DONOGHUE v.

STEVENSON1
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. b. c. the enormous effect that ‘judge-made’ or common law has on our daily lives; the difference between breach of a duty owed under a contract and the general duty of care owed to one’s ‘neighbour’; and 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.

Minghella poured the first ginger beer. 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. Donoghue’s only possible recourse was to tackle the one player remaining on the field. The bottle of ginger beer came to him sealed with the clear intention that it remain that way until sold to the consumer. 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. Mrs. manufacturer of the ginger beer.2 3. 3 . ON THE HORNS OF A SNAIL: The Legal Issue Mrs. a duty of care would be owed by one person remote from another not to cause harm to that other person. Minghella. seven months after the events at the Wellmeadow Café. Success for Mrs.. a series of Interlocutors (today we would call them interlocutory motions) delayed proceedings for more than a year. Judges relied on precedent. Donoghue. that geographically. recovery against a negligent manufacturer who did not directly and in person cause physical harm or property damage was difficult. per Lord Atkin. In May. she had no contract with Mr. either in contract or in tort. beverages..”3 4. Lord Atkin said. But this is NOT relevant to the outcome in any way. Donoghue hung upon the single question: .2 Unfortunately for Mrs. In the first instance. 1929. Donoghue sued Mr. Minghella from inspecting the contents for contaminants prior to the delivery to the customer. Donoghue’s case: “I do not think a more important problem has occupied your Lordships in your Judicial capacity . David Stevenson’s counsel brought a motion 2 Supra. 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. Mr. She could not successfully sue the café owner. whether the manufacturer of an article of drink sold by him to a distributor. note 1 at 579. Minghella (although she in fact tried to). in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect. David Stevenson. PROGRESS AT A SNAIL’S PACE: The Court Process Mrs. however. under which he could be said to have guaranteed the ginger beer fit for consumption. 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. Donoghue had a difficult legal problem. 1930. note 1 at 578. Donoghue’s mysterious friend having ordered and paid for the refreshments. Thus. Stevenson in April. Mrs.. 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. 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. In the second instance. Moreover. at the beginning of the judgment which ultimately decided Mrs. Supra. the darkness of the bottle prevented Mr..

on the basis that a manufacturer owed no duty of care to an unknown. to deliver his landmark speech. 1991) at 51. This Mrs. No court was ever See McBryde. Donoghue’s visit to the Wellmeadow Café when Lord Atkin rose in the House of Lords on May 26. Donoghue. it appears that Mr. Professor William W. the Second Division ruled in favour of Mr.. Mrs. Thakerton and Tomlin. but instead to take his chances on a trial of the issues of fact. Macmillan. Cas. Donoghue’s writ disclosed no cause of action. Stevenson. 6 . the Lord Ordinary. Barr & Co. 1932. Donoghue was very fortunate to find a lawyer willing to argue a case where the prospects of reward to them were negligible. she was not required to post security for costs and her case came before the Judicial Committee of the House of Lords6 for consideration on December 10. Mrs. This Mrs. “The Story of the ‘Snail in the Bottle’ Case. non-contractual consumer of its products. Stevenson chosen not to appeal Lord Moncrieff’s ruling. 5 4 Mullen v. as an impoverished person. Remember that Mrs. As it happened. Donoghue did.461. Buckmaster. Stevenson might have remained an obscure Scottish case. A. Stevenson went against the advice of his lawyers and instructed them to appeal the decision of the Lord Ordinary. in Donoghue and Stevenson and the Modern Law of Negligence: The Paisley Papers (Vancouver BC: University of British Columbia. 1931. and McGowan v. It is important to remember that the debated and the subsequent decision of Lord Moncrieff in favour of Mrs. [1929] Sess. Stevenson’s motion. Donoghue was a poor shop assistant. Donoghue could not afford to do. Donoghue v. 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. Barr & Co. Donoghue were on the point of law: “Was there a duty of care owed. that is. The court held that there was no negligence involved in the brewing and bottling methods employed by the defendant manufacturer in those cases. a process was available whereby an individual could apply to the House of Lords for permission to appeal in forma pauperis. Predictably. Lord Moncrieff dismissed Mr. Almost four years had elapsed since Mrs. The final decision in the case went 3 to 2 in favour of Mrs. in a case really only distinguishable from the mouse cases by virtue of the species of the contaminant. 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. but the court indicates that it would have ruled in favour of the manufacturer even if negligence had been found. the Second Division panel consisted of the same four judges who had heard two similar cases5 the previous year. Had Mr. Lords Buckmaster and Tomlin dissented. Fortunately.. rather that proceed to a trial on the issues of fact. Donoghue.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]. Consisting of: Lords Atkin. that there was no legal aid in the 1930's. Having lost in the Second Division. Stevenson to Donoghue?” This narrow question was set withing the framework of the larger objection that the claim contained in Mrs. to strike out her claim on the grounds that he owed no duty of care to the plaintiff. Each of those cases involved an alleged mouse in ginger beer and in both. Her application was granted. and that it was a very expensive proposition to bring a matter before the Law Lords for consideration. the court found that the mouse actually was in the beverage. Donoghue’s final avenue of appeal was the House of Lords.3 in the Scottish Court of Session before Lord Moncrieff.G. In addition.

