Saturday, March 5, 2016

Leading Cases: Donoghue v Stevenson

An occasional look at landmark legal cases.
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Donoghue v Stevenson
[1932] UKHL 100

also known as the ‘snail in the ginger beer bottle case’ and the ‘Paisley snail case’.


Background:

1932 was a time between world wars, a time when the world was coming out of a depression that was so severe that it was termed The Great Depression. It was also a time when there were no consumer protection laws. What we regard today as basic consumer rights did not exist then.

Donoghue v Stevenson is not only a landmark case in the development of the tort (ie a civil wrong) of negligence, it also raises the issue of judge/court made law (known as Common Law) and Parliament made law. To what extent should judges make law? Is that usurping the role of parliament? Or should judges plug the gaps if they see a need? And what of the role of precedent? Should rules and cases that people have followed be overruled? If so, in what circumstances?

Facts:

On 26 August 1928, Ms Donoghue and her friend attended the Wellmeadow Café in Paisley, Scotland. The friend ordered a pear and ice for herself and a Scotsman ice cream float, a mix of ice cream and ginger beer, for Ms Donoghue. 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". 


Donoghue drank some of the ice cream float. However, when Donoghue's 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. She claimed in her later court document that she was required to consult a doctor and was admitted to Glasgow Royal Infirmary for "emergency treatment", being 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 in 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. 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 in 2012. 

Pleadings:

It was alleged on behalf of Donoghue that the manufacturer, Stevenson, left the bottles used in the production process outside in his yard. It was also alleged that his cleaning procedures were insufficient and that he was under a duty to make sure that snails were not in the ginger beer he made and sold.

Stevenson filed a defence that included:
· a denial of any legal basis for the claim;
· a denial of there being a snail in the ginger beer bottle;
· a claim that Donoghue had exaggerated her injuries;
· an assertion that the facts could not be proved; and
· the objection that the amount claimed was excessive.

Legal background and issues:

As already noted, consumer protection virtually did not exist in 1932.

Claims from defective products were usually based on a claim of breach of contract between the seller and the buyer.

In Donoghue’s case, such a claim was beset by difficulties:
· It was Donoghue’s friend who had purchased the ginger beer, but she was not the one who suffered the injury.
· Donoghue had sustained injury but was not in a contractual relationship with Minghella, the seller of the ginger beer.
· Moreover, the bottle was opaque, so that Minghella could not have been aware that the sealed bottle contained a decomposed snail.
· Neither Donoghue nor her friend, had a contractual relationship with Stevenson, the manufacturer.

In the recent case of Mullen v AG Barr & Co Ltd, a claim had been made for dead mice found in a bottle of ginger beer. Successful at first instance, on appeal it was held that 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

None of those exceptions applied to Donoghue: ginger beer is not intrinsically dangerous, nor did Stevenson intentionally misrepresent the threat it posed. 

Donoghue nonetheless claimed that manufacturers owed a duty of care to their ultimate consumers if it was not possible to examine the goods before they were used, a claim that had not been accepted in Mullen. This was a claim in negligence, that is, a failure to take reasonable care by someone who was under a duty to take such care.

Court results:

In 1930 the Scottish court known as the Outer House heard the case and found in favour of Donoghue. Lord Moncrieff held that as a general principle, there should be liability for negligent preparation of food, stating “Tainted food when offered for sale is, in my opinion, amongst the most subtly potent of 'dangerous goods' .” 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 because there was no decision that incorporated it into Scots law. He also distinguished Mullen on the facts, that is, held that the facts were different in that matter and not comparable to the present case.

Stevenson appealed the case to the Inner House, where it was heard by the same four judges who had found against Mullen. The appeal was upheld, Lord Alness observing that the only difference between Mullen and Donoghue was that in one case it was a mouse in a ginger beer bottle and in the other a snail. Stevenson was successful.

Donoghue appealed to the House of Lords.

She was also granted leave to proceed in forma pauperis (with the status of a pauper), after having provided 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...". Her legal team were appearing pro bono ie for free.

House of Lords:

The House of Lords, in 1932, held by a majority of 3-2, that Donoghue did have a cause of action, that is, a legal basis on which to sue.

The leading judgment for the majority is that of Lord Atkin::
  • Controversially, Lord Atkin decided that the basis on which Donoghue’s claim should be allowed was on a “neighbour test”, for which he cited the Bible as analogous.
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour.. . You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
  • In the Bible, Jesus was asked “Who is my neighbour?” Lord Atkin address that issue by stating 
“. . . and the lawyer's question, Who is my neighbour? receives a restricted reply. 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."
  • Lord Atkin went even further than a snail in an opaque bottle, suggesting that there should be a duty of care owed by all manufacturers of "articles of common household use", listing medicine, soap and cleaning products as examples. 
"I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong."
  • According to Lord Atkin:
"If your Lordships accept the view that this pleading discloses a relevant cause of action, you will be affirming the proposition that by Scots and English law alike 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 or property, owes a duty to the consumer to take that reasonable care."
It is a proposition which I venture to say no one in Scotland or England who was not a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound common sense. 


