Today I want to talk about one of the most famous and important legal cases in English law. It took a relatively minor incident and created a legal precedent that changed how English lawyers view the balance of rights between consumers and manufacturers. In so doing, it kick started what would eventually lead to the modern consumer protection laws that we enjoy today.
In the days before our modern consumer society there was very little need for laws to protect consumers but times change and law must change with the times. At the start of the 20th century the legal view on consumer protection took a decidedly Victorian approach – essentially unless you had a contract with the manufacturer and the manufacturer had breached that contract you were on your own. One senior judge even wondered publicly whether the law had any business ensuring that manufacturers of food and drink took care not to poison their customers! There were a couple of exceptions that allowed non-parties to the contract to obtain damages but the general principle was no contract, no damages.
So it was that late in the evening of Sunday the 26th August 1928 a Mrs May Donoghue went to the Wellmeadow Café in Paisley to meet her friend. The friend, whose name seems lost to history, ordered what I imagine was some type of ginger beer float (it consisted of a tumbler of ginger beer and an ice cream) for Mrs Donoghue.
What happened next is surprisingly unimportant but nonetheless a subject of some debate. Mrs Donoghue averred in her pleadings when she later sued the manufacturer of the ginger beer that the owner of the café poured half the bottle of ginger beer over her ice cream, which she ate. Her anonymous friend then poured the remaining beer into Mrs Donoghue’s tumbler at which point a dead and partially decomposed snail put in an appearance. Mrs Donoghue quickly felt ill and says she was later admitted to hospital for sever gastro-enteritis. Nobody seems to have asked why Mrs Donoghue appears incapable of pouring her own ginger beer but then maybe most lawyers mind don’t focus on the unimportant details as much as mine.
Mr Stevenson, the manufacturer of the ginger beer, appears to have felt differently about what happened that evening judging by the reported comments of W.G. Normand KC, Solicitor-General for Scotland who appeared before the House of Lords for Mr Stevenson when the case eventually made its way there. He wrote that he expected to lose at the House of Lords but said that if the case were actually tried on the facts he felt Mr Stevenson had a good prospect of winning – presumably he had some instructions on the facts that made him so confident. As it is, the case was never tried so we do not know whether Mrs Donoghue was really poisoned by a dead snail or whether it was a very determined lie to get cash from an innocent fizzy pop maker.
Donoghue v Stevenson is perhaps the most famous case in English law but anybody paying attention should already be wondering why – the incident happened in Paisley, Scotland. Yes, the most famous case in English legal history is… Scottish! Worse still Donoghue v Stevenson isn’t even the case’s real name – its proper name is M’Alister (or Donoghue) (Pauper) v Stevenson.
But, before we talk about Donoghue we need to look at the history that let up to it. Eighty-six years before Mrs Donoghue found her snail the Court of the Exchequer heard the case of Winterbottom v Wright (1842) 10 M&W 109 which involved a postman injured while driving a mail coach which collapsed as it was being driven. Mr Winterbottom sued Mr Wright, who was the man contracted to ensure the coach was safe, for negligence. The Court held that Mr Winterbottom had no cause of action against Mr Wright as there was no contract between them. Baron Alderson said:
“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.”
At this point we can say that the balance between consumers and manufacturers was firmly tilted towards the rights of manufacturers; proof, if you needed it that in Victorian England individuals and their health were less important than business.
The situation was slightly different in the 1869 case of George v Skivington when Mr George bought some hair products for his wife from a Mr Skivington who was aware that the dye was to be used by Mrs George. The product was defective and caused injury to Mrs George. Now you may be thinking that given what we’ve heard about the ruling in Winterbottom 20-odd years earlier that the result in George should be a foregone conclusion, but you’d be wrong. You see while the judges in George saw the problem as a contract law one, Baron Cleasby saw negligence by a vendor/manufacture as analogous to the situation in fraud. It had been established in Langridge v Levy that a vendor who is guilty of fraud is liable to anybody who “has been injured by that fraud, although not one of the parties to the original contract, provided at least that his use of the article was contemplated by the vendor”. He went on to say that if you substitute the word “fraud” for the word “negligence” then the situation in George is analogous to that in Langridge. In that case a gun was sold to a father for use by his son, the vendor knew that the gun was dangerous. The gun exploded in the son’s hand causing injury. Chief Baron Kelly reasoned that where a vendor knows a product is to be used by another person then his liability for any unskilful or negligent acts will extend to that third party. Baron Pigott felt though that if the vendor did not know who the ultimate end user would be then his liability may not extend to that person.
