DONOGHUE v. STEVENSON 1 1. THE PAISLEY SNAIL: Outline The Paisley Snail videotape relates the history and the impact of Donoghue v. Stevenson, perhaps the most memorable and important case in the history of the Commonwealth common law. Through narration, reenactment, interviews and still photography, the video takes the audience on a trip to Paisley, as we can imagine May Donoghue doing more than 70 years ago, and from there to the Scottish Court of Session, the Second Division and ultimately to the House of Lords. Many themes are woven into the fabric of the video as it follows May Donoghue on her journey and beyond. Some of these themes are: a. the enormous effect that judge-made or common law has on our daily lives; b. the difference between breach of a duty owed under a contract and the general duty of care owed to one s neighbour ; and c. the concept of product liability. What follows is a brief outline of the facts, a discussion of the principal legal issue raised, and a summary of the court procedures followed in Donoghue v. Stevenson, all as depicted in the videotape. 2. A TRIP TO PAISLEY: The Facts On August 26, 1928, Mrs. May Donoghue, a shop assistant of very meagre means and a single parent, traveled from her brother s flat in Glasgow, Scotland to the small town of Paisley, nearby, to enjoy a refreshment with a friend. Mrs. Donoghue and her friend met at an establishment bearing the sign Real Italian Ice Cream Saloon, (the so-called Wellmeadow Café ), owned and operated by one Francis Minghella, and located at 1 Wellmeadow Street, Paisley. It is said that at approximately 8:50 p.m., Mrs. Donoghue s friend ordered and paid for their refreshments; ice cream and ginger beer a Scottish float for Mrs. Donoghue, and a pear and ice for herself. Apparently the float was served unassembled; that is, the ice cream was served in a glass and the ginger beer came in its bottle. The bottle in which the ginger beer was contained was of brown opaque glass so that the content of the bottle could not be seen until it was poured out. The bottle bore the legend, D. Stevenson, Glen Lane, Paisley. As the friend added more ginger beer to Mrs. Donoghue s float, after she had already consumed part of the ice cream and ginger beer, Mrs. Donoghue observed what appeared to her to be the partially decomposed remains of a snail flow into her glass. Mrs. Donoghue claimed that she was made ill both by what she had seen and by what she feared she had eaten: namely, the rotting carcass of a presumed gastropod. Mrs. Donoghue stated that the resulting illness forced her to see her doctor for treatment three days later and that she again was treated mid-september at the Royal Glasgow Infirmary. 1 [1932] a.c. 562, [1932] Sess. Cas. (H.L.) 31.
3. ON THE HORNS OF A SNAIL: The Legal Issue Mrs. Donoghue had a difficult legal problem. She could not successfully sue the café owner, Mr. Minghella (although she in fact tried to), either in contract or in tort. In the first instance, she had no contract with Mr. Minghella, under which he could be said to have guaranteed the ginger beer fit for consumption, Mrs. Donoghue s mysterious friend having ordered and paid for the refreshments. Minghella poured the first ginger beer. But this is NOT relevant to the outcome in any way. In the second instance, she could not claim negligence on the part of Minghella because clearly he had neither don nor failed to do anything that could be construed as negligent. The bottle of ginger beer came to him sealed with the clear intention that it remain that way until sold to the consumer. Moreover, the darkness of the bottle prevented Mr. Minghella from inspecting the contents for contaminants prior to the delivery to the customer. Mrs. Donoghue s only possible recourse was to tackle the one player remaining on the field, David Stevenson, manufacturer of the ginger beer. Success for Mrs. Donoghue hung upon the single question:... whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. 2 Unfortunately for Mrs. Donoghue, in 1928 neither the Scottish civil law nor the English common law as they were applied to the tort of negligence had yet progressed to the point of establishing and stating as a matter of general principle, that geographically, a duty of care would be owed by one person remote from another not to cause harm to that other person. Judges relied on precedent, and the absence of a general statement of the law meant that it was difficult to determine if a duty of care existed in a particular case unless a similar fact situation had been ruled upon by the courts previously. Thus, recovery against a negligent manufacturer who did not directly and in person cause physical harm or property damage was difficult. Given the rapidly changing face of commerce at the time the shift from small local industries with small local markets to large manufacturers shipping securely packaged foods, beverages, medicines and other household goods across country 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. Lord Atkin said, at the beginning of the judgment which ultimately decided Mrs. Donoghue s case: I do not think a more important problem has occupied your Lordships in your Judicial capacity... 3 4. PROGRESS AT A SNAIL S PACE: The Court Process Mrs. Donoghue sued Mr. Stevenson in April, 1929, seven months after the events at the Wellmeadow Café; however, a series of Interlocutors (today we would call them interlocutory motions) delayed proceedings for more than a year. In May, 1930, David Stevenson s counsel brought a motion 2 2 Supra, note 1 at 578, per Lord Atkin. 3 Supra, note 1 at 579.
