Donoghue v. Stevenson

A decomposed snail was found in a ginger-beer bottle that a friend had bought for the appellant. The House of Lords held, by three judges to two, that the manufacturer could be sued in negligence even though she had no contract with him. The judgment has no numbered paragraphs, so this page cites each judge's opinion.

Quick Revision

Read the full judgment: BAILII

Parties

M'Alister (or Donoghue) (Pauper) — appellant; the pursuer (plaintiff in Scots law) in the Court of Session. She drank the ginger-beer and alleged illness.

Stevenson — respondent; the defender (defendant in Scots law). He was the manufacturer of the ginger-beer.

A friend of the appellant — not a party; she bought or ordered the ginger-beer and gave it to the appellant.

The retailer or shopkeeper — not a party; he supplied the ginger-beer and opened the bottle in a café in Paisley.

Procedural History

1. Lord Ordinary. After some amendments the Judge, called the Lord Ordinary, rejected the respondent's plea in law and allowed a proof, that is, a trial of the facts (Lord Buckmaster, Lord Macmillan).
2. Second Division of the Court of Session. The Second Division recalled the Lord Ordinary's interlocutor (order) and dismissed the action. It followed its own recent decisions in Mullen v. Barr & Co. and M'Gowan v. Barr & Co., 1929 SC 461 (Lord Thankerton, Lord Macmillan).
3. Lord Hunter. Lord Hunter dissented in the Second Division, or perhaps more accurately protested (Lord Macmillan).
4. Mullen and M'Gowan. Those earlier cases involved a decomposed mouse, not a snail. They were heard and decided together (Lord Macmillan). The Second Division there held that the manufacturer owed no duty to the consumer, Lord Hunter dissenting (Lord Thankerton).
5. Mullen, lower courts. The Sheriff-Substitute allowed a proof. The Sheriff, on appeal, dismissed the action as irrelevant (Lord Macmillan).
6. M'Gowan, lower courts. The Sheriff-Substitute allowed a proof. The Sheriff changed that to a proof before answer, which is a proof with all objections to relevancy reserved (Lord Macmillan).
7. Mullen and M'Gowan, Second Division. The Second Division ordered a proof before answer in each case. Evidence was taken before Lord Hunter. The Judges then gave reasons for finding for the defenders in both cases (Lord Macmillan).
8. Appeal to the House of Lords. The appellant appealed from the Second Division. The House took time for consideration, and judgment was given on 26 May 1932. Lord Buckmaster's opinion was read by Lord Tomlin.

Facts

The judgment records these facts. The appellant's allegations had to be accepted as true at this stage.

1. On 26 August 1928 the appellant drank a bottle of ginger-beer made by the respondent. A friend had bought it from a retailer and given it to her (Lord Buckmaster).
2. Lord Thankerton and Lord Macmillan describe a café in Paisley. They say the friend ordered ice-cream and a bottle of ginger-beer for the appellant on an evening in August 1928.
3. The shopkeeper opened the bottle and poured some ginger-beer over ice-cream in a tumbler. The appellant drank part of the mixture (Lord Thankerton, Lord Macmillan).
4. The friend then poured the rest of the bottle into the tumbler. A decomposed snail floated out. It had been in the bottle unknown to the appellant, her friend and the shopkeeper (Lord Thankerton, Lord Macmillan).
5. The bottle was made of dark opaque glass and closed with a metal cap. The contents could not be examined from outside. A label on the side carried the name and address of the respondent, the manufacturer (Lord Thankerton, Lord Macmillan).
6. The snail's remains could not be detected until most of the contents had been consumed (Lord Buckmaster).
7. The appellant alleged shock and severe gastro-enteritis. Lord Macmillan says she alleged a serious illness (Lord Buckmaster, Lord Macmillan).
8. She alleged the respondent made the ginger-beer to sell as a drink to the public, including her. A decomposing snail makes it harmful and dangerous (Lord Macmillan).
9. She alleged the respondent kept his bottles in premises where snails could get in. She alleged he filled them without adequate inspection for foreign matter (Lord Macmillan).
10. Lord Thankerton summarises the duties she says the respondent neglected:
    • (a) to use the greatest care that snails did not get into the bottles;
    • (b) to run a system of working that stopped snails entering the sealed bottles, and did not leave washed bottles where snails could reach them;
    • (c) to provide an efficient system of inspection;
    • (d) to provide clear bottles so that inspection would be easier.
11. The appellant sued in tort, based on negligence, not fraud. She had no contract with the respondent (Lord Buckmaster, Lord Thankerton).
12. Counsel on both sides argued the appeal on the basis that Scots and English law on the point are identical. Neither the Second Division nor any of the five Judges questioned this (Lord Buckmaster, Lord Atkin, Lord Macmillan).

Issues Raised

1. Do the averments made by the pursuer in her pleading, if true, disclose a cause of action (Lord Atkin)?
2. A manufacturer sells drink to a distributor. Neither the distributor nor the consumer can find a defect by inspection. Does the manufacturer owe the ultimate consumer a legal duty to take reasonable care that the drink is free from defect likely to injure health (Lord Atkin)?
3. Is there any relation of duty between the appellant and the respondent, and to whom does the manufacturer owe the duty to take care (Lord Thankerton, Lord Macmillan)?
4. Can the appellant succeed only if every manufacturer or repairer of any article owes a duty of care to everyone who may lawfully use it (Lord Buckmaster, Lord Tomlin)?
5. Do the English decisions, from Winterbottom v. Wright onward, bar the claim (Lord Buckmaster, Lord Macmillan)?

Arguments Contended

The reported opinions do not set out counsel's oral submissions in full. They record the following.

For the appellant

1. As the manufacturer of an article intended for consumption, in a receptacle that prevented inspection, the respondent owed her a duty as consumer. The duty was to take care that no noxious element was in the goods. He neglected it and is liable for the damage (Lord Buckmaster).
2. The claim rests solely on a tort based on negligence, not fraud (Lord Buckmaster).
3. The respondent, by placing his drink on the market, intentionally excluded interference or examination by any intermediate handler. He thereby brought himself into direct relationship with the consumer, who may rely on his diligence (Lord Thankerton).
4. The case should be approached as a case of delict (a civil wrong), not as a breach of contract. She need not rely on the exceptional cases where a stranger to a contract has sued (Lord Macmillan).
5. Human drink made poisonous by careless preparation can be as dangerous to life as a loaded firearm (Lord Macmillan).
6. She relied on George v. Skivington, on the statement of Cleasby B. in Francis v. Cockrell, and on the dicta (side remarks) of Brett M.R. in Heaven v. Pender. Without them she would have been destitute of authority, says Lord Buckmaster.
7. Her allegations of negligence, in full: the ginger-beer was made to be sold as a drink to the public. A snail in it makes it harmful. The respondent had to use enough care in manufacture to keep snails out. His system and inspection were faulty (Lord Macmillan).
8. The wide proposition for which she contended, as Lord Tomlin puts it, is that every manufacturer or repairer owes a duty to everyone who may lawfully use the article.
9. Counsel for the appellant tried to show that the pleadings disclose a good cause of action under English law (Lord Macmillan).

