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Full case name
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M’Alister (or Donoghue) (Pauper) v
Stevenson[Note 1]
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Decided
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26 May 1932
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Citation(s)
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Transcript(s)
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Case
history
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Prior action(s)
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Outer
House of the Court of Session ([1930]
SN 117)[3]
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Appealed from
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Inner
House of the Court of Session ([1930]
SN 138)[3]
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Case
opinions
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Judges sitting
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Donoghue v Stevenson [1932] UKHL 100 is a
foundational case in Scots delict law and English
tort law by the House of Lords. It created the modern concept of negligence,
by setting out general principles whereby one person would owe another person a
duty
of care.
Also known as
the "Paisley snail"[5][6]
or "snail in the bottle" case, the facts involved Mrs Donoghue
drinking a bottle of ginger beer in a café in Paisley, Renfrewshire.
A dead snail was in the bottle. She fell ill, and she sued the ginger beer
manufacturer, Mr Stevenson. The House of Lords held that the manufacturer owed
a duty of care to her, which was breached, because it was reasonably
foreseeable that failure to ensure the product's safety would lead to harm of
consumers.
Contents
- 1 Facts
- 2 Condescendences
- 3 Legal background
- 4 Court of Session
- 5 House of Lords
- 6 Subsequent events
- 7 Neighbour principle
- 8 Existence of the snail
- 9 Significance
- 10 Commemoration
- 11 Notes
- 12 References
- 13 External links
Facts
May McAllister
was born on 4 July 1898 in the Glasgow parish of Cambuslang; she was the daughter of James and Mary Jane
McAllister. McAllister married Henry Donoghue on 19 February 1916 and had four
children with him; however, all but one, Henry, were born prematurely
and lived no longer than two weeks. The couple separated in 1928 and
McAllister, now Donoghue, moved into her brother's flat at 49 Kent Street,
Glasgow.[7]:1,3–4
Gilmour Street station, the station Donoghue
arrived at in Paisley[7]:2
On the evening of
Sunday 26 August 1928, during the Glasgow Trades Holiday, Donoghue took a train to Paisley, Renfrewshire, located seven miles west of
Glasgow; the journey would have taken around thirty minutes.[3][7]:1
In Paisley, she went to the Wellmeadow Café. At approximately 20:50 a friend,[Note 2]
who may have travelled with Donoghue, was with her and ordered a pear and ice for herself and a Scotsman
ice cream float, a mix of ice cream and ginger beer,
for Donoghue.[7]:4
The owner of the café, Francis Minghella,[Note 3]
brought over a tumbler of ice cream and poured ginger beer on it from a brown
and opaque bottle labelled "D. Stevenson, Glen
Lane, Paisley".[Note 4][3]
Donoghue drank some of the ice cream float. However, when Donoghue's friend
poured the remaining ginger beer into the tumbler, a decomposed
snail also floated
out of the bottle. Donoghue claimed that she felt ill from this sight,
complaining of abdominal pain.[3][9]
According to her later statements of facts (condescendences),
she was required to consult a doctor on 29 August and was admitted to Glasgow Royal Infirmary for "emergency
treatment" on 16 September.[7]:23[10]:7
She was subsequently diagnosed with severe gastroenteritis
and shock.[3][8]:566
The ginger beer
had been manufactured by David Stevenson, who ran a company named after his
identically-named father and produced both ginger beer and lemonade at 11
and 12 Glen Lane, Paisley, less than a mile away from the Wellmeadow Café.[7]:6–7
The contact details for the ginger beer manufacturer were on the bottle label
and recorded by Donoghue's friend.[7]:11
Donoghue
subsequently contacted and instructed Walter Leechman, a local solicitor and
city councillor whose firm had acted (albeit unsuccessfully) for the claimants
in a factually similar case, Mullen v AG Barr
& Co Ltd,[11]
less than three weeks earlier [3]
(see also George v Skivington).
