Case Brief: Donoghue v Stevenson [1932] AC 562

Facts:

In 1928 the claimant, Mrs Donoghue argued that she had suffered shock and gastroenteritis (upset stomach) after drinking ginger beer from an opaque bottle out of which a decomposing snail had fallen when the dregs were poured. A friend had bought her the drink and so the claimant was unable to sue in her own right in contract -privity of contract prevented her from suceeding in an action for breach of a warranty in a contract of sale, but a majority of the House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain noxious material and that he would be liable in tort if that duty was broken. Mrs Donoghue claimed £500 from the manufacturer of the beer for his negligence and was successful. The House of Lords was prepared to accept that there could be liability on the manufacturer.

Objections:

Two major objections were discussed in the case.

1. The first of these is referred to as the “contract fallacy”. In a previous case, Winterbottom v Wright [1842] 10 M & W 109, appeared to contain a clear rule preventing a duty of care from being established in the absence of a contractual relationship. The parties to the action were the manufacturer of the ginger beer and the eventual consumer of his product, the ginger beer actually having been bought by the claimant’s friend from the owner of a roadside cafe. The judges rejected the application of this principle in the case.
2. The second potential problem was one raised by Lord Buckminster, who objected to the possibility of a general test for establishing duty of care, and indeed to the specific duty established in the case. He did so on the basis that it would be destructive to commerce and would only harm consumers by the cost of paying damages in successful actions being added to the price of the manufacturer’s goods. But the majority rejected this argument.

Seminal Dictum of Lord Atkin:

These remarks made obiter, appear to lay down a general test for determining whether a duty of care existed.

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. The liability for negligence… is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. 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. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law: You must not injure your neighbour, and the lawyer’s question: Who is my neighbour? receives a restricted reply.

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 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.’

Holdings:

1. A manufacturer would owe a duty of care towards consumers or users of his/her products not to cause them harm.
   

   Lord Atkin:
   A manufacturer puts up an article of food in a container which he knows will be opened by the actual consumer. There can be no inspection by any purchaser and no reasonable preliminary inspection by the consumer. Negligently in the course of preparation he allows the contents to be mixed with poison. It is said that the law of England and Scotland is that the poisoned consumer has no remedy against the negligent manufacturer. My Lords, 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. The doctrine …. would not only deny a remedy to the consumer who was injured by consuming bottled beer or chocolates poisoned by the negligence of the manufacturer, but also to the user of what should be a harmless proprietary medicine, an ointment, a soap, a cleaning fluid or cleaning powder. My Lords, 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.

2. Lack of privity of contract does not prevent a claimant from succeeding in a claim in torts. Negligence was accepted as a separate tort in its own right.
   

   Lord Macmillan: The fact that there is a contractual relationship between the parties which may give rise to an action for breach of contract does not exclude the co-existence of a right of action founded on negligence as between the same parties independently of the contract though arising out of the relationship in fact brought about by the contract.

   If on the other hand you….approach the question by asking whether there is evidence of carelessness on the part of the manufacturer and whether he owed a duty to be careful in a question with the party who has been injured in consequence of his want of care, the circumstance that the injured party was not a party to the incidental contract of sale becomes irrelevant and his title to sue the manufacturer is unaffected by that circumstance. The appellant in the present instance asks that her case be approached as a case of delict not as a case of breach of contract.

   1. Negligence would be proved by satisfying a three- part test:
      – The existence of a duty of care owed to the claimant by the defendant.
      – A breach of that duty by falling below the appropriate standard of care;
      -Damage caused by defendant’s breach of duty that was not too remote a consequence of the breach.

Lord Macmillan:
The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage.

For a manufacturer of aerated water to store his empty bottles in a place where snails can get access to them and to fill his bottles without taking any adequate precautions by inspection or otherwise to ensure that they contain no deleterious foreign matter may reasonably be characterised as carelessness without applying too exacting a standard. But, as I have pointed out, it is not enough to prove the respondent to be careless in (his process of manufacture.

The question is, does he owe a duty to take care, and to whom does he owe that duty? Now I have no hesitation in affirming that a person who for gain engages in the business of manufacturing articles of food and drink intended for consumption by members of the public in the form in which he issues them is under a duty to take care in the manufacture of these articles. That duty, in my opinion, he owes to those whom he intends to consume his products.

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