For the respondent

1. The respondent challenged the relevancy of the averments. Taken pro veritate (as true), they disclosed no ground of legal liability to the appellant (Lord Macmillan).
2. Counsel tried to show that, on the English decisions, the appellant had stated no admissible case (Lord Macmillan).
3. The Second Division had followed Mullen and M'Gowan, reading the English authorities as excluding any duty to the consumer (Lord Thankerton, Lord Macmillan). This records what that Court did, not counsel's submission.
4. The judgment does not record any further separate argument by his counsel.

Court's Reasoning

The Court gave five separate opinions. Lords Buckmaster and Tomlin would have dismissed the appeal. Lords Atkin, Thankerton and Macmillan would have allowed it. Steps end with the judge's name, since the judgment has no paragraph numbers.

Lord Buckmaster (dissenting)

1. Noted: the facts are simple. The appellant's case rests solely on tort based on negligence, not fraud (Buckmaster).
2. Noted: the case was argued on the basis that Scots and English law are identical. Lord Buckmaster therefore considered English law alone (Buckmaster).
3. Held: the common law's principles can meet new conditions. They cannot be changed, and nothing can be added to them, because a meritorious case seems outside them (Buckmaster).
4. Noted: the law is found in decided cases and in the judgments of the judges. Books by living authors cannot be used as authority. The ancient books do not help (Buckmaster).
5. Held: Langridge v. Levy can be dismissed. It is often cited for a proposition it cannot support. A man sold a gun he knew was dangerous, for the buyer's son. The son could sue (Buckmaster).
6. Why: In Langridge v. Levy Parke B. said the Court should pause before making a precedent for suits against vendors by anyone into whose hands the article passed. In Longmeid v. Holliday he said the earlier case was based on a fraudulent misstatement and had no wider application (Buckmaster).
7. Held: Winterbottom v. Wright is closely applicable. A stranger to the manufacture and sale of a carriage had no cause of action, in tort or contract, for its negligent construction (Buckmaster).
8. Why: a coach is not in a special category. Alderson B. said the only safe rule is to confine the right to recover to those who enter into the contract. If we go one step beyond, there is no reason why we should not go fifty (Buckmaster).
9. Noted: in Longmeid v. Holliday a defective lamp injured the buyer's wife. The vendor was not the manufacturer. Parke B.'s statement covers a manufacturer as well (Buckmaster).
10. Held: if the duty is independent of contract, it is the same whether the article was given or sold. That the ginger-beer probably left the manufacturer on a sale adds nothing to his duty (Buckmaster).
11. Held: failing to use reasonable care to discover a defect, where a duty to examine exists, is as negligent as negligent construction (Buckmaster).
12. Noted: Lord Sumner stated the general rule in Blacker v. Lake & Elliot. A breach of the defendant's contract with A to use care in making or repairing an article gives B no cause of action if the article proves defective (Buckmaster).
13. Held: there are two known exceptions to that rule. One is an article dangerous in itself. The other is an article not dangerous in itself but dangerous by defect, where the manufacturer knows this (Buckmaster).
14. Noted: Lord Dunedin in Dominion Natural Gas Co. v. Collins & Perkins spoke of a peculiar duty to take precaution for articles dangerous in themselves (Buckmaster).
15. Why: for the second exception, knowledge of the danger creates an obligation to warn, and concealing it is in the nature of fraud (Buckmaster).
16. Held: ginger-beer is not an article dangerous in itself. The duty attaches only to that special class (Buckmaster).
17. Noted: without George v. Skivington, the statement of Cleasby B. in Francis v. Cockrell and the dicta of Brett M.R. in Heaven v. Pender, the appellant would be destitute of authority (Buckmaster).
18. Noted: George v. Skivington concerned a noxious hairwash, negligently compounded. A person who had not bought it recovered. Langridge v. Levy was used to support the claim (Buckmaster).
19. Noted: Kelly C.B. and Pigott B. stressed that the article was bought, to the defendant's knowledge, for the plaintiff's use. Cleasby B. said that substituting negligence for fraud completes the analogy with Langridge (Buckmaster).
20. Held: that substitution cannot be made. No action based on fraud can be supported by mere proof of negligence (Buckmaster).
21. Held: he would not follow the fortunes of George v. Skivington. Lord Sumner declined to follow it because it conflicts with Winterbottom v. Wright, and Lord Buckmaster agreed (Buckmaster).
22. Noted: in Francis v. Cockrell a racecourse stand fell. The plaintiff won. The case has no bearing here (Buckmaster).
23. Noted: Cleasby B. there adopted the view of the Lord Chief Baron in George v. Skivington. That vendor owed a duty of ordinary care to the person for whose use he knew the article was bought (Buckmaster).
24. Why: knowing who would use the article matters only if the case was treated as fraud. Otherwise it could not fall within Langridge. This explains the references in the judgments (Buckmaster).
