Donoghue v Stevenson

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 in Common law jurisdictions worldwide, as well as in Scotland, establishing general principles of the duty of care.

Also known as the "Paisley Snail" or "Snail in the Bottle" case, the case involved Mrs May Donoghue drinking a bottle of ginger beer in a café in Paisley, Renfrewshire. Unknown to her or anybody else, a decomposed snail was in the bottle. She fell ill, and subsequently 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 May Donoghue had no sustainable claim in law. However, the decision fundamentally created a new type of liability in law that 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 that only required injury. This evolution was taken further in the later decision of ''Letang v Cooper'' 9651 QB 232 when it was held that actions should not be jointly pleaded in trespass and negligence, but in negligence alone.

Background and facts of the matter

On the evening of Sunday 26 August 1928, during the Glasgow Trades Holiday, May Donoghue took a train to Paisley, Renfrewshire. In Paisley, she went to the Wellmeadow Café. A friend, who was with her, ordered a pear and ice for herself. As for Donoghue, she asked for a Scotsman ice cream float, a mix of ice cream and ginger beer. The owner of the café, Francis Minghella, 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". 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

Donoghue drank some of the ice cream float. However, when her 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. 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. She was subsequently diagnosed with severe gastroenteritis and shock.

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. The contact details for the ginger beer manufacturer were on the bottle label and recorded by Donoghue's friend.

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'', less than three weeks earlier (see also ''George v Skivington'').

Despite the ruling in ''Mullen'', Leechman issued a writ on Donoghue's behalf against Stevenson on 9 April 1929. The writ claimed £500 in damages, the same amount a claimant in ''Mullen'' had recovered at first instance, and £50 in costs. The total amount Donoghue attempted to recover would be equivalent to at least £27,000 .

Condescendences

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. 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", an allegation described by lawyer and author Matthew Chapman as "somewhat gratuitous". This breach of duty was alleged to have caused Donoghue's subsequent illness.

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 laimantwas due to the bad condition of her own health at the time". In response to the writ, Stevenson pleaded 4 main arguments.

* that the claim had no legal basis
* that the facts could not be substantiated
* that he had not caused Donoghue any injury
* that the claimed amount was excessive.

Legal background

Injuries resulting from defective products were normally claimed on the basis of a contract of sale between the seller and the consumer. 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. Donoghue was therefore required to claim damages for negligence.

''Ansell v Waterhouse'' 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). 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.

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.

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. 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. 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.

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.

Judgment

Court of Session, Outer House

The first interlocutory action was heard on the Court of Session on 21 May 1929 in front of Lord Moncrieff and Lord Towett. 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 6 s 3 d 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.

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.

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.

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. Finally, ''Mullen'', despite its factual similarity, was discounted by a "very close reading of the precedent opinions".

Court of Session, Inner House

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. In their judgment, given on 13 November 1930, 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". Thus, Lord Alness, Lord Ormidale and Lord Anderson all allowed the appeal while Lord Hunter dissented.

House of Lords

Donoghue filed a petition to appeal to the House of Lords on 25 February 1931. 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 – 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...". 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. (Her legal team had agreed to work ''pro bono''.)

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". 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.

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". 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) and argued that the third exception that Donoghue was attempting to introduce had no basis in precedent.

The House of Lords gave judgment on 26 May 1932 after an unusually long delay of over five months since the hearing. The court held by a majority

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