Daniels v R White and Sons and Tarbard [1938] 4 All ER 258

Facts: The first defendant (R White and Sons) manufactured & bottled lemonade which it supplied in a sealed bottle to the second defendant (Mrs Tarbard, pub owner). Mrs Tarbard sold the sealed bottle over the counter to a customer (the plaintiff, Mr Daniels). Mr Daniels suffered injury after drinking the contents of the bottle which contained half-a-teaspoon of carbolic acid as well as lemonade.

Held (on tort): Although there was no doubt that the first defendant owed the plaintiff a common law duty of care in tort (Donoghue v Stevenson [1932] AC 562), the plaintiff failed on the available evidence to prove a relevant breach of duty.

Held (on contract): However, in the plaintiff’s claim in contract against the second defendant, it was sufficient to establish her liability for breach of the implied warranty of merchantable quality that the second defendant had sold him defective goods. It was not relevant in this context that the second defendant had not been negligent or otherwise at fault in relation to the condition of the goods.