25. Noted: Brett M.R.'s dicta in Heaven v. Pender set out a wide proposition about a duty of ordinary care and skill when danger to a person or property is obvious to any person of ordinary sense. It was extended to goods supplied for use by another person without a contract (Buckmaster).
26. Held: those dicta cannot be separated from the fact that Heaven v. Pender was not about manufacture and sale. It concerned an unsound staging on premises, and the duty of an owner to invitees. Cases of collision, carriage and hidden danger on premises were the recognised cases (Buckmaster).
27. Noted: Brett M.R. did consider manufactured articles. He said Langridge does not negative the idea that it could rest on negligence (Buckmaster).
28. Noted: Cotton L.J., with whom Bowen L.J. agreed, refused to lay down the larger principle. Many cases impliedly negatived it (Buckmaster).
29. Noted: Cotton L.J. said Langridge v. Levy rested on fraudulent misrepresentation. He cited Blackmore v. Bristol and Exeter Ry. and Collis v. Selden. Collis v. Selden and Longmeid v. Holliday, where the plaintiffs failed, were at variance with the larger principle (Buckmaster).
30. Noted: Cotton L.J. said Cleasby B. decided George v. Skivington on the ground that personal negligence was equal to fraud for that action. He still accepted liability for leaving a dangerous instrument, or supplying one known to be dangerous, without warning (Buckmaster).
31. Held: Lord Buckmaster agreed with Cotton L.J. (Buckmaster).
32. Noted: in Le Lievre v. Gould mortgagees advanced money on a surveyor's certificates. The certificates were negligently untrue. The surveyor owed the mortgagees no duty. Lord Esher qualified what he said in Heaven v. Pender (Buckmaster).
33. Noted: Lord Esher asked what duty exists when there is no relation between the parties by contract. He said a man may be as negligent as he pleases towards the whole world if he owes no duty to them. Heaven v. Pender shows that if one man is near another, or the other's property, a duty lies not to cause injury (Buckmaster).
34. Noted: A. L. Smith L.J. said Heaven v. Pender goes no further than a duty arising from proximity (close relation) of person or property. He said it is often cited for untenable propositions (Buckmaster).
35. Noted: in Earl v. Lubbock a wheel came off a van driven by an employee. The repairer contracted with the employer. The action failed. Collins M.R. said Winterbottom v. Wright concluded it (Buckmaster).
36. Noted: Collins M.R. said Lord Esher's dictum in Heaven v. Pender was not a decision of the Court and was later qualified by Lord Esher. Stirling L.J. required the plaintiff to come within Cotton L.J.'s proposition (Buckmaster).
37. Noted: Mathew L.J. said the wide proposition could not be accepted. It is difficult to see how trade could be carried on. No prudent man would contract to make or repair what the employer intended others to use (Buckmaster).
38. Noted: in Bates v. Batey & Co. ginger-beer manufacturers were not liable to a consumer for a bursting bottle. The defect was unknown to them but discoverable by reasonable care. Horridge J. did not feel bound by George v. Skivington (Buckmaster).
39. Held: George v. Skivington and the dicta in Heaven v. Pender should be buried so securely that their perturbed spirits no longer vex the law (Buckmaster).
40. Noted: he mentioned Thomas v. Winchester only for assistance, not as authority. A chemist gave poison in place of a harmless drug. It might rest on a drug dangerous in itself, so it does not advance the matter (Buckmaster).
41. Noted: in MacPherson v. Buick Motor Co. a car manufacturer was liable to a third party. The judge seemed to treat a motor-car as a dangerous article (Buckmaster).
42. Held: the authorities are against the appellant. Apart from authority, no common law proposition can be formulated to support her claim (Buckmaster).
43. Held: her principle must be that a manufacturer or repairer of any article, apart from contract, owes a duty to any lawful user to see it is carefully constructed. Contract rights are excluded. The doctrine cannot be confined to cases where inspection is difficult or impossible (Buckmaster).
44. Why: to confine it that way misapplies to tort a doctrine of sale and purchase (Buckmaster).
45. Held: no special duty attaches to manufacturing food, apart from a duty implied by contract or imposed by statute. If it did, it would cover every article, even building a house. If one step, why not fifty? (Buckmaster).
46. Noted: a negligently built house whose ceiling falls gives no action against the builder in English law. He believed such a right existed under the laws of Babylon (Buckmaster).
47. Why: if the principle were accepted, only George v. Skivington has ever succeeded on it. The discussion of earlier cases would be a waste of time. The exceptions for dangerous articles would be meaningless (Buckmaster).
48. Noted: in Mullen v. Barr & Co. a mouse was found. It is indistinguishable, save that a mouse is not a snail. Lord Anderson found it little short of outrageous to make the makers responsible for every bottle. They could face claims they could not investigate (Buckmaster).
49. Held: he agreed with Lord Anderson and found it hard to dissent from the emphatic language. He would dismiss the appeal (Buckmaster).

