DONOGHUE V STEVENSON (1932) AC 562 OR (1932) UKHL 100 OR (1932) SC (HL) 31

CASE TITLE & CITATION: DONOGHUE V STEVENSON (1932) AC 562 OR (1932) UKHL 100 OR (1932) SC (HL) 31

COURT NAME & BENCH: HOUSE OF LORDS 

LORD BUCKMASTER 

LORD ATKIN

LORD TOMLIN

LORD THANKERTON

LORD MACMILLAN

DATE OF JUDGMENT: 26 MAY 1932

PARTIES INVOLVED

MRS MAY M’ALISTER OR DONOGUE APPELLANT

DAVID STEVENSON RESPONDENT

FACTS OF THE CASE

On the evening of  Sunday 26 August 1928, during the Glasgow Trades Holiday, Mary 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. Donoghue 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 labeled “D. Stevenson, Glen Lane, Paisley”. Although the bottle was labeled as Stevenson’s, it was suggested that it is possible it did not originally belong to him (Stevenson). Bottles were often reused, and in the process occasionally returned to the incorrect manufacturer. Donoghue drank some of the ice cream float. When her friend poured the remaining ginger beer into the tumbler, a decomposed snail also floated out of the bottle. Donoghue claimed that she fell 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 detail of the ginger beer manufacturer was on bottle label and it was from the label that her friend got the name and address of the manufacturer. Donoghue subsequently contacted and instructed Walter Leechman, a local solicitor and city council or whose firm had acted for the claimants in a factually similar case, Mullen v AG Barr & Co. Ltd less than three weeks earlier. 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 the Mullen’s case had recovered at first instance, and £50 in costs. The total amount Donoghue attempted to recover would be approximately equivalent to £42,234 in 2023. 

ISSUES RAISED

The question for determination was whether the manufacturer owed Mrs. Donoghue a duty of care in the absence of contractual relations?

ARGUMENTS OF THE PARTIES

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”. This breach of duty was alleged to have caused Donoghue’s subsequent illness. 

Argued for the appellant– The appellant had stated a relevant case upon record. Admittedly the present case was indistinguishable from the case of Mullen v. Barr & Co. Ltd. The Court proceeded on the view that a manufacturer owed no duty to anyone with whom he had no contractual relation, except either where the article manufactured was dangerous in itself or, although not normally dangerous in itself, was known to the manufacturer to be dangerous owing to some defect or for some other reason. That view of a manufacturer’s obligation was too narrow, and the question whether a duty of care on the part of the manufacturer existed towards persons with whom he had no contract was one which in each case depended upon the particular circumstances of the case. Where a manufacturer put on the market an article of food or drinks in a form which precluded an examination of the article by the retailer or the consumer, he was liable to the consumer if he did not take reasonable care to make sure that the article was not injurious. In the present case the ginger beer bottles were opaque, and were sealed and labeled before they left the manufacturer’s premises, these circumstances making any examination by the retailer or consumer impossible. Nevertheless, the manufacturer tacitly invited the purchasers to consume the contents of the bottles, and he was liable to the consumer if, through carelessness on his part, the contents were noxious. It was true that George v. Skivington had not always been favourably commented on, but it had never been overruled, and it had been referred to by the House of Lords without disapproval. In the United States the law had been laid down as contended for by the appellant.

Argued for the respondent– The general rule was that a manufacturer owed no duty to a consumer with whom he had no contract. To this rule there were two well recognized exceptions–(1) where the article was dangerous in itself; (2) where the article was known to the manufacturer to be dangerous for some reason or other. The present case did not fall within either of these exceptions, and the appellant was trying to introduce into the law a third exception, viz., goods intended for human consumption and sent out by the manufacturer and sold to the consumer in a form in which examination was impossible. There was no hint of any such exception in any of the reported cases. There was no suggestion of the existence of a trap in the present case, and there was no logical reason for differentiating between articles of food or drink and other articles. The principle of liability was stated too widely by Brett, M.R., in Heaven v. Pender and in Le Lievre v. Gould he himself and A. L. Smith, L.J., modified his previous statement of that principle. Cotton, L.J., and Bowen, L.J., in Heaven v. Pender explained the law correctly. In Blacker v. Lake & Elliot Hamilton, J., and Lush, J., regarded George v. Skivington as overruled. The principle, according to Hamilton, J., was that the breach by A of his contract with B to use skill and care in the manufacture of an article did not per se entitle C, if injured by the article, to sue A. He regarded George v. Skivington in so far as it proceeded upon duty to the ultimate user, as being inconsistent with Winterbottom v. Wright. The general trend of legal decisions was adverse to the appellant.

