find for the plaintiff or the defendant? Could it not be argued that where there is an equal balance of probabilities the risk should be on the defendant rather than the plaintiff? (Cf McGhee v NCB [1973] 1 WLR 1.) 4 If Mrs Ward had been injured by an exploding bottle of lemonade in the supermarket, could she have sued them in contract? If not, why not? 5 The relevant events took place in the course of a few seconds; all or some of them were seen by 12 different witnesses…and, as is inevitable when honest witnesses give their recollections of what occurred in a very brief space of time there were wide divergences in their respective accounts. In such a case an appellate court will not lightly disturb the findings of the trial judge as to what in fact occurred’ (Diplock LJ in Wooldridge v Sumner [1963] 2 QB 43, p 60). Is the court under a duty to attempt to establish the truth? If not, what is its duty with respect to the facts? 6 Does Ward v Tesco indicate that facts are much more important than law in the law of obligations? (c) Legal categorisation of the facts
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Tucker J:… With regard to the female plaintiffs position in respect of breach of warranty, every proprietor of a restaurant is under a duty to take reasonable care to see that the food which he supplies to his guests is fit for human consumption. If he does not take such reasonable steps, and if he is negligent, a person who buys the food which he supplies can recover damages from him based on his negligence. As, however, there is no allegation of such negligence in this case, it must be assumed that the proprietor of the hotel and his servants could not be at fault in any way, and either plaintiff can recover only if he or she establishes that there was a contract between him or her and the proprietor of the hotel…

Counsel for the plaintiffs is, in my opinion, right when he submits that, when persons go into a restaurant and order food, they are making a contract of sale in exactly the same way as they are making a contract of sale when they go into a shop and order any other goods. I think that the inference is that the person who orders the food in a hotel or restaurant prima facie makes himself or herself liable to pay for it, and when two people-whether or not they happen to be husband and wife-go into a hotel and each orders and is supplied with food, then, as between those persons and the proprietor of the hotel, each of them is making himself liable for the food which he orders, whatever may be the arrangement between the two persons who are eating at the hotel. On the facts in this case, it is, in my opinion, right to hold that there was a contract implied by the conduct of the parties between the plaintiff,

Mrs Lockett, and the defendants when she ordered and was supplied with the whitebait at the Hotel de Paris…

If that is so, it follows beyond all doubt that there is an implied warranty that the food supplied is reasonably fit for human consumption. I hold that the whitebait delivered in this case were not reasonably fit for human consumption, and that there was a breach of warranty. Accordingly 1 give judgment for the male plaintiff for the agreed sum of £98 8s, and for Mrs Lockett for £100.