swarb.co.uk - law index
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Consumer - From: 1930 To: 1959
This page lists 7 cases, and was prepared on 20 May 2019.
Donoghue (or M'Alister) v Stevenson [1932] AC 562; [1932] SC (HL) 31; [1932] ScLT 317; [1932] All ER Rep 1; (1932) 101 LJPC 119; (1932) 147 LT 281; [1932] SLT 317; (1932) 48 TLR 494; (1932) 37 Com Cas 350; [1932] UKHL 100; [1932] Sol Jo 396; [1932] WN 139; [1932] SC 31; (1933) 4 DLR 337; 533 CA 47
26 May 1932
HL
Atkin, Thankerton MacMillan, Buckmaster Tomlin LL
Negligence, Consumer
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a friend, so she was unable to rely upon any contract. Held: The English and the Scots law on the subject are identical. The pursuer was entitled to recover damages for negligence. The manufacturer intended that the contents be consumed without the opportunity first to examine them, and unless reasonable care was taken in the preparation a consumer may suffer injury. The cases of George v. Skivington and `the dicta in Heaven v. Pender "should be buried so securely that their perturbed spirits shall no longer vex the law." (Majority) The nature of an article "may very well call for different degrees of care". "the person dealing with [an inherently dangerous article] may well contemplate persons as being within the sphere of his duty to take care who would not be sufficiently proximate with less dangerous goods; so that not only the degree of care but the range of persons to whom the duty is owed may be extended."
Lord Atkin said: ". . the lawyer's question, Who is my neighbour? receives a restricted reply. 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 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."
1 Cites
1 Citers
[ Hamlyn ] - [ Bailii ]
Sherwood v Cox [1945] 1 KB 549
1945
CA
Atkinson, Wrottesley, Tucker JJ
Consumer, Crime
The respondent had been accused of selling milk not of the nature, substance and quality demanded, in that it was deficient in milk fat. The justices found facts proved as admitted: "When the summons was served on the respondent on August 14, 1944, there was also served on him a copy of the certificate of the public analyst (numbered 7582) of his analysis of the sample, the subject of the information, taken on July 17, in accordance with s80, subs3, of the Food and Drugs Act, 1938. The sample had duly been divided into three parts as required by the statute, and certificate No 7582 related to that sample. On July 19, 1944, two days after the aforesaid sample was taken, the appellant, in order to meet a possible defence that the contravention was due to the act or default of another person under s83, subs1, took a further sample of the respondent's milk, in accordance with s70, subs 2. A copy of the certificate of the public analyst relating thereto (numbered 386) was not served on the respondent with the summons, but was sent to him by registered post on August 21, 1944, by the appellant's solicitor with a covering letter, saying that he proposed to adduce the certificate in evidence at the hearing. "At the hearing the prosecuting solicitor having stated that he proposed to adduce in evidence both certificates 7582 and 386, the solicitor for the respondent objected that the respondent had not been served with a copy of certificate 386 with the summons and that consequently the information was bad." The justices agreed with that submission and dismissed the information. Held:
Atkinson J said, at 551-2: "Prima facie, the sample under s70, subs2, taken on July 19, 1944, is one which does not affect the respondent, but is more concerned with the original supplier. Both samples were sent to the public analyst, and on July 25 he issued two certificates. The certificate relating to the milk in respect of which Cox was prosecuted was certificate No 7582, and it certifies that there was only 2.85 percentage of fat. The certificate of the sample taken on July 19 was No 386. I do not know that anything really turns upon what precisely happened at the hearing, but the solicitor for the prosecution opened the case, and stated that he proposed to adduce in evidence both the certificates. At once the respondent objected that he had not received a copy of the second certificate numbered 386. with the summons, and the justices took the view that he was entitled to, and ought to have been served with a copy of that certificate along with the summons, and on that ground dismissed the information.
The contention of the respondent is that 'any' in s80, subs 3, means 'every' certificate of analysis. There the submission ends. Analysis of what, and within what limitation, I know not. The appellant says that the obvious meaning of that word is: 'any certificate of analysis of the article sampled, of that which you are speaking about, the subject-matter of the information." And in my view the argument of the appellant is unanswerable. It seems to me that some limitation must be put upon the words 'any certificate of analysis'. If it is not limited in that way, where is the line to be drawn? Is it any certificate of analysis of any milk at any time purchased, however irrelevant to the article sold and sampled? If it had been meant to go beyond the analysis relating to the article sampled, surely there would have been some words indicating the class or the limits within which the certificates to be served must come."
