Donoghue (or M’Alister) v Stevenson ([1932] A.C. 562, 1932 S.C. (H.L.) 31, [1932] All ER Rep 1) is one of the most famous cases in British legal history. The decision of the House of Lords founded the modern tort of negligence (delict in Scotland), both in Scots law and across the world in common law jurisdictions. The case originated in Paisley, but the House of Lords declared that the principles of their judgment also applied in English law. It is often referred to as the "Paisley snail" or the "snail in the bottle" case.
Key principles
As Justice Allen Linden has pointed out, Donoghue is an extension of a principle articulated by Benjamin Cardozo in an earlier case, MacPherson v. Buick Motor Co. MacPherson pioneered the tortious principle of a general duty of care, the starting point for any action in negligence, and abolished the common law requirement of privity of contract. However, MacPherson was an American case and, until Donoghue, the duty of care was still limited in English law to a narrow number of relationships. The duty of care is the first of three parts that have to be established in order to prove liability in negligence, the other two being a breach of that duty by the defendant, and causation—linking the damage suffered by the claimant to the defendant's breach of duty.
The case is perhaps best known for the speech of Lord Atkin and his "neighbour" or "neighbourhood" principle, where he applied biblical Luke 10 to law, that is, where an established duty of care does not already exist, a person will owe a duty of care not to injure those whom it can be reasonably foreseen would be affected by their acts or omissions. The practical effect of this case was to provide individuals with a remedy against suppliers of consumer products even where the complainant had no privity of contract with those individual or company tortfeasors.
In 1990, the House of Lords revised Lord Atkin's "neighbour" principle to encompass public policy concerns articulated in Caparo Industries Plc. v Dickman ([1990] 1 All ER 568). The three-stage Caparo test requires: foreseeability of damage; 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 would be fair, just and reasonable that the law should impose a duty of given scope on one party for the benefit of the other. In other jurisdictions, such as New Zealand, there is now a two-part test for novel fact situations, where the establishment of a duty must be balanced against applicable policy matters.
Because of the significance of the case, in 1996 former Supreme Court of British Columbia Justice Martin Taylor and Vancouver lawyer David Hay produced an educational documentary of the case. Besides recreating the events leading up to the case and "interviews" with actors playing the significant participants in the case, the production includes a 1995 interview with Lord Denning—then aged 96.This was one of the last interviews with Lord Denning, who died three years later. The film has been exhibited worldwide.
The legal process
The case started in the Outer House of the Court of Session, where the Lord Ordinary repelled the defender Stevenson's plea against the relevancy of all proof (that is, he dismissed the defendant's claim that there was no cause of action, and allowed the case to go to trial). It was this decision which was reclaimed (appealed) to the Inner House of the Court of Session, which reversed the Lord Ordinary's interlocutory judgment and held, 3-1, that there was no cause of action. The pursuer (plaintiff) appealed to the House of Lords, which gave its famous judgment that there was indeed a case to answer, and remitted the question to the Lord Ordinary to hear the case on the merits.
Background facts
On the evening of Sunday 26 August 1928 May Donoghue, née M’Alister, boarded a tram in Glasgow for the thirty-minute journey to Paisley. At around ten minutes to nine, she and a friend took their seats in the Wellmeadow Café in the town's Wellmeadow Place. They were approached by the café owner, Francis Minchella, and Donoghue's friend ordered and paid for a pear and ice and an ice-cream drink. The owner brought the order and poured part of a bottle of ginger beer into a tumbler containing ice cream. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. It was claimed that the remains of a snail in a state of decomposition plopped out of the bottle into the tumbler. Donoghue later complained of stomach pain and her doctor diagnosed her as having gastroenteritis. She also claimed to have suffered emotional distress as a result of the incident.
On 9th April 1929, Donoghue brought an action against David Stevenson, an aerated water manufacturer in Paisley, in which she claimed £500 as damages for injuries sustained by her through drinking ginger beer which had been manufactured by the defendant.
Lord Justice MacKinnon said in a speech in 1942[citation needed] that, when the facts came to be tried, it was found there was no snail (possibly based on information given to MacKinnon by David Stevenson's counsel, later Lord Normand). However, the case was ultimately settled out of court and the facts were never established in a court of law.
