Skip to the content

Respondent's Case Page 4



The Respondent (who also denies that any bottle of ginger beer ever left his factory containing a snail) maintains that the averments of the Appellant are irrelevant, and it is this question of relevancy which arises in this Appeal.

Mullen v. A.G. Barr & Co. Ltd.; M'Gowan v. Barr & Co. 1929 S.C. 461.     In two previous cases, which were concerned with a mouse in a bottle of ginger beer and are indistinguishable in essentials from the present case, three of their Lordships of the Second Division of the Court of Session — the Lord Justice Clerk, Lord Ormidale, and Lord Anderson — after a full review of the authorities, expressed the view that no duty was owed by the manufacturer to the the ultimate consumer of his goods, and that, accordingly, the pursuers in these cases — who were the consumers — had not stated any relevant case against the defenders, the manufacturers. Two of their Lordships, Lord Ormidale and Lord Anderson, made this view a ground of Judgment, although they were also in favour of the manufacturers on the facts, which had, in these cases, been established by proof. The Lord Justice Clerk, however, while taking the same view of the law as his two brothers, limited his actual decision to a decision in favour of the manufacturers on the facts. Lord Hunter dissented from the Judgment of the Court both on the law and on the facts.
Appendix, p.3.     In the present case the learned Lord Ordinary, availing himself of the circumstance that the actual decision of the majority of the Second Division in the mouse cases was on the facts, has sustained the relevancy in an elaborate Opinion which seems to show — if this may be said without disrespect — a disinclination on his Lordship's part to acquiesce in the law as it had been declared, rather than any real misapprehension regarding it. And the Opinion further involves the view that the law of Scotland in this matter is different from the law of England — an unfortunate position of matters if it existed.

Respondent's Case Page 4

Back to index