Wrottesley J said: "I agree that what is meant by the words 'any certificate of analysis' is any certificate of analysis of the article sampled, and therefore to that extent of the article which is the subject of the information."
Tucker J said: "I agree, although I do not think the point is perhaps quite so clear as do the other members of the court, for this reason, that, in my opinion, some words have to be read into s 80, subs 3, whatever interpretation is placed on the sub-section. I think it would suffice Mr. Quass's argument if one read in the words 'any certificate of analysis obtained on behalf of the prosecutor for the purposes of such proceedings.' On the other hand, if Mr Hutton is right, I think the words which have to be read in are 'in respect of the article which is the subject matter of the prosecution.' And the question to my mind, is which of those alternative sentences should be read in. On the whole, I have come to the conclusion that the words which should be read in are 'in respect of the article which is the subject-matter of the prosecution.' When one reads the whole of s 80, I think that is what is envisaged. Generally speaking, what is envisaged is the taking of one sample, no doubt for the purpose of the prosecution, although there may conceivably be cases in which two samples might be taken in respect of the article which is the subject-matter of the prosecution. If that were so, then, no doubt, service of both analyses would have to be made on the seller."
. . And "It seems to me, therefore, to follow that if a prosecutor has an analysis made and obtains a certificate afterwards which he intends to use at the proceedings, he does so at his peril if he has not served a copy on the defendant in sufficient time to enable the defendant to comply with the requirements of subs3. If he does not, the court will no doubt grant an adjournment and the prosecution very likely will be penalised in costs."
Food and Drugs Act 1938
1 Citers
Holmes v Ashford; CA 1950 - [1950] 2 All ER 76
Kwei Tek Chao v British Traders and Shippers [1954] 2 QB 459
1954
Devlin J
Contract, Consumer
In testing whether a buyer of goods has acted inconsistently with the rights of the seller so as to lose the right of rejection where as in this case, property in the goods has passed to the buyer, the ownership of the seller with which the buyer must not act inconsistently is the reversionary interest of the seller which remains in him arising from the contingency that the buyer may reject the goods.
1 Citers
Eastern Distributors Limited v Goldring (Murphy, Third Party) [1957] 2 QB 600
1957
CA
Contract, Consumer
The court considered the meaning of the phrase: "shall not be entitled to enforce" in the section. Held: "How is the present case affected by the fact that the hire-purchase agreement is unenforceable? If the Act said that it was void, then of course the character of Murphy's possession could not be altered by it. But the Act says merely that it is to be unenforceable. This must mean that it is effective to alter the rights of the parties but that the altered rights cannot be enforced."
Hire-Purchase Act 1938 2(2)
1 Citers
Feldman v Always Travel Unreported, October 15 1957
15 Oct 1957
Alan Pugh Judge
Damages, Contract, Consumer
The plaintiff complained that the holiday he had booked had been altered by the operator in several ways which inconvenienced and distressed him. Held: The correct measure of damages was the difference between the amount he paid and the value of what had in fact been furnished, allowing for his feelings of annoyance and frustration.
Chappell and Co Ltd v Nestle Co Ltd [1959] UKHL 1; [1960] AC 87
18 Jun 1959
HL
Viscount Simonds, Lord Reid, Lord Tucker, Lord Keith of Avonholm, Lord Somervell of Harrow
Intellectual Property, Consumer
The defendants sought to rely on section 8 in defence to a claim for copyright infringement. They had manufactured and sold recordings of a work whose copyright was owned by the plaintiffs.They had given notice but had been told that the distribution as a sales promotion for chocolate was not retail sale within the section. Held. It was a retail sale: "It is a sale to a consuming member of the public, and I know of no other factor which distinguishes a retail sale from other sales. " The issue as whether the price was an 'ordinary retal selling price' and whether it is contended that . . the sale " bears no resemblance at all to the transaction to which . . the section is pointing ", or that the three wrappers form part of the selling price and are incapable of valuation. Nor is there any need to take what, with respect, I think is a somewhat artificial view of a simple transaction. What can be easier than for a manufacturer to limit his sales to those members of the public who fufil the qualification of being this or doing that? It may be assumed that the manufacturer's motive is his own advantage. It is possible that he achieves his object. But that does not mean that the sale is not a retail sale to which the section applies or that the ordinary retail selling price is not the price at which the record is ordinarily sold, in this case 1s. 6d."
Copyright Act 1956 8
[ Bailii ]
