Mullen v AG Barr & Co Ltd

Factual and Procedural Background

The opinion addresses two related actions brought by Plaintiffs against Defendants, manufacturers of bottled ginger beer, alleging that the bottles contained deleterious matter in the form of decomposed mice which caused injury. The Plaintiffs purchased the ginger beer from retail dealers, not directly from the Defendants. The Defendants denied that the mice were present in the bottles when they left their factories and contended that any liability, if at all, should lie with the retail dealers. The cases were initially dismissed by Sheriffs on the ground that Defendants owed no duty to the Plaintiffs with whom they had no contract. Appeals were brought to the higher court, which ordered proofs to ascertain facts before deciding on liability.

Legal Issues Presented

1. Whether the Defendants, as manufacturers, owed a duty of care to the Plaintiffs, who were consumers but had no direct contractual relationship with the Defendants.
2. Whether the Plaintiffs proved negligence on the part of the Defendants in the bottling and examination process that allowed the deleterious matter to remain in the bottles.
3. Whether the maxim res ipsa loquitur applied to infer negligence on the part of the Defendants.
4. Whether the Plaintiffs could maintain an action ex delicto against the Defendants absent privity of contract, and if so, under what circumstances.
5. The extent and scope of exceptions to the general rule denying liability to third parties without contractual privity, particularly concerning articles dangerous in themselves or fraudulent misrepresentation.

Arguments of the Parties

Plaintiffs' Arguments

• The Plaintiffs initially claimed an implied warranty that the ginger beer was free from impure matter but abandoned this during argument, relying solely on alleged negligence.
• They argued that negligence should be inferred under the principle of res ipsa loquitur, contending that the presence of a mouse in the bottle necessarily indicated fault in the Defendants’ bottling process.
• The Plaintiffs suggested that, given the excellence of the Defendants' bottling system, negligence must lie with one or more of the Defendants' employees failing to detect and remove the foreign matter.
• They relied on cases such as George v. Skivington to support the proposition that manufacturers owe a duty of care to ultimate consumers even absent direct contract.
• The Plaintiffs contended that the duty of care extended to ensuring the contents of the bottles were free from deleterious matter and that failure to do so constituted negligence.

Defendants' Arguments

• The Defendants denied that the mice were present in the bottles when they left their factories, but even if present, contended that they had taken all reasonable and usual precautions, employing the best known system in the trade.
• They argued that the presence of the mouse could have occurred without negligence and that the maxim res ipsa loquitur did not necessarily apply.
• They maintained that no duty of care was owed to the Plaintiffs because there was no privity of contract, and the general rule excludes liability to third parties in such circumstances.
• The Defendants relied on established authority including Winterbottom v. Wright and subsequent cases to support the absence of duty to consumers absent contract or exceptions.
• They asserted that liability arises only in cases of dangerous articles per se or fraudulent misrepresentation, neither of which applied here.
• The Defendants emphasized that their machinery and employees were competent and adequate, and that occasional mishaps do not equate to negligence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering whether the Defendants owed a duty of care to the Plaintiffs as ultimate consumers absent direct contractual relations. It acknowledged the general rule that manufacturers owe no duty to third parties but noted two exceptions: where the article is inherently dangerous or where the manufacturer has knowledge of a dangerous condition and conceals it. Neither exception applied because ginger beer is not dangerous per se, and there was no evidence Defendants knew of the mice.

The court examined the principle of res ipsa loquitur, concluding that the incident did not necessarily infer negligence but merely suggested it. The Defendants successfully rebutted any presumption of negligence by demonstrating the use of the best known bottling and inspection system, adequate and competent machinery and employees, and the absence of evidence indicating system defects or employee carelessness.

The court rejected the Plaintiffs' argument that the perfection of the system implied negligence by employees, finding this reasoning fallacious since even the best system cannot guarantee absolute exclusion of all foreign matter. The presence of the mice was attributed to an inevitable accident rather than negligence.

Regarding the scope of duty, the court found that although the manufacturer invites the public to purchase and the bottles are sealed to prevent tampering, this does not impose an absolute duty guaranteeing purity. The duty is to exercise ordinary care, not to insure against all mishaps.

On the question of negligence, the court noted the Plaintiffs' pleadings lacked specificity regarding employee fault and that no direct evidence of personal negligence was adduced. The Defendants’ evidence of their system’s adequacy went unrebutted. The court found the Plaintiffs failed to prove negligence on the balance of probabilities.

Finally, the court considered whether the Plaintiffs had any alternative remedies, suggesting possible actions against retail dealers but not deciding on that point.

Holding and Implications

The court's final ruling was to ASSOILZIE (dismiss) the claims against the Defendants in both actions.

The direct effect of this decision is that the Defendants are not held liable for damages to the Plaintiffs arising from the presence of deleterious matter in the bottled ginger beer absent proof of negligence or duty. The ruling reaffirmed the principle that manufacturers do not owe a duty of care to third-party consumers without contractual privity except in limited exceptions. The court did not set new precedent but applied established legal principles to the facts before it.