Lord Atkin (majority)

1. Noted: the sole question is legal. Do the pursuer's averments, if true, disclose a cause of action? He described it as an important problem for public health and for the working of the system (Atkin).
2. Noted: the question is whether a manufacturer of drink owes the consumer a legal duty of reasonable care. The drink is sold to a distributor. Neither the distributor nor the consumer can find a defect by inspection. The duty would be to ensure the drink is free from defect likely to injure health (Atkin).
3. Noted: Scots law applies. Counsel agreed, and the Court of Session assumed, that Scots and English law are the same. His own research showed the principles are identical (Atkin).
4. Noted: to sue for negligence, the complainant must show injury caused by a breach of a duty owed to him by the defendant to take reasonable care. Breach is a question of fact and is assumed here. Only the existence of a duty is in issue (Atkin).
5. Noted: English authorities give few general statements of the relations that create a duty. The courts have classified duties by property, ownership, occupation, control and by the parties, such as manufacturer, salesman, landlord or tenant (Atkin).
6. Why: under that method a duty is recognised only if the case fits a classified species. Yet the duty common to all cases must rest on some element common to them (Atkin).
7. Noted: a complete logical definition of the general principle goes beyond the judge's function. A wider definition is more likely to omit essentials (Atkin).
8. Noted: Brett M.R.'s definition in Heaven v. Pender was too wide as framed. Properly limited, it is a valuable practical guide (Atkin).
9. Held: English law must have some general conception of relations giving rise to a duty of care. The cases in the books are instances of it (Atkin).
10. Noted: liability for negligence rests on a general public sentiment of moral wrongdoing for which the offender must pay. Not every act a moral code would censure can give a right to relief. So legal rules limit who may complain and how far the remedy goes (Atkin).
11. Held: "The rule that you are to love your neighbour becomes in law, you must not injure your neighbour". The question Who is my neighbour? receives a restricted reply (Atkin).
12. Held: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". Neighbours are persons so closely and directly affected that the actor ought reasonably to have them in contemplation when directing his mind to the acts or omissions in question (Atkin).
13. Held: this is the doctrine of Heaven v. Pender, as Lord Esher laid it down, when limited by the notion of proximity added in Le Lievre v. Gould. Lord Esher and A. L. Smith L.J. are quoted on that limit (Atkin).
14. Held: proximity is not confined to physical nearness. It extends to close and direct relations, where the act directly affects a person the actor would know to be directly affected by his careless act (Atkin).
15. Why: Lord Esher's own illustration about goods supplied for immediate use shows this. Goods must be used at once, before a reasonable opportunity to discover a defect. This excludes goods whose condition may change by lapse of time (Atkin).
16. Held: with the qualification of proximate relationship from Le Lievre v. Gould, Lord Esher's judgment expresses the law of England. Without it, the majority in Heaven v. Pender was right to think the principle too general (Atkin).
17. Noted: it will sometimes be hard to decide whether a relationship is close enough. But he could not see any difficulty in the class of case before the Court (Atkin).
18. Noted: he put an example. A manufacturer packs food in a container he knows the consumer will open. No purchaser can inspect and the consumer cannot reasonably inspect first. Through negligence the contents are mixed with poison (Atkin).
19. Held: to deny the poisoned consumer a remedy would be a grave defect in the law, contrary to principle. He would hesitate long before following a decision to that effect not made by the House of Lords (Atkin).
20. Why: on that state of the law the consumer would have no remedy against anyone else either, as there would be no evidence of negligence against any other person. There would be no contract or warranty, except for a consumer who was also a purchaser, and sometimes not even then (Atkin).
21. Noted: the same reasoning applies to other goods meant for immediate use, such as goods sold for cleaning, proprietary medicine, an ointment, a soap, a cleaning fluid or powder. He limited himself to articles of common household use, which the maker knows will be used by family members, servants and guests (Atkin).
22. Held: the law should not deny a legal remedy where there is so obviously a social wrong (Atkin).
23. Noted: no case with such circumstances has negatived liability. Cases denying a duty involved much more remote relations. Some dicta went further than the decisions needed (Atkin).
24. Held: in the law of torts the actual decision alone should carry authority, with proper weight to dicta. Judges should not state propositions more widely than necessary, or English law's adaptability is restricted (Atkin).
25. Held: George v. Skivington is direct authority. It was a decision on a demurrer (a challenge to the pleading) to a declaration. The defendant sold a hairwash he made. The plaintiff's wife was injured by it. Kelly C.B. said there was a duty towards the purchaser that extended to the person for whose use the vendor knew it was bought. Pigott and Cleasby BB. agreed (Atkin).
26. Held: Cotton L.J. misinterpreted Cleasby B. in Heaven v. Pender. Cleasby B. plainly meant a duty to take care could replace the duty not to defraud in Langridge (Atkin).
27. Noted: Cleasby B. himself, in Francis v. Cockrell, treated George v. Skivington as based on an ordinary duty to take care. Brett M.R. affirmed it in Cunnington v. Great Northern Ry. Co., though that opinion is not authoritative because no breach was found (Atkin).
28. Noted: Hawkins v. Smith supports the duty. A dock labourer was injured by a defective sack hired by the consignees from the defendant, who knew its use. The defendant was held liable for negligence (Atkin).
29. Noted: in Elliott v. Hall colliery owners were liable for a defective truck hired from a wagon company. The plaintiff was hurt unloading. In neither case was the chattel in the defendant's possession, control or premises. In Elliott v. Hall it was not even his property (Atkin).