The identity of Donoghue's friend is also unknown but that person is referred to as "she" in the case reports (including the first paragraph of the judgment of Lord MacMillan in the House of Lords).
Other uncertainties are whether the animal (if it existed) was a snail or a slug; whether the bottle contained ginger beer or some other beverage and whether the drink was part of an ice-cream soda.
Legal analysis
Donoghue had not ordered or paid for the drink herself, so there was no contractual relationship between Donoghue and the café owner. Tort law at this time did not allow for Donoghue to sue the café owner. There was a contractual relationship between the café owner and the friend, but the friend had not drunk the ginger beer. Ginger beer was not a dangerous product, and the manufacturer had not fraudulently misrepresented it. At that time, those were the only two grounds for claiming negligence against a manufacturer. On the face of it, the law did not provide a remedy for Donoghue.
It is unclear how May Donoghue came into contact with solicitor Walter Leechman of W G Leechman & Co in Glasgow's West George Street, "the only solicitor in the world who would have taken her case."[citation needed] Leechman was already an expert on the dangers of drinking ginger beer. He had already tried to establish liability against aerated water manufacturer A. G. Barr when a dead mouse was alleged to have found its way into a bottle of its ginger beer. However, an action for damages was rejected by the Inner House of the Court of Session, when the appeal court judges ruled that there was no legal authority allowing for such an action (Mullen v A.G. Barr & Co. 1929 S.C. 461).
Undeterred by this opinion, Leechman agreed to take on the case and lodged a writ in the Court of Session on April 1929 in the case of May Donoghue, née M’Alister v David Stevenson. The writ alleged that May Donoghue had become ill with nervous shock and gastroenteritis after drinking part of the contents of an opaque bottle of ginger beer and David Stevenson, the manufacturer, "owed her a duty to take reasonable care that ginger beer he manufactured, bottled, labelled and sealed, and invited her to buy, did not contain substances likely to cause her injury." Donoghue claimed damages of £500.
Counsel for the manufacturer denied liability nor that any such duty was owed. It was not until June 1930 that the judge ruled there was a case to answer. Stevenson's legal team appealed Lord Moncrieff's ruling on a number of legal grounds and the judges of the Inner House granted the appeal in November 1930, dismissing Donoghue's claim as having no legal basis on the authority of their earlier decision in Mullen v A.G. Barr. One of their lordships said that "the only difference between Donoghue's case and the mouse cases was the difference between a rodent and a gastropod and in Scots law that meant no difference at all."
Claimant appeals
It would not have been very surprising if Walter Leechman and May Donoghue had given up after this judgment. The Court of Session had now ruled twice that there was no legal authority allowing a claim for damages against a manufacturer where no contract existed, unless the product was dangerous or fraudulently represented. There was, of course, the possibility of appealing the case to the House of Lords but, whilst Donoghue's legal team had agreed to provide their services free, she could not put up the security needed to ensure the other side's costs were met should she lose in the Lords. However, such security would not be required if she could gain the status of a pauper. So, on 16 February 1931, she petitioned the House of Lords saying: "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. . . " A minister and two elders of her church signed a certificate of poverty which was attached to the petition. On 17 March 1931, the House of Lords granted her the status of a pauper. Among the 88 Lords present were Lord Sankey (the Lord Chancellor), the Duke of Wellington, and Lord Atkin who was to write the main judgment that would change the face of consumer law for ever.
Nine months after her petition was granted, Lords Buckmaster, Atkin, Tomlin, Thankerton and MacMillan sat in a committee room dressed, as is still the custom, in ordinary lounge suits and heard counsels' arguments. Donoghue's counsel—George Morton KC and W. R. Milligan (later a Lord Advocate) - argued that a manufacturer who puts a product intended for human consumption on to the market in a form that precludes examination before its use, is liable for any damage caused if he fails to exercise reasonable care to ensure it is fit for human consumption. It was a call for the removal of the protection provided to manufacturers by privity of contract—the principle that only the parties to a contract have any right to sue under its terms. Stevenson's counsel - W. G. Normand KC (then Solicitor General for Scotland and later a Law Lord), J.L. Clyde (later Lord Advocate and then Lord President of the Court of Session), and T. Elder Jones—sought to convince their lordships that the wisdom of the Scottish judges in the mouse cases should prevail. After two days of argument, their lordships retired to consider their judgment.