Significance:

The other two judges who upheld the appeal did not do so on the same bases as Lord Atkin. Hence Atkin’s wider comments were regarded by some legal experts as obiter dicta, that is, a judge's expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent. Such ‘by the way’ style comments are often referred to as dicta and as having been made obiter.

Other experts suggest that the reason for the decision, known in law as the ratio decidendi, was the complete neighbour principle. 

Professor Julius Stone (1907-1985) of the University of Sydney jokingly suggested that the ratio of the case was merely a duty "not to sell opaque bottles of beverage containing dead snails to Scots widows.”

Donoghue v Stevenson received little attention after 1932 and did not open the floodgates of consumer protection or of a general duty of care by manufacturers to consumers.

That changed in 1963 in a case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.

In that case, Hedley Byrne, advertising agents, had relied on advice from Heller & Partners Ltd, the bankers of Easipower, that Easipower was a "respectably constituted company, considered good for its ordinary business engagements". Hedley Byrne relied on this information and subsequently lost over £17,000 when Easipower went into liquidation. The House of Lords held that Heller owed Hedley Byrne a duty of care as they used a special skill for Hedley Byrne and because this skill was relied upon by the company. (The negligence claim was ultimately unsuccessful due to a disclaimer of responsibility included in Heller's letter).

The application of Donoghue was discussed and, while all the judges agreed that it would be taking Donoghue too far to immediately apply it to Hedley Byrne, Lord Devlin (a reformist judge of note) suggested that "what Lord Atkin did was to use his general conception [the neighbour principle] to open up a category of cases giving rise to a special duty" and that the case could incrementally expand the duty of care.

In 1970, the case of Home Office v Dorset Yacht Co (1970) AC 1004 did expand the neighbour principle as a general duty of care. In that case the Home Office had taken a group of boys from a borstal to Brownsea Island in Poole Harbour, where seven had escaped overnight and collided one yacht with another belonging to Dorset Yacht Company. The company sued the Home Office for negligence and a preliminary issue, whether the Home Office owed a duty of care to Dorset Yacht Company, was found in the company's favour by both the High Court and the Court of Appeal. The case was appealed to the House of Lords, who held by a majority that the Home Office did owe a duty of care.

Lord Reid, giving the leading judgment, rejected the argument that there was no precedent for the claim, instead acknowledging "a steady trend towards regarding the law of negligence as depending on principle so that, when a new point emerges, one should ask not whether it is covered by authority but whether recognised principles [from Donoghue] apply to it". Donoghue, he argued, should therefore be applied in almost all circumstances.

One commentator has described Donoghhue v Stevenson as:
the landmark case which birthed our modern concept of negligence. Donoghue is to the modern law what The Beatles are to music, what Shakespeare is to literature, what Ben and Jerry’s are to ice cream.." 
https://legemetevangelium.wordpress.com/2013/02/ 

Subsequent events re the cast of Donoghue personae:
  • After the House of Lords finding in Donghue v Stevenson, the case was ordered back to the Scottish courts for hearing. Listed for hearing in January 1933, Stevenson died in November 1932 aged 69.
  • The case was settled out of court for £200.
  • Donoghue had separated from her husband in 1928, divorced in 1945 and died of a heart attack in 1958, at the age of 59, in Gartloch Mental Hospital, where she had been staying as a result of mental illness.
  • Stevenson's business was taken over by his widow, Mary, and his son, the third David Stevenson in the family. It became a limited company (David Stevenson (Beers and Minerals) Limited) in 1950; the family sold their shares in 1956. The Glen Lane manufacturing plant was demolished in the 1960s.
  • The Wellmeadow Café, where the snail had been found, closed around 1931; the building was demolished in 1959. Minghella, its owner, subsequently became a labourer; he died on 20 March 1970.
  • Some legal commentators and judges have expressed doubts as to whether there really had been a snail or as to whether it was a setup to challenge the law as it then was. We will never know.


One further item: on the 80th anniversary of the snail in the ginger beer bottle case, a memorial was unveiled at the site of the former Wellmeadow Cafe, in recognition of the precedent that had been set by the case. that it was illegal to act in such a way that it could reasonably be foreseen that such an action could lead to another being directly harmed.





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