30. Held: liability in those cases does not rest on an invitation. The supposed invitation is often a fiction. It merely expresses the direct relation between supplier and user that creates the duty (Atkin).
31. Noted: Oliver v. Saddler & Co. is a recent House of Lords authority. Stevedores supplied rope slings. The porters relied on the stevedores' examination. The Lords found a duty and restored the Lord Ordinary's judgment. There was no invitation doctrine. The direct relations and lack of independent examination created the duty (Atkin).
32. Noted: Grote v. Chester and Holyhead Ry. was a simple action for negligence over a bridge that fell. The Court upheld a duty to those using the bridge to take reasonable care. He found no trace of Kelly C.B.'s implied contract ground (Atkin).
33. Noted: he then turned to the cases said to deny any duty (Atkin).
34. Noted: in Dixon v. Bell the defendant sent his young servant for a loaded gun. She pointed it at a boy and hurt him. Lord Ellenborough held that someone who made a gun capable of mischief must render it safe (Atkin).
35. Held: Langridge v. Levy was based on fraud, in the pleading and the judgment. It adds nothing of value either way to the present discussion (Atkin).
36. Held: Winterbottom v. Wright, decided on demurrer, was rightly decided. The declaration alleged only a breach of contract, and no negligence apart from it. No duty to the plaintiff arose from the contract. Lord Abinger's dicta about public duty are too wide (Atkin).
37. Noted: in Longmeid v. Holliday the jury found no fraud and the declaration averred no negligence. The buyer had already recovered for breach of implied warranty. Parke B.'s dictum is guarded (Atkin).
38. Why: it concerns a machine not dangerous in its nature, with a latent defect, lent or given. Atkin doubted Parke B. had in mind a baker's loaf poisoned by negligence. He was mainly confining himself to duties arising from a contract with a third party (Atkin).
39. Held: in Earl v. Lubbock the alleged duty arose only from a contract to repair. The Court of Appeal's decision was right. Stirling L.J. wrongly treated one test of a duty as the only criterion. Mathew L.J. put the case on its proper footing (Atkin).
40. Noted: Blacker v. Lake & Elliot is closer. He found it difficult to identify its precise grounds. A brazing lamp bought from a shopkeeper burst after twelve months. Hamilton and Lush JJ. apparently thought there was no evidence of negligence (Atkin).
41. Held: Hamilton J. gave too little weight to what the pleadings actually raised. Cases decided on a contractual duty are no authority for duties alleged to exist beyond contract. The only manufacturing case, Longmeid, did not allege negligence. He could not follow the view that George v. Skivington conflicts with Winterbottom (Atkin).
42. Noted: Lush J. named three classes in which a stranger can sue: fraud, articles dangerous in themselves (duty only to warn), and public nuisance. He put Elliott v. Hall in a separate class of control of premises or dangerous things on premises. Atkin found that distinction unfounded on the facts (Atkin).
43. Held: those judgments err by confining the law to rigid categories and neglecting the general principle of negligence about those who will be immediately injured by lack of care (Atkin).
44. Held: in Bates v. Batey & Co. the only difference was that the ginger-beer maker had not caused the bottle's defect. He would have held the manufacturers owed a duty to protect the consumer from injury by explosion, as from poison. This is on the assumption that the jury rightly found a lack of reasonable care in not examining the bottle (Atkin).
45. Held: the distinction between things dangerous in themselves and other things is unnatural as a way to decide whether a right exists. He agreed with Scrutton L.J. in Hodge & Sons v. Anglo-American Oil Co.: a thing made dangerous by negligence is a wolf in sheep's clothing (Atkin).
46. Why: the nature of the thing may call for different degrees of care. It may also widen the range of persons to whom a duty is owed. All illustrate the general principle (Atkin).
47. Noted: in Dominion Natural Gas Co. v. Collins and Perkins installers of a gas apparatus were liable to railway workmen. Lord Dunedin spoke of a peculiar duty for things like loaded firearms, poisons and explosives (Atkin).
48. Held: this exactly sums up the position. A duty may exist independently of contract. It is the opposite of a special category in which alone a duty exists (Atkin).
49. Noted: he did not need to consider the duty of a person who entrusts a carrier with dangerous goods. He cited Brass v. Maitland for an implied warranty and Farrant v. Barnes for a duty to the carrier's servant (Atkin).
50. Held: two House of Lords cases are distinguished. In Caledonian Ry. Co. v. Mulholland or Warwick the first railway had no duty to examine a wagon that the second railway could inspect. The relations were not proximate (Atkin).
51. Held: in Cavalier v. Pope a tenant's wife could not sue the landlord for non-repair. She was not a party to the contract, and a landlord of an unfurnished house has no duty (Atkin).
52. Noted: Bottomley v. Bannister was an action under Lord Campbell's Act. A gas boiler in an unfurnished house killed the tenant and his wife. It was decided as part of the realty and because the landlord did not know of the danger. Greer L.J. said the authorities are not easy to reconcile (Atkin).
53. Held: where danger comes from the defendant's own lack of care, and the relationship is proximate, the present case will supply the missing law (Atkin).
54. Noted: the American law is well established in the same sense. He referred to Cardozo J.'s judgment in MacPherson v. Buick Motor Co. It is uncertain whether it would apply to a car here, because the buyer's chance to examine could weaken the relation. The American decision would favour the pursuer (Atkin).
55. Held: a manufacturer owes the consumer a duty to take reasonable care. This applies where he sells products with no reasonable possibility of intermediate examination. It also applies where he knows that lack of care will injure the consumer's life or property (Atkin).
56. Noted: no one in Scotland or England who was not a lawyer would doubt this proposition. The law accords with sound common sense. The appeal should be allowed (Atkin).

