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Snail in a bottle leaves trail

Feature Articles

Cite as: July 2012 86 (07) LIJ, p.56

It has been 80 years since a case involving a snail in a bottle attempted to establish a more principled approach to existence of duty of care.

By James Plunkett

26 May 2012 marked the 80th anniversary of the handing down of the judgement in M’Alister (or Donoghue) (Pauper) v Stevenson1, better known as Donoghue v Stevenson. Every lawyer and law student in Australia is, or at least should be, somewhat familiar with the facts of the case and what it represents. Perhaps, we can therefore allow ourselves to put aside the rigours of the substantive law, albeit for just a moment, and indulge ourselves in some legal history for a change: namely the story of the snail and the ginger beer.

Mrs Donoghue

May Donoghue (née M’Allister, though incorrectly spelt M’Alister in the pleadings) was born on 4 July 1898 and grew up in one of the poorer neighbourhoods of Glasgow. May M’Allister married Henry Donoghue on 19 February 1925, when she was 17 and he was 25, following an affair which resulted in her pregnancy. After the birth of their first child Henry, the Donoghues produced three more children, all of whom died within a fortnight of being born.2

Mrs Donoghue separated from her husband in 1928 (though they were not legally divorced until 1945) and moved into her brother’s home in Glasgow. It was shortly thereafter that Mrs Donoghue made her trip to Paisley to visit her friend at the Wellmeadow café.3 Of this friend, virtually nothing is known. It has been speculated by the more romantically inclined legal historians that, perhaps, Mrs Donoghue was having an extra-marital affair with her friend. However, Lord Macmillan refers to the friend as a ‘she’ in his speech, suggesting the facts may have been disclosed during the appeal.4 (We should therefore tread, as they say, gingerly, before making any assumptions.)

At the time of the trial Mrs Donoghue was working as a shop assistant and it seems that she was terribly poor.5 She died of a heart attack in a mental health facility on 19 March 1958 at the age of 59.6

Mr Stevenson

David ‘Davie’ Stevenson was born on 13 March 1863 and worked for most of his life in the family business as a lemonade and ginger beer manufacturer.7 The business had been founded by his father, also David Stevenson, in 1870, and was located at 11-12 Glen Lane, Paisley, less than one mile from the Wellmeadow café.8 Very little is known of David Stevenson, the defendant, aside from the fact that he appears to have supported the St Mirren Football Club.9 After Stevenson’s death, on 12 November 1932, the factory was operated by his son, also David Stevenson, and widow, Mary, for another 24 years. The business was eventually sold in 1956, and the Paisley factory demolished in 1960.10

Of Ginger Beer and Bottles

In the 1930s ginger beer was an exceptionally popular drink, with an estimated 3000 ginger beer manufacturers in the UK alone.11 At the time ginger beer was usually sold in a dark bottle to hide the sediment (prior to WWI it was typically sold in stone bottles).12 Stevenson, however, used dark browny-green bottles, with ‘D. Stevenson, Glen Lane, Paisley’ in raised glass lettering. The bottles, far from being completely opaque, were dark green in colour and approximately 25cm tall: in the author’s opinion (who is lucky enough to have an original bottle) it is considerably more transparent than a VB stubby. Due to the cost of manufacturing glass bottles, the practice of the day was to charge a small deposit, approximately one penny, which was refunded upon return of the bottle. The bottle was then washed and refilled.13 Unfortunately, however, it was common for bottles to be returned to the wrong manufacturer and filled with the ginger beer of the interloper.14 Indeed, Mr Stevenson maintained from the outset that the bottle in question had been filled and capped somewhere other than his factory as he had ‘never issued bottles answering the description given by the pursuer [plaintiff]’ in the writ. In particular, while he accepted that he had originally owned the glass bottle with his name on it, he objected to a reference to screw caps and pasted labels.15 It is therefore possible that the ginger beer ordered by Mrs Donoghue’s friend was not manufactured by Mr Stevenson at all.

