IILACE CONFERENCE
DONOHUE v. STEVENSON
LADIES AND GENTLEMEN, AS MONTY PYTHON WOULD SAY –
“NOW
FOR
SOMETHING
COMPLETELY
DIFFERENT”.
IN
CONSTRUCTING IILACE AGENDAS THERE HAS ALWAYS BEEN A
CONCENTRATION ON CRAMMING AS MUCH IN AS WE CAN AND
TACKLING MAJOR PROBLEMS OF MANAGEMENT AND GLOBAL
REALPOLITIC.
WE SELDOM GIVE OURSELVES LIGHT RELIEF
AND WE SELDOM STAND BACK AND PONDER WHAT WE, AS
PRINCIPALLY
LAWYERS
RUNNING
LEGAL
ORGANISATIONS
WOULD DO WELL TO REMEMBER EVERY NOW AND THEN AND
THAT IS THE IMPORTANCE OF THE LAW AND LEGAL PROCESS,
THE INDEPENDENCE OF OUR PROFESSION AND THE DUTY
WHICH WE AS LAWYERS HAVE TO SOCIETY.
I HAVE FOR YOU THEN THE CASE OF THE SNAIL IN THE GINGER
BEER BOTTLE WHAT I HOPE IS AN INTERESTING INTERLUDE
FOR YOU AND AN OPPORTUNITY FOR US IN IILACE TO GO BACK
TO BASICS.
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ON 9TH APRIL 1929 – ALMOST 80 YEARS AGO – A MRS. MARY
MCALLISTER OR DONOHUE WALKED INTO FRANCIS MINGELLA’S
CAFÉ – THE WELLMEADOW CAFÉ – IN MY HOME TOWN OF
PAISLEY. HER FRIEND ORDERED WHAT WE IN SCOTLAND CALL
AN ICE-CREAM SUNDAE. ESSENTIALLY THIS IS A GLASS WITH A
SCOOP OF ICE-CREAM TOPPED UP BY A BOTTLE OF GINGER
BEER. THE GINGER BEER WAS SOLD IN OPAQUE BOTTLES AND
PRODUCED ONLY A MILE OR SO AWAY AT THE FACTORY OF
DAVID STEVENSON.
MAY DONOHUE POURED SOME OF THE
CONTENTS OF THE BOTTLE INTO HER GLASS AND DRANK IT
AND IT WAS ONLY WHEN SHE WAS DRAINING THE DREGS OF
THE BOTTLE THAT THE REMAINS OF WHAT WAS SAID TO BE A
DECOMPOSED SNAIL, SLITHERED OUT. NOT SURPRISINGLY SHE
FELL ILL, HAD TO GO TO HOSPITAL AND TOOK SEVERAL WEEKS
TO RECOVER LOSING EARNINGS IN THE MEANTIME. THIS CASE
DID NOT HAVE A CONTRACTUAL REMEDY.
MAY DONOHUE DID
NOT BUY THE GINGER BEER. IT WAS BOUGHT FOR HER. THERE
WAS ACCORDINGLY NO CONTRACTUAL NEXIS WITH THE CAFÉOWNER WHO IN ANY EVENT WOULD NOT HAVE BEEN WORTH
SUING.
MAY DONOHUE HAD NO DIRECT LEGAL CONNECTION
WITH THE MANUFACTURER.
THE LAWS OF SCOTLAND AND
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ENGLAND AT THIS STAGE WERE IDENTICAL – ENGLISH LAW OF
TORTS AND THE SCOTS LAW OF DELICT BEING NOT DISSIMILAR.
WHY IS THIS CASE SO IMPORTANT TO ME? WHY AM I DEVOTING
A VITAL 15 MINUTES IN MY LAST-EVER IILACE CONFERENCE TO
TAKE YOU BACK IN HISTORY AND GET YOU TO PONDER ON A
MOMENT IN TIME WHICH NONE OF THE PARTICIPANTS COULD
HAVE ANTICIPATED AS IMPORTANT OR HISTORICAL.
WELL, MY CYNICAL FRIENDS WILL SAY IT IS BECAUSE IT WAS
THE ONLY CASE I EVER READ AT UNIVERSITY AND I CITED IT AS
AUTHORITY FOR ABSOLUTELY ANY LEGAL PROPOSITION.
OTHERS WILL SAY AS A PAISLEY MAN – “A PAISLEY BUDDY” –
WHO SPENT THE FIRST 40 YEARS OF HIS LIFE NEAR TO THE
LOCUS, IT WAS BOUND TO EXCITE A FASCINATION.
