Authored By: Shirley Gao
SOAS University of London
Court Name & Bench: House of Lords (Scotland)
Name of the Court: House of Lords (Scotland)
Name of the Judges: Lord Buckmaster, Lord Atkin, Lord Tomlin, Lord Thankerton, Lord Macmillan[2]
Date of Judgment: 26th May 1932
Parties Involved:
Appellant (Plaintiff): Mrs May Donoghue purchased and consumed a ginger beer allegedly containing a decomposed snail.[3]
Respondent (Defendant): David Stevenson is the manufacturer of the ginger beer in Paisley.[4]
Facts of the Case:
On 26 August 1928, Donoghue and her friend entered a café in Paisley.[5] Her friend purchased a bottle of ginger beer for Donoghue in the café.[6] The bottle was made of opaque glass which made it impossible to see its content.[7] Donoghue after consuming part of the drink suffered a shock and severe gastroenteritis Donoghue bought an action against Stevenson for negligence despite lacking a contractual relationship.[8] The Court of Session dismissed her claim, but she appealed to the House of Lords.[9]
Issues Raised:
Whether a manufacturer owes a duty of care to an ultimate consumer of their product when no contract exists.[10]
Whether negligence could be established in the absence of contractual privity.[11]
Arguments of the Parties:
Appellant:
The appellant argued that Stevenson, as manufacturer, owed a duty of care to consumers because the ginger beer was sold in a sealed opaque bottle, making inspection by the retailer or consumer impossible.[12] Emphasised that when a manufacturer puts products on the market specifically for human consumption, they undertake a responsibility to ensure those products are safe.[13] Relied on George v Skivington (1869) LR 5 Ex 1 where a chemist was held liable for a negligently prepared hair wash supplied for the use of the purchaser’s wife, even though she was not a party to the contract.[14] The appellant further relied on the obiter dicta in Heaven v Pender (1883) 11 QBD 503, which suggested that a duty arises whenever a person is placed in a position where failure to exercise reasonable care would foreseeably cause harm to another.[15] The appellant distinguished the case from authorities limiting liability to inherently dangerous items by pointing out that food and drink, although not dangerous per se, could become dangerous if negligently prepared.[16]
Respondent:
The respondent denied existence of a duty of case so absent of contract.[17] Argued liability only arises where goods are dangerous per se or known by the manufacturer to be dangerous, citing Winterbottom v Wright (1842) 10 M & W 109[18] and Mullen v Barr & Co Ltd 1929 SC 461.[19] The respondent emphasised that the law only recognise two exceptions to the rule in Winterbottom v Wright (1842) which was articles dangerous in themselves such as explosives or poisons or articles rendered dangerous to the manufacturer’s knowledge where concealment or failure to warn would amount to fraud.[20] Hence they argued that the ginger beer was not inherently dangerous, and there was no allegation Stevenson knowingly concealed a defect.[21] They also contended that creating a new category of liability (for sealed food and drink) would be an illegitimate judicial innovation, unsupported by precedent.[22] Also the respondent cited Mullen v Barr & Co Ltd 1929 SC 461, where the Inner House (by majority) had dismissed claims arising from a dead mouse in a ginger beer bottle, holding that the manufacturer owed no duty to the consumer absent privity.[23] Furthermore the respondent has made a policy argument as they argue that imposing such liability would be ‘outrageous’ which is indicated by Lord Anderson in Mullen since it would expose manufacturers to unlimited claims which they could neither investigate nor defend.[24]
Judgment / Final Decision:
By a 3:2 majority, the House of Lords allowed the appeal.[25] Held manufacturers could owe a duty of care to consumers in negligence even if no contract existed between the consumer and the manufacturer.[26] Established that manufacturers owe a duty of care to ultimate consumers of their products.[27] The case was remitted to trial for determination of negligence.[28]
Legal Reasoning / Ratio Decidendi:
Lord Atkin’s ‘Neighbour Principle’:[29]
Lord Atkin emphasised that “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 reasonably 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”.[30] Lord Atkin further emphasised that neighbour includes any person whom the manufacturer ought to reasonably have in contemplation when putting products on the market.[31]
