Common Law Society The Appellant relied solely on the tort of negligence. She, or rather her counsel, argued that the Respondent as a manufacturer of a product intended for consumption owed a duty to her as a consumer of the good. Especially, as due to the bottle characteristics it was impossible to inspect the product and the decomposed remains of a snail could have been only discovered after the bottle was almost empty. The Appeal was allowed by the majority of three Lords: Lord Atkin, Lord Thankerton and Lord Macmillan. Lord Atkin contended that in order to hold the producer liable it must be proved that it breached a duty of care owed to the defendant. Thus, he held that the question to be answered on the facts of the case is whether or not the Respondent owed a duty of care to the Appellant. The test he created for establishing whether a duty of care existed is the neighbour test (which is no longer applicable neither in case of the product liability nor in the tort of negligence). He explained the concept of a neighbour in law in the following words: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are s 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. Even though, it seemed that the case law did not provide a consumer with a remedy against the negligent manufacturer of a defective product; however, he contended that the common law may not be so remote from the everyday life as to deny a remedy in the presence of the obvious social wrong. Additionally, he found the previous distinction between the dangerous thing and the things dangerous in themselves unnatural as a means of finding the existence of a legal right. Lord Thankerton contended that in order to hold a defendant liable for negligence a duty of care must exist in the first place. In the situation when a manufacturer intentionally excluded the possibility of examination of a product, it imposes a duty of care owed to a consumer by means of its own actions. He also added that after the reading of Lord Atkin’s contention he entirely agree with his considerations and findings. Lord Macmillan mentioned that the appeal is against the previous decisions but he found no reason why the same set of facts should not give one person a right of action in contract and another in tort. As the abovementioned Lords he also pointed out that the prerequisite for the liability in tort of negligence is that the duty of care exists. In the situation, when a manufacturer, losing the control over the product, passes it to a retailer who then interferes with the product in such a way that the product becomes defective, the manufacturer may not be held liable. However, Lord Macmillan did not find such circumstances in the case at hand. The product was intended to reach a consumer and was prepared in such a manner to prevent any outside interference. In such circumstances, a manufacturer must be found liable if the product proofs defective due to its negligence. The minority consisted of Lord Buckmaster and Lord Tomlin. The former focused on the precedent and pointed out that the common law is against the Appellant’s claim. He contended that no special duty of care may be attached to the manufacturer, apart from duty which is attached by virtue of a contract or a statute. The latter concurred with Lord Buckmaster and contended that the Appellant’s claim finds no support in the common law.
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