Question

PRINCIPLE: Contractual liability is completely irrelevant to the existence of liability in tort (civil wrong).
FACTS: X purchased a bottle of ginger-beer from a retailer. As she consumed more than 3/4 of the contents of the bottle, she found a decomposed remains of a snail in the bottle. After seeing the remains of a snail, she fell sick on the thought of what she consumed. She sued the manufacturer of the beer for negligence, though there is no contractual duty on the part on the part of the manufacturer.

• A. X cannot sue the manufacturer for negligence in the absence of a contract
• B. X cannot sue the retailer
• C. X can sue the manufacturer as he had duty to take care to see that bottles did not contain any other substance than the beer and hence liable to have broken that duty
• D. None of the above

Answer 1

Answer: (C)

X can sue the manufacturer as he had duty to take care to see that bottles did not contain any other substance than the beer and hence liable to have broken that duty

The facts here closely resemble that of Donoghue v Stevenson. In this case too a woman had ordered for ginger beer bottle wherein a dead snail was found because of which she fell sick and subsequently sued the beer manufacturer. While the argument was that the manufacturer did not enter into contract with customer so privity of contract would apply, the House of Lords held that a duty of care nevertheless existed towards the customer and tort of negligence would apply. This was independent of the fact whether any direct contract existed or not.