Despite the
ruling in Mullen, Leechman issued a writ on Donoghue's
behalf against Stevenson on 9 April 1929.[3][12]:31
The writ claimed £500 in damages, the same
amount a claimant in Mullen had recovered at first
instance, and £50 in costs.[7]:22[10]:4
The total amount Donoghue attempted to recover would be equivalent to at least
£27,000 in 2012.[7]:22[13]
Condescendences
The full
allegations made by Donoghue were presented in five condescendences, which
claimed that Stevenson had a duty of care to Donoghue to ensure that snails did not
get into his bottles of ginger beer, but that he had breached this duty by
failing to provide a system to clean bottles effectively, a system that would
usually be used in the business and was necessary given that the ginger beer
was intended for human consumption.[7]:22–23
The ineffectiveness of the cleaning system was alleged to result from the
bottles being left in places "to which it was obvious that snails had
freedom of access ... and in which, indeed, snails and the slimy trails of
snails were frequently found",[10]:6
an allegation described by Matthew Chapman as "somewhat gratuitous".[7]:7
This breach of duty was alleged to have caused
Donoghue's subsequent
illness.[10]:7
Stevenson
responded to the condescendences by denying that any of his bottles of ginger
beer had contained snails and "that the alleged injuries are grossly
exaggerated ... any illness suffered by the [claimant] was due to the bad
condition of her own health at the time".[10]:6–7
In response to the writ, Stevenson pled (1) that the claim had no legal basis,
(2) that the facts could not be substantiated, (3) that he had not caused
Donoghue any injury and (4) that the claimed amount was excessive.[7]:22–23[10]:8
Legal background
Injuries
resulting from defective products were normally claimed on the basis of a contract
of sale between the seller and the consumer.[3]
However, Donoghue had no contractual relationship with Minghella as she had not
purchased the ginger beer; while her friend did have a contract through having
placed the order, she had not suffered any injury. Moreover, neither had a
contract with Stevenson, the manufacturer.[9]
Donoghue was therefore required to claim damages for negligence.[3]
Ansell v Waterhouse[14] had
established in 1817 that legal liability could arise for an act or omission
"contrary to the duty which the law casts on him in the particular case"
(i.e. negligence).[15]:105–106
However, there was no general duty of care and therefore no general liability
for negligent behaviour. Only limited exceptions to this rule were made in
which duties were found in specific circumstances, most of which had a
contractual background.[4]:643[15]:109[16]:86
The most difficult
precedent
for Donoghue was Mullen v AG Barr & Co Ltd, a recent Court of
Session case. In Mullen, two children, John and Francis Mullen, and
Jeanie Oribine had separately found dead mice in their bottles
of ginger beer, manufactured by AG Barr & Co Ltd, and claimed to have become
ill through drinking the tainted liquid. In separate hearings in Glasgow
and Greenock
Sheriff
Court respectively, Orbine was successful in claiming compensation while
the Mullens were not. The losing parties of both cases appealed to the Court of
Session.[7]:16–17
At the Court of
Session, the claimants argued that although there was no direct evidence that
the manufacturer had been negligent in preparing the ginger beer, negligence
could be presumed (res ipsa loquitur) from the mere presence of dead
mice in ginger beer bottles. However, the court ruled against the claimants.[7]:16–17
The majority held that on a factual basis AG Barr & Co Ltd had rebutted a
presumption of negligence and that on a legal basis product manufacturers only
owed a duty of care to the ultimate consumers if there was a contractual
relationship between the parties; if the dangerousness of the product was
intentionally withheld from the consumer (in which case there might also be a
claim for fraud);
or if there was no warning of the intrinsic dangerousness of certain products,
such as explosives.[3][7]:17–18
Only Lord Hunter dissented, finding that negligence to be inferred and
that the fact that the bottle contents could not be examined (because of the
dark glass) gave rise to a specific duty of care that would allow consumers to
claim for damages.[7]:18–19
However, neither
of the circumstances in which negligence could be found in product
liability cases applied to Donoghue: ginger beer is not intrinsically
dangerous, nor did Stevenson intentionally misrepresent
the threat it posed. Nevertheless, Donoghue's counsel argued
that manufacturers also owed a duty of care to their ultimate consumers if it
was not possible to examine the goods before they were used, an exception that
would apply to Donoghue.[9]
Court of Session
Parliament House in Edinburgh, where
the Court of Session sits.
