Case Analysis: Donoghue v. Stevenson

This article titled ‘Case Analysis: Donoghue v. Stevenson’ is written by Aparna Ramamoorthy and provides an analysis of the aforementioned case law.

I. Introduction

The case of Donoghue v. Stevenson has a vital role in the determination of when a duty of care exists in negligence. The existence of a duty of care, which is owed to, by the defendant to the complainant is the very first ingredient without which, no cause of action arises. It can be said that this case has played an important role in the history and growth of the tort of negligence. The ruling, in this case, established the civil law tort of negligence and obliged businesses to observe a duty of care towards their customers. It proved to be a landmark on the point that a consumer could bring an action for torts against the manufacturer even in the absence of a contract between the two.

II. Facts of the case

On August 26 1928, Mrs Donoghue’s friend, Mr Minchella bought her a ginger beer manufactured by the defender for sale to members of the public. The bottle of the ginger beer was made of dark opaque glass, and the pursuer and her friend has no reason to suspect that the said bottle contained anything else than the aerated water.

This said, Mr Minchella, poured some of the said ginger beer from the bottle into a tumbler containing the ice cream. The pursuer then drank some of the contents of the tumbler. Her friend then lifted the said ginger-beer bottle and was pouring out the remainder of the contents into the said tumbler when a snail, which had been, unknown to the pursuer, her friend, or the said Mr Minchella, in the bottle, and was in a state of decomposition, floated out of the said bottle.

In consequence of the nauseating sight of the snail in said circumstances, and of the noxious condition of the said snail-tainted ginger beer consumed by her, the pursuer sustained the shock and illness hereinafter condescended on. The said ginger beer bottle was fitted with a metal cap over its mouth. On the side of the said bottle, there was pasted a label containing, inter alia, the name and address of the defender, who was the manufacturer. It was from this label that the pursuer’s said friend got the name and address of the defender.

She commenced proceedings against the manufacturers. She was not able to claim through breach of warranty of a contract as she was not a party to any contract. Previously, the plaintiff had to demonstrate some contractual arrangement for negligence to be proven, such as the sale of an item or an agreement to provide a service.

This is based on a well-known principle in contract law known as privity to contract. Privity to contract means only the parties to the contract can sue each other and not the third party. In this case, the beer was bought by Donoghue’s friend and Donoghue was a third party to that contract. Therefore, she issued proceedings against Stevenson, the manufacture, which snaked its way up to the House of Lords.

III. Issues

1. Whether Stevenson owed a duty of care to Donoghue?
2. Was the relationship between them sufficiently close that Stevenson should be required by law to exercise a certain degree of care in carrying out particular tasks?
3. Whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor/the ultimate purchaser/consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health?

In Mullen v. AG Barr & Co Ltd [1], the facts of the case resembled that of the present case involving mice instead of a snail, it was held that,

“In the absence of a contract, a manufacturer owed no duty of care to a consumer when putting a product on the market except when the manufacturer was aware that the product was dangerous because of a defect and it was concealed from the consumer (i.e., fraud).”

This case tested the above principle laid down in the case.

IV. Holding

There were five lords hearing this case in the House of Lords (the final civil appeal court for Scotland at this time). Three found in favour of Mrs Donoghue’s appeal, including Lord Atkin. The other two were Lords Thankerton and Macmillan. Atkin’s judgment is known as the leading judgment.

Lords Buckmaster and Tomlin dismissed the appeal, which means they decided in favour of the defendant Mr Stevenson that there was no legal duty of care owed to Mrs Donoghue. The result was a majority 3: 2 decision in favour of Donoghue.

Thus, it was held that,

“Where the manufacturer of a product, intended for human consumption sends it out in a form which shows that he means it to reach the ultimate consumer in the form in which it left his factory, with no reasonable possibility of intermediate examination by the retailer or consumer, and with the knowledge that want of reasonable care on his part in the preparation of the product may result in injury to the consumer, the manufacturer owes a duty to the consumer to take such care, and will be liable to the latter, in damages if he suffers injury through the failure to take such care.”

So held, (by reversing the judgment of the Second Division, dissent by Lord Buckmaster and Lord Tomlin) in an action of damages brought against a manufacturer of ginger beer by a person who averred that she had been poisoned by ginger beer, which was bought from a retail dealer in an opaque sealed bottle in which it had left the manufacturer’s premises, and which contained a decomposed snail.

