There cannot be, sorry should not be, a law student (never mind a lawyer) anywhere on planet earth who has not heard of, read, examined forensically, discussed, wrote about, posted about, argued about in class, agreed or disagreed – what is surely the most famous case in legal history – ladies and gentlemen I give you-

Donoghue v Stevenson (1932) SC (HL) 31, AC 562, UKHL 100, All ER 1.

Sir Harry Gibbs Legal Heritage Centre | Supreme Court Library Queensland

It has been intrinsic to the teachings of civil law across multi-jurisdictions for nigh on a century and it is hard to think of a similar case (even in a different subject area) that has had as seismic an effect as it.

Central to my piece today is not, as you might imagine, a bottle of ginger beer. Nor is it Mrs. May Donoghue. It is not even the quaint café (sadly long gone) in Paisley. No, my principal and core reason for attention and scrutiny is Australia’s greatest export to the UK (not Neighbours, Kylie Minogue or Fosters) – but James Richard Atkin, Baron Atkin or, as most will know him, ‘Lord Atkin’ (below). The extent to which the judgement in Donoghue has reverberated throughout the world is hard to quantify – colossal, astronomic, titanic, gargantuan – such adjectives might suffice. The famous Scottish judge, Lord Hope (of Craighead) once remarked (of Donoghue) that ‘one might say that the modern day law of negligence was created by it’. Quite a tribute.

James Atkin, Baron Atkin - Wikipedia
Lord Atkin – 28/11/1867 – 25/6/1944)

But was it the correct judgement? On several different grounds, I might add. Before sheer hysteria develops, I am not here to attempt to challenge a great legal mind such as the late great Lord Atkin (though I don’t consider mine too shabby 😉) but, with the 92nd anniversary of the day in question fast approaching and 88 years since the judgement, I think it high time it is held to account and examined in some detail. Most people celebrate the decision but that has not always been the case. I intend to explore whether indeed it should be celebrated.

That is not to say that I do not agree ostensibly with the decision – I do. In my opinion, the outcome was and certainly is appropriate in the sense that it recognises that the law should accept and recognise liability where one individual carelessly causes a foreseeable loss to another by reason of their negligence. Note the salient words in italics, as it is those words that are core to the entire case.

Notwithstanding that comment, however, did Lord Atkin make some rudimentary errors in reaching his conclusion?

To compound matters this was an appeal case from Scotland, with a fundamentally different legal system and where, in all likelihood, the ‘facts’ never actually occurred.

Naturally, before we start the forensic analysis, I must start with a resumé of the ‘facts’ of the case, well documented though they are.

Late on Sunday 26th August 1928, Mrs. May Donoghue arrived at the Wellmeadow Café in Paisley to meet her friend. (Oddly, the actual identity of the friend was never revealed, although her role in this saga is pivotal). They sat beside a window in a small table for two. Mrs . Donoghue’s friend ordered a then popular Scottish non-alcoholic drink called a ‘pear and ice’. Additionally, she ordered an ‘ice-cream and ginger beer’, (aka a ‘ginger float’), for her friend, May Donoghue. That act of friendship and generosity has , in many ways, haunted our law of Delict ever since. Had, for example, Mrs. Donoghue ordered the drink for herself, she would have had perfectly good and competent legal redress for an action of breach of contract against the café owner, Francis Minghella.

Said ginger float came in a brown or black opaque bottle with the name and location of the manufacturer, ‘D. Stevenson, Glen Lane, Paisley’ emblazoned on the side. Her friend poured part of the drink for Mrs. Donoghue into her glass who duly drank it. As she proceeded to pour the remainder from the bottle, the remnants of a decomposed snail slid into her glass (allegedly).

King's College law student uses 1930s case law to demand lifetime supply of  chocolate after getting eight KitKats with no WAFER - Legal Cheek
( A mollusc perched at the mouth of a, not the, bottle).