The first interlocutory
action was heard on the Court of Session on 21 May 1929 in front of Lord Moncrieff. After an adjournment,
Minghella was added as a defender on 5 June; however, the claim against him was
abandoned on 19 November, likely due to his lack of contractual relationship
with Donoghue (Donoghue's friend had purchased the ginger beer) and his
inability to examine the contents of the dark glass bottle. On 12 December,
Minghella and Stevenson were awarded a combined costs claim of £108 6s 3d against
Donoghue for this abandoned strand of litigation. However, it was recorded on
20 December that Donoghue did not pay the costs awarded to Minghella.[7]:23–25
Outer House
The case was
heard by Lord Moncrieff in the Outer House
on 27 June 1930. In his judgment, delivered on the same day, he held that, as a
general principle, there should be liability for negligent preparation of food.[7]:25–26
I am
unhesitatingly of opinion that those who deal with the production of food or
produce fluids for beverage purposes ought not to be heard to plead ignorance
of the active danger which will be associated with their products, as a
consequence of any imperfect observation of cleanliness at any stage in the
course of the process of manufacture ... Tainted food when offered for sale is,
in my opinion, amongst the most subtly potent of 'dangerous goods', and to deal
in or prepare such food is highly relevant to infer a duty. I fail to see why
the fact that the danger has been introduced by an act of negligence and does
not advertise itself, should release the negligent manufacturer from a duty, or
afford him a supplementary defence.[17]:4,6
English
case law that required that liability for injuries resulting from goods
that were not intrinsically dangerous to have a contractual basis (breach of warranty) was dismissed by Lord
Moncrieff (citing John Salmond) for the narrowness of the
approach and because there was no decision that incorporated it into Scots law.[7]:26–27[17]:15–16
Finally, Mullen, despite its factual similarity, was discounted by a
"very close reading of the precedent opinions".[7]:27–29[17]:17–19
Inner House
Stevenson
appealed the case to the Inner House, where it was heard by the same four judges
who had found against Mullen: Lord Alness (the Lord Justice-Clerk), Lord Ormidale, Lord Hunter and Lord Anderson.[7]:29
In their judgment, given on 13 November 1930,[17]:21
they all referred back to and supported their statements in Mullen, Lord
Alness observing that "the only difference — and, so far as I can see, it
is not a material difference — between that case [Mullen] and this case
[Donoghue] is that there we were dealing with a mouse in a ginger-beer
bottle, and here we are dealing with a snail in a ginger-beer bottle".[17]:22
Thus, Lord Alness, Lord Ormidale and Lord Anderson all allowed the appeal while
Lord Hunter dissented.[7]:29–30
House of Lords
Donoghue filed
a petition to appeal to the House of Lords on 25
February 1931.[7]:32
She also sought (and subsequently received) permission to pursue the case in
forma pauperis (with the status of a pauper) – a status
she had not, for unknown reasons, sought at the Court of Session[7]:33–34
– providing an affidavit declaring that "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 only excepted...".[3]
This claim was supported by the minister and two elders of her church and meant
that Donoghue was not required to provide security for costs in case she lost the appeal.[7]:34
(Her legal team had agreed to work pro bono.[3])
The Palace of Westminster, where five Lords of Appeal in Ordinary heard
Donoghue's appeal
The petition
was granted and the appeal was heard 10 and 11 December 1931 by Lord Buckmaster, Lord Atkin, Lord Tomlin, Lord Thankerton and Lord Macmillan. A supplementary
statement from Donoghue's appeal papers indicates that her counsel, George
Morton KC and William Milligan (later the
Lord
Advocate and a Privy Counsellor), argued that
"where anyone performs an operation, such as the manufacture of an
article, a relationship of duty independent of contract may in certain
circumstance arise, the extent of such duty in every case depending on the
particular circumstances of the case".[10]:16
Stevenson, they argued, owed a duty to take reasonable
care in the manufacture of his ginger beer because the sealed bottles were
opaque, and therefore could not be examined, and because the ginger beer was
intended for human consumption.[7]:35–37[10]:16–17
Stevenson's
counsel, Wilfrid Normand KC (Solicitor General for Scotland and
later a Law
Lord) and James Clyde (later the Lord President of the Court of
Session and a Privy Counsellor), responded that "it is now firmly
established both in English and Scottish law that in the ordinary case (which
this is) the supplier or manufacturer of an article is under no duty to anyone
with whom he is not in contractual relation".[18]:7
They denied that ginger beer was intrinsically dangerous or that Stevenson knew
that the product was dangerous (the two established exceptions for finding a
