donoghue v stevenson


  • [3][5]: 17–18  Only Lord Hunter dissented, finding that negligence to be inferred and that the fact that the bottle contents could not be examined (because of the dark glass)
    gave rise to a specific duty of care that would allow consumers to claim for damages.

  • [10]: 57  Lord Thankerton ruled that Donoghue had no contract with Stevenson, nor that her case was covered by one of the scenarios in which a duty of care had previously
    been found.

  • A supplementary statement from Donoghue’s appeal papers indicates that her counsel, George Morton KC and William Milligan (later the Lord Advocate and a Privy Counsellor),
    argued that “where anyone performs an operation, such as the manufacture of an article, a relationship of duty independent of contract may in certain circumstance arise, the extent of such duty in every case depending on the particular circumstances
    of the case”.

  • [5]: 44–46  In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them
    responsible to members of the public for the condition of the contents of every bottle which issues from their works.

  • [5]: 40–41  At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of
    which the particular cases found in the books are but instances.

  • [10]: 35  He held that there were only the two recognised exceptions to the finding of a duty of care and supported Baron Alderson’s judgment in Winterbottom v Wright that
    “the only safe rule is to confine the right to recover to those who enter into the contract; if we go one step beyond that, there is no reason why we should not go fifty”.

  • [16]: 7  They denied that ginger beer was intrinsically dangerous or that Stevenson knew that the product was dangerous (the two established exceptions for finding a duty
    of care)[16]: 7–8  and argued that the third exception that Donoghue was attempting to introduce had no basis in precedent.

  • [10]: 43  He agreed with counsel, based on his own research, that Scots and English law were identical in requiring a duty of care for negligence to be found and explained
    his general neighbour principle on when that duty of care arises.

  • [5]: 42 [10]: 46–56  He concluded: 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.

  • [27] In precedent, there was an obiter suggestion by Lord Esher in Heaven v Pender that “whenever one person is by circumstances placed in such a position with regard to another
    that every one of ordinary sense … would at once recognise that if he did not use ordinary care and skill in his own conduct … he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and
    skill to avoid such danger”.

  • [10]: 44  He supported this broad test by citing Heaven v Pender[18] and rejected the cases in favour of a narrower interpretation of a duty of care with the example of negligently
    poisoned food, for which there had been no claim against the manufacturer.

  • While he agreed with Lord Atkin that the duty of care a manufacturer owed to its consumers was the same regardless of the product they produced, he held that no general duty
    of care existed and that the fact the product was in a sealed container made no difference to the finding of a such duty.

  • [5]: 32  She also sought (and subsequently received) permission to pursue the case in forma pauperis (with the status of a pauper) – a status she had not, for unknown reasons,
    sought at the Court of Session[5]: 33–34  – providing 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”.

  • [3] This claim was supported by the minister and two elders of her church and meant that Donoghue was not required to provide security for costs in case she lost the appeal.

  • [6]: 562  Lord Buckmaster focused on precedent, and commenced by warning that “although [common law] principles are capable of application to meet new conditions not contemplated
    when the law was laid down, these principles cannot be changed nor can additions be made to them because any particular meritorious case seems outside their ambit”.

  • [5]: 51 [10]: 59–60  Lord Thankerton further argued that it was impossible “to catalogue finally, amid the ever-varying types of human relationships, those relationships in
    which a duty to exercise care arises apart from contract” and commented that he “should be sorry to think that the meticulous care of the manufacturer to exclude interference or inspection by the [seller] should relieve the [seller] of any
    responsibility to the consumer without any corresponding assumption of duty by the manufacturer”.

  • [citation needed] Court: House of Lords; Full case name: M’Alister (or Donoghue) (Pauper) v. Stevenson[Note 1]; Decided: 26 May 1932; Citation(s): [1932] UKHL 100, [1932]
    SC (HL) 31, [1932] AC 562, [1932] All ER Rep 1; Transcript(s): House of Lords transcript; Case history: Prior action(s): Outer House of the Court of Session ([1930] SN 117)[3]; Appealed from: Inner House of the Court of Session ([1930] SN
    138)[3]; Court membership; Judges sitting: Lord Buckmaster, Lord Atkin, Lord Tomlin, Lord Thankerton, Lord Macmillan; Case opinions: Manufacturers have a legal duty of care to the ultimate consumers of their products if it is not possible
    for defects to be identified before the goods are received.

