Why a Snail is Important to Consumer Law

Snail and Ginger Beer label

Donoghue v. Stevenson redefined how duty of care is established for the tort of negligence

While the majority (if not the entirety) of negligence lawyers in the UK are now well aware of the neighbour principle in establishing a duty of care, this was not always the case.

Before the famous 1932 case of Donoghue v. Stevenson, whether a person owed a duty of care to another person was decided using the Hart approach; a significantly more complex device.

The Hart Approach

In Definition and Theory of Jurisprudence, H.L.A. Hart argued that trying to clearly define what a legal right or a legal duty was would lead to immense problems, and that instead the law would be better served by rejecting the idea that there was a ‘one size fits all’ definition.

He instead argued that while there would be a ‘core’ definition of any given concept, such as a legal duty, there would be a far larger penumbra or ‘grey area’ in the law; and therefore definitions must be loose in order to adequately cover these situations.

The problem in this respect is that grey areas lead to ambiguities in law. As P. Harris states in An Introduction to Law, signs stating “No vehicles may enter this land” may be designed to prevent cars from entering, but Hart’s approach could just as easily be used to successfully argue for the banning of aircraft. Clearly a more structured approach is in order.

Enter The Snail

In 1928, Mrs Donoghue and a friend entered a café in Paisley, where her friend ordered a bottle of ginger beer. The bottle was made of dark glass, preventing its contents from being inspected, and Mrs Donoghue drank a glass of the ginger beer before pouring out the remainder. On pouring, she discovered the decomposing remains of a snail (or possibly a slug). The experience left her suffering both shock and gastroenteritis.

Because it was not Mrs Donoghue who purchased the bottle, she had no recourse under standard contract law to pursue a claim for the losses she suffered as a result of drinking the contaminated drink. She therefore brought a negligence case against Stevenson, the manufacturer.

Determining Negligence Under Donoghue v. Stevenson

For her case to be successful, she needed to prove a duty of care existed between Stevenson as the manufacturer and herself as the end consumer despite their being no clear contractual line between them.

The case went to the House of Lords, who ruled that a duty of care did indeed exist. In his assessment of the case, Lord Atkin summarised the situation in his famous ‘neighbour principle’ rule of negligence, which states:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

What is a Neighbour in Law?

So who is “your neighbour” in Lord Atkin’s view? Essentially, this the issue of proximity. While it is true that no-one has a duty in English law to be careful about the entire world, any person who is sufficiently close to your actions, or inactions, and whom you can reasonably be expected to take note of may be deemed to have a right to be taken care of. As Lord Atkin put it:

“[Neighbours are] persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation…”

Essentially, therefore, you are likely to have a duty of care toward anyone whom you should be aware of as potentially being at risk from act act, or inaction, on your part. It should therefore be obvious why Stevenson was found to have a duty of care toward Mrs Donoghue as the end consumer of their product; despite there being no contractual basis for their relationship.

Negligence and Duty of Care in Modern English Law

Since its inception in 1932, the rule in Donoghue v. Stephenson has been refined and the modern method of establishing whether a duty exists between two parties is stated in Caparo Industries Plc v. Dickman [1990] 1 All ER 568.

The rule in Caparo v. Dickman tells us that a duty of care will exist if three key factors are met:

  • the likelihood of damage is foreseeable;
  • the claimant is not too remote from the defendant; and
  • it is just to impose a duty, having regard to all the facts.

Donoghue v. Stevenson was a landmark case that redefined the tort of negligence and streamlined the process of establishing whether a duty of care exists. From this ruling, a new, more manageable form of tort law has been established and the case remains a landmark decision throughout the common law world.

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