The Visit To The Cafe

On Sunday, 26 August 1928, Mrs Donoghue took a thirty-minute tram ride to visit her friend in Paisley, a large town seven miles west of Glasgow.16 According to the pleadings, at 8.50pm Mrs Donoghue and her friend decided to visit the Wellmeadow café, an Italian ice cream shop on the corner of Wellmeadow Street and Lady Lane.17 The café was operated by Mr Francis Minghella.

Mrs Donoghue’s friend ordered a pear and ice for herself and an ice cream and ginger beer, known as a Scotsman’s ice cream float, for Mrs Donoghue.18 Mr Minghella poured some of the ginger beer into a tumbler containing the ice cream. Mrs Donoghue then drank some of the ginger beer from the tumbler before her friend poured the remainder of the bottle into the tumbler, during which time a snail, in a state of decomposition, floated out of the bottle.19 Mrs Donoghue’s pleadings allege that she consulted her doctor three days later, on 29 August 1928, and that three weeks later, “even while under medical attention she still became worse, and on 16th September 1928 had to receive emergency treatment at the Glasgow Royal Infirmary”. In particular, as a consequence of ingesting the “snail-infected ginger beer”, she suffered shock, gastro-enteritis with vomiting and stomach pains and mental depression which rendered her unfit for employment.20

Because Mrs Donoghue did not purchase the bottle of ginger beer, she had no claim against Mr Minghella in contract, and considering her case assumed the bottle was incapable of intermediate examination she could hardly accuse him of negligence (her lawyers nevertheless added Mr Minghella as a defendant after the writ was filed, but removed him shortly thereafter).21 The only possible defendant was Mr Stevenson in a negligence action.

The Existing Law

Judges in the late 19th and early 20th century were more conservative than their modern colleagues. In 1880, in relation to a man who tripped in a dimly lit station, a senior appeal judge expressed the view (sure to make defendant lawyers grin with delight and long for the days of a more sensible judiciary) ‘[i]f it was too dark for the man to see, he had no business to go there. If it was light enough for him to see, he had no business to tumble over the obstacle.’22

Aside from meaner judges, Mrs Donoghue also had to overcome a significant legal hurdle. The law at the time only recognised a duty of care in specific relationships, such as surgeon/patient, employee/employer, bailee/bailor, occupier/lawful entrant, etc.23; the specific relationships did not, however, include manufacturer and consumer.

Through the Courts

Unfortunately for Mrs Donoghue, the Second division of the Court of Sessions had only recently handed down the almost identical cases of Mullen v Barr; McGowan v Barr24, dismissing the claims of two plaintiffs who became ill after drinking from bottles of Barr’s ginger beer (advertised at the time as ‘nothing but the finest ingredients’)25 that contained a dead mouse.

Despite the difficulties, Mrs Donoghue managed to retain Glasgow solicitor, Walter Leechman of WG Leechman & Co, who issued a writ against Mr Stevenson on 9 April 1929 claiming £500 in damages. (Mr Leechman’s firm had acted for the plaintiffs in the Barr cases, his personal dissatisfaction with the outcome presumably explaining why he was willing to take on Mrs Donoghue’s seemingly hopeless case.)26

Shortly after Mrs Donoghue’s writ was lodged, Mr Stevenson’s legal team made an interlocutory application for the writ to be struck out on the ground that, even if the facts could be proven, it disclosed no cause of action (i.e. Mr Stevenson did not owe Mrs Donoghue a duty of care). Notwithstanding the Barr cases, the appeal was dismissed in Mrs Donoghue’s favour by Lord Moncrieff of the Scottish Court of Sessions. Mr Stevenson appealed Lord Moncrieff’s decision to the Second division of the Court of Sessions (the rough equivalent of Victoria’s Court of Appeal). The appeal was heard by the exact same four judges that had ruled against the plaintiff (3:1) in the Barr litigation and, predictably, Mrs Donoghue also lost (3:1).