  • However, he held that where goods could not be examined or interfered with, the manufacturer had “of his own accord, brought himself into direct relationship with the consumer,
    with the result that the consumer [was] entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the consumer”, an exception to the general nonexistence of a duty of care that applied
    to Donoghue.

  • [15]: 4, 6  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 (citing John Salmond) for the narrowness of the approach and because there was no decision that incorporated it into Scots law.

  • “If this were the result of the authorities, I should consider the result a grave defect in the law, and so contrary to principle that I should hesitate long before following
    any decision to that effect which had not the authority of this House”.

  • After an adjournment, Minghella was added as a defender on 5 June; however, the claim against him was abandoned on 19 November, likely due to his lack of contractual relationship
    with Donoghue (Donoghue’s friend had purchased the ginger beer) and his inability to examine the contents of the dark glass bottle.

  • Condescendences[edit] The full allegations made by Donoghue were presented in five condescendences, which claimed that Stevenson had a duty of care to Donoghue to ensure that
    snails did not get into his bottles of ginger beer, but that he had breached this duty by failing to provide a system to clean bottles effectively, a system that would usually be used in the business and was necessary given that the ginger
    beer was intended for human consumption.

  • If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract,
    the manufacturer of this thing of danger is under a duty to make it carefully …

  • [13]: 107–108  Lord Esher’s attempt to reintroduce the principle in further obiter remarks in Le Lievre v Gould,[28] in which he stated that Heaven only established that there
    may be a duty even if there is no contract and that this duty arose if there was proximity between the parties, was also unsuccessful.

  • [Note 7][32]: 30  Precedent[edit] The case was reviewed by Frederick Pollock in a 1933 edition of Law Quarterly Review, in which he commented that there was no doubt as to
    the importance of the decision and that “a notable step has been made in enlarging and clarifying our conception of a citizen’s duty before the law … not to turn dangerous or noxious things loose on the world”.

  • However, the decision fundamentally created a new type of liability in law that did not depend upon any previously recognised category of tortious claims.

  • He therefore found that Donoghue had a cause of action and commented that he was “happy to think that in … relation to the practical problem of everyday life which this
    appeal presents … the principles of [English and Scots law] are sufficiently consonant with justice and common sense to admit of the claim which the appellant seeks to establish.

  • [8]: 6–7  In response to the writ, Stevenson pleaded four main arguments: • that the claim had no legal basis; • that the facts could not be substantiated; • that he had not
    caused Donoghue any injury; • that the claimed amount was excessive.

  • 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.

  • [5]: 47 [10]: 70  Lord Macmillan held that, according to this standard, Stevenson had demonstrated carelessness by leaving bottles where snails could access them; that he
    owed Donoghue a duty of care as commercial manufacturer of food and drink; and that Donoghue’s injury was reasonably foreseeable.

  • [1]: 7–8  Robert Heuston therefore suggests that case only supports the claims there can be duties in tort even if there is no contract; that manufacturers owe a duty of care
    to the ultimate consumers of their goods; and possibly that negligence is a separate tort.

  • 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.

  • [5]: 50 [10]: 57–58  He further endorsed concerns that Lord Atkin’s broader test of liability would have allowed everyone injured in the Versailles rail accident to be able
    to claim compensation from the manufacturer of the axle that broke and caused the crash.

  • Thomas’ wife became seriously ill as a consequence and Thomas successfully claimed in negligence; Winchester’s behaviour had created an imminent danger which justified a finding
    of a duty of care.

  • The House of Lords held that the manufacturer owed a duty of care to her, which was breached because it was reasonably foreseeable that failure to ensure the product’s safety
    would lead to harm to consumers.

  • Nevertheless, Donoghue’s counsel argued that manufacturers also owed a duty of care to their ultimate consumers if it was not possible to examine the goods before they were
    used, an exception that would apply to Donoghue.

