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Principles of foreseeability, duty of care, proximity and negligence, were front and centre in this appeal case between a paying customer and manufacturer and vendor of beverages. When purchased by a friend from a retail outlet, the appellant had partially emptied and consumed the contents of a bottle of ginger beer, when the remains of a snail fell into her glass, producing initial shock, followed by severe stomach pain.
When pursued for a claim under tort, the hearing was struck out, following a decision taken in a similar case that had dismissed any award under similar circumstances. Undeterred, the claimant appealed, and went on to succeed in securing a claim for the above torts, thus setting a new precedent for what would be construed today as an implied contract based upon an inherent duty of care owed from one person to another.
In fact, one may go as far as including fiduciary elements, inasmuch as when deciding to create a product that is designed to be internally digested, the manufacturer does so in the understanding that a paying customer is vulnerable to the actions, or inactions, within that process, and while a degree of profit is acceptable, the undertaking must ideally serve the best interests and welfare of an unwitting recipient, in order for the transaction to remain equitable.
The ‘neighbour’ statement used by Lord Atkin was a generic term, and one that allowed for an interpretation of conscious liability, although such a concept relied upon a proviso that the relationship between the claimant and the defendant be reasonably determinable. By this, it is meant that where the manufacturer prepared the ginger beer, it was done so with the foresight of mind to the responsibility that safe consumption would be provided for, and that any and all suitable measures would be taken to prevent otherwise.
In fact, the phrase ‘do unto others as you would have them do unto you’, fits this issue well, as it is unacceptable to accommodate flagrant misuse, or an inability to consider others safety, comfort and self-respect. Peripheral details that may encumber these cases, are decipherable as a matter of course, and should therefore not distract from the principle of ‘duty of care’, which also goes some length to explain the overlap between contractual and tortious law.
“Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
“[A] manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.”
“I am of the opinion hat the contention of the appellant is sound, and that she has relevantly averred a relationship of duty as between the respondent and herself, as also that her averments of the respondent’s neglect of that duty are relevant.”
“I do not think that any reasonable man or any twelve reasonable men would hesitate to hold that, if the appellant establishes her allegations, the respondent has exhibited carelessness in the conduct of this business.”