duty of care)[18]:7–8
and argued that the third exception that Donoghue was attempting to introduce
had no basis in precedent.[7]:37–38[18]:8–11
The House of
Lords gave judgment on 26 May 1932 after an unusually long delay of over five
months since the hearing.[Note 5][19]:236–237
The court held by a majority of 3–2 that Donoghue's case disclosed a cause of
action.[8]:562
Majority
The majority
consisted of Lord Atkin, Lord Thankerton and Lord Macmillan.[8]:562
Lord Atkin
Lord Atkin
commented that he did "not think a more important problem has occupied
your Lordships in your judicial capacity, important both because of its bearing
on public health and because of the practical test which it applies to the
system under which it arises".[12]:43
He agreed with counsel, based on his own research, that Scots and English law
were identical in requiring a duty of care for negligence to be found and
explained his general neighbour principle on when that duty of care arises.[7]:40–41
"At
present I content myself with pointing out that in English law 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 liability
for negligence, whether you style it such or treat it as in other systems as a
species of "culpa," is no doubt based upon a general public sentiment
of moral wrongdoing for which the offender must pay. But acts or omissions
which any moral code would censure cannot, in a practical world, be treated so
as to give a right to every person injured by them to demand relief. In this
way rules of law arise which limit the range of complainants and the extent of
their remedy. The rule that you are to love your neighbour becomes in law, you
must not injure your neighbour; and 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."[12]:44
He supported
this broad test by citing Heaven
v Pender[20]
and rejected the cases in favour a narrower interpretation of a duty of care
with the example of negligently poisoned food, for which there had been no
claim against the manufacturer. "If this were the result of the
authorities, I should consider the result a grave defect in the law, and so
contrary to principle that I should hesitate long before following any decision
to that effect which had not the authority of this House".[7]:41[12]:44–46
He went on to suggest that there should be a duty of care owed by all
manufacturers of "articles of common household use", listing medicine, soap and cleaning
products as examples. "I do not think so ill of our jurisprudence as
to suppose that its principles are so remote from the ordinary needs of
civilized society and the ordinary claims it makes upon its members as to deny
a legal remedy where there is so obviously a social wrong."[7]:42[12]:46
Lord Atkin then
rejected cases that did not support his approach and cited Benjamin N. Cardozo in MacPherson v. Buick Motor Co.[21]
in favour of his view.[7]:42[12]:46–56
He concluded:
"If your
Lordships accept the view that this pleading discloses a relevant cause of
action, you will be affirming the proposition that by Scots and English law
alike 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 the
knowledge that the absence of reasonable care in the preparation or putting up
of the products will result in an injury to the consumer's life or property,
owes a duty to the consumer to take that reasonable care."
It is a
proposition which I venture to say no one in Scotland or England who was not a
lawyer would for one moment doubt. It will be an advantage to make it clear
that the law in this matter, as in most others, is in accordance with sound
common sense. I think that this appeal should be allowed.[12]:57
Lord Thankerton
Lord Thankerton
ruled that Donoghue had no contract with Stevenson, nor that her case was
covered by one of the scenarios in which a duty of care had previously been
found. However, he held that where goods could not be examined or interfered
with, the manufacturer had "of his own accord, brought himself into direct
relationship with the consumer, with the result that the consumer [was]
entitled to rely upon the exercise of diligence by the manufacturer to secure
that the article shall not be harmful to the consumer", an exception to
the general nonexistence of a duty of care that applied to Donoghue.[7]:51[12]:59–60
Lord Thankerton
further argued that it was impossible "to catalogue finally, amid the
ever-varying types of human relationships, those relationships in which a duty
to exercise care arises apart from contract" and commented that he
"should be sorry to think that the meticulous care of the manufacturer to
exclude interference or inspection by the [seller] should relieve the [seller]
of any responsibility to the consumer without any corresponding assumption of
duty by the manufacturer".[7]:51–52[12]:60
Lord Macmillan
Lord Macmillan
examined previous cases[12]:65–70
and held that "the law takes no cognizance of carelessness in the
abstract. It concerns itself with carelessness only where there is a duty to
take care and where failure in that duty has caused damage".[7]:46–47[12]:70