  • 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.

  • [33]: 22  However, Donoghue otherwise attracted little attention; it was understood only as precedent that manufacturers were liable for injuries their goods cause their ultimate
    consumers rather than that there was a general principle of liability in negligence.

  • [19]: 389–390  Lord Atkin used the concept of legal neighbours in an address to the University of Birmingham’s Holdsworth Club on 9 May 1930, in which he commented that “the
    man who swears unto his neighbour and disappointeth him not is a person commended by the law of morality, and the Law enforces that by an action for breach of contract”.

  • [Note 4][17]: 236–237  The court held by a majority of 3–2 that Donoghue’s case disclosed a cause of action.

  • It is obvious that, if such responsibility attached to the defenders, they might be called on to meet claims of damages which they could not possibly investigate or insure.

  • [3] Ansell v Waterhouse[12] had established in 1817 that legal liability could arise for an act or omission “contrary to the duty which the law casts on him in the particular
    case” (i.e.

  • 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.

  • [3][10]: 57  The suggested ratio decidendi (Latin: the reason for the decision) of the case has varied from the narrowest, jokingly suggested by Julius Stone, that there was
    merely a duty “not to sell opaque bottles of beverage containing dead snails to Scots widows”,[22] to the widest, suggested by Lord Normand, who had been one of Stevenson’s counsel, that Lord Atkin’s neighbour principle was the ratio.

  • [5]: 111  On 28 October 1931, just over one month before he heard Donoghue, Lord Atkin also used the principle in relation to defamation, perjury, fraud and negligence in
    a lecture at King’s College London.

  • [5]: 37–38 [16]: 8–11  The House of Lords gave judgment on 26 May 1932 after an unusually long delay of over five months since the hearing.

  • [6]: 562  Lord Atkin commented that he did “not think a more important problem has occupied your Lordships in your judicial capacity, important both because of its bearing
    on public health and because of the practical test which it applies to the system under which it arises”.

  • The manufacturer was sued in negligence and the court held that manufacturers could owe their ultimate consumers a duty of care in limited circumstances.

  • [5]: 29  In their judgment, given on 13 November 1930,[15]: 21  they all referred back to and supported their statements in Mullen, Lord Alness observing that “the only difference
    – and, so far as I can see, it is not a material difference – between that case [Mullen] and this case [Donoghue] is that there we were dealing with a mouse in a ginger-beer bottle, and here we are dealing with a snail in a ginger-beer bottle”.

  • Every man ought to take reasonable care that he does not injure his neighbour; therefore, wherever a man receives any hurt through the default of another, though the same
    were not wilful, yet if it be occasioned by negligence or folly, the law gives him an action to recover damages for the injury so sustained.

  • [1]: 9 [4]: 643; Keywords: Delict, Duty of care, Negligence, Personal injury, Product liability, Tort Background and facts On the evening of Sunday 26 August 1928, during
    the Glasgow Trades Holiday, May Donoghue took a train to Paisley, Renfrewshire.

  • [5]: 16–17  The majority held that on a factual basis AG Barr & Co Ltd had rebutted a presumption of negligence and that on a legal basis 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.

  • I fail to see why the fact that the danger has been introduced by an act of negligence and does not advertise itself, should release the negligent manufacturer from a duty,
    or afford him a supplementary defence.

  • In his judgment, delivered on the same day, he held that, as a general principle, there should be liability for negligent preparation of food.

  • [5]: 7  One year later, Stevenson’s executors were listed as third-party defenders to the case.

  • [10]: 42  He concluded that there was no common law support for Donoghue’s claim and supported Lord Anderson’s judgment in Mullen.

  • In the hearing, Donoghue would have to prove the factual elements of the case that she had claimed, including that there had been a snail in the ginger beer as a result of
    Stevenson’s negligence and that this snail had caused her illness.

  • [5]: 11  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,[9] less than three weeks earlier[3] (see also George v Skivington).

  • However, the claim was settled out of court in December 1934[13]: 115  for, according to Leechman’s son, £200 of the £500 originally claimed.

  • Being made ill by consuming a noxious substance did not qualify as either, so the orthodox view was that Mrs Donoghue had no sustainable claim in law.