in the Scottish Court of Session before Lord Moncrieff, the Lord Ordinary, to strike out her claim on the grounds that he owed no duty of care to the plaintiff, Donoghue. It is important to remember that the debated and the subsequent decision of Lord Moncrieff in favour of Mrs. Donoghue were on the point of law: Was there a duty of care owed, Stevenson to Donoghue? This narrow question was set withing the framework of the larger objection that the claim contained in Mrs. Donoghue s writ disclosed no cause of action. Lord Moncrieff dismissed Mr. Stevenson s motion. Had Mr. Stevenson chosen not to appeal Lord Moncrieff s ruling, but instead to take his chances on a trial of the issues of fact, Donoghue v. Stevenson might have remained an obscure Scottish case, perhaps useful only to illustrate that it is difficult for a plaintiff to prove she found a snail in her ginger beer if she cannot produce the snail at trial! At this stage, it appears that Mr. Stevenson went against the advice of his lawyers and instructed them to appeal the decision of the Lord Ordinary, rather that proceed to a trial on the issues of fact. 4 So it was that in late 1930 the decision of Lord Moncrieff came before the Scottish Second Division [the rough equivalent of a provincial Court of Appeal]. As it happened, the Second Division panel consisted of the same four judges who had heard two similar cases 5 the previous year. Each of those cases involved an alleged mouse in ginger beer and in both, the court found that the mouse actually was in the beverage. The court held that there was no negligence involved in the brewing and bottling methods employed by the defendant manufacturer in those cases, but the court indicates that it would have ruled in favour of the manufacturer even if negligence had been found, on the basis that a manufacturer owed no duty of care to an unknown, non-contractual consumer of its products. Predictably, the Second Division ruled in favour of Mr. Stevenson, in a case really only distinguishable from the mouse cases by virtue of the species of the contaminant. Having lost in the Second Division, Mrs. Donoghue s final avenue of appeal was the House of Lords. Remember that Mrs. Donoghue was a poor shop assistant, that there was no legal aid in the 1930's, and that it was a very expensive proposition to bring a matter before the Law Lords for consideration. Mrs. Donoghue was very fortunate to find a lawyer willing to argue a case where the prospects of reward to them were negligible. In addition, at that time a person wishing to launch an appeal before the House had to lodge security for costs to indemnify the respondent in the event that the appellant lost. This Mrs. Donoghue could not afford to do. Fortunately, a process was available whereby an individual could apply to the House of Lords for permission to appeal in forma pauperis; that is, as an impoverished person. This Mrs. Donoghue did. Her application was granted; she was not required to post security for costs and her case came before the Judicial Committee of the House of Lords 6 for consideration on December 10, 1931. Almost four years had elapsed since Mrs. Donoghue s visit to the Wellmeadow Café when Lord Atkin rose in the House of Lords on May 26, 1932, to deliver his landmark speech. No court was ever 3 4 See McBryde, Professor William W., The Story of the Snail in the Bottle Case, in Donoghue and Stevenson and the Modern Law of Negligence: The Paisley Papers (Vancouver BC: University of British Columbia, 1991) at 51. 5 Mullen v. A.G. Barr & Co. and McGowan v. Barr & Co., [1929] Sess. Cas.461. 6 Consisting of: Lords Atkin, Buckmaster, Macmillan, Thakerton and Tomlin. The final decision in the case went 3 to 2 in favour of Mrs. Donoghue. Lords Buckmaster and Tomlin dissented.
to pass judgment on the facts of the case. The truth 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. Thus, we do not know if there was a snail and if so, whether it was the cause of Mrs. Donoghue s illness. We do not even know if Mrs. Donoghue was really ill. We do not know whether the ginger beer in the bottle was actually brewed by David Stevenson or by someone else who had pirated a Stevenson bottle for his own product, a practice that was apparently common at the time. Finally, even if David Stevenson did brew the offending ginger beer, we do not know if the methods he used in so doing would have been found by the courts to have been negligent. There is so much we do not know about the case of the snail, the ginger beer and the poor lady from Glasgow with the stomach ache! Yet the shock waves from the decision of the House of Lords in Donoghue v. Stevenson were felt around the common law world and reverberate still today, more than seventy years after Mrs. Donoghue met her friend for refreshments at a small café in Paisley, Scotland. PRINCIPLES LAID DOWN IN DONOGHUE v. STEVENSON It has been said that the case of Donoghue v. Stevenson laid down or settled four main principles of law 7 : 1. Negligence is a distinct tort. The decision settled that negligence as a tort or civil wrong, stood by itself and that it could be actionable in any circumstances in which one person suffered personal injury or physical property damage as a direct, close and foreseeable result of the act or omission of another. Litigants do not have to rely on special relationships to prove their cases nor is negligence a dependent component of other torts. 2. A contract is not necessary. Ironically, while at the time of Donoghue, plaintiffs sought to hang their hats on any contract they could, today often the opposite is the case, such as plaintiffs suing in tort for damages in order to avoid restrictions imposed upon them by contracts they have entered into. 3. Manufacturer s liability. The actual decision in Donoghue v. Stevenson, or the ratio decidendi, related to the imposition of liability on manufacturers under certain narrow (by today s standards) conditions. In the words of Lord Atkin:... 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. 8 4 7 See Heuston, Professor R.F.V., An Overview of the Law of Negligence: 60 Years After Mrs. Donoghue s Visit to Paisley in Donoghue v. Stevenson and the Modern Law of Negligence: The Paisley Papers, (1991), University of British Columbia, Vancouver, 57 at pp. 60-68. 8 Supra, note 1 at 599.
4. The Neighbour Principle. The definition of my neighbour continues to be the most controversial aspect of Lord Atkin s decision, enlarging as it does, the range of persons we ought to have in mind as neighbours and hence the range of acts or failures to act and the types of damages for which we might be held liable, should someone be injured as a consequence of our activities. Lord Atkin stated:... 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 complaints and the extent of their remedy. The (moral) rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the layer 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 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. 9 5 9 Supra, note 1 at 580.