Donoghue v Stevenson
Donoghue v Stevenson [1932] UKHL 100 was a landmark court
decision in Scots delict law and English tort law by the House of Lords. It
laid the foundation of the modern law of negligence, establishing general
principles of the duty of care.
Outline[edit]
Also known as the "Paisley snail" or "snail in the bottle" case, the case
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 to consumers. There was also a sufficiently proximate
relationship between consumers and product manufacturers.
Prior to Donoghue v Stevenson, liability for personal injury in tort usually
depended upon showing physical damage inflicted directly (trespass to the
person) or indirectly (trespass on the case). Being made ill by consuming a
noxious substance did not qualify as either, so the orthodox view was that
Mrs Donoghue had no sustainable claim in law. However, the decision
fundamentally created a new type of liability in law which did not depend
upon any previously recognised category of tortious claims. This was an
evolutionary step in the common law for tort and delict, moving from strict
liability based upon direct physical contact to a fault-based system which
only required injury. This evolution was taken further in the later decision
of Letang v Cooper [1965] 1 QB 232 when it was held that actions should
not be jointly pleaded in trespass and negligence, but in negligence
alone.[citation needed]
Acts[edit]
On the evening of Sunday 26 August 1928, during the Glasgow Trades
Holiday, Donoghue took a train to Paisley, Renfrewshire.[3][5]:1[5]:2 In Paisley,
she went to the Wellmeadow Café. A friend,[Note 2] who was with her,
ordered a pear and ice for herself and a Scotsman ice cream float, a mix
of ice cream and ginger beer, for Donoghue.[5]: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". Furthermore, although the bottle was labelled as
Stevenson's, McByde suggests it is possible it did not originally belong to
him. Bottles were often reused, and in the process occasionally returned to
the incorrect manufacturer. Moreover, Stevenson initially claimed he did not
issue bottles matching the description provided by Donoghue.[3][5]:9–
10
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][7] According to
her later statements of facts, she was required to consult a doctor on 29
August and was admitted to Glasgow Royal Infirmary for "emergency
treatment" on 16 September.[5]:23[8]:7 She was subsequently diagnosed with
severe gastroenteritis and shock.[3][6]:566
The ginger beer had been manufactured by David Stevenson, who ran a
company producing both ginger beer and lemonade at 11 and 12 Glen
Lane, Paisley, less than a mile away from the Wellmeadow Café.[5]:6–7 The
contact details for the ginger beer manufacturer were on the bottle label
and recorded by Donoghue's friend.[5]:11
Donoghue subsequently contacted and instructed Walter Leechman, a
local solicitor and city councillor whose firm had acted for the claimants in a
factually similar case, Mullen v AG Barr & Co Ltd,[9] 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][10]:31 The writ claimed £500
in damages, the same amount a claimant in Mullen had recovered at first
instance, and £50 in costs.[5]:22[8]:4 The total amount Donoghue attempted to
recover would be equivalent to at least £27,000 in 2012.[5]:22[11]
Condescendences[edit]
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.[5]: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 snail trails
were frequently found",[8]:6 an allegation described by Matthew Chapman as
"somewhat gratuitous".[5]:7 This breach of duty was alleged to
have caused Donoghue's subsequent illness.[8]: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".[8]:6–7 In response to the writ,
Stevenson pleaded (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.[5]:22–23[8]:8
Legal background[edit]
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.[7] Donoghue was
therefore required to claim damages for negligence.[3]
Ansell v Waterhouse[12] 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).[13]: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[13]:109[14]: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.[5]: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.[5]: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][5]: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.[5]: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.[7]
Judgement[edit]
Court of Session, Outer House[edit]
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.[5]:23–25
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.[5]: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.[15]: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.[5]:26–27[15]:15–16 Finally, Mullen, despite its
factual similarity, was discounted by a "very close reading of the precedent
opinions".[5]:27–29[15]:17–19
Court of Session, Inner House[edit]
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.[5]:29 In their
judgment, given on 13 November 1930,[15]: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".[15]:22 Thus, Lord Alness, Lord Ormidale and
Lord Anderson all allowed the appeal while Lord Hunter dissented.[5]:29–30
House of Lords[edit]
Donoghue filed a petition to appeal to the House of Lords on 25 February
1931.[5]: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[5]: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.[5]:34 (Her legal team had agreed to work pro bono.[3])
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".[8]: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.[5]:35–37[8]: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".[16]: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)[16]:7–8 and argued that the third exception that Donoghue was
attempting to introduce had no basis in precedent.[5]:37–38[16]: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 4][17]:236–237 The court held by
a majority of 3–2 that Donoghue's case disclosed a cause of
action.[6]:562 The majority consisted of Lord Atkin, Lord Thankerton and Lord
Macmillan.[6]:562
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".[10]: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.[5]: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."[10]:44
He supported this broad test by citing Heaven v Pender[18] and rejected the
cases in favour of 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".[5]:41[10]: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 civilised society and the
ordinary claims it makes upon its members as to deny a legal remedy
where there is so obviously a social wrong."[5]:42[10]:46
Lord Atkin then rejected cases that did not support his approach and
cited Benjamin N. Cardozo in MacPherson v. Buick Motor Co.[19] in favour
of his view.[5]:42[10]: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.[10]:57
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.[5]:51[10]: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".[5]:51–52[10]:60
Lord Macmillan examined previous cases[10]:65–70 and held that "the law
takes no cognisance 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".[5]:46–47[10]: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".[5]:47[10]: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." [5]:47–
48[10]:71–72
The minority consisted of Lord Buckmaster and Lord Tomlin.[6]:562 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".[10]: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".[5]:43–44[10]:36
Lord Buckmaster dismissed George v Skivington,[20] opining that "few
cases can have lived so dangerously and lived so long",[10]: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".[10]:42 He
concluded that there was no common law support for Donoghue's claim
and supported Lord Anderson's judgment in Mullen.[5]: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."[10]:43
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.[5]:50[10]: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][10]:57
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",[22] to the widest, suggested by
Lord Normand, who had been one of Stevenson's counsel, that Lord Atkin's
neighbour principle was the ratio.[23]: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 no 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