Whether there was a duty and breach would be examined by the standard of the reasonable
person. These circumstances "must adjust and adapt itself to the changing
circumstances of life. The categories of negligence are never closed".[7]:47[12]:70
Lord Macmillan held that, according to this standard, Stevenson had
demonstrated carelessness by leaving bottles where snails could access them;
that he owed Donoghue a duty of care as commercial manufacturer of food and
drink; and that Donoghue's injury was reasonably foreseeable. He therefore
found that Donoghue had a cause of action and commented that he was "happy
to think that in ... relation to the practical problem of everyday life which
this appeal presents ... the principles of [English and Scots law] are
sufficiently consonant with justice and common sense to admit of the claim
which the appellant seeks to establish."[7]:47–48[12]:71–72
Minority
The minority
consisted of Lord Buckmaster and Lord Tomlin, .[8]:562
Lord Buckmaster
Lord Buckmaster
focused on precedent, and commenced by warning that "although [common law]
principles are capable of application to meet new conditions not contemplated
when the law was laid down, these principles cannot be changed nor can
additions be made to them because any particular meritorious case seems outside
their ambit".[12]:35
He held that there were only the two recognised exceptions to the finding of a
duty of care and supported Baron Alderson's judgment in Winterbottom v Wright that "the only
safe rule is to confine the right to recover to those who enter into the
contract; if we go one step beyond that, there is no reason why we should not
go fifty".[7]:43–44[12]:36
Lord Buckmaster
dismissed George v Skivington,[22]
opining that "few cases can have lived so dangerously and lived so
long",[12]:37
and rejected Heaven as a tabula in naufragio (Latin: literally
"plank in a shipwreck") that was unrelated to Donoghue's case; both
"should be buried so securely that their perturbed spirits shall no longer
vex the law".[12]:42
He concluded that there was no common law support for Donoghue's claim and supported
Lord Anderson's judgment in Mullen.[7]:44–46
"In a case
like the present, where the goods of the defenders are widely distributed
throughout Scotland, it would seem little short of outrageous to make them
responsible to members of the public for the condition of the contents of every
bottle which issues from their works. It is obvious that, if such
responsibility attached to the defenders, they might be called on to meet
claims of damages which they could not possibly investigate or insure."[12]:43
Lord Tomlin
The 1842 Versailles rail accident Lord Tomlin
referred to, in which over 70 people died when a train derailed; the cause was
a broken axle.[23]:507
Lord Tomlin
concurred with Lord Buckmaster. While he agreed with Lord Atkin that the duty
of care a manufacturer owed to its consumers was the same regardless of the
product they produced, he held that no general duty of care existed and that
the fact the product was in a sealed container made no difference to the
finding of a such duty.[7]:50[12]:57–58
He further endorsed concerns that Lord Atkin's broader test of liability would
have allowed everyone injured in the Versailles rail accident to be able to
claim compensation from the manufacturer of the axle that broke and
caused the crash.[3][12]:57
Ratio decidendi
The suggested ratio
decidendi (Latin: the reason for the decision) of the case has varied
from the narrowest, jokingly suggested by Julius
Stone, that there was merely a duty "not to sell opaque bottles of
beverage containing dead snails to Scots widows",[24]
to the widest, suggested by Lord Normand, who had been one of Stevenson's
counsel, that Lord Atkin's neighbour principle was the ratio.[25]:756–757[1]:7
Although the
neighbour principle was a critical part of Lord Atkin's reasoning, and was
therefore part of the ratio of his judgment, neither of the other judges
in the majority expressly endorsed the principle.[1]:7–8
Robert Heuston therefore
suggests that case only supports the claims there can be duties in tort even if there is a
contract; that manufacturers owe a duty of care to the ultimate consumers of
their goods; and possibly that negligence is a separate tort. "No amount
of posthumous citation can of itself transfer with retrospective effect a
proposition from the status of obiter dictum [passing comments] to that
of ratio decidendi."[1]:9
Subsequent events
The legal basis
for the claim now settled, the case was returned to the Court of Session for a
hearing scheduled for January 1933. In the hearing, Donoghue would have to
prove the factual elements of the case that she had claimed, including that
there had been a snail in the ginger beer as a result of Stevenson's negligence
and that this snail had caused her illness.[7]:170
However, Stevenson died on 12 November 1932, aged 69.[7]:7
One year later, Stevenson's executors were listed as third-party defenders to the case.