The George v. Skivington, [2] case was approved, considered the dicta of Brett, M.R., in Heaven v. Pender[3], and disapproved the ground of judgement of Lord Ormidale and Lord Anderson in Mullen v. Barr & Co. and M’Gowan v. Barr & Co.,[4]

1. The crux of the decision

1. Negligence is made a distinct and separate tort;
2. There does not need to be a contractual relationship for a duty to be established;
3. Manufacturers owe a duty to the consumers who intend to use their product.[5]
4. The burden of proof must always be upon the injured party to establish that the defect which caused the injury was present in the article when it left the hands of the party whom he sues; that the defect was occasioned by the carelessness of that party; and that the circumstances are such as to cast upon the defender a duty to take care not to injure the pursuer. There is no presumption of negligence in such a case as the present, nor is there any justification for applying the maxim res ipsa loquitur. Negligence must be both averred and proved.

2. Neighbour principle

The neighbour principle by Lord Atkin is a very notable outcome of this case. Atkin has stated the principle as follows,

“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 to have them in [mind] when I am [considering these] acts or omissions.”

3. Rationale

According to Lord Atkin,

“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.”

Atkin deduced his legal decision from a higher, moral principle i.e. protection of the health and interest of the public through reasonable care.

According to Lord Macmillan who had a similar view to that of Atkin,

“When a person manufactures his commodities for human consumption; he intends and contemplates that they shall be consumed. By reason of that very fact, he places himself in a relationship with all the potential consumers of his commodities, and that relationship, which he assumes and desires for his own ends, imposes upon him a duty to take care to avoid injuring them.”

According to Lord Thankerton who was a part of the majority judgement had this view,

“The respondent, in placing his manufactured article of drink upon the market, has intentionally so excluded interference with, or examination of, the article by any intermediate handler of the goods between himself and the consumer that he has, of his own accord, brought himself into direct relationship with the consumer, with the result that the consumer is entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the consumer.”

The decision laid down the following legal principle: A reckless manufacturer of a dangerously defective product is liable to a consumer to whom it causes personal injury. He owes a duty of care.

4. Dissent

The dissenting judgment delivered by Lords Buckmaster and Tomlin in Donoghue v. Stevenson reflects the strategies and policies of traditional values prevailing in the Common Law System.

Lord Buckmaster adopted an almost completely opposite interpretation of the existing cases to Lord Atkin. He began his opinion with the warning that precedent should prevail over flexibly relaxing the law to bend to the demand for a remedy and argued that the general rule was that there was no duty of care owed to a third party outside of a contract.

The exceptions to this were for objects dangerous in themselves (such as a gun) and defects that were known to the manufacturer (fraud). He then dealt with the very few cases, and stated as follows,

“The principle contended for, must be this, that the manufacturer, or indeed the repairer, of any article, apart entirely from contract, owes a duty to any person by whom the article is lawfully used to see that it has been carefully constructed. All rights in contract must be excluded from consideration of this principle; such contractual rights as may exist in successive steps from the original manufacturer down to the ultimate purchaser are ex hypothesi immaterial. Nor can the doctrine be confined to cases where inspection is difficult or impossible to introduce. This conception is simply to misapply to tort doctrine applicable to sale and purchase.”

He saw those cases where physical proximity was involved as belonging to a clearly different category and argued that the established distinction between dangerous and non-dangerous objects in the case law would be ‘meaningless’ if the duty of care existed all along in both cases.

Lord Buckmaster precluded a special duty approach as follows:

“The principle of tort lies completely outside the region where such considerations apply, and the duty, if it exists, must extend to every person who, in lawful circumstances, uses the article made. There can be no special duty attaching to the manufacture of food apart from that implied by contract or imposed by statute. If such a duty exists, it seems to me it must cover the construction of every article, and I cannot see any reason why it should not apply to the construction of a house. If one step, why not fifty?

Yet if a house be, as it sometimes is, negligently built, and in consequence of that negligence the ceiling falls and injures the occupier or anyone else, no action against the builder exists according to the English law, although I believe such a right did exist according to the laws of Babylon”

In this, Buckmaster implied it would not be socially or economically acceptable for manufacturing businesses to be open to claims from such a wide group of people as if a duty was imposed.

Lord Tomlin adopted the speech of Lord Buckmaster and precluded a special duty evaluation. He thought that it would be logically impossible to impose a general duty to every manufacturer or repairer of any article. It reveals the sharp cleavage in judicial opinions as illustrated by the views expressed by Lord Buck-master and by Lord Atkin.

V. Party’s Arguments

1. Appellant’s argument

The appellants argued that the lower Court’s view that a manufacturer owed no duty to anyone with whom he had no contractual relation, except either where the article manufactured was dangerous in itself or, although not normally dangerous in itself, was known to the manufacturer to be dangerous owing to some defect or for some other reason is not acceptable. They based their arguments on the following ground:

1. The duty owed by a manufacturer to members of the public who purchase his goods through a retailer is not capable of so strict a limitation.
2. 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.
3. Further, when a manufacturer put on the market an article of food or drink in a form that precluded an examination of the article by the retailer or the consumer, he was liable to the consumer if he did not take reasonable care to make sure that the article was not injurious.
4. In the present case, the ginger beer bottles were opaque and were sealed and labelled before they left the manufacturer’s premises, these circumstances making any examination by the retailer or consumer impossible.
5. Further, it was the duty of the defender to provide a system of working his business that was safe and would not allow snails to get into his ginger beer bottles (including the said bottle).

