Negligence
A person is obliged to take
reasonable care in regards to
other people, where it is
reasonably foreseeable that
other people could be harmed
by their actions or omissions.
Cailin, Rebecca, Aneta and Nat
Donoghue v. Stevenson
(UK)
The first recorded case of negligence was the Donoghue v. Stevenson incident in
1932.
On 26th August 1928, Donoghue and her friend
entered the ‘Real Italian Ice Cream Saloon’ that
was owned and operated by Francis Minghella.
At approximately 8:50pm, ice cream and ginger
beer (Scottish float) were purchased for
Donoghue. After she had drunk half the
contents of the bottle, a decomposed snail was
poured out of the bottle. She became ill. She did
not have a contract with the manufacturer,
Stevenson who made the bottle of ginger beer,
because she did not buy the bottle. She claimed
the manufacturer had been negligent and that
because the bottle was opaque and Donoghue
could not see the contents of the bottle, she did
not have an opportunity to check the bottle’s
contents before drinking it.
Donoghue initially attempted to sue the shop owner but failed as the bottles
came sealed with clear intention that it would remain that way until sold to
the consumer. She then accordingly instituted the proceedings against the
manufacturer which have given rise to this appeal. The case was heard in the
House of Lords on the 26th May 1932, it was first rejected by Lord Buckmaster
but then was allowed by Lord Atkin.
The House of Lords ruled that manufacturers owe a duty of
care to ensure that their products are free from defects that
could injure someone’s health. The court ruled that a
manufacturer (Stevenson) failed to take reasonable care in
providing a product which he or she knew would be used
directly by consumers who would consume it with no
reasonable opportunity for the distributor or consumers to
inspect the goods prior to the consumption.
• Judges relied on precedent, but the absence of a general statement of the law
meant it was difficult to determine duty of care existed in a particular case
unless a similar fact situation had been ruled upon by the courts previously.
Recovery against a negligent manufacturer who did not directly and in person
cause physical harm or property damage was difficult. At the time, there was a
shift from small local business to large manufacturers, shipping securely
packaged foods, beverages, medicines and other household goods across the
county- it became increasingly important to resolve the issue of legal
responsibility to the safety of such items and for any harm they might cause to
consumers.
• Consisting of Lord Atkin, Buckmaster, Macmillan, Thakerton and Tomlin. The
final decision in the case went 3 to 2 in favour of Ms Donoghue. Lords
Buckmaster and Tomlin disagreed.
In The End
The truths regarding the misadventures alleged by Mrs Donoghue was never
ruled on because David Stevenson died in November, 1932, and after the
executors of his estate were added as parties to the action, they settled the
matter out of court.
So in the end we don’t know if there was a snail and if so, whether it was the
cause of Mrs Donoghue’s illness, we don’t even know if she really was sick.
The ginger beer may not have even been brewed by Stevenson because
around that time it was apparently common to make copies.
What we do know is that the shock waves from the decision
of the House of Lords in Donohue v Stevenson were felt
around common law world and reverberate still today, more
then seventy years after Mrs Donoghue met her friend for
some refreshments.
Symons v. Cedar College
(South Australia)
Cedar College is a non profit religious and educational incorporated association in
South Australia, established as an outreach ministry of the Baptist Church. The
school held a junior sports day on 11 September 2009 during which a large tree
fell on some spectators who were standing near the school administration
building. Three people were injured, on of them was rendered a paraplegic. The
school pleaded guilty to a breach of section 22(2)(a) of the Occupational health,
safety and welfare act.
The facts included are that the defendant school failed to remove the tree in
question prior to the school sports day, and that the wind conditions on the
day were severe, but the school did not ensure that activities were not
conducted under or near the tree.
The Tree
The tree had actually been surveyed by an arborist in 2005, and
designated as a tree needing high priority pruning, at an
estimated cost of $690. This pruning had not been carried out.
Again in 2007 a further arboricultural survey was carried out
which recommended the removal of the tree in question at a
cost of $1950.
The tree was recommended for removal within
6-18 months, and the life of the tree was
estimated at less then 5 years. At the time of
the incident, 21 months had passed since this
survey. The tree was finally removed on the day
after the incident.
The case
The case was heard in the Magistrates Court of South Australia. The
case was between Symons, David and Cedar College Incorporated. The
hearing dates were the 14 and 22 of December 2011 and was herd
under the judgment of Industrial Magistrate M Ardlie.
Since the incident was reasonably foreseeable, and the injuries had
been potentially fatal the school pleaded guilty to an offence. When
sentencing the school the Magistrate took into account the early guilty
plea and the schools willing co-operation with the case. However
although the school had shown they had gotten the large number of
trees looked at, they didn't’t actually take in the arborists
recommendations. His Honor found that the general and specific
deterrence would be better served by a conviction and penalty. The
maximum penalty for a body corporate under the act is $300 000.
Taking into account a discount of 25% for the early plea and
cooperation, His honor recorded a conviction and fine plus costs of
$109 917.