Lord Tomlin (dissenting)

1. Noted: he agreed in every respect with Lord Buckmaster's reasoning and conclusions. He added a few words (Tomlin).
2. Held: to succeed, the appellant must show that every manufacturer or repairer of any article owes a duty to every lawful later user to take due care. It is logically impossible to stop short of that (Tomlin).
3. Held: there is no distinction between food and any other article. A sealed container is not relevant to duty. It only makes it easier to bring negligence home to the manufacturer (Tomlin).
4. Held: Winterbottom v. Wright is directly in point against the appellant (Tomlin).
5. Noted: the report of Winterbottom v. Wright shows that negligence was alleged and was the basis of the claim. It also shows that the plaintiff there contended for the wide proposition (Tomlin).
6. Noted: in Winterbottom v. Wright the declaration averred that the defendant so improperly and negligently conducted himself that the accident happened. Counsel for the plaintiff said the accident happened through the defendant's negligence and want of care (Tomlin).
7. Noted: in Winterbottom v. Wright counsel for the defendant warned of alarming consequences. He gave the example of every sufferer of the Versailles Railway accident suing the maker of the defective axle (Tomlin).
8. Why: the form of action in case implies a cause of action in tort. Lord Abinger's concluding sentence said that allowing the action would reopen matters settled between employer and defendant on their contract (Tomlin).
9. Held: the reported cases, some directly and some impliedly, negative any principle in English common law supporting the appellant. Cases of dangerous articles would not have been treated as exceptions if her contention were right. The Lords have no material from which to deduce such a principle (Tomlin).

Lord Thankerton (majority)

1. Noted: the action is based on negligence. The only question is whether her averments, taken pro veritate, disclose a case relevant in law so as to entitle her to have them remitted for proof (Thankerton).
2. Noted: the Second Division followed Mullen and M'Gowan and dismissed the action (Thankerton).
3. Noted: he sets out her case. The bottle was sealed with a metal cap and made of dark opaque glass. It carried the respondent's label. The shopkeeper opened it. The friend poured out a snail (Thankerton).
4. Noted: he summarises the duties (a) to (d) she says were neglected, as listed in the Facts above (Thankerton).
5. Held: in both Scots and English law the person claiming redress must show a relation of duty that required the defender to take reasonable care for her safety. No direct contract is needed, because the action rests on negligence, not contract (Thankerton).
6. Why: a man cannot be charged with negligence if he has no obligation to exercise diligence. He cited Kemp & Dougall v. Darngavil Coal Co. (Lord Kinnear) and Clelland v. Robb (Lord President Dunedin and Lord Kinnear) (Thankerton).
7. Noted: this is not a case of an article dangerous in itself, or known by the defender to be dangerous. In those, a special duty of protection or warning exists (Thankerton).
8. Held: in his opinion the present case is a manufacturer and a consumer with no contract, of an article the manufacturer did not know to be dangerous. Unless the consumer establishes a special relationship, the manufacturer has no duty. The consumer's remedy, if any, would be against the intervening seller (Thankerton).
9. Noted: American courts, as Lord Macmillan discusses, have taken a view more favourable to the consumer (Thankerton).
10. Held: the appellant's special circumstance is that the respondent, placing his drink on the market, intentionally excluded interference or examination by any intermediate handler. He thereby brought himself into direct relationship with the consumer (Thankerton).
11. Held: if this is sound, the consumer is entitled to reparation. She must show the article reached her intact and harmed her. She must also show the harm came from a failure of reasonable care in preparation before sealing (Thankerton).
12. Held: such a duty conforms to the principles of both Scots and English law. It is impossible to catalogue finally the relationships in which a duty of care arises apart from contract. No English case had identical circumstances. The essential element is the manufacturer's own action in bringing himself into direct relationship with the injured party (Thankerton).
13. Noted: he entirely agreed with Lord Atkin's discussion of the authorities and could add nothing (Thankerton).
14. Noted: he gave Gordon v. M'Hardy as an illustration. A grocer sold a dented tin of salmon, and the buyer's son died of ptomaine poisoning. The action against the grocer was held irrelevant. The Lord Justice-Clerk said the grocer could not examine the tin without destroying the manufacturer's preservation (Thankerton).
15. Why: the manufacturer's care to exclude interference by the grocer should not relieve the grocer of responsibility, with no matching assumption of duty by the manufacturer (Thankerton).
16. Held: the appellant's contention is sound. She has relevantly averred a relationship of duty and a neglect of it (Thankerton).
17. Noted: Mullen and M'Gowan had the same facts, except that a decomposed mouse was involved. The majority read English authorities as excluding a duty. Lord Ormidale would otherwise have come to the contrary conclusion. Lord Hunter's opinion agrees with Lord Thankerton's (Thankerton).
18. Noted: his conclusion rests on the facts averred. It would apparently also have applied in Mullen and M'Gowan, where there had been a proof before answer and a question whether the averments were proved (Thankerton).
19. Held: the appeal should be allowed and the case remitted for proof, as the pursuer did not ask for an issue (Thankerton).