However, the claim was settled out of court in December 1934[15]:115
for, according to Leechman's son, £200 of the £500 originally claimed.[Note 6][3][7]:171–173
Gartloch Mental
Hospital, where Donoghue died in 1958[7]:6
Donoghue had
moved to 101 Maitland Street with her son, Henry, around February 1931; he moved
out when he married in 1937, after which she moved to 156 Jamieson Street. She
continued to work as a shop assistant. In February 1945, Donoghue divorced her
husband, from whom she had separated in 1928 and who now had two sons by
another woman, and reverted to using her maiden name.[7]:5–6[26]:7
She died of a heart attack on 19 March 1958, at the age of 59, in Gartloch Mental Hospital, where she had
probably been staying for a short period of time as a result of mental
illness.[26]:8
Although she is listed on her death
certificate as May McAllister, she was by then commonly known as Mabel
Hannah, having adopted her mother's maiden name and the first name of her
daughter, who had died when she was eleven days old.[2][26]:5,8[27]:2
Stevenson's
business was taken over by his widow, Mary, and his son, the third David
Stevenson in the family. It became a limited
company (David Stevenson (Beers and Minerals) Limited) on 1 July 1950; the
family sold their shares
in 1956. The Glen Lane manufacturing plant was demolished
in the 1960s.[7]:7
The Wellmeadow
Café, where the snail had been found, closed around 1931; the building was
demolished in 1959. Minghella, its owner, subsequently became a labourer; he
died on 20 March 1970.[7]:2–3
Neighbour principle
A stained glass window illustrating the Parable of the Good Samaritan used to
answer the lawyer's question
Lord Atkin's
neighbour principle, that people must take reasonable care not to injure others
who could foreseeably be affected by their action or inaction, was a response
to a question a lawyer posed to Jesus: it is required that someone wanting to inherit eternal life must love their neighbour
as themselves, but who is a person's neighbour? Jesus responded with the Parable of the Good Samaritan.[28]:212–213
"And Jesus
answering said, A certain man went down from Jerusalem to Jericho, and fell
among thieves, which stripped him of his raiment, and wounded him, and
departed, leaving him half dead. And by chance there came down a certain priest
that way: and when he saw him, he passed by on the other side. And likewise a
Levite, when he was at the place, came and looked on him, and passed by on the
other side. But a certain Samaritan, as he journeyed, came where he was: and
when he saw him, he had compassion on him, and went to him, and bound up his
wounds, pouring in oil and wine, and set him on his own beast, and brought him
to an inn, and took care of him. And on the morrow when he departed, he took
out two pence, and gave them to the host, and said unto him, Take care of him;
and whatsoever thou spendest more, when I come again, I will repay thee."
"Which now
of these three, thinkest thou, was neighbour unto him that fell among the
thieves? And he [the lawyer] said, He that shewed mercy on him. Then said Jesus
unto him, Go, and do thou likewise."[29]
The neighbour
principle itself was first mentioned in relation to law by Francis Buller[Note 7]
in An Introduction to the Law relative to Trials at Nisi Prius, which
was printed in 1768.[28]:212
"Of
Injuries arising from Negligence or Folly. Every man ought to take
reasonable care that he does not injure his neighbour; therefore, wherever a
man receives any hurt through the default of another, though the same were not
wilful, yet if it be occasioned by negligence or folly, the law gives him an
action to recover damages for the injury so sustained."[30]
In precedent,
there was an obiter
suggestion by Lord Esher in Heaven v Pender
that "whenever one person is by circumstances placed in such a position
with regard to another that every one of ordinary sense ... would at once
recognise that if he did not use ordinary care and skill in his own conduct ...
he would cause danger of injury to the person or property of the other, a duty
arises to use ordinary care and skill to avoid such danger".[20]:509
However, this approach had been rejected by the two other judges in the Court of Appeal.[15]:107–108
Lord Esher's attempt to reintroduce the principle in further obiter remarks in Le Lievre v Gould,[31]
in which he stated that Heaven only established that there may be a duty
even if there is no contract and that this duty arose if there was proximity
between the parties, was also unsuccessful.[15]:108–109[31]:497
Two cases from
the New York Court of Appeals, Thomas v. Winchester[32]
and MacPherson v. Buick Motor Co., were also influential in the
formation of the neighbour principle.[7]:102
In Thomas, Thomas had purchased and administered belladonna
to his wife after it was mislabelled by Winchester, the dealer, although not
the seller, of the treatment as extract of dandelion. Thomas' wife became
seriously ill as a consequence and Thomas successfully claimed in negligence;
Winchester's behaviour had created an imminent danger which justified a finding
of a duty of care.[7]:102–103
This principle
was relied on in MacPherson, in which a car wheel collapsed, injuring
MacPherson. The manufacturer was sued in negligence and the court held that
manufacturers could owe their ultimate consumers a duty of care in limited
circumstances.[7]:104–106[33]:414
"If the
nature of a thing is such that it is reasonably certain to place life and limb
in peril when negligently made, it is then a thing of danger. Its nature gives
warning of the consequences to be expected. If to the element of danger there
is added knowledge that the thing will be used by persons other than the
purchaser, and used without new tests, then, irrespective of contract, the
manufacturer of this thing of danger is under a duty to make it carefully ...