Such a system is usual and customary and is necessary for the manufacture of a drink like ginger beer to be used for human consumption. In these duties, the defender culpably failed, and the pursuer’s illness and shock were the direct results of his said failure in duty.

2. Respondent argument

The general rule was that a manufacturer owed no duty to a consumer with whom he had no contract. To this rule, there were two well-recognised exceptions–

1. where the article was dangerous in itself;
2. where the article was known to the manufacturer to be dangerous for some reason or other. The present case did not fall within either of these exceptions, and the appellant was trying to introduce into the law a third exception, viz., goods intended for human consumption and sent out by the manufacturer and sold to the consumer in a form in which examination was impossible.

There was no hint of any such exception in any of the reported cases. There was no suggestion of the existence of a trap in the present case, and there was no logical reason for differentiating between articles of food or drink and other articles.

The principle of liability was stated too widely by Brett, M.R., in Heaven v. Pender[6]; and in Le Lievre v. Gould[7] he himself and A. L. Smith, L.J., modified his previous statement of that principle. Cotton, L.J., and Bowen, L.J., in Heaven v. Pender explained the law correctly.

In Blacker v. Lake & Elliot[8] Hamilton, J., and Lush, J., regarded George v. Skivington[9] as overruled. The principle, according to Hamilton, J., was that the breach by A of his contract with B to use skill and care in the manufacture of an article did not per se entitle C, if injured by the article, to sue A. He regarded George v. Skivington in so far as it proceeded upon duty to the ultimate user, as being inconsistent with Winterbottom v. Wright.⁹ The general trend of legal decisions was adverse to the appellant.[10]

VI. Analysis

It is pertinent to note that the case of Donoghue v. Stevenson is one of the locus classicus cases that should be cited, whenever the issue as to whether a duty exists in negligence is to be explained or cited.

The process of reasoning by which this decision came about is quite interesting. This case is a good illustration of how logical reasoning is transformed into legal reasoning because even though each judge is attempting to answer the same question, using the same set of facts, and by looking at the same common law represented by previously decided cases, the route each judge takes is different and the decisions that they reach sometimes are different also.

The two contradictory interpretations given by Lord Atkin and Lord Buckmaster and the applications of the pre-existing case laws, raise a number of questions about the process of reasoning used to come to each judgment.

It is important to note that the principle laid down by Atkin is also inescapable to alterations as every other principle, as Lord Reid said, “… the well-known passage in Lord Atkin’s speech should not be treated as if it were a statutory definition. It will require qualification in new circumstances.”[11]

The major development in the ‘neighbour principle’ came from Hedley Byrne v. Heller¹¹ which concerned economic loss. However, the locus classicus of the ‘neighbour test’ is found in another economic loss case called Caparo Industries v. Dickman[12]:

What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed, 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 fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.[13]

It was further stated by Lord Hope that the fair, just and reasonable test will apply not only to cases concerned with economic loss but also to personal injury claims.

Edited by- Akriti

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References

[1] 1929 S.C. 461, 1929 S.L.T. 341.

[2] (1869) L. R., 5 Ex. 1

[3] (1883) 11 Q. B. D. 503, at pp. 509 to 511

[4] 1929 S. C. 461

[5] McAlister (or Donoghue) (Pauper) Appellant v. Stevenson Respondent, 1932 A.C. 562, (Lord Atkin) and 615 (Lord Macmillan).

[6] 11 Q. B. D. 503.

[7] [1893] 1 Q. B. 491.

[8] (1912) 106 L. T. 533.

[9] L. R., 5 Ex. 1.

[10] Reference was made to Pollock on Torts, (13th ed.) pp. 570 and 571; and Beven on Negligence, (4th ed.) vol. i., p. 49.

[11] Dorset Yacht Co. v. Home Office 1970 2 W.L.R. 1140.

[12] Caparo Industries Plc v. Dickman 1990 2 A.C. 605; Blyth v. Birmingham Waterworks Co 156 E.R. 1047, (1856) 11 Ex. 781.

[13] Caparo Industries Plc v. Dickman, 1990 2 W.L.R. 358, 617-618 (Lord Bridge).

Other references:

1. Kleefeld, John Charles, The Donoghue Diaries (2013). Juridical Review, 3: 375-450 (2013). Available Here.
2. Scottish Council of Law Reporting website, Available Here.

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1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Legal Bites Academy – Ultimate Test Prep Destination