JUDGMENT/FINAL DECISION

Court of Session, Inner House

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

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.[6]: 32  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. 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 of 3–2 that Donoghue’s case disclosed a cause of action. The majority consisted of Lord Atkin, Lord Thankerton and Lord Macmillan.

Lord Thankerton ruled that Donoghue had no contract with Stevenson, nor that her case was covered by one of the scenarios in which a duty of care had previously been found. However, he held that where goods could not be examined or interfered with, the manufacturer had “of his own accord, brought himself into direct relationship with the consumer, with the result that the consumer [was] entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the consumer”, an exception to the general nonexistence of a duty of care that applied to Donoghue. 

Lord Thankerton further argued that it was impossible “to catalogue finally, amid the ever-varying types of human relationships, those relationships in which a duty to exercise care arises apart from contract” and commented that he “should be sorry to think that the meticulous care of the manufacturer to exclude interference or inspection by the [seller] should relieve the [seller] of any responsibility to the consumer without any corresponding assumption of duty by the manufacturer”. Lord Macmillan held that, according to this standard, Stevenson had demonstrated carelessness by leaving bottles where snails could access them; that he owed Donoghue a duty of care as commercial manufacturer of food and drink; and that Donoghue’s injury was reasonably foreseeable. He therefore found that Donoghue had a cause of action and commented that he was “happy to think that in … relation to the practical problem of everyday life which this appeal presents … the principles of [English and Scots law] are sufficiently consonant with justice and common sense to admit of the claim which the appellant seeks to establish.”

Lord Tomlin concurred with Lord Buckmaster. While he agreed with Lord Atkin that the duty of care a manufacturer owed to its consumers was the same regardless of the product they produced, he held that no general duty of care existed and that the fact the product was in a sealed container made no difference to the finding of such duty. He further endorsed concerns that Lord Atkin’s broader test of liability would have allowed everyone injured in the Versailles rail accident to be able to claim compensation from the manufacturer of the axle that broke and caused the crash. The legal basis for the claim now settled, the case was returned to the Court of Session for a hearing scheduled for January 1933. In the hearing, Donoghue would have to prove the factual elements of the case that she had claimed, including that there had been a snail in the ginger beer as a result of Stevenson’s negligence and that this snail had caused her illness. However, Stevenson died on 12 November 1932, aged 69. One year later, Stevenson’s executors were listed as third-party defenders to the case. However, the claim was settled out of court in December 1934 for, according to Leechman’s son, £200 of the £500 originally claimed.

LEGAL REASONING/RATIO DECIDENDI

The case also known as “Paisley Snail” or “Snail in the Bottle” case established the modern law of negligence by creating the “neighbour principle”. Donoghue was not the first case to attempt to sever the dependence of negligence on contract; a few years previously, Lord Ormidale in Mullen, said, ‘. . . it would appear to be reasonable and equitable to hold that, in the circumstances and apart altogether from contract, there exist a relationship of duty as between the maker and the consumer of the beer.’ [9] Thus, the doctrine is based in law and morality. The impact of Donoghue on tort law cannot be understated; it was a watershed moment effectively establishing tort as separate from contract law.

However, it is important to remember that Donoghue was a milestone in a new principle which needed refining, as Lord Reid said, ‘. . . the well known passage in Lord Atkin’s speech should, I think, be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances.’ The next major development in the ‘neighbour principle’ came from Hedley Byrne v Heller  which concerned economic loss. However, the locus classicus of the ‘neighbour test’ is found in another economic loss case called Caparo Industries plc v Dickman. What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.

Thus, boiled down the requirements are: forseeability, proximity, and fairness (policy considerations). There has been a certain degree of overlap between the requirements with Lord Hoffman stating that the distinctions between them, ‘. . . somewhat porous but they are probably none the worse for that.’ It was argued unsuccessfully in Mitchell & Anor v Glasgow City Council that because Caparo was concerned with economic loss it had little application to personal injury claims; Lord Hope said that, “….the origins of the fair, just and reasonable test show that its utility is not confined to that category.

The outcome of Donoghue has reverberated through law as a whole. It essentially birthed a new area of law to the benefit and detriment of some. For example, personal injury which is steeped in both statutory duty and the neighbour principle. Indeed, it has grown to the point where there are concerns of an American style ‘compensation culture’ best expressed by Lord Hobhouse when he linked it to the restriction of the liberty of individuals: ‘the pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.