Many people whether they be involved in the law or not know of the famous case of Donoghue v Stevenson (1) – Better known as the snail (or at least parts of it!) in the bottle of ginger beer. The case made legal history back in 1932 and is one of the cornerstones of the modern law of tort as we know it today.
The case is more than simply the development of the tort of negligence. It is about moral, ethical and legal duties of care.
Q: The events surrounding Mrs Donoghue’s visit to a Paisley café in August 1928 made legal history around the world. But how exactly did Mrs Donoghue’s eating habits set a precedent that all lawyers can subsequently follow?
A: It was the clever Lord Atkin using “the most tattered book in Lord Denning’s library2”, the Holy Bible, who found a loophole to allow Mrs Donoghue to bring her legal claim.
Background
In August 1928, Mrs May Donoghue, a 30 year old shop assistant from Glasgow entered the Wellmeadow café in Paisley, Scotland. She was with (very importantly) an unknown friend (who could have been male or female) who ordered her an ice cream and a ginger beer, as Mrs Donoghue wanted to make her own ice cream float. (An ice cream float is made by pouring your choice of fizzy drink over ice cream). The café owner (Mr Francis Minghella) poured some (but not all) of the ginger beer into a glass with the ice cream. Mrs Donoghue drank some of the float. Her friend then poured the rest of the ginger beer over the ice cream. Along with the drink, the remains of a decomposed snail tumbled into the glass. Mrs Donoghue claimed that she suffered shock and severe gastro-enteritis as a result of drinking an ice cream float with the remains of a decomposing snail within it. She spent some time in the Glasgow Royal Infirmary recovering.
Mrs Donoghue sued the maker of the ginger beer, Mr Stevenson for £500 (around £30,280.00 in today’s money3) for both the shock and severe stomach problems that she suffered.
Some Technical Legal Points
• As Mrs Donoghue did not pay for the float (her (unknown) friend did) she did not have a contract with the café owner and therefore could not legally sue Mr Minghella directly. Instead, she sued the maker of the ginger beer, Mr Stevenson for £500 for both the shock and her stomach problems which followed after drinking the ginger beer; • Whilst Mrs Donoghue’s (unknown) friend had a legal contract with the café owner, s/he did not personally suffer any injury so s/he had no right to make a claim; • It appeared that Mrs Donoghue was without any legal remedy. • Mrs Donoghue’s solicitor (a clever chap by the name of Walter Leechman no doubt assisted by Counsel) argued that Mr Stevenson (the maker of the ginger beer) had been negligent in the manufacturing process by allowing the snail to enter into the bottle in the first place and further that he had been negligent by not spotting it in the bottle afterwards4. (The bottles used at that time were a very dark brown opaque colour which you could not see into).
The Neighbour Principle
At the heart of the case lies Lord Atkin’s famous speech which contains the following passage5
“…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 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”.
To explain Lord Atkins thinking behind his “neighbour” speech we must go back further in history, to the Holy Bible. In St Luke’s Gospel (Luke 10: 25-37) we find the parable of the Good Samaritan6
“.. And, behold, a certain lawyer stood up, and tempted him, saying, Master, what shall I do to inherit eternal life? He said unto him, What is written in the law? how readest thou? And he answering said, Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy strength, and with all thy mind; and thy neighbour as thyself. And he said unto him, Thou hast answered right: this do, and thou shalt live. But he, willing to justify himself, said unto Jesus, And who is my neighbour?
And Jesus answering said, A certain man went down from Jerusalem to Jericho, and fell among thieves, which stripped him of his raiment, and wounded him, and departed, leaving him half dead. And by chance there came down a certain priest that way: and when he saw him, he passed by on the other side. And likewise a Levite, when he was at the place, came and looked on him, and passed by on the other side. But a certain Samaritan, as he journeyed, came where he was: and when he saw him, he had compassion on him, And went to him, and bound up his wounds, pouring in oil and wine, and set him on his own beast, and brought him to an inn, and took care of him. And on the morrow when he departed, he took out two pence, and gave them to the host, and said unto him, Take care of him; and whatsoever thou spendest more, when I come again, I will repay thee.
Which now of these three, thinkest thou, was neighbour unto him that fell among the thieves?
And he said, He that shewed mercy on him. Then said Jesus unto him, Go, and do thou likewise”
It is clear that Lord Atkin was trying to show sympathy and compassion to Mrs Donoghue by establishing some liability against Mr Stevenson (the traditional David v Goliath/ Rich factory owner v poor housewife scenario) and he used the parable of the Good Samaritan to do this. Lord Atkin brought the parable of the Good Samaritan into the 20th Century.
Interestingly, Lord Atkin was not alone in using the Bible when formulating a legal rule. Another famous Judge, Lord Denning once wrote:7
“In coming upon legal obstacles….it is as well to have a Bible to hand…it is the most tattered book in my library. I have drawn upon it constantly”.
So did Mrs Donoghue win her claim?
In short, Yes. Although the case of Donoghue v Stevenson8 never came to trial. No witnesses were called to give evidence and no decision upon the facts was every reached by the Court. There is even speculation about whether there really was a snail in the bottle of ginger beer9, although it does not really matter for the purpose of understanding the neighbour principle.
The case was scheduled for trial in January 1933 but Mr Stevenson died in November 1932.
Whilst it is still a grey area, it does seem that there was some sort of “out of court” settlement probably made by the executors of Mr Stevenson.
Professor McBryde citing another writer, by the name of Professor Heuston records that the settlement was £10010. Lord Rodger was told by Mrs Donoghues grandson (in a letter dated July 1973) that it was believed the claim settled for £500, the sum claimed in the legal papers11
Summary
Whilst the outcome of the actual damages award to May Donoghue is unclear, the thinking behind the case is not. The parable of the Good Samaritan that each person ought to be good to their neighbour, was followed by the Court and it was held that just as neighbours ought to care for each other, manufacturers ought to care about the consumers of their products.
The case was a clear attempt by Lord Atkin to find a loophole in the law to allow a poor12 member of the public access to justice for the negligence caused to her by a comparatively rich business owner.
The case will be remembered by the way that it was on an unsuccessful application to dismiss Mrs Donoghue’s claim, that Lord Atkin gave the judgement in the House of Lords which would make Donoghue v Stevenson13 the most celebrated case of all time.
There is much legal writing surrounding the case of the snail in the ginger beer bottle but it was the clever Lord Atkin using the Holy Bible, who sympathetically found a loophole to allow Mrs Donoghue to bring her claim.
References
1 Donoghue v Stevenson [1932] AC 562
2 Lord Denning The Family Stories (Butterworths, 1981) pg 181
3 Measuringworth.com- April 2014
4 Parliamentary Archives -Volume 873 File Ref: HL PO JU 4/3/873
5 Donoghue v Stevenson [1932] AC 562,580 HL(Sc)
6 Luke 10:25-37-King James Version (KJV)
7 Lord Denning The Family Stories (Butterworths, 1981) pg 181.
8 Donoghue v Stevenson [1932] AC 562
9 Lord Atkins Papers, Grays Inn, File Ref: ATK1/JUD/1/1
10 McBryde WM citing Heuston RFV Donoghue v Stevenson in Retrospect (1957) 20 MLR 1,2
11 Rodger, A. Mrs Donoghue and Alfenus Varus (1988) 41 CLP 1,9 n 98 referring to a letter 24/07/73 recd from Thomas Donoghue
12 May Donoghue was cited in her legal papers as a “pauper”
13 Donoghue v Stevenson [1932] AC 562