  • [5]: 51–52 [10]: 60  Lord Macmillan examined previous cases[10]: 65–70  and held that “the law takes no cognisance of carelessness in the abstract.

  • [5]: 22–23  The ineffectiveness of the cleaning system was alleged to result from the bottles being left in places “to which it was obvious that snails had freedom of access
    … and in which, indeed, snails and snail trails were frequently found”,[8]: 6  an allegation described by lawyer and author Matthew Chapman as “somewhat gratuitous”.

  • It laid the foundation of the modern law of negligence in common law jurisdictions worldwide, as well as in Scotland, establishing general principles of the duty of care.

  • [5]: 35–37 [8]: 16–17  Stevenson’s counsel, Wilfrid Normand KC (Solicitor General for Scotland and later a Law Lord) and James Clyde (later the Lord President of the Court
    of Session and a Privy Counsellor), responded that “it is now firmly established both in English and Scottish law that in the ordinary case (which this is) the supplier or manufacturer of an article is under no duty to anyone with whom he
    is not in contractual relation”.

  • [5]: 25–26  I am unhesitatingly of opinion that those who deal with the production of food or produce fluids for beverage purposes ought not to be heard to plead ignorance
    of the active danger which will be associated with their products, as a consequence of any imperfect observation of cleanliness at any stage in the course of the process of manufacture …

  • [5]: 18–19  However, neither of the circumstances in which negligence could be found in product liability cases applied to Donoghue: ginger beer is not intrinsically dangerous,
    nor did Stevenson intentionally misrepresent the threat it posed.

  • [5]: 16–17  At the Court of Session, the claimants argued that although there was no direct evidence that the manufacturer had been negligent in preparing the ginger beer,
    negligence could be presumed (res ipsa loquitur) from the mere presence of dead mice in ginger beer bottles.

  • [3] However, Donoghue had no contractual relationship with Minghella as she had not purchased the ginger beer; while her friend did have a contract through having placed the
    order, she had not suffered any injury.

  • [8]: 16  Stevenson, they argued, owed a duty to take reasonable care in the manufacture of his ginger beer because the sealed bottles were opaque, and therefore could not
    be examined, and because the ginger beer was intended for human consumption.

  • This was an evolutionary step in the common law for tort and delict, moving from strict liability based upon direct physical contact to a fault-based system that only required

  • [3][7] According to her later statements of facts, she was required to consult a doctor on 29 August and was admitted to Glasgow Royal Infirmary for “emergency treatment”
    on 16 September.

  • “I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilised society and the ordinary claims it makes upon
    its members as to deny a legal remedy where there is so obviously a social wrong.

  • “[1]: 9  Subsequent events[edit] The legal basis for the claim now settled, the case was returned to the Court of Session for a hearing scheduled for January 1933.


Works Cited

[‘1. Scots law practice was to include both the married and maiden names of female litigants in the form “maiden name (or married name)”.[1]: 1  The maiden name for Donoghue, however, has been listed as both “McAlister” and “M’Alister” in
the law reports, even though she was born May McAllister.[2] “(Pauper)” indicates that Donoghue would have been unable to pay Stevenson’s costs had she lost, but was granted an exemption from providing the required security.[3]
2. ^ Although the
friend was not named and has not been identified, she is referred to as “she” in the House of Lords judgment.[3][6]: 605  It has been suggested that this information was provided by counsel during the hearing.[5]: 5
3. ^ Minghella’s
surname was incorrectly spelt as “Minchella” in law reports of Donoghue v Stevenson.[5]: 2
4. ^ Judgment was originally scheduled for 14 April, but was delayed for unknown reasons (although Alan Roger suggests that the delay gave Lord
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5. ^ It has also been reported that the case was settled for £100 (by William McBryde on the basis of information from Lord Macmillan, which he probably heard from Lord Normand, one of Stevenson’s
counsel) and £500 (by Thomas Donoghue, May Donoghue’s grandson; however, this amount is likely to be an exaggeration as it was the amount Donoghue originally claimed).[5]: 173 [24]: 9
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