Kirby v Burke and Holloway

• Jurisdiction: Ireland
• Judgment Date: 19 April 1944
• Date: 19 April 1944
• Court: High Court

Kirby v. Burke and Holloway.

GERALD KIRBY and NOEL KIRBY, WINIFRED KIRBY, and GERALD KIRBY, Infants, by their Father and next Friend

Plaintiffs

and

EAMON BURKE (Trading as J. M. BURKE) and JAMES J. HOLLOWAY

Defendants.

Negligence - Liability of manufacturer to ultimate consumer - Infected jam - Defect causing injury to consumer - Foundation of liability at common law for tort.

Appeal from the Circuit Court.

Gerald Kirby, on his own behalf, and on behalf of his infant children, Noel Kirby, Winifred Kirby, and Gerald Kirby, brought an action against Eamon Burke of 92 Manor Street, Dublin, grocer, and James J. Holloway of 37 Foley Street, Dublin, jam manufacturer, for damages for injury caused by eating jam purchased in the shop of the said Eamon Burke and made by the said James J. Holloway.

The claim in the civil bill was as follows:—

"The plaintiffs' claim is for the sum of £300 damages a gainst the defendant, Eamon Burke, for breach of warranty in relation to the sale of certain goods, and against the defendant, James J. Holloway, for negligence in manufacturing and issuing for sale goods which were deleterious.

On the 6th day of May, 1942, the plaintiff's wife purchased from the defendant, Eamon Burke, for the use of herself and her family a 2 lb. pot of rhubarb and ginger jam, which the said defendant impliedly warranted as of merchantable quality and fit for human food. The said jam was manufactured by the defendant, James J. Holloway. The said jam was not of merchantable quality but was noxious and deleterious and unfit for human food, and upon the plaintiffs eating the same on the 6th day of May, 1942, the plaintiffs became seriously ill and suffered and continued to suffer for some time from food poisoning and gastric disorder caused by the deleterious nature of the said jam, and the plaintiffs were put to much pain and inconvenience and have incurred medical and other expenses."

The defendant, James J. Holloway, in his defence denied that he had been guilty of negligence. He pleaded that the said jam was of merchantable quality and was not noxious, deleterious, or unfit for human food, and, alternatively, that if the jam were in the alleged condition the said condition was not caused by or contributed to by any act or omission on his part. He traversed the plaintiff's statements of the facts and further pleaded that, if the said jam were in the alleged condition, the condition was visible and would have been discovered by reasonable inspection, and that the plaintiffs were guilty of contributory negligence.

The defendant, Eamon Burke, in his defence traversed the facts set out in the Civil Bill.

The Circuit Court Judge (Judge Shannon) dismissed the action against the defendant, Eamon Burke, but gave a decree for £87 7s. 0d. against the defendant, James J. Holloway.

From the decree of the Circuit Court Judge the defendant, James J. Holloway, appealed.

The facts proved in evidence appear sufficiently for the purpose of this report from the judgment of Gavan Duffy J.

Plaintiff's wife bought a pot of jam in a grocer's shop and gave some of the jam to the plaintiff and their infant children. They became ill as a consequence of eating it. Plaintiff brought an action in the Circuit Court claiming damages, suing the grocer for breach of warranty in that he had impliedly warranted that the jam was of merchantable quality and fit for human food, and also suing the jam manufacturer for negligence in manufacturing and issuing the jam for sale.

The Circuit Court Judge dismissed the action against the grocer, but awarded damages against the manufacturer.

On appeal by the manufacturer:

Held that the manufacturer was bound to take specific precautions against the danger, to the hurt of consumers, of infection to his jam from external causes before it finally left his factory, and, as he had not done so, and as the jam hud in consequence become infected and caused the injury complained of, he was liable in damages, and the decree of the Circuit Court Judge must be affirmed.

Donoghue v. Stevenson [1932] A. C. 562, considered.

Cur. adv. vult.

Gavan Duffy J.

This appeal from the Circuit Court turns on a point of law of exceptional public importance, unquestionably fit for the decision of the final tribunal, but neither party has asked me to state a case for the Supreme Court and there is no other right of appeal.

In the Circuit Court the plaintiffs, a father and three little children, recovered damages in tort against the defendant for his negligence in manufacturing and issuing for sale a pot of jam unfit for human food, bought by the housewife for the family, and eaten by the plaintiffs to the sad mischief of their internal economy.

On 6th May, 1942, Mrs. Josephine Kirby, finding butter to be unobtainable, bought for her family from a grocer a pot of rhubarb and ginger jam; the pot was wrapped in cellophane of amber hue, and the jam had a cardboard cover and under the cover, immediately over the jam, a piece of waxed paper. This was the sort of...