According to her legal team, Mrs. Donoghue, upon seeing this far from pleasant sight became unwell and was violently sick. She went on, again according to lawyers, to suffer ‘severe gastro-enteritis’ and was admitted to Glasgow Royal Infirmary. Mrs. Donoghue could not raise an action against the café as she had no contract with them. The contract, for the ginger beer, was between the café and Mrs. Donoghue’s friend. The only remaining party was the manufacturer of the ginger beer, David Stevenson. An action was raised against him by Donoghue. He brought what is known as a plea to the relevancy effectively stating that he had been under no ‘duty’ and one cannot be accused of breaking a duty that is not there. This is found in the legal maxim of ‘damnum injuria datum’ ( literally ‘loss wrongfully caused’.) The first of three conditions for this maxim to be successfully met is whether a ‘duty of care’ exists, secondly whether there has been a ‘breach’ of that duty and finally whether, as result, there has been ‘loss, injury or damage’ as a consequence. Mrs. Donoghue effectively fell at the first hurdle as there was, in law, no ‘duty’ (of care) owed by Stevenson to Donoghue at that time in Scots Law. The other elements to the damnum maxim therefore became inconsequential.

Mrs. Donoghue was unsuccessful in all her attempts and eventually appealed to the (then) House of Lords (which would subsequently be replaced by The Supreme Court in October 2009). By a majority of 3:2, they allowed her appealed and, by doing so, created a ‘judicial precedent’ which would have a monumental and cataclysmic effect to this day. The appeal was heard by five judges with Lords MacMillan and Thankerton and, of course, Lord Atkin delivering speeches in the majority and with Lords Buckmaster and Tomlin dissenting (disagreeing).

The ratio decidendi of the decision was subsequently expressed by the Privy Council some three years later in Grant v Australian Knitting Mills Ltd (1935) UKPCHCA 1; (1935) 54 CLR 49, 63, confirming the effect and perhaps general respect with which Atkin’s speech was met. The Council said that:

‘A manufacturer of products, 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 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 and property, owes a duty to the consumer to take that reasonable care‘. Quite a remark.

However, it is important to acknowledge that Lord Atkin’s words in his famous dictum were immeasurably more general and have indeed by some been considered as ‘staggering’. So, given that Donoghue has been responsible for legislative creation as well as a closely followed common law precedent, it really is a quite remarkable case and an astonishing ‘ratio’.

Before moving on to my critique, let’s end this part of the article with the salient points of that famous speech, viz,:

‘The liability for negligence , whether you style it such or treat it as in other systems as a species of ‘culpa’, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But 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. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply. 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 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’.

That, effectively, sums up the Donoghue v Stevenson tale.

But was the judgement correct?

It seems reasonably obvious that Lord Atkin based, at least in part, his views on his own theological observations and interpretation with, not least, the parable of the Good Samaritan. This then predisposes one to consider the juxtaposition of law and morality, often a toxic, if unavoidable mix.

In the Parable of the Good Samaritan, the example is of a Jew and the Samaritan, who would not ordinarily have been friendly towards each other. However, out of all those who could have helped the Jew, only the Samaritan did. The parable tells of a man who was travelling from Jerusalem to Jericho and was attacked by robbers on the way. He was badly beaten and left for dead.

The first person to pass the injured man was a Priest, who crossed the road and continued walking.

The second person to pass the injured man was a Levite, a priest’s assistant. He also crossed the road and continued walking without helping the man.

The third person to come by was a Samaritan (a person from Samaria). The Samaritans were hated by the Jews. When the Samaritan saw the man, he took pity on him. He bandaged him and cleaned his wounds. He then put him on the back of his donkey and took him to an innkeeper, whom he paid to look after him.

Parable of the Good Samaritan - It's Meaning & What We Can Learn
‘The Good Samaritan’ representation.