OTHERS WILL SAY AS A WOOSY OLD PINKO LIBERAL WITH A
SOCIAL CONSCIENCE IT WAS BOUND TO STRIKE A CORD WITH
ME. I SPEAK NOT ONLY FOR MYSELF BUT I THINK FOR MOST
SCOTS WHEN I SAY THAT A SMALL INDIVIDUAL TAKING ON THE
SYSTEM AND WINNING IS ALWAYS SOMETHING WHICH EXCITES.
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I ALSO LOVE THIS CASE BECAUSE IT MAKES ME PROFOUNDLY
PROUD OF THE LAW AND TO BE A LAWYER.
VIRTUALLY
EVERYONE OF YOU HERE TODAY IS IN A JURISDICTION IN
WHICH THE MODERN LAW OF NEGLIGENCE RESTS ON EVENTS
IN MY HOME TOWN ALMOST 80 YEARS AGO AND THE COURAGE
OF THE HOUSE OF LORDS AND IN PARTICULAR LORDS
THANKERTON, MACMILLAN AND ATKIN.
WHILST STILL RESONANT IN THE LEGAL WORLD DONOHUE v.
STEVENSON HAS SADLY BEEN NEGLECTED IN PAISLEY WHERE
THE CAFÉ WAS DEMOLISHED SOME TIME AGO AND THE SOFT
DRINKS FACTORY RECENTLY.
WE IN SCOTLAND ARE OFTEN
CARELESS OF OUR HERITAGE - PROBABLY BECAUSE WE HAVE
SO MUCH OF IT.
IN FACT IN MANY WAYS TIM MCGHIE HAS MORE RIGHT TO
PRESENT THIS SESSION THAN I DO AS IT WAS THE CONTINUING
LEGAL EDUCATION SOCIETY OF BRITISH COLOMBIA WHICH
PRODUCED WHAT
IS KNOWN AS THE “PAISLEY PAPERS
“FOLLOWING UP A CONFERENCE IN THE TOWN HALL IN
SEPTEMBER 1990 WHICH CELEBRATED THE CASE. THE VIDEO I
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AM PROUD TO SAY HAS A MORE SCOTTISH SOURCE BUT I HATE
TO SAY WAS DONE ON THE CHEAP.
LORD ATKINS IS PLAYED
NOT BY SEAN CONNERY WHO WE COULDN’T AFFORD BUT BY
HIS BROTHER NEIL WHO WAS A LOT LESS EXPENSIVE.
THIS
IS
THE
CASE
LADIES
AND
GENTLEMEN
WHICH
EFFECTIVELY ESTABLISHED THE NEIGHBOUR PRINCIPLE.
THE
IDEA OF A DUTY OF CARE AND WHICH RESONATED ROUND THE
COMMONWEALTH WORLD. THE PRESIDING JUDGE LORD ATKIN,
A WELSHMAN FROM ABERDOVEY, (WHERE THERE IS A SMALL
MUSEUM
DEDICATED
TO
HIS
CAREER
–
AND
JOHN
A
COMPLETELY OUTSTANDING GOLF COURSE) WITH AUSTRALIAN
AND IRISH BLOOD IN HIM DECIDED IN ENGLAND ABOUT EVENTS
IN SCOTLAND. IT WAS THEREFORE A TRULY INTERNATIONAL
CASE.
THE CASE MAKES ME PROUD BECAUSE IT HARKS BACK TO AN
ERA WHERE JUDGES AND COURTS WERE MORE RESPECTED
THAN SADLY THEY ARE – AT LEAST IN THE UNITED KINGDOM –
TO AN ERA WHERE WRONGS WERE RIGHTED IN THE COURTS
WHERE THERE WAS MUCH LESS LEGISLATION AND WHERE THE
PROFESSION IN SCOTLAND WERE PREPARED TO TAKE ON, AS A
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PRO BONO CASE, AN ISSUE WITH RELATIVELY TRIVIAL HUMAN
IMPLICATION BUT GREAT LEGAL RAMIFICATIONS ALL THE WAY
TO THE HOUSE OF LORDS.
MAKE NO MISTAKE THE DECISION IN DONOHUE v. STEVENSON
WAS GROUND-BREAKING.
BEFORE THAT THERE WAS NO
MANUFACTURER’S LIABILITY.
INDEED LORD BUCKMASTER
SAID “IT WOULD SEEM LITTLE SHORT OF OUTRAGEOUS TO
MAKE MANUFACTURERS RESPONSIBLE TO MEMBERS OF THE
PUBLIC FOR THE CONDITIONS OF THE CONTENTS OF EVERY
BOTTLE WHICH ISSUES FROM THEIR WORKS”.
WE NOW LAUGH AT THAT BUT THAT WAS THE LAW AND IT TOOK
THREE BRAVE JUDGES AND A LOT OF CREATIVE LEGAL
THINKING AND INDEED SOCIAL CONSCIENCE, TO CHANGE THAT.