Mrs George was only able to recover damages though because Mr Skivington was both the vendor and manufacturer of the defective hair dye. Had it been made by some other person not part of the contract with Mr George the result may have been different.
It’s worth remembering at this point that in 1869, Mrs George could not have legally purchased the hair product for herself as the legal identity of married women was entirely subsumed into that of her husband. Thus, if the court had held that only the legal purchaser, i.e. Mr George, could sue for injuries caused to him that would mean that a married woman could never claim compensation for injuries caused to her by faulty goods since she could never be party to the contract. This began to change a decade later with the passing of the Married Women’s Property Act 1879 but change would take a long time and is a topic for another day.
By the 1870s our balancing scales have tilted a little way towards the consumer but are still heavily weighted in favour of the manufacturer. Currently, the only way a consumer can secure damages for injury is to show that they have a contract with the manufacturer or that the manufacturer/vendor has been negligent or fraudulent in some way and – if Baron Pigott was correct – that you are somebody known to the vendor as being the ultimate end user of the product. At this stage, the ability to recover damages is firmly part of contract law and it feels as if tortious liability is an alien concept. Sadly, for one ship’s painter that wasn’t about to change any time soon.
In the early 1880s a man fell off a stage and hurt himself. The stage in question was suspended from the side of ship that was being painted in a dry dock. It was secured in place by ropes provided by the dry dock’s owners; however, the ropes were damaged and snapped causing the stage to give way. The man who fell was a painter employed by an independent contractor. He had no contract with the dry dock owner so could not sue for breach of contract – the same problem that stopped Mrs Donoghue suing the café owner. Our falling painter therefore sued in tort arguing that the owner of the dry dock owed him a duty that had been breached by the provision of damaged ropes. The case became known as Heaven v Pendle (1883) 11 QBD 503
The court disagreed with the painter and found against him – I mean why would anybody have a duty to ensure that the ropes they give you to hang off the side of a ship are fit for that purpose? However, Lord Brett, the Master of the Rolls (at the time the third most senior judge in the country behind the Lord Chancellor and Lord Chief Justice) was clearly a more modern thinker and disagreed with his brother judges saying in a dissenting judgment that:
“Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary skill and avoid such danger”.
Because his was a dissenting judgment his words were obiter dictum nonetheless what he said laid the foundation for what half a century later would become the ground changing neighbour principle espoused by Lord Atkin in Donoghue.
Now, we find ourselves in 1932 where the Appellate Committee of the House of Lords (a now defunct 20th century appeal court) is deciding whether Mrs Donoghue has a cause of action. You see, the case of Donoghue is not about whether there was a snail in a bottle of ginger beer. It is not about whether Mr Stevenson’s factory was or was not causing a risk to public health. The case is solely about whether Mrs Donoghue had the right to sue Mr Stevenson. In 1932, the legal position facing Mrs Donoghue was that if Mr Stevenson had sold the ginger beer direct to Mrs Donoghue’s unnamed friend knowing that Mrs Donoghue would be the ultimate consumer then she would have a right to sue in contract law. But following the precedent set in Heaven the manufacturer of the beer would appear to owe no duty of care to Mrs Donoghue.
Enter Lord Atkin.
Appearing before the House of Lords, George Morton, KC, argued that there were no previous cases on precisely the point in Donoghue and that the authorities that did exist were contradictory. He argued that although at that time a manufacturer owed a duty only to those with whom they had a contractual relationship unless the articles were dangerous per se or dangerous to the knowledge of the manufacturer but that such a strict interpretation of a manufacturers duty of care was not consistent with the public interest. He went on to say:
“When a manufacturer puts upon a market an article intended for human consumption in a form which precludes the possibility of an examination of the article by the retailer or the consumer, he is liable to the consumer for not taking reasonable care to see that the article is not injurious to health. In the circumstances of this case the respondent owed a duty to the appellant to take care that the ginger-beer which he manufactured, bottled, labelled and sealed (the conditions under which the ginger-beer was put upon the market being such that it was impossible for the consumer to examine the contents of the bottles), and which he invited the appellant to buy, contained. nothing which would cause her injury”
In response, Scotland’s Solicitor-General, W.G. Normand, argued that in English law the manufacturer owed no duty to the ultimate consumer of a product unless that consumer had a contract with the manufacturer. He saw Mrs Donoghue’s case as an attempt to introduce a third exception to the rule that a manufacturer is not liable in contract law (the others being fraud and negligence). He posed this question, “It is said that people ought not to be allowed to put on the market food or drink which is deleterious, but is there any real distinction between articles of food or drink and any other article?” To most modern readers the answer is obvious, a resounding, “yes of course there is a bloody difference” but to lawyers raised in the Victorian era the question no doubt raises issues about freedoms and rights of businesses – you may wonder whether the rights of those consuming or using the products even entered their heads sometimes, but of course we know now that Mr Normand expected his client to lose.
