CASE STUDY: DONOGHUE V STEVENSON

1.1 MATERIAL FACTS

On Sunday 28th August 1928 Donoghue went with a friend to Paisley at Well meadow Café1.
The friend ordered a pear and ice for herself and a Scotsman ice cream float, a mix of ice cream
and a bottle of ginger beer for Donoghue2. The owner of the café brought a tumbler of ice cream
and poured ginger beer on it from a brown and opaque bottle labeled “D. Stevenson, Glen Lane,
Paisley.” Donoghue drank some of the ice cream float. When her friend went to pour the rest of
the ginger beer, a decomposing snail also poured out of it. Mrs. Donoghue claimed she felt ill
from the sight and also complained of abdominal pains.3 She consulted a doctor and was
admitted for emergency treatment4 at Glasgow Royal Infirmary where she was diagnosed with
severe gastritis 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 Well meadow Café. Donoghue subsequently contacted and instructed Walter
Leech man, a local solicitor and city councilor whose firm had acted for the claimants in a
factually similar case5 less than three weeks earlier. She lodged a writ in the court of sessions,
Scotland’s highest civil court, seeking £500 damages.

1.2 LEGAL ISSUES

The outcomes of Donoghue v Stevenson established several legal principals and precedents:

1.2.1 DUTY OF CARE

Duty of care refers to the circumstances and relationships which the law recognizes as
giving rise to legal duty to take care. Failure to take such care can result in the defendant being
liable to pay damages to an injured party or a party that suffers loss as a result of breach. The
claimant must also be able to show a duty of care imposed by the law in which the defendant has
breached. The existence of a duty of care for personal injury and property damage was
developed by Lord Atkins neighbor test6. There are three requirements for establishing duty of
care according to Lord Atkins:

a) Reasonable foresight of harm

b) A relationship of proximity

1
Paisley, Renfrewshire

2
Chapman, Matthew (2010).The Snail and the Ginger Beer. Great Britain: Wildy, Simmonds & Hill Publishing.
(Chapman, 2010)

3
Taylor, Martin R. (2004). “Mrs. Donoghue’s Journey”. Donoghue v Stevenson Digital Resources. Scottish Council of Law
Reporting.
4
Ibid2
5
Mullen v AG Barr Co. Ltd
6
Donoghue v Stevenson
 c) It must be “fair, just and reasonable” to impose liability.

However it is not a requirement for duty of care to be defined by law but it will always
develop in the jurisprudence of common law.

a) Reasonable foresight of harm

In the case of Topp v London Country bus7 the defendant bus company left a
minibus unlocked and the keys left in the ignition. The driver who was expected to pick
the bus did not come for his shift so thieves stole the bus and drove it away.
Unfortunately the bus knocked a woman off her bicycle and killed her. When her
husband brought an action for damages the court held that the bus company did not owe a
duty of care for the acts of the third party because it was not foreseeable that thieves
would take the bus and run a woman off her bicycle. However in Donoghue v Stevenson,
Stevenson had a duty of care to ensure that snails did not get into the bottles of ginger
beer and he had breached this duty by failing to provide a system to clean bottles
effectively given that ginger beer was intended for human consumption. The cleaning
system was found very ineffective as there were allegations that the bottles were being
left in places where snails would easily access and evidence of snail trails had been found
there.
b) A relationship of proximity
In the case of Bourhill v Young8 the claimant who was a pregnant fishwife upon
disembarking from a tram went to pick her basket at the storage area. She heard a
motorcyclist crash (50ft away) and the cyclist was killed by the impact. When Bourhill
walked past the scene of the incident, she saw blood on the road. She suffered shock and
later gave birth to a stillborn child. She brought a claim against the defendant’s estate and
it was held that no duty of care was owed to the claimant as there was no sufficient
proximity between the claimant and the defendant where the accident occurred.
c) It must be “fair, just and reasonable” to impose liability.
According to Lord Atkins’s ratio decendi, “a manufacturer of products, which he
sells…owes duty to the consumer to take reasonable care.” This precedent has evolved
and now forms the basis of laws that protect consumers from contaminated or faulty
goods. These protections began as common law but many have since been codified in
Trade Practices Act (Commonwealth, 1974).

7
[1993] 1 WLR 979
8
[1943] AC 92
 1.2.2 NEGLIGENCE

Negligence is failure to exercise the expected ethical care in specified circumstances

resulting to damage or injury to another party. It also means conduct that falls below the
standards of behavior established by law to protect others against unreasonable harm. In order to
prove negligence, a plaintiff must prove that:-

i) the defendant had a duty to the plaintiff

ii) the defendant breached the duty by failing to conform to the required standard of
conduct
iii) that the plaintiff was harmed or damaged and
iv) the defendant’s negligent conduct was the cause of harm

One of the most important concepts of negligence is the law of “reasonable person”
which provides the standard by which a person’s conduct is judged9. A reasonable man is also
deemed a wholly impersonal fiction to which no specific characteristic of the accused should be
attributed. In the case of Healthcare at Home limited v The Common Services Agency10, this
cases follows from the legal issue arising in the topic of the reasonable man, as a means of
describing a standard applied by court, that it would be misconceived for a party to seek to lead
evidence from actual passengers on the Clapham omnibus as to how they would have acted in
certain circumstance or what they would have foreseen to establish how the reasonable man
would acted or what he would have foreseen. Even if the party offered to prove that his witness
were reasonable men, the evidence would be beside the point. The reasonable mans behavior is
not established by the evidence of any witnesses. It is established by the application of a legal
standard by the court. The court may require to be informed of the evidence existing in the
circumstances which bear the standard of the reasonable man in any particular case; but it then
lies upon the court to determine the outcome.