I ALSO LOVE THE CASE BECAUSE IT HAS THE FLAVOUR OF A
FOOTBALL MATCH.
THE FIRST TIME THE CASE WAS HEARD
BEFORE A SINGLE JUDGE RESULTED IN A VICTORY FOR THE
PURSUER AS WE CALL THEM IN SCOTLAND SO THAT LEFT THE
SCORE: DONOHUE – 1, STEVENSON – NIL. THE INNER HOUSE
REVERSED THE DECISION: DONOHUE – 1, STEVENSON – 3. IN
THE HOUSE OF LORDS IT WAS ONE OF THE MOST FAMOUS 3-2
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AWAY WINS IN HISTORY IN LONDON – APART DES FROM
SCOTLAND’S MEMORABLE 3-2 WIN OVER THE ENGLISH WORLDCUP WINNERS AT WEMBLEY IN 1967. LORD BUCKMASTER (ONE
OF
THE
TWO
MANUFACTURER.
ENGLISH
JUDGES)
HELD
FOR
DONOHUE – NIL, STEVENSON – 1.
THE
LORD
MACMILLAN (A SCOTS JUDGE) BRAVELY FOUND FOR THE
PURSUER: DONOHUE – 1, STEVENSON – 1. AT HALF TIME LORD
TOMLIN (THE OTHER ENGLISH JUDGE) SUPPORTS BUCKMASTER
WITH THE CONSERVATIVE VIEW: DONOHUE – 1, STEVENSON – 2.
LORD THANKERTON, ANOTHER SCOTS JUDGE, PITCHES UP IN
FAVOUR OF THE PURSUER EQUALISING THE SCORE AT 2 ALL
AND LEAVING LORD ATKIN IN HIS FOURTEEN PAGE JUDGEMENT
TO
ESTABLISH
THE
IDEA
OF
CONSUMER
RIGHTS
AND
MANUFACTURERS’ DUTIES: DONOHUE – 3, STEVENSON – 2.
THE CASE NEVER WENT TO PROOF. EVERYTHING WAS BASED
ON A DEBATE ON THE LEGAL PRINCIPLES.
THERE WERE MANY
OTHER ISSUES WHICH WERE NEVER REALLY SETTLED. WHO
WAS MAY DONOHUE’S FRIEND? DID IT MATTER? WAS THERE
REALLY A SNAIL IN THE BOTTLE? I HAVE TO SAY I LIVED IN
PAISLEY FOR 40 YEARS AND DIDN’T SEE MANY SNAILS BUT A
FEW SLUGS BUT AGAIN THIS IS A MATTER OF DETAIL.
THE
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CAFÉ-OWNER – WHO IS RELATIVE FOR THOSE OF YOU LIKE
AND ME WHO ARE FILM BUFFS - WAS THE RECENTLY SADLYDECEASED ANTHONY MINGHELLA (WHO, KEN, IS OBVIOUSLY
LIKE ELVIS, REALLY A PAISLEY BOY). THE PEOPLE INVOLVED IN
THIS CASE SIMPLY COULD NOT HAVE APPRECIATED ITS
IMPORTANCE. MAY DONOHUE HAD A TRAGIC LIFE. SHE WAS A
PAUPER AND SHE DIED DESTITUTE IN A MENTAL INSTITUTION,
ENTIRELY UNAWARE OF THE FACT THAT ALMOST 80 YEARS
LATER, 30 LAWYERS FROM ABOUT THE WORLD WILL SIT AND
CONTEMPLATE AN EPISODE IN HER LIFE.
IT WOULD DO US ALL WELL TO READ THE 14 PAGES OF LORD
ATKIN’S JUDGEMENT EVERY NOW AND THEN FOR US TO
RETURN TO THE PRINCIPLES OF WHAT THE LAW, WHAT OUR
PROFESSIONS
AND
WHAT
OUR
LAW
SOCIETIES
AND
ASSOCIATIONSSHOULD BE ABOUT.
I QUOTE LORD ATKIN WHEN HE SAYS, “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
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MEMBERS AS TO DENY A LEGAL REMEDY WHERE THERE IS SO
OBVIOUSLY A SOCIAL WRONG”.
IN AN ERA IN BRITAIN WHERE THERE IS A STRONG AND
GROWING
EXERCISES
PERCEPTION
AN
THAT
THE
AUTHORITARIAN
STATE
AND
INCREASINGLY
ILL-CONSIDERED
INFLUENCE OVER ITS CITIZENS, WE FORGET THIS AT OUR
PERIL.
LADIES AND GENTLEMEN, THANK YOU.
INDULGING ME.
THAN YOU FOR
THANK YOU FOR PUTTING UP WITH A
SENTIMENTAL SCOTSMAN FOR 15 MINUTES.