Law Blogger

Q. What is your date of Birth?

A. July fifteenth

Q. What year?

A .every year.

Q. Are you sexually active?

A. No, I just lie there.

Q. What was the first thing your husband said to you when he woke up that morning?

A. He said, “where am I, Cathy?”

Q. And why did that upset you?

A. My name is Susan.

Q. She had three children, right?

A.Yes.

Q. How many were boys?

A. None

Q. Were there any girls?

Q. How was your first marriage terminated? 

A. By death.

Q. And by whose death was it terminated? 

Q. Can you describe the individual? 

A. He was about medium height and had a beard.

Q. Was this a male or female? 

Q. All your responses must be oral, ok? 

Q. What school did you go to?

“You must take reasonable care to avoid acts of omission 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 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”

This is a famous quote from Lord Atkin in the famous case of Donoghue v Stevenson [1932] AC 562. A case that is famous among lawyers, law students and judges in the tort of negligence. This case created the modern law of negligence and created the neighbour principle introduced by Lord Atkin the appellant judge of the House of Lords, the then appeal court before the Supreme Court.

This famous case is often referred to as “The Snail and the Ginger Beer”. 

It all begin in a small town in Paisley, Scotland in August 1928, A lady by the name of May Donoghue and an unknown female friend went to a cafe and ordered two ice creams and a ginger beer. Donoghue had one of the ice creams and the ginger beer. The shopkeeper poured half of the contents of the ginger beer from an opaque bottle into a transparent tumbler which contained ice cream. Donoghue then consumed part of it while her friend poured the rest of the contents into the tumbler. While the rest was being poured into the tumbler, it is alleged that the remains of a decomposing snail was seen in the tumbler. As a result of this Donoghue claimed that she suffered shock and serve gastroenteritis. 

In order for a claim to be successful in the courts, the judge has to be satisfied that the claimant was owed a duty of care, they must also show that the duty of care was breached and that the claimant suffered a loss. The claimant has to prove that the manufacture of the ginger beer was negligent in allowing the contents of the bottle to be come contaminated. In this case both the cafe and the manufacturer owe Donoghue a duty of care, both can anticipate that Donoghue would affected by their actions.  

The beer was produced in an opaque bottle with a sealed lid, therefore it would be hard for the cafe staff to of checked the contents before serving it, meaning it would be difficult to prove the cafe staff were negligent. It may also be difficult for Donoghue to prove how the snail came to be in the bottle in the first place. It is not know how the snail got into the bottle, however the facts do prove that there must of been some form of negligence on the manufacturers part. 

The courts require the claimant to prove all aspects of their case. In this instance where there are difficulties, the courts would apply the maxim ‘the thing that speaks for itself’, in Latin res ipsa loquitur.

The interesting part of this case is now how the burden of proof is now reversed. Instead of the claimant proving the case, the defendants will have to prove that they were not negligent in the manufacturing process. 

Now that is has been proven that a duty of care was owed and breached, we now come to the loss. Donoghue suffered severe gastroenteritis and shock as a result. The loss has to be foreseeable. If a manufacturer sells their products with a decomposing snail in it, it is indeed foreseeable the consumer will become unwell, refereed to as the ‘but for test’, but for the presence of the snail, Donoghue would not of become unwell or suffered from shock. Duty of care, breach of that legal duty plus resultant and foreseeable loss equals liability in the tort of negligence. 

The case made it to the House of Lords, it was held that Donoghue could bring about a claim for negligence, the court did not decided that Stevenson was negligent and the case was heard in the courts of Scotland. Unfortunately Donoghue was not successful in her claim, she failed to prove the existence of the snail.