Donoghue
v Stevenson
[1932] UKHL 100 was a decision of the House of Lords that established the
modern concept of negligence in Scots law and English law, by setting out general
principles whereby one person would owe another person a duty of care. It is
the origin of the modern law of delict in Scots
law and torts in English and Welsh
law.
The case
originated in Paisley, Renfrewshire and is therefore an authority principally in
Scots law, but the House of Lords determined that the English law of negligence
and the Scots law of delict were identical. Donoghue v Stevenson is
often referred to as the "Paisley snail" or the "snail
in the bottle" case, and is one of the most famous decisions in
British legal history.
Facts.
Memorial to the case in Paisley, unveiled by Lord Mackay of
Clashfern and legal
figures from around the Commonwealth in 1990
On the
evening of Sunday 26 August 1928 May Donoghue, née M’Alister, boarded a tram in Glasgow for the thirty-minute
journey to Paisley. At around ten minutes to nine, she and a friend took their
seats in the Wellmeadow Café in the town's Wellmeadow Place. They were
approached by the café owner, Francis Minchella, and Donoghue's friend ordered
and paid for a pear and ice and an ice-cream drink. The owner brought the order and poured part of an opaque
bottle of ginger beer into a tumbler containing ice cream. Donoghue drank some of
the contents and her friend lifted the bottle to pour the remainder of the
ginger beer into the tumbler. It was claimed that the remains of a snail in a state of decomposition dropped
out of the bottle into the tumbler. Donoghue later complained of stomach pain
and her doctor diagnosed her as having gastroenteritis and being in a state of severe
shock.
On 9 April
1929, Donoghue brought an action against David Stevenson, an aerated water manufacturer in Paisley, in which she claimed £500 as damages for injuries sustained by her
through drinking ginger beer which had been manufactured by him. Following the
House of Lords judgment, which dealt with a preliminary matter, the case was
settled out of court and so the full facts were not heard in court. The
identity of Donoghue's friend is unknown, but that person is referred to as
"she" in the case reports (including the first paragraph of the
judgment of Lord MacMillan in the House of Lords). Other factual uncertainties
include whether the animal (if it existed) was a snail or a slug, whether the bottle contained
ginger beer or some other beverage (as 'ginger' in Glaswegian and West of
Scotland parlance refers to any fizzy drink) and whether the drink was part of
an ice-cream soda.
Legal background.
In common
law, a person can claim damages from another person where that other person
owed the first person a duty
of care and
harmed that person through their conduct in breach of that duty. This concept
existed prior to Donoghue, but it was generally held that a duty of care
was only owed in very specific circumstances, such as where a contract existed between two parties or
where a manufacturer was making inherently dangerous products or was acting
fraudulently.[2]
There was
no contractual relationship between Donoghue and the drinks manufacturer or
even the café owner, as Donoghue had not ordered or paid for the drink herself.
Although there was a contractual relationship between the café owner and
Donoghue's friend, the friend had not been harmed by the ginger beer. As ginger
beer was not a dangerous product, and the manufacturer had not fraudulently misrepresented it, the case also fell outside the scope of the established
cases on product liability. On the face of it, the law therefore did not
provide a remedy for Donoghue.
Donoghue's
solicitor, Walter Leechman of W G Leechman
& Co in Glasgow's West George Street, had already tried to establish
liability against aerated water manufacturer A. G. Barr when a dead mouse was alleged to have found its way into a
bottle of its ginger beer. However, an action for damages was rejected by the
Inner House of the Court of Session, when the appeal court judges ruled that
there was no legal authority allowing such an action.[3]
Progress of the case.
The writ lodged in the Court
of Session on April
1929 alleged that May Donoghue had become ill with nervous shock and gastroenteritis after drinking part of the contents of
an opaque bottle of ginger beer, and David Stevenson, the manufacturer,
"owed her a duty to take reasonable care that ginger beer he manufactured,
bottled, labeled and sealed, and invited her to buy, did not contain substances
likely to cause her injury." Donoghue claimed damages of £500.
Counsel
for the manufacturer denied that any such duty was owed but, in June 1930, the
judge Lord Moncrieff ruled there was a case to answer.
Stevenson appealed the ruling on a number of legal grounds, and the judges of
the Inner House granted the appeal in November 1930, dismissing Donoghue's
claim as having no legal basis following the authority of their earlier
decision in Mullen v AG Barr. One of the judges said that "the only
difference between Donoghue's case and the mouse cases was the difference
between a rodent and a gastropod and in Scots law that meant no difference at all."
Donoghue
was allowed to appeal her case to the House of Lords but, whilst her legal team
had agreed to provide their services free, she was unable to put up the security needed to ensure the other side's
costs were met should she lose in the Lords. However, as such security would
not be required if she could gain the status of a pauper, she petitioned the House of Lords,
saying, "I am very poor and am not worth in all the world the sum of five
pounds, my wearing apparel and the subject matter of the said appeal...".