Lord Macmillan (majority)

1. Noted: the incident was trivial in itself, but the consequences to the appellant were serious. He restates the café facts and the allegations of negligence (Macmillan).
2. Noted: the respondent challenged relevancy. Taking the averments pro veritate, he said they disclosed no legal liability (Macmillan).
3. Noted: the appeal is in effect against the decisions in Mullen and M'Gowan. The only factual difference is a mouse in place of a snail (Macmillan).
4. Noted: he describes the earlier cases' history and the four judges' opinions. The Lord Justice-Clerk held negligence not proved and did not decide relevancy. Lord Ormidale found no relevant case. Lord Hunter found the case relevant and negligence proved. Lord Anderson found no case in law (Macmillan).
5. Noted: the Lord Justice-Clerk preferred to rest on failure to prove fault. In the present case he said he had shown, not obscurely, his view of the English cases, and gave effect to it against the appellant (Macmillan).
6. Noted: Lord Ormidale said that, but for an unbroken and consistent current of decisions beginning with Winterbottom v. Wright, he would have answered yes. The evidence showed that manufacturers took great care that the drink should pass from maker to user uninterfered with. It would be reasonable and equitable to find a duty (Macmillan).
7. Held: it is singular that Winterbottom alleged no negligence in the sense of a breach of duty owed by the defendant. There is no such unbroken current in English reports. English law is not committed to what is neither reasonable nor equitable (Macmillan).
8. Why: Lord Esher said in Emmens v. Pottle that any proposition showing the common law is wholly unreasonable and unjust cannot be part of it (Macmillan).
9. Noted: counsel on both sides accepted that Scots and English law are the same and confined their arguments to English authorities. He therefore turns to English precedents (Macmillan).
10. Held: there is no House of Lords decision on the point. Cavalier v. Pope and Cameron v. Young concern a stranger to a lease and belong to a different chapter of the law. Nor is there an unbroken current of authority, since some cases flow one way and some the other (Macmillan).
11. Held: the diversity between George v. Skivington and Blacker v. Lake & Elliot arises from two rival principles meeting. One is that only a party to a contract can complain of its breach. The other is that negligence apart from contract gives a right of action to the person injured (Macmillan).
12. Held: a contract between the parties does not exclude a right of action in negligence between the same parties. An injured railway passenger can sue in contract or in negligence. The same facts may give one person a contract claim and another a tort claim (Macmillan).
13. Noted: he adopts Pollock's Law of Torts (13th ed., p. 570). If A breaks his contract with B, that alone does not make A liable to a stranger C. This is all that Winterbottom and Longmeid decided. No bad faith or negligence was proved there (Macmillan).
14. Held: the avenue of approach matters. If you start from the sale between manufacturer and retailer, the consumer looks like a stranger to the contract. If you ask whether the manufacturer owed a duty to be careful, the incidental contract of sale is irrelevant (Macmillan).
15. Held: the appellant asks that her case be treated as delict, not breach of contract. She need not invoke the exceptional cases for things dangerous in themselves. He calls that class a special instance of negligence where the law demands a degree of diligence that amounts practically to a guarantee of safety (Macmillan).
16. Held: most of the English cases involved facts far from these. They did not give rise to the special relationship and consequent duty that is the deciding factor here (Macmillan).
17. Held: Dixon v. Bell shows the high degree of care the law demands of those who give out dangerous things like loaded firearms. The appellant says poisonous drink can be as dangerous. The case favours her (Macmillan).
18. Held: Langridge v. Levy turned on a false representation that the gun was safe. Commentators treat it as decided on its special circumstances. Winterbottom and Longmeid are not in point for the reason in Pollock's passage (Macmillan).
19. Held: George v. Skivington is entirely in favour of the appellant. Kelly C.B. said the action was not based on any warranty. The Court unanimously held a chemist liable in negligence to the user. Lord Atkinson in Cavalier v. Pope noted the defendant represented fitness in both this and Langridge. So far as he is aware, it has never been disapproved in the House of Lords (Macmillan).
20. Noted: Hamilton J. in Blacker said it had been nearly disaffirmed. Lord Macmillan is not sure it was handled so severely and does not think it deserved to be (Macmillan).
21. Held: he accepts Brett M.R.'s statements in Heaven v. Pender as sound guides to general doctrine, like Lord Hunter, though the universality may need some qualification. The passage on supplying goods for another's use applies specially here. Cotton L.J. and Bowen L.J. declined to lay down the larger principle, but the decision was unanimous for the plaintiff (Macmillan).
22. Held: Earl v. Lubbock turns on the rule that a stranger to a contract cannot sue in tort on its breach. There was no invitation to use the van. Any negligence was too remote. The facts differ widely from the present case, where the manufacturer has the consumer's use in view and the retailer is merely a vehicle of transmission (Macmillan).
23. Held: Blacker v. Lake & Elliot is important for its survey of decisions. It turned largely on whether a contract of sale of a lamp gave the vendor any responsibility to a third party. It was too remote for negligence. If any principle adverse to the appellant comes from it, he would not approve it (Macmillan).
24. Noted: in White v. Steadman Lush J. said that a person is in the same position as one who knows. This applies where he could have known a thing is dangerous but did not, because he failed to take ordinary care (Macmillan).
25. Held: Bates v. Batey & Co. does not advance matters. It turned on the manufacturer not knowing of the defect. In a true case of negligence, knowledge of the defect is not an essential element (Macmillan).
26. Held: the current of authority has not always run one way. The American case Thomas v. Winchester was on the appellant's side. A chemist gave belladonna labelled as dandelion extract, and a third party was hurt. He thinks it was a sound decision, and Lord Dunedin quoted it in Dominion Natural Gas (Macmillan).
27. Noted: in MacPherson v. Buick Motor Co. the purchaser from a retailer recovered from the car maker. Cardozo J. said the principle of Thomas v. Winchester is not limited to poisons and explosives. If a thing is reasonably certain to endanger life and limb when negligently made, it is a thing of danger (Macmillan).
28. Noted: Cardozo J. added that when the danger is joined with knowledge that persons other than the purchaser will use it without new tests, the manufacturer must make it carefully, irrespective of contract. The dealer was the one person who would not use the car, yet the defendant said he was the only person it need protect (Macmillan).
29. Noted: this is a Scottish appeal. The discussion was inevitable because counsel argued on the footing that the law is the same in both countries. Because the authorities are inconclusive and the question is new to the House, he considers the principles common to both systems (Macmillan).
30. Held: the law does not take notice of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and its breach has caused damage (Macmillan).
31. Held: the categories of negligence are never closed. The cardinal principle is that the party complained of should owe the complainant a duty to take care, and the complainant must prove damage from its breach (Macmillan).
32. Held: any reasonable person would call the respondent's conduct careless, if the allegations are proved. He stored bottles where snails could get in and filled them without adequate inspection (Macmillan).
33. Held: a person who for gain makes food and drink intended for public consumption in the form he issues them is under a duty to take care in making them. He owes it to those whom he intends to consume them (Macmillan).
34. Why: by intending consumption, he places himself in a relationship with all potential consumers. That relationship, which he assumes for his own ends, imposes a duty not to turn an article issued as wholesome into one dangerous to life and health (Macmillan).
35. Why: injury was foreseeable. The manufacturer directly had public consumption in contemplation. The possibility of injury from careless manufacture is not so remote as to excuse him from foreseeing it (Macmillan).
36. Noted: he gave the example of a baker who carelessly lets arsenic into a batch of bread. The baker could not say he owed no duty and was liable only for breach of warranty to those who bought from him. He excluded a pure accident where every care is taken (Macmillan).
37. Held: the state of facts might give rise to a criminal charge. The civil consequences can scarcely be less wide than the criminal ones. The Second Division's principle would mean no duty at all, not even a duty not to poison consumers (Macmillan).
38. Noted: there is no special doctrine of Scots law involved. The case can be decided on principles common to both systems. Both are consonant with justice and common sense (Macmillan).
39. Held: his principle does not raise Parke B.'s objection in Longmeid v. Holliday. He reads that passage as a warning against setting the standard of care too high. It gives no countenance to negligence with impunity (Macmillan).
40. Noted: it is always a question of circumstances whether carelessness amounts to negligence, and whether the injury is too remote. A product may be exposed to changes after it leaves the manufacturer's hands. Responsibility may generally cease when control ceases. The same applies where an intermediate party has means and opportunity to examine (Macmillan).
41. Held: the article may be prepared to reach the consumer as it leaves the maker. The maker may seal the container against tampering. Then his control remains effective until the consumer opens it. Any outside agency is intended to be excluded, and was excluded here (Macmillan).
42. Noted: it is doubtful whether there is any redress against the retailer, citing Gordon v. M'Hardy (Macmillan).
43. Held: the burden of proof is on the injured party. She must prove that the defect was in the article when it left the defender, that it came from his carelessness, and that the circumstances cast a duty on him. There is no presumption of negligence, and no room for res ipsa loquitur (the thing speaks for itself). Negligence must be averred and proved (Macmillan).
44. Held: "There is no presumption of negligence in such a case as the present". The appellant accepts the burden and is entitled to try to discharge it. The appeal should be allowed, the Second Division's judgment reversed and the Lord Ordinary's restored (Macmillan).