If he is negligent, where danger is to be foreseen, a liability will
follow."[21]:389–390
Lord Atkin used
the concept of legal neighbours in an address to the University of Birmingham's Holdsworth
Club in 9 May 1930, in which he commented that "the man who swears
unto his neighbour and disappointeth him not is a person commended by the law
of morality, and the Law enforces that by an action for breach of
contract".[7]:111
In 28 October 1931, just over one month before he heard Donoghue, Lord
Atkin also used the principle in relation to defamation,
perjury, fraud and negligence
in a lecture at King's College London.[28]:211
"[A man]
is not to injure his neighbour by acts of negligence; and that certainly covers
a very large field of the law. I doubt whether the whole law of tort could not
be comprised in the golden maxim to do unto your neighbour as you would that he
should do unto you."[Note 8][35]:30
Existence of the snail
The existence
of the Paisley Snail has been doubted.
In a speech
scheduled to be delivered in May 1942 (although delayed by the Second
World War), Lord Justice MacKinnon jokingly suggested
that it had been proven that Donoghue did not find a snail in the bottle.
"To be
quite candid, I detest that snail ... I think that [Lord Normand] did not
reveal to you that when the law had been settled by the House of Lords, the
case went back to Edinburgh to be tried on the facts. And at that trial it was
found that there never was a snail in the bottle at all. That intruding
gastropod was as much a legal fiction as the Casual
Ejector."[7]:170–171
This
allegation, suggests Chapman, established itself as a legal myth[7]:172;
it was repeated by Lord Justice Jenkins in a 1954 Court
of Appeal practice note.[36]:1483
However, both MacKinnon and Jenkins were unaware that the trial had not gone
ahead because of Stevenson's death – the events following the case were only
published in response to the practice note.[37]
As Donoghue's factual claims were therefore never tested in court, it is
generally held that what happened in the Wellmeadow Café is not proven and will
not be known for certain.[1]:2[3][4]:643[7]:172
Significance
The case was
reviewed by Frederick Pollock in a 1933
edition of Law Quarterly Review, in which he commented
that there was no doubt as to the importance of the decision and that "a
notable step has been made in enlarging and clarifying our conception of a
citizen's duty before the law ... not to turn dangerous or noxious things loose
on the world".[38]:22
However, Donoghue otherwise attracted little attention; it was
understood only as precedent that manufacturers were liable for injuries their
goods cause their ultimate consumers rather than that there was a general
principle of liability in negligence.[39]:61
The majority of the Court of Appeal (Lord Justice Cohen and Lord Justice Asquith)
therefore held in Candler v Crane, Christmas & Co[40]
that Donoghue had not affected tortious liability for negligent misstatement.[39]:61
This narrow understanding of Donoghue changed with the cases of Hedley Byrne v Heller[41]
in 1963 and Home Office v Dorset Yacht Co[42]
in 1970.[7]:116–117
Hedley Byrne v Heller
In Hedley
Byrne, Hedley Byrne, advertising agents, had been indirectly informed
by Heller & Partners Ltd, the bankers of Easipower, a company wishing to
place a large order, that Easipower was a "respectably constituted
company, considered good for its ordinary business engagements".[39]:62
Hedley Byrne relied on this information and subsequently lost over £17,000 when
Easipower went into liquidation. The House of Lords held that Heller owed
Hedley Byrne a duty of care as they used a special skill for Hedley Byrne and
because this skill was relied upon by the company (although the negligence
claim was unsuccessful due to a disclaimer of responsibility included in
Heller's letter).[7]:127–128
The application
of Donoghue was discussed and, while all the judges agreed that it would
be taking Donoghue too far to immediately apply it to Hedley Byrne,
Lord Devlin suggested that "what
Lord Atkin did was to use his general conception [the neighbour principle] to
open up a category of cases giving rise to a special duty" and that the
case could incrementally expand the duty of care.[7]:128–129[41]:524–525
Home Office v Dorset Yacht Co
Brownsea
Island, where some young offenders were taken in an apparent attempt
to replicate Brownsea Island Scout camp.[7]:129
Home Office was the
culmination of a movement from duties of care being found in specific
circumstances to using the neighbour principle as a general duty of care.[43]:150
In Home Office, the Home Office had taken a group of boys from a borstal to Brownsea
Island in Poole Harbour, where seven had escaped overnight and
collided one yacht
with another belonging to Dorset Yacht Company.[42]:1025
The company sued the Home Office for negligence and a preliminary issue,
whether the Home Office owed a duty of care to Dorset Yacht Company, was found
in the company's favour by both the High Court and the Court of Appeal. The case