A certificate of poverty signed by a minister and two elders of her church was
attached to the petition, and the House of Lords agreed to grant her pauper
status.
Nine
months after her petition was granted, Lords Buckmaster, Atkin, Tomlin, Thankerton and MacMillan heard counsels' arguments. Donoghue's counsel - George Morton KC and W. R. Milligan (later a Lord
Advocate) - argued
that a manufacturer who puts a product intended for human consumption onto the
market in a form that precludes examination before its use is liable for any
damage caused if he fails to exercise reasonable care to ensure it is fit for
human consumption. Stevenson's counsel - W. G. Normand KC (then Solicitor General for Scotland and later a Law Lord), J.L.
Clyde (later Lord
Advocate and then Lord President of the Court of Session), and T. Elder Jones - argued that
there was no authority for such a principle of law.
Judgment.
The
leading judgment was delivered on 26 May 1932 by Lord Atkin. The most famous section was his
explanation of the "neighbor" principle, which was derived from the Christian principle of "loving your
neighbor" (found, for example, in James 2:8[4] and the Parable of the Good Samaritan):
There must
be, and is, some general conception of relations giving rise to a duty of care,
of which the particular cases found in the books are but instances. ...The rule
that you are to love your neighbor becomes in law you must not injure your
neighbor; and the lawyer's question: Who is my neighbor? 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 neighbor. Who, then, in
law, is my neighbor? 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 that are called in question . . . a manufacturer of products,
which he sells in such a form as to show that he intends them to reach the
ultimate consumer in the form in which they left him with no reasonable
possibility of intermediate examination, and with knowledge that the absence of
reasonable care in the preparation or putting up of products will result in an
injury to the consumer's life or property, owes a duty to the consumer to take
that reasonable care.
"A
man has a Duty of Care to conduct himself in such a way as to avoid harm to
others, where a reasonable man would have seen that such harm could
occur".
Lords
Thankerton and MacMillan supported Lord Atkin's opinion, with Lords Buckmaster
and Tomlin dissenting. Buckmaster said it was impossible to accept such a wide
proposition and (anticipating later "floodgates" arguments) that it
was difficult to see how trade could be carried on if Lord Atkin's principle
was law. Buckmaster also opined, as did Lord Tomlin, that if such a duty of
care existed it must cover the construction of every article, not just food:
"If one step, why not fifty?" Tomlin referred to the Versailles train
crash in 1842
caused by a defective axle, noting that, if Lord Atkin's principle were to be
law, every injured party would be permitted to sue the axle manufacturer in
such a case.
The case
was returned to Scotland for the Court of Session to apply the ruling to the
facts of the case. In the event, David Stevenson died within a year of the
decision and his executors settled out of court, for less than the original
claim of £500.
Significance.
As Justice Allen
Linden has
pointed out, Donoghue is an extension of a principle articulated by Benjamin Cardozo in an earlier case in the United States, MacPherson v. Buick Motor Co., which the judges referred to in Donoghue.
MacPherson pioneered the tortious principle of a general duty
of care, the
starting point for any action in negligence, though the principles were
expressed within the context of product liability only.
Donoghue is perhaps best known for the
speech of Lord Atkin and his "neighbor" or
"neighborhood" principle, where he invoked Luke 10 to law so that, where an
established duty of care does not already exist, a person will owe a duty of
care not to injure those whom it can be reasonably foreseen would be affected
by his acts or omissions. The effect of this case was not only to provide
people in the United Kingdom with a remedy against suppliers of consumer products even where the complainant had no privity
of contract
with those individual or company tortfeasors, but to allow such people to bring negligence claims in any
circumstance where the conditions for establishing a duty of care were met.
In 1990,
the House of Lords revised Lord Atkin's "neighbor" principle to
encompass public policy concerns articulated in Caparo
Industries Plc. v Dickman ([1990] 1 All ER 568). The three-stage Caparo test
for establishing a duty of care requires (i) foreseeability of damage, (ii) a
relationship characterized by the law as one of proximity or neighborhood and
(iii) that the situation should be one in which the court considers it would be
fair, just and reasonable that the law should impose a duty of given scope on
one party for the benefit of the other. In other jurisdictions, such as New
Zealand, there is
now a two-part test for novel fact situations, where the establishment of a
duty must be balanced against applicable policy matters.
Because of
the significance of the case, in 1996 former Supreme Court of British Columbia Justice Martin Taylor, Vancouver lawyer David Hay and filmmaker
Michael Doherty produced an educational documentary of the case. Besides
recreating the events leading up to the case and "interviews" with
actors playing the significant participants in the case, the production includes
a 1995 interview with Lord Denning—then aged 96.[5] This was one of the last interviews with Lord Denning, who
died three years later. The film has been exhibited worldwide.[6]
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