Donoghue V. Stevenson

Donoghue v. Stevenson

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Donoghue (or McAlister) v. Stevenson ([[Case citation#England and Wales|[1932] A.C. 532, 1932 S.C. (H.L.) 31, [1932] All ER Rep 1]]) is one of the most famous cases in the legal history of the English common law system. The decision of the House of Lords founded the modern tort of negligence (delict in Scotland), both in Scots law and across the world in common law jurisdictions. The case originated in Paisley, Scotland, but the House of Lords declared that the principles of their judgment applied in English law. It is often referred to as "the snail in the bottle case".

As Justice Allen Linden has pointed out, Donoghue is an extension of a principle articulated by Benjamin Cardozo in an earlier case, MacPherson v. Buick Motor Co. MacPherson pioneered the tortious principle of a general duty of care, the starting point for any action in negligence, and abolished the common law requirement of privity of contract. However, MacPherson was an American case, and until Donoghue, the duty of care was still limited in English law to a narrow number of relationships. The duty of care is the first of three parts that have to be established in order to prove liability in negligence, the other two being a breach of that duty by the defendant, and causation, linking the damage suffered by the claimant to the defendant's breach of duty.

The case is perhaps most well known for the speech of Lord Atkin and his "neighbour" or "neighbourhood" principle, where he applied Luke 10 to law - that is, where an established duty of care does not already exist, a person will owe a duty of care not to injure those who it can be reasonably foreseen would be affected by their acts or omissions. The practical effect of this case was to provide individuals with a remedy against suppliers of consumer products, even where the complainant had no privity of contract with those individual or company tortfeasors.

In 1990, the House of Lords revised Lord Atkin's "neighbour" principle to encompass public policy concerns articulated in Caparo Industries Plc. v Dickman ([1990] 1 All ER 568). The three-stage "Caparo" test requires: foreseeability of damage; a relationship characterised by the law as one of proximity or neighbourhood; and 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.

The legal process

The case started in the Outer House of the Court of Session, where the Lord Ordinary repelled the defender Stevenson's plea to the relevancy and allowed a proof (that is, he dismissed the defendant's claim that there was no cause of action, and allowed the case to go to trial). It was this decision which was reclaimed (appealed) to the Inner House of the Court of Session, which reversed the Lord Ordinary's interlocutor (interlocutory judgment) and held, 3-1, that there was no cause of action. The pursuer (plaintiff) appealed to the House of Lords, which gave its famous judgment that there was indeed a case to answer, and remitted the question to the Lord Ordinary to hear the case on the merits.

Background

On the evening of Sunday 26 August 1928, May McAlister 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 Minghella, and May's friend ordered and paid for a pear and ice and an iced drink. The owner brought the order and poured part of a bottle of ginger beer into a tumbler containing ice cream. May drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. On doing so, it was claimed that the remains of a snail in a state of decomposition plopped out of the bottle into the tumbler. May later complained of stomach pain, and her doctor diagnosed her as having gastroenteritis. She also claimed to have suffered emotional distress as a result of the incident.

Lord Justice MacKinnon said in a speech in 1942 that when the facts came to be tried, it was found that there was no snail, and this was later repeated by Lord Justice Jenkins in the case of Adler v. Dickson. The statement seems to have been based on information given to MacKinnon by David Stevenson's counsel, later Lord Normand. However, the case was ultimately settled out of court, and the facts were never established in a court of law.

The identity of Mrs Donoghue's friend is also unknown. It has been speculated that Mrs Donoghue, a married woman, may have been illicitly meeting a male friend (Joe Gutteridge). However, the friend 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 uncertainties are whether the animal (if it existed) was a snail or a slug; whether the bottle contained ginger beer or some other beverage ("ginger" being a Scottish word for a carbonated drink); and whether the drink was part of an ice cream float.

Legal analysis

May had not ordered or paid for the drink herself, so there was no contractual relationship between May and the café owner. Tort law at this time did not allow for May to sue the café owner. There was a contractual relationship between him and the friend, but the friend had not drunk the ginger beer. Ginger beer was not a dangerous product, and the manufacturer had not fraudulently misrepresented it. At that time, those were the only two grounds for claiming negligence against a manufacturer. On the face of it, the law did not provide a remedy for May.

