darngavil Coal Co., 1909 S.C. 1314, per Lord Kinnear at p. 1319; See also Clelland v. Robb, 1911 S.C. 253, per Lord President Dunedin and Lord Kinnear at p. 256. The question in each case is whether the pursuer has established, or, in the stage of the present appeal, has relevantly averred, such facts as involve the existence of such a relation of duty.
We are not dealing here with a case of what is called an article per se dangerous or one which was known by the defender to be dangerous, in which cases a special duty of protection or adequate warning is placed upon the person who uses or distributes it. The present case is that of a manufacturer and a consumer, with whom he has no contractual relation, of an article which the manufacturer did not know to be dangerous, and, unless the consumer can establish a special relationship with the manufacturer, it is clear, in my opinion that, neither the Law of Scotland nor the Law of England, will hold that the manufacturer has any duty towards the consumer to exercise diligence. In such a case the remedy of the consumer, if any, will lie against the intervening party from whom he has procured the article. I am aware that the American Courts, in the decisions referred to by my noble and learned friend Lord Macmillan, have taken a view more favourable to the consumer
The special circumstances, from which the Appellant claims that such a relationship of duty should be inferred, may, I think, be stated thus, viz. that the Respondent, in placing his manufactured article of drink upon the market, has intentionally so excluded interference with, or examination of, the article by any intermediate handler of the goods between himself and the consumer, that he has, of his own accord, brought himself into direct relationship with the consumer, with the result that the consumer is entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the consumer. If that contention be sound, the consumer, on her showing that the article has reached her intact, and that she has been injured by the harmful nature of the article owing to the failure of the manufacturer to take reasonable care in its preparation prior to its enclosure in the sealed vessel, will be entitled to reparation from the manufacturer.
In my opinion the existence of a legal duty under such circumstances is in conformity with the principles of both the Law of Scotland and the Law of England. The English cases demonstrate how impossible it is to finally catalogue, amid the ever-varying types of human relationships, those relationships in which a duty to exercise care arises apart from contract, and each of these cases relates to its own set of circumstances, out of which it was claimed that the duty had arisen. In none of these cases were the circumstances identical with the present case as regards that which I regard as the essential element in this case, viz., the manufacturer's own action in bringing himself into direct relationship with the party injured. I have had the privilege of considering the discussion of these authorities by my noble and learned friend Lord Atkin in the judgment which he has just delivered, and I so entirely agree with it that I cannot usefully add anything to it.
An interesting illustration of similar circumstances is to be found in Gordon v. McHardy, (1903) 6 F. 210, in which the pursuer sought to recover damages from a retail grocer on account of the death of his son by ptomaine poisoning, caused by eating tinned
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