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Respondent's Case Page 6


who acquire their products from them in circumstances which the traders can trace and verify; but it would also be owed to persons of whom the traders know nothing, and who receive the goods under circumstances of which the traders are entirely ignorant, and after adventures which they cannot trace. And it would, on the one hand, involve a person in the position of the Respondent in liability independent of, and perhaps contrary to, the terms and conditions on which he had sold his goods; and would, on the other hand, confer a right upon the ultimate purchaser independent of, and perhaps contrary to, the terms and conditions on which he had purchased the goods.

    The present case presents a typical instance of the kind of situation which may arise. The action, was raised in April 1929 in respect of an incident which is said to have taken place in August 1928. The incident is alleged to have consisted in the consumption by the Appellant of ginger beer, originally manufactured by the Respondent and purchased for her by a third party from a Mr Minchella, in which there was found a dead snail. In such circumstances it must obviously be difficult for the Respondent to meet a case founded on negligence. It is not possible in ordinary circumstances to trace a bottle from the factory to the ultimate consumer and to investigate the vicissitudes which it may have undergone from first to last. Yet such an investigation would clearly be relevant and material for the consideration of the question whether the snail entered the bottle by reason of the Respondent's negligence. These difficulties emphasise that it would be both inexpedient and inequitable to impose upon persons in the position of the Respondent the duty contended for by the Appellant, a duty, which, if it were to be affirmed, would be affirmed now for the first time. For the Appellant has not cited any case where such a duty has hitherto been affirmed in similar circumstances.

Respondent's Case Page 6

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