It isn't clear how May McAlister came into contact with solicitor Walter Leechman of WG Leechman & Co in Glasgow's West George St, "…the only solicitor in the world who would have taken her case." Leechman was already an expert on the dangers of drinking ginger beer. He had already tried to establish liability against aerated water manufacturers AG Barr when a dead mouse was alleged to have found its way into a bottle of their 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 for such an action (Mullen v. A.G. Barr & Co. 1929 S.C. 461).

Undeterred by this opinion, Leechman agreed to take on the case and lodged a writ in the Court of Session on April 1929 in the case of May Donoghue, née McAlister v David Stevenson. The writ 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, labelled 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 naturally denied liability or that any such duty was owed. It was not until June 1930 that the judge opined that there was a case to answer. Stevenson's legal team appealed Lord Moncrieff's ruling on a number of legal grounds, and the judges of the Inner House granted the appeal in November 1930, dismissing her claim as having no legal basis on the authority of their earlier decision in Mullen v. A.G. Barr. One of their lordships said that

Claimant appeals

It would not have been very surprising if Walter Leechman and May Donoghue had given up after this judgment. The Court of Session had now ruled twice that there was no legal authority allowing a claim for damages against a manufacturer where no contract existed, unless the product was dangerous or fraudulently represented. There was of course the possibility of appealing the case to the House of Lords, but, whilst May's legal team had agreed to provide their services free, she could not put up the security needed to ensure the other side's costs were met should she lose in the Lords. However, such security would not be required if she could gain the status of a pauper. So, on 16 February 1931, 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 minister and two elders of her church signed a certificate of poverty which was attached to the petition. On 17 March 1931, the House of Lords granted her the status of a pauper. Among the 88 Lords present were Lord Sankey (the Lord Chancellor), the Duke of Wellington, and Lord Atkin, who would write the main judgment that would change the face of consumer law forever.

Nine months after her petition was granted, Lords Buckmaster, Atkin, Tomlin, Thankerton and MacMillan, sat in a committee room dressed, as is still the custom, in ordinary lounge suits and 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 on to 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. It was a call for the removal of the protection provided for manufacturers by privity of contract - the principle that only the parties to a contract have any right to sue under its terms. 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 - sought to convince their Lordships that the wisdom of the Scottish judges in the mouse cases should prevail. After two days of argument, their Lordships retired to consider their judgment.

Lord Atkin's "neighbour" principle

On 20 May 1932, Lord Atkin rose to deliver his speech to the House of Lords and reveal his "neighbour" principle to the rest of the world, derived from the Christian principle of loving your neighbour in Luke 10:

So David Stevenson should have been thinking about his customers when he was bottling his ginger beer. Atkin went on:

Lords Thankerton and MacMillan supported his opinion, but Lords Buckmaster and Tomlin were vigorously opposed. Buckmaster said it was impossible to accept such a wide proposition and (anticipating later "floodgates" arguments) it was difficult to see how trade could be carried on if it were the law. He also opined, as did Lord Tomlin, that there was no logical reason why such a law would be restricted to manufacturers of food. If a duty of care existed it seemed to Buckmaster that it must cover the construction of every article: "If one step, why not fifty?" Tomlin agreed and referred to a recent disaster on the Versailles Railway caused by a defective axle which, if Lord Atkin's principle were to be law, he feared, would allow every injured party to sue the axle manufacturer.

Despite such opposition Donoghue's legal team had won, albeit by the smallest of margins - three to two. The case was returned to Scotland for the Court of Session to apply the ruling to the facts of the case. In the event, this didn't happen. David Stevenson died within a year of the decision and his executors settled out of court, not for the original claim of £500 but £200.

References

·  Adler v. Dickson [1954] 1 W.L.R. 1482 at 1483 (Practice Note)

·  Heuston, R.F.V. Donoghue v. Stevenson in Retrospect (1957), 20 M.L.R. 1

·  Linden, Allen M. "The American Influence on Canadian Tort Law," 50 UCLA L. Rev. 407, 414 (2002).

·  Mrs. Donoghue's Journey, Martin R. Taylor QC, Scottish Council of Law Reporting

·  Original text of the case