Lockhart v Barr
| Jurisdiction | Scotland |
| Judgment Date | 16 July 1941 |
| Date | 16 July 1941 |
| Docket Number | No. 48. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Keith.
NegligenceDuty of manufacturer of article to ultimate consumerBottle of aerated water contaminated with phenolPurchaser injured by drinking contentsAction of damages against manufacturerProof of negligenceEvidence.
The purchaser of a bottle of aerated water from a retailer was injured by drinking its contents, which were contaminated with phenol. No visual examination by the retailer or by the purchaser could have revealed its presence. In an action of damages brought by the purchaser against the manufacturer, the evidence showed that in the factory the washing plant for incoming bottles was in close proximity to the filling slant for outgoing bottles; that the presence of phenol in the bottle showed that it had not passed through the washing plant; and that the only explanation of this omission was that, during a temporary stoppage of the conveyor of the washing plant, some employee tending the filling plant had, to avoid delay, transferred an unwashed bottle or bottles from the washing to the filling plant, an easy operation in view of their dangerous proximity. No subsequent check was provided by which the use of such a bottle would be detected unless the contamination was of a very obvious nature.
Held (rev. judgment of Lori Keith) that the pursuer was entitled to an award of damages, in respect that the improper action of an employee, coupled with he defective lay-out of the plant and system of washing, justified an inference of negligence on the part of the defenders, and that it was unnecessary for the pursuer to demonstrate precisely when, why, or by whom the mistake had been made.
Donoghue v. Stevenson, 1932 S. C. (H. L.) 31, [1932] A. C. 562, applied.
Mrs Mary Wade Moir Or Gardiner Or Lockhart, Glencraig, Fife, brought an action against Robert Barr, bottlers and aerated water manufacturers, Burnfoot, Falkirk, in which she concluded for 250 as damages for injury stained by her through drinking a bottle of an aerated water, known as "iron brew," manufactured by the defenders, which she averred had been contaminated with phenol.
The pursuer averred (Cond. 2) that she had purchased from a retailer a bottle of aerated or mineral water, known as "Barr's Iron Brew," manufactured by the defenders, the bottle being handed to her stoppered and sealed, and in the same condition as that in which it had been supplied to the retailer. On attempting to drink its contents she had been burned by phenol present in the bottle owing to defective washing. She averred, inter alia:(Cond. 3) " It was the duty of the defenders to exercise the greatest care in order that phenols or other noxious chemicals would not get into the said bottle render the said iron brew dangerous and harmful, and be sold with said iron brew. Further, it was the duty of the defenders to provide a system of working their business that was safe, would ensure that all the bottles were washed clean before being filled with iron brew, and would not allow phenols or other noxious chemicals to get into their iron brew bottles (including the said bottle). Such a system is usual and customary, and is necessary in the manufacture of a drink like iron brew to be used for human consumption. In these duties the defenders culpably failed and pursuer's injuries and shock were the direct result of their said failure in duty. The pursuer believes and avers at defenders' system of working their business was defective in that from time to time bottles could be filled without being cleaned and washed. It was the duty of the defenders to arrange their system of working so that unwashed bottles were kept se arate from washed bottles and that only bottles that were know to be washed and clean could be fed to the filling machine and filled. This is usual and is necessary in the interests of cleanliness and of keeping the contents of the bottles when filled free from impurities and, in particular, noxious impurities like phenols, especially as bottles of the description mentioned are from time to time, after the iron brew or other potable liquid supplied in them has been consumed by purchasers, used by such purchasers and others for keeping other liquids, some harmless, like milk or other beverages, and others noxious, if imbibed, like paraffin oil, phenols, and other liquids for disinfectant or washing purposes, for varying periods before being returned to manufacturers like the defenders. This practice was, or in any event ought to have been, well known to the defenders. In this duty the defenders culpably failed, and their said failure in duty caused the said accident. The defenders' system of working was defective in respect that it permitted unwashed bottles (like the said bottle) to be fed to the filling machine and to be filled, with the result that the bottle ultimately supplied to the pursuer was filled up with iron brew at a time when it was unwashed and contained a quantity of phenols which rendered the iron brew contained in the bottle dangerous and likely to cause injury to persons (like the pursuer) purchasing such a bottle of iron brew, and in fact caused injury to the pursuer as condescended on. Further, in carrying out their filling system actually operated by them, it was the duty of the defenders to provide an efficient system of inspection of bottles before the iron brew was filled into them and before they were sealed. In this duty also, the defenders culpably failed and so caused the said accident. There was in fact no, or in any event no adequate...
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