Negligence is a distinct tort. Donoghue’s Visit to Paisley” in Donoghue v. they settled the matter out of court. PRINCIPLES LAID DOWN IN DONOGHUE v. 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 It has been said that the case of Donoghue v. after the executors of his estate were added as parties to the action. plaintiffs sought to hang their hats on any contract they could. . Donoghue’s illness. while at the time of Donoghue. (1991). Donoghue met her friend for refreshments at a small café in Paisley. We do not even know if Mrs.. The decision settled that negligence as a tort or civil wrong. we do not know if the methods he used in so doing would have been found by the courts to have been negligent. 57 at pp. 60-68.V. whether it was the cause of Mrs.. more than seventy years after Mrs. Stevenson. Vancouver.F.4 to pass judgment on the facts of the case. Stevenson and the Modern Law of Negligence: The Paisley Papers. “An Overview of the Law of Negligence: 60 Years After Mrs. 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. or the ratio decidendi. a manufacturer of products. we do not know if there was a snail and if so. 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. 8 7 Supra. A contract is not necessary. 2. 3. close and foreseeable result of the act or omission of another. a practice that was apparently common at the time. Ironically. 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. 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. note 1 at 599. even if David Stevenson did brew the offending ginger beer. In the words of Lord Atkin: .. today often the opposite is the case.8 See Heuston. Scotland. such as plaintiffs suing in tort for damages in order to avoid restrictions imposed upon them by contracts they have entered into. related to the imposition of liability on manufacturers under certain narrow (by today’s standards) conditions. Manufacturer’s liability. Stevenson laid down or settled four main principles of law7: 1. Donoghue was never ruled on because David Stevenson died in November. owes a duty to the consumer to take that reasonable care. 1932 and. Stevenson were felt around the common law world and reverberate still today. University of British Columbia. Professor R. Donoghue was really ill. There is so much we do not know about the case of the snail. Finally. Litigants do not have to rely on special relationships to prove their cases nor is negligence a dependent component of other torts. The actual decision in Donoghue v. Thus. The truth regarding the misadventures alleged by Mrs.

In this way rules of law arise which limit the range of complaints and the extent of their remedy. note 1 at 580. 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. Lord Atkin stated: . ‘Who is my neighbour?’ receives a restricted reply. you must not injure your neighbour. 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. .. The Neighbour Principle. The definition of “my neighbour” continues to be the most controversial aspect of Lord Atkin’s decision. The (moral) rule that you are to love your neighbour becomes in law.. Who. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. should someone be injured as a consequence of our activities. and the layer’s question. 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.9 9 Supra. enlarging as it does.5 4. then.