1.2.3 NEIGHBOUR PRINCIPLE

Thirdly, the Donoghue v. Stevenson case produced the Lord Atkins principle called the
‘neighbour principle’ which extended the tort of negligence beyond the immediate party to
anyone that could be referred to as a neighbor. It raised the question of exactly which people
might be affected by negligent actions. In Donoghue’s case she had not purchased the ginger
beer but had received it as a gift; she was a neighbor rather than a party to the contract. Atkins
said of this principle: “You must take reasonable care to avoid acts or omissions”. This further
raised the question then "who would be referred to as a neighbour?" The answer was established
to be the persons who are directly affected by my act that I ought to have them in mind when I
am considering any acts or omissions.

9
Bedder v Director of Public Prosecution’s, 1 WLR 1119(1954)
10
[2014] UKSC 49
1.2.3 DECISION OF THE COURT

The facts of Donoghue v Stevenson themselves are ordinary but the factual background
established when the case reached the House of Lords ensured its place in the history of time. It
was held that Donoghue had no contractual relationship11 with the seller as she is not the one
who had purchased the ginger beer. However her friend who had placed the order had a contract
with the seller yet she had not suffered any injury. Therefore the claim against Minghella was
abandoned on 19th November due to his lack of contractual relationship with Donoghue and also
his inability to examine the contents of the dark glass bottle.

The case was also heard by Lord Moncrieff in the Outer House on 27th June 1930 and his
judgment he held that there should be liability for negligent preparation of food12. It was held
that if anyone is in the production of food or drinks that are to be taken by the final consumer
would not plead ignorance of foreseeable danger associated with the products and as a
consequence of any act or omission in the process of manufacturing. Lord Moncrieff further
states that production of such good imposes a duty of care on the part of the manufacturer. The
Lords held that Stevenson the manufacturer of the ginger beer was negligent on his part and
therefore was liable for any damages caused due to his negligent behavior. Therefore this case
rests solely on grounds of tort on negligence and the matter was to be decided by the English law
courts whose decisions would be binding even to Scots law. The case became a foundational
decision in Scots delict law and English tort law and is till date referred to as the “paisley snail
case13” or “the snail in the bottle case14”

11
Taylor, Martin R. (2004). “Mrs. Donoghue’s Journey”. Scottish Council of Law Reporting.
12
Ibid 2 (25-26)
13
Wylie, A. F. “The Paisley snail Mini-trail”. Donoghue v Stevenson Digital Resources. Scottish Council of Law
Reporting. Retrieved 18 September 2012.
14
"The Paisley snail”. Paisley Online. Retrieved 18 September 2012.
1.2.4 DIFFERENCES IN REASONING BETWEEN JUDGEMENTS
1.2.5 THE NEIGHBOUR PRINCIPLE

This principle states that ‘you must not injure your neighbour’. This principle is that one
must take reasonable care to avoid any acts or omissions that could be foreseen to injure a
neighbor. The neighbor principle was enunciated by Lord Atkins in the case of Donoghue v
Stevenson and it provides an adequate basis of the law of negligence. This principle was
articulated to determine boundaries of duty of care and to what extent a claimant would be owed
a duty of care by the defendant. A neighbor is defined as anyone closely or directly affected by
the cause of our acts15. The neighbor principle opens doors to claims in negligence for injured
parties by classifying the type of people duty of care may be owed to. This class of people
includes people close or direct enough to be affected by the allegedly negligent acts. The alleged
tortfeasor must put the neighbor into contemplation before acting as he or she did. In Home
Office v Dorset Yacht Co Ltd16. Some young offenders were doing some supervised work on
Brown Sea Island. One night the supervising officers left for the evening leaving the boys
unsupervised the whole night. Seven of the boys escaped and stole a boat which collided with a
Yacht owned by the claimant. It was held that the Home Office owed a duty of care for being
absent for supervisor duties. They were in a position to control the 3rd party who caused the
damage and it was foreseeable that harm would result from their inaction.

This principle does not throw the floodgates to unlimited claims because the tortfeasor will
not be held liable of the duty of care if the claimant is not close enough. This was well
demonstrated in ‘Caparo’s test’ in the case of Caparo Industries plc v Dickman17 where
Caparo industries purchased shares in Fidelity Plc in reliance of the accounts which stated that
the company had made a profit while they had actually made a loss. Caparo brought an action
against the auditors claiming they were negligent in certifying the accounts. It was held that no
duty of care was owed. There was not sufficient relationship between Caparo and the auditors
since the auditors were not aware of the existence of neither Caparo nor the purpose for which
the accounts were being used by them. According to Lord Bridge, in addition to foreseeing
damage there are certain characteristics that should exist between the party owing duty of care
and the party to which duty of care is owed. This characteristic is defined to as ‘neighborhood’
or ‘proximity’. The court should be able to consider the situation fair, just and reasonable.

In regards to “The parable of the Good Samaritan”

15
Oxford university press
16
[1970] AC 1004 House of Lords
17
[1990] 2 AC 605 House of Lords
BIBLIOGRAPHY