Did Lord Atkin mean that, notwithstanding the immorality of the Priest and the Levite, they would not be ‘legally liable’. Technically, all three individuals should have ‘loved’ (and therefore, one assumes have ‘helped’) the wounded man, who, effectively was their ‘neighbour’. But Atkin was saying, in law, that this was not a requirement of them, in law. Consequently, it seems that perhaps the Priest and Levite have been cast as villains because of their ‘moral blameworthiness’. But perhaps we are confusing ‘morality’ with ‘community’. If that is so, the extension is to perhaps to helping those with whom we interact, rather than insist we should love and help absolutely everyone we see – then I say that there is an argument that , strictly, the use and interpretation of this parable as comparison for Donoghue is unsuited and, in many ways, inappropriate. This theory is perhaps corroborated with the first condition of the damnum injuria datum maxim which does NOT create a legal duty upon everyone with everyone else. There are, of course, limitations and exceptions. The task is to establish the basis for legal liability.

Even if my theorem about the misguided application of the parable of the Good Samaritan is correct, I still think that the Atkinian assumption that a sense of moral blameworthiness should be attached to those who do not assist, where it is easy to do so, is correct. In Scottish Criminal Law however, as we know, there are only a relatively few occasions where there is an ‘obligation’ to help. In stern reality, if we see someone in need and elect to ignore their pleas for help, we cannot be held to account. Some have even suggested, perhaps a little heartlessly, that the mistake the Priest and Levite made was crossing the road to ignore the wounded man. They should have walked right past him. But that assertion is attached to our Criminal and not Civil Law. So what I am suggesting is that I am unconvinced the application of this parable is befitting to the circumstances as to what may have occurred in the Wellmeadow Café.

Further, Lord Atkin appears to suggest that the law concerns itself with only ‘positive/overt’ acts – but, in reality, omissions ( and, again, I am not now referring to the Criminal Law) have always attracted liability. The duty created in the law of Contract is a suitable example. By not fulfilling your side of the bargain (by actually doing nothing) it may render you to be in ‘breach’ (of contract) and therefore liable. But this is not an isolated example. So, I am unconvinced by the notion that the law is only concerned with acts of positivity.

Perhaps one of the most potent ways that Donoghue could have been resolved would have been to introduce the concept of ‘intention’. A defender would attract liability if they intentionally interfere with the rights of a Pursuer, in line with damnum. The pursuer would be required to demonstrate an existing right and a reference to the intent of the defender. If that was to be applied, there would have been no liability for Stevenson. At least we would suspect nobody would ‘intentionally put the remnants of a decomposed animal into a drink. But perhaps we could/should extend this to include situations where a defender acts negligently. The answer to Donoghue would have been relatively straightforward – a defender who negligently interferes with the rights of a pursuer where there is foreseeability, will be liable. But Atkin did not focus on the Pursuer. Rather on the fault of the Defender. Immeasurably more focus was placed on Stevenson and the ‘fault’ in, presumably, his manufacturing processes, than the ‘harm’ caused to Donoghue.

Finally, there is doubt as to whether the ‘facts’ of the case really occurred at all. The case never made it to ‘proof’ as the defender died before it was due to be heard. When it finally returned to court in late 1934 it was only to approve a settlement. The role of Donoghue’s solicitor, Walter Leechman, who acted pro bono has also attracted ‘curiosity’ and there has been speculation that this was run as a test case, as much as anything else. In 1929 he was also the lawyer for two children in a claim against Barr’s (they of ‘Irn-Bru’ fame), in a case with startling similar circumstances ( Mullen v A G Barr (1929) SC 461). This time it was a mouse’s head that was allegedly found in a bottle of, wait for it, ginger beer (ahem) without any evidence being led to suggest how on earth a mouse’s head could possibly squeeze into the incredibly narrow entrance to the bottle. In that case, Lord Anderson described the odds of that happening as ‘many millions to one’.

The seismic effect of Donoghue need not be discussed further. Whether it was correct, in theology, in law, in interpretation will be a matter of opinion and for years to come. I have examined and given what are, of course, merely my thoughts. I shall let my students (past and present) and others that may be interested form their own view.

In terms of legal folklore, however, it doesn’t get much better.

Donoghue v Stevenson Snail in a Bottle | Paisley Scotland
The site of the café, now memorialised by a simple plinth.

One thought on “Donoghue v Stevenson – a critique

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