Lord Atkin’s Neighbour Principle’ expanded liability beyond contract law by having negligence actionable without privity.[32] Overruled Mullen v Barr & Co Ltd 1929 SC 461,[33] which had denied a duty of care in similar circumstances.[34] Approved George v Skivington (1869) LR 5 Ex 1[35] as an early example of manufacturer liability.[36] Refined Brett MR’s broad dictum in Heaven v Pender (1883) 11 QBD 503,[37] narrowing it through the concept of “proximity.”[38]
Lord Macmillan:[39]
Lord Macmillan states that ‘the categories of negligence are never closed’.[40] Lord Macmillan emphasised the expansion of the negligence categories and the adaptability of common law to new social conditions.[41] He explicitly states that “the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed”.[42]
Lord Thankerton:[43]
Lord Thankerton expressly agreed with Lord Atkin’s articulation of the duty of care, particularly with the principle that manufacturers owe a duty of care to ultimate consumers of their products when it is reasonably foreseeable that harm may result from negligence in preparation.[44]
Dissenting Options:
“The principle contended for must be this: that the manufacturer, or indeed the repairer, of any article, apart entirely from contract, owes a duty to any person by whom the article is lawfully used to see that it has been carefully constructed…This conception is simply to misapply to tort doctrine applicable to sale and purchase”[45]
Lord Buckmaster interpretation of the law in Donoghue v Stevenson was not correct because he argues that the manufacturers should not owe a duty of care outside the contract and this view has been overtaken by the recognition of duties in tort especially after the Donoghue v Stevenson case.[46] Lord Buckmaster and Lord Tomlin warned that recognising such a duty would dangerously extend liability without precedent.[47] They argued that only items ‘dangerous in themselves’[48] (e.g. poisons, firearms) should attract such liability unless there was a contractual relationship.[49] Lord Buckmaster famously cautioned that if the law went ‘one step’ beyond existing limits, ‘there is no reason why we should not go fifty’.[50]
Conclusion / Observation
Donoghue v Stevenson is a significant case establishing the modern tort of negligence.[51] It introduced the general duty of care test, which has been developed into more specific ‘duty frameworks’ in later cases such as Anns v Merton LBC [1978] AC 728[52] and Caparo Industries plc v Dickman [1990] 2 AC 605.[53] Donoghue v Stevenson introduced the general duty of care test, which has been developed into more specific ‘duty frameworks’[54] in later cases such as Anns v Merton LBC [1978] AC 728[55] and Caparo Industries plc v Dickman [1990] 2 AC 605.[56]
This significant case further strengthened consumer rights by ensuring manufacturers are accountable to end-users which has also provided a legal remedy in situations where contractual protections (e.g. implied warranties) were absent.[57]
However, this case balanced public policy concerns by protecting consumers against unsafe products while avoiding unlimited liability.[58] Moreover, Lord Buckmaster’s dissent warned against opening floodgates of claims, but subsequent development of tort law has carefully limited liability.[59] Today, the neighbour principle remains a central element in negligence law, though refined by later courts.[60]
Bibliography:
Anns v Merton LBC [1978] AC 728.
Caparo Industries plc v Dickman [1990] 2 AC 605.
Donoghue v Stevenson [1932] AC 562’
George v Skivington (1869) LR 5 Ex 1.
Heaven v Pender (1883) 11 QBD 503.
Mullen v Barr & Co Ltd 1929 SC 461.
Winterbottom v Wright (1842) 10 M & W 109.
[1] Donoghue v Stevenson [1932] AC 562, 562.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] George v Skivington (1869) LR 5 Ex 1.
[15] Heaven v Pender (1883) 11 QBD 503.
[16] Donoghue (n 1) 565.
[17] Ibid.
[18] Winterbottom v Wright (1842) 10 M & W 109.
[19] Mullen v Barr & Co Ltd 1929 SC 461.
[20] Winterbottom (n 18) [1].
[21] Donoghue (n 1) 566.
[22] Ibid.
[23] Mullen (n 19) [1].
[24] Ibid.
[25] Donoghue (n 1) 566.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Donoghue (n 1) 579.
[30] Ibid.
[31] Ibid.
[32] Ibid.
[33] Mullen (n 19) 461.
[34] Ibid.
[35] George (n 14) [1].
[36] Ibid.
[37] Heaven (n 15) [1].
[38] Ibid.
[39] Donoghue (n 1) 562.
[40] Ibid.
[41] Ibid.
[42] Ibid.
[43] Donoghue (n 1) 601.
[44] Ibid.
[45] Donoghue (n 1) 577.
[46] Donoghue (n 1) 563.
[47] Ibid.
[48] Ibid.
[49] Ibid.
[50] Ibid.
[51] Donoghue (n 1) 562.
[52] Anns v Merton LBC [1978] AC 728.
[53] Caparo Industries plc v Dickman [1990] 2 AC 605.
[54] Donoghue (n 1) 562.
[55] Ann (n 52) [1].
[56] Caparo (n 53) [1].
[57] Donoghue (n 1) 562.
[58] Ibid.
[59] Ibid.
[60] Ibid.