Authorities

• Langridge v. Levy, 2 M & W 519; 4 M & W 337: a gun sold to a father for his son's use exploded. Held to rest on fraud, so of no help. Distinguished (Buckmaster, Atkin, Macmillan).
• Longmeid v. Holliday, 6 Ex 761: a defective lamp injured the buyer's wife. Parke B.'s dictum is guarded and read narrowly by Atkin and Macmillan; relied on by Buckmaster against the appellant.
• Winterbottom v. Wright, 10 M & W 109: a coach broke down and a stranger to the contract sued. Applied by Buckmaster and Tomlin; explained as a contract-only case by Atkin and Macmillan.
• Blacker v. Lake & Elliot, Ld., 106 LT 533: a brazing lamp burst. Lord Sumner's rule relied on by Buckmaster; criticised by Atkin and Macmillan.
• Dominion Natural Gas Co., Ld. v. Collins & Perkins, [1909] AC 640: Lord Dunedin's statement on dangerous articles. Read as an exception by Buckmaster; as illustrating a general duty by Atkin; cited by Macmillan for Thomas v. Winchester.
• George v. Skivington, LR 5 Ex 1: a hairwash negligently compounded injured a wife. Rejected by Buckmaster; followed as direct authority by Atkin and Macmillan.
• Francis v. Cockrell, (1870) LR 5 QB 501: a racecourse stand fell. Cleasby B.'s remark on George v. Skivington is discussed by Buckmaster and Atkin.
• Heaven v. Pender, 11 QB D 503: Brett M.R.'s wide proposition. Rejected by Buckmaster; adopted with the limit of proximity by Atkin; accepted as a sound guide by Macmillan.
• Blackmore v. Bristol and Exeter Ry. Co., (1858) 8 E & B 1035: Coleridge J. treated Langridge as based on fraud. Noted by Buckmaster.
• Collis v. Selden, (1868) LR 3 CP 495: Willes J. said Langridge rested on fraud. Noted by Buckmaster.
• Le Lievre v. Gould, [1893] 1 QB 491: a surveyor owed mortgagees no duty. Lord Esher's proximity qualification relied on by Buckmaster and Atkin.
• Earl v. Lubbock, [1905] 1 KB 253: a van repairer owed the driver no duty. Applied by Buckmaster; distinguished by Atkin and Macmillan.
• Bates v. Batey & Co., Ld., [1913] 3 KB 351: ginger-beer bottle burst. Relied on by Buckmaster; distinguished or criticised by Atkin and Macmillan.
• Thomas v. Winchester, 6 NY 397: a chemist supplied belladonna for dandelion extract. Mentioned by Buckmaster as not advancing the matter; approved by Macmillan.
• MacPherson v. Buick Motor Co., (1916) 217 NY 382: a car manufacturer was liable. Discussed by Buckmaster; approved by Atkin; quoted by Macmillan.
• Mullen v. Barr & Co., 1929 SC 461: a mouse in ginger-beer. Approved by Buckmaster; disapproved by Thankerton and Macmillan.
• M'Gowan v. Barr & Co., 1929 SC 461: heard with Mullen. Followed by the Second Division; treated as wrongly decided by Thankerton and Macmillan.
• Cunnington v. Great Northern Ry. Co., (1883) 49 LT 392: Brett M.R. affirmed George v. Skivington. Not authoritative (Atkin).
• Hawkins v. Smith, (1896) 12 Times LR 532: a defective sack. Supports the duty (Atkin).
• Elliott v. Hall, (1885) 15 QB D 315: a defective coal truck. Supports the duty (Atkin).
• Oliver v. Saddler & Co., [1929] AC 584: defective rope slings. House of Lords found a duty (Atkin).
• Grote v. Chester and Holyhead Ry., (1848) 2 Ex 251: a bridge fell. Negligence duty to users upheld (Atkin).
• Dixon v. Bell, 5 M & S 198: a loaded gun given to a young servant. Supports the appellant (Atkin, Macmillan).
• Hodge & Sons v. Anglo-American Oil Co., (1922) 12 Ll LRep 183: Scrutton L.J.'s wolf in sheep's clothing remark. Approved by Atkin.
• Brass v. Maitland, (1856) 6 E & B 470: implied warranty by a consignor. Cited by Atkin.
• Farrant v. Barnes, (1862) 11 CB (NS) 553: duty to a carrier's servant. Cited by Atkin.
• Caledonian Ry. Co. v. Mulholland or Warwick, [1898] AC 216: wagon brake defect. Distinguished by Atkin as not proximate.
• Cavalier v. Pope, [1906] AC 428: a tenant's wife and the landlord. Distinguished by Atkin; set in a different chapter by Macmillan, who also quotes Lord Atkinson.
• Bottomley v. Bannister, [1932] 1 KB 458: gas boiler fumes in an unfurnished house. Discussed by Atkin.
• Kemp & Dougall v. Darngavil Coal Co., 1909 SC 1314: no negligence without a duty. Cited by Thankerton.
• Clelland v. Robb, 1911 SC 253: same point. Cited by Thankerton.
• Gordon v. M'Hardy, (1903) 6 F 210: a tin of salmon. Discussed by Thankerton and Macmillan.
• Emmens v. Pottle, (1885) 16 QB D 354: Lord Esher on an unreasonable common law. Quoted by Macmillan.
• Cameron v. Young, [1908] AC 176: stranger to a lease. Placed in a different chapter by Macmillan.
• White v. Steadman, [1913] 3 KB 340: Lush J. on failing to use means of knowledge. Cited by Macmillan.
• Pollock, Law of Torts, 13th ed., p. 570: quoted and adopted by Macmillan. Sutton's Personal Actions at Common Law, p. 113: cited by Atkin on demurrer procedure.

Also cited in footnotes: none. The reported text has no footnotes.

Provisions mentioned

• Lord Campbell's Act: the statute under which Bottomley v. Bannister was brought (Atkin). It is not explained further in the judgment.
• Statute: Lord Buckmaster says no special duty attaches to food manufacture apart from one implied by contract or imposed by statute.

Judgement

1. The interlocutor of the Second Division of the Court of Session in Scotland is reversed.
2. The interlocutor of the Lord Ordinary is restored.
3. The cause is remitted back to the Court of Session to do what is just and consistent with this judgment.
4. The respondent must pay the appellant the costs of the action in the Inner House.
5. The respondent must also pay her costs of the appeal to the House of Lords. They are taxed in the manner usual when the appellant sues in forma pauperis (as a poor person).

The order was entered on the Lords' Journals of 26 May 1932. The majority was Lords Atkin, Thankerton and Macmillan. Lords Buckmaster and Tomlin dissented.

Legal Principle / Ratio

A manufacturer owes the consumer a duty of care. This applies where he sells products meant to reach the consumer as they left him, with no reasonable possibility of intermediate examination. It also requires that he knows lack of care will injure the consumer. Lord Atkin also stated the neighbour test. The holding, in Lord Atkin's words, is a duty where there is "no reasonable possibility of intermediate examination".

Critical Analysis

Analysis based on the judgment text.

• The Court decided only that the facts pleaded show a relevant duty. Breach, causation and damage still had to be proved at the remitted proof.
• Lord Atkin says a full logical definition of the general principle is beyond a judge's function. His neighbour test is presented as a guide, not a complete rule.
• The dissent's worry about one step, why not fifty is answered in the majority opinions by these limits: an intended consumer, no intermediate examination, and proximity.
• Lord Macmillan lists the categories of negligence as never closed. Lord Atkin confines his own holding to articles of common household use.
• The majority give separate routes: Atkin the neighbour test, Thankerton the manufacturer's direct relation with the consumer, Macmillan the maker's intended consumption of food and drink.

Significance

• The House of Lords held that a duty of care can exist without a contract between the injured consumer and the manufacturer.
• It rejected the view that only fixed categories, such as dangerous things, create a duty.
• Lord Atkin's neighbour principle gave a general test of duty based on foresight and proximity.
• Lord Macmillan stated that carelessness only matters where there is a duty and damage, and that the categories of negligence are never closed.
• It settled that the burden of proving negligence stays on the injured person. There is no presumption of negligence.

Exam-Important Points

• Rule first: a manufacturer owes a duty to the ultimate consumer where there is no reasonable possibility of intermediate examination.
• Neighbour test: Take reasonable care to avoid acts or omissions you can reasonably foresee would be likely to injure your neighbour. Neighbours are persons so closely and directly affected that you ought to have them in contemplation.
• Trap: proximity is not only physical nearness.
• Trap: the appeal was on a preliminary point of law. It did not decide that the snail was proved or that negligence was proved.
• Trap: the burden of proof is on the pursuer. There is no presumption of negligence and no res ipsa loquitur. Lord Macmillan said negligence must be averred and proved.
• Trap: the decision was 3 to 2. Lords Buckmaster and Tomlin dissented and relied on Winterbottom v. Wright: "If one step, why not fifty?"
• Trap: Lord Macmillan said: "The categories of negligence are never closed."
• Cases: George v. Skivington (followed), Heaven v. Pender (limited by proximity), Winterbottom v. Wright (explained as a contract case), Mullen v. Barr (overturned in effect).

Prepared from the full text of the judgment. The judgment has no numbered paragraphs, so each judge's opinion is cited by name.