Today, well advanced through the second decade of the 21st century as we are, the notion that a manufacturer of a food product should not be held responsible for defects in his products that could harm or even kill people sounds bizarre. But, in the 1920s it seems, from what I have read, that drinks were particularly dangerous compared to those we enjoy today. None more so than the ginger beer featured in Bates v. Batey & Co., Ld.  3 K. B. 351, which exploded causing injury to Mr Bates. A jury found in Mr Bates favour on the basis that had the manufacturer of the ginger beer taken reasonable care to examine the bottle then they would have recognised it was defective; a point Lord Atkin would pick up on when dealing with his own ginger beer case.
Lord Atkin gave the leading judgment in Donoguhue and, I have no doubt, drew inspiration from Lord Brett’s judgment in Heaven, to expound what came to be known as his neighbour principle. I said in the very first post on this blog that I might look at the Ten Commandments at some point, while not quite the Commandments, Lord Atkin did draw on Biblical teachings saying, “[t]he rule that you are to love your neighbour becomes in law, you must not injure your neighbour… You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” Lord Atkin did not take this literally, indeed he said in his judgment that the law cannot recompense every moral wrong inflicted upon people and that rules of law exist to limit the remedies available. His solution to limiting liability was to ask, “who 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.”
He went on to make the point that as the law stood at the time a consumer poisoned by the negligence of a food manufacturer would have no recourse in law either against the manufacturer or the purveyor of the food since the purveyor would not have been negligent and pointed out that this principle extends far beyond food to a whole host of non-food items that could be purchased for use by another person, such as soap or household cleaners that might be used by the purchaser’s family, servants or guests. In his words,
“[i]f 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… I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong.”
His Lordship turned his attention to the case of Bates saying that,
“the manufacturers must have contemplated the bottle being handled immediately by the consumer, they owed a duty to him to take care that he should not be injured externally by explosion, just as I think they owed a duty to him to take care that he should not be injured internally by poison or other noxious thing.”
As in Donoghue, Mr Bates had no contractual relationship with the manufacturer of the ginger beer but Lord Arkin did not see that as a problem pointing out that this is the case with a great many things, such as a gas fitter installing equipment that could cause harm to a great many people.
Concluding his judgment, Lord Atkin pointed out that nothing he has suggested would be contradicted by members of the public in either England and Wales who would then, as we do today, expect the law to protect them in their everyday lives. He also noted that the USA (or New York at least) was already ahead of the game; the New York Court of Appeals had already decided MacPherson v. Buick Motor Co. 217 N. Y. 382 that did for the US what Donoghue was about to do for the UK.
Lord Tomlin perhaps went further that Lord Atkin in his judgment saying,
“I think that if the appellant is to succeed it must be upon the proposition that every manufacturer or repairer of any article is under a duty to everyone who may thereafter legitimately use the article to exercise due care in the manufacture or repair. It is logically impossible to stop short of this point. There can be no distinction between food and any other article. Moreover, the fact that an article of food is sent out in a sealed container can have no relevancy on the question of duty; it is only a factor which may render it easier to bring negligence home to the manufacturer.”
In the years since Donoghue was decided I think it is fair to say that while Lord Atkin took the credit for the judgment, it is Lord Tomlin’s view that best reflects our modern view of the condition in which products should reach their end user. Nonetheless, in its day Lord Atkin’s neighbour principle set the scene for the future development of the law taking us from the dark ages where only the purchaser could recover goods if he had a contract with the manufacturer to an age where manufacturers are expected to ensure the safety of their products for anybody who may ultimately turn out to be the end user.