Mullen v AG Barr [1929]: Scottish Case on Product Liability

Case Name: Mullen v AG Barr & Co Ltd

Citation: [1929] ScotCS CSIH_3, 1929 SC 461, 1929 SLT 341

Court: Scotland’s Court of Session

Date of Judgment: 20 March 1929

Judges: Lord Justice-Clerk Alness, Lord Ormidale, Lord Hunter, Lord Anderson

Areas of Law: Negligence, Product Liability, Duty of Care, Privity of Contract

Background (Mullen v AG Barr & Co Ltd)

This was a landmark Scottish case involving two separate claims (Mullen and McGowan) against AG Barr & Co Ltd, manufacturers of ginger beer. In both instances, consumers alleged that they fell ill after drinking ginger beer from bottles that contained a decomposed mouse.

The bottles were opaque, making it impossible to assess their contents visually.  The pursuers sued the manufacturers rather than the retailers, claiming negligence in production, despite the fact that they had no direct contractual relation with AG Barr.

Issue

Did AG Barr & Co owe a duty of care to consumers? Had the company been negligent?

Decision in Mullen v AG Barr & Co Ltd

The majority of the Court (Lord Alness, Lord Ormidale, Lord Anderson) ruled in favor of AG Barr & Co.

It held that there was no duty of care owed to the ultimate consumers because the manufacturer had no contract with them.

Even if there was a duty, the company had taken all reasonable precautions and employed an industry-standard bottling and cleaning system.

The presence of the mouse could be attributed to mischance, not negligence.

The doctrine of res ipsa loquitur did not apply to prove fault.

Lord Anderson stated as under –

“As the pursuers were unable to prove, positive, any negligence on the part of the defenders, they were compelled to base their claims on the presumption arising from the principle of res ipsa loquitur. To that contention the defenders made two rejoinders, each of which, in my opinion, is well founded. It was maintained, in the first place, that the maxim did not apply to the circumstances of those cases. To use the language of Lord Dunedin in the case of Ballard, the circumstances in the present cases do not necessarily infer negligence, but are merely relevant to do so. “If the defenders,” says Lord Dunedin, “can show a way in which the accident may have occurred without negligence, the cogency of the fact of the accident by itself disappears, and the pursuer is left as he began, namely, that he has to show negligence.” It seems to me that, in the present cases, the defenders have shown that what took place might have happened, and in point of fact did happen, without negligence on their part. The second answer made by the defenders was that, assuming that the maxim did apply and that a presumption of negligence on their part was thereby raised, it was open to them to rebut that presumption; and, on the evidence, that they had conclusively done so. The evidence led for the defense seems to me to substantiate this contention. I am satisfied, on that evidence, that the defenders conducted the operations whereby the two bottles were filled with due care and without negligence.”

However, Lord Hunter dissented. He found that a duty of care did exist between manufacturers and consumers.

Significance

Mullen v AG Barr is seen as the last stand of the old contractual-reliance approach in Scottish product liability law. Even though judgment at the time was given in favor of the manufacturers, the case is historically significant because it set the stage for the doctrine of negligence later recognized in Donoghue v Stevenson.

The case laid important groundwork for what would become the landmark English decision in Donoghue v Stevenson [1932], which also involved a snail in a bottle of ginger beer—strikingly similar facts, but a very different outcome that reshaped the scope of tort law. The House of Lords famously established the “neighbour principle” and recognized a manufacturer’s duty of care to consumers.

References:

https://www.bailii.org/cgi-bin/format.cgi?doc=/scot/cases/ScotCS/1929/1929_SC_461.html

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