was appealed to the House of Lords, who held by a majority that the Home Office
did owe a duty of care.[7]:129–130
Lord Reid, giving the leading judgment,
rejected the argument that there was no precedent for the claim, instead
acknowledging "a steady trend towards regarding the law of negligence as
depending on principle so that, when a new point emerges, one should ask not
whether it is covered by authority but whether recognised principles [from Donoghue]
apply to it".[42]:1026–1027
Donoghue, he argued, should therefore be applied in almost all
circumstances.[7]:132–133
"[Donoghue]
may be regarded as a milestone, and the well-known passage in Lord Atkin's
speech should I think be regarded as a statement of principle. It is not to be
treated as if it were a statutory definition. It will require qualification in
new circumstances. But I think that the time has come when we can and should
say that it ought to apply unless there is some justification or valid
explanation for its exclusion."[42]:1027
In the sole
dissenting judgment, Viscount Dilhorne
held that the neighbour principle could not have been intended to be applied in
all circumstances and that it could only be used to determine to whom a duty of
care is owed rather than if one exists.[42]:1043–1042
Judges, he opined, "are concerned not with what the law should be but with
what it is. The absence of authority shows that no such duty [to Dorset Yacht
Company] now exists. If there should be one, that is, in my view, a matter for
the legislature and not for the courts".[42]:1045
Chapman comments "that this conclusion appeared ... distinctly quaint,
old-fashioned and even untenable in the light of [Donoghue] shows how
far the law had moved in the four decades which separated the two House of Lords
decisions".[7]:134
Caparo Industries plc v Dickman
In 1990, the
House of Lords revised Lord Atkin's "neighbour" speech of Lord Atkins
principle to encompass public policy concerns articulated in Caparo Industries plc v Dickman.[44]
The three-stage Caparo test for establishing a duty of care requires (i)
foreseeability of damage, (ii) a relationship characterised by the law as one
of proximity or neighbourhood 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.
Commemoration
The original
memorial to Donoghue v Stevenson on the site of the former Wellmeadow
Café[45]
In 1990, a pilgrimage
to Paisley was organised by the Canadian Bar Association, the Faculty of Advocates and the Law Society of Scotland. This included a conference in Paisley Town Hall entitled
"The Pilgrimage to Paisley: a Salute to Donoghue v Stevenson".[7]:173–174
A memorial
commemorating the case was unveiled at the conference on the site of the former
Wellmeadow Café[3][45]
and a bench was added in 1992; both were replaced in 2012.[46]
In 1996, Justice Martin Taylor
produced a documentary on the case: The Paisley Snail.[47]
Notes
1.
^ Scots law
practice was to include both the married and maiden names of female litigants in
the form "maiden name (or married name)".[1]:1
The maiden name for Donoghue, however, has been listed as both
"McAlister" and "M'Alister" in the law reports,
even though she was born May McAllister.[2]
"(Pauper)" indicates that Donoghue would have been unable to
pay Stevenson's costs had she lost, but was granted an exemption from providing
the required security.[3]
2.
^ Although the
friend was not named and has not been identified, she is referred to as
"she" in the House of Lords judgment.[3][8]:605
It has been suggested that this information was provided by counsel during
the hearing.[7]:5
3.
^ Minghella's
surname was incorrectly spelt as "Minchella" in law reports of Donoghue
v Stevenson.[7]:2
4.
^ Ginger beer
bottles were often opaque to hide the unappealing cloudiness of the
drink they contained.[7]:8
Furthermore, although the bottle was labelled as Stevenson's, McByde suggests
that it is possible that it did not originally belong to him. Bottles were
often reused, and in the process occasionally returned them to the incorrect
manufacturer. Moreover, Stevenson initially claimed that he did not issue
bottles matching the description provided by Donoghue.[7]:9–10
5.
^ Judgment was
originally scheduled for 14 April, but was delayed for unknown reasons
(although Alan
Roger suggests that the delay gave Lord Macmillan time to rewrite his
speech).[19]:247
6.
^ It has also
been reported that the case was settled for £100 (by William McBryde on the basis
of information from Lord Macmillan, which he probably heard from Lord Normand,
one of Stevenson's counsel) and £500 (by Thomas Donoghue, May Donoghue's
grandson; however, this amount is likely to be an exaggeration as it was the
amount Donoghue originally claimed).[7]:173[26]:9
7.
^ Although
authorship of An Introduction to the Law relative to Trials at Nisi Prius
has also been attributed to Lord Bathurst.[7]:87
8.
^ The original
version of the Golden Maxim requires that "thou shalt not
avenge, nor bear any grudge against the children of thy people, but thou shalt
love thy neighbour as thyself."[28]:212[34]
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