Mrs Donoghue then appealed to the House of Lords and was granted permission to appear in forma pauperis (“in the character or manner of a pauper”), thereby not having to put up security for costs, which would have surely ended her journey. It is here that Lord James Richard Atkin, the Australian-born Law Lord, husband of an Australian wife, and son of a former member of the Queensland Legislative Assembly, delivered his famous neighbour dictum, based on the parable of the Good Samaritan found in Luke (10:25-37):

“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 . . . 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.”27

The House of Lords found for Mrs Donoghue (3:2) and Lord Moncrieff’s decision was restored. The matter was soon relisted for proof, but was adjourned following Mr Stevenson’s death from appendicitis on 12 November 1932.28 Mr Stevenson’s executors were added as defendants in late 1933 and the case was settled shortly thereafter for a reported amount of £200.29 There was never a hearing of evidence, and Mrs Donoghue never proved there was a snail in her ginger beer.30

Conclusion

Donoghue v Stevenson has been credited with many things31 (some claims more ambitious than others), perhaps the most significant of which is Lord Atkin’s attempt, albeit not the first32, at a more principled approach to determining the existence of a duty of care (even if he never quite hit the [s]nail on the head). We may never fulfil Lord Atkin’s quest for a precise duty of care formula, but it does not appear as though we will stop trying any time soon. The exact circumstances of Mrs Donoghue’s visit to the Wellmeadow café in Paisley will always remain one of legal history’s many mysteries, though, perhaps we could still say, somewhat aphoristically, while in 2012 people drink beer in gastropubs, in 1932 they drank gastropods in beer.

JAMES PLUNKETT, formerly of Slater & Gordon, is a DPhil candidate at the University of Oxford. James is researching the historical and theoretical foundations of the duty of care requirement. (email: james.plunkett@law.ox.ac.uk)

  1. [1932] AC 562.
  2. Matthew Chapman, The Snail and the Ginger Beer: The singular case of Donoghue v Stevenson, 2010, Wildy, Simmonds & Hill, p4.
  3. WW McBryde, “Donoghue v Stevenson: The story of the ‘snail in the bottle’ case” in AJ Gamble (ed), Obligations in Context: Essays in honour of Professor DM Walker, 1990, W Green, pp13, 18.
  4. McBryde, note 3 above, p19.
  5. McBryde, note 3 above, p18.
  6. McBryde, note 3 above, p18.
  7. McBryde, note 3 above, p13.
  8. Chapman, note 2 above, p6.
  9. McBryde, note 3 above, p13.
  10. McBryde, note 3 above, pp14-15.
  11. Chapman, note 2 above, p8.
  12. McBryde, note 3 above, p15.
  13. McBryde, note 3 above, p15.
  14. McBryde, note 3 above, p20.
  15. McBryde, note 3 above, p20.
  16. MR Taylor, “Mrs Donoghue’s Journey” in PT Burns and SJ Lyons (eds), Donoghue v. Stevenson and the Modern Law of Negligence : The Paisley papers – the proceedings of the Paisley Conference on the Law of Negligence, 1991,Continuing Legal Education Society of British Columbia, p1.
  17. Taylor, note 16 above, p2.
  18. Taylor, note 16 above, p4.
  19. Donoghue v Stevenson, 562-563.
  20. McBryde, note 3 above, p21.
  21. Chapman, note 2 above, pp23-4.
  22. “Lord Justice Bramwell on Actions of Negligence” (1880) 24 Solicitors’ Journal. 305.
  23. This is, perhaps, an oversimplification of the law: it will, however, suffice for our purposes.
  24. [1929] Sessi. Cas. 461.
  25. Chapman, note 2 above, p9.
  26. Taylor, note 16 above, p6.
  27. Donoghue v Stevenson, 580.
  28. McBryde, note 3 above, p26.
  29. Taylor, note 16 above, p33. Not £100, as stated elsewhere.
  30. McBryde, note 3 above, p26.
  31. RFV Heuston, “Donoghue v Stevenson in Retrospect” (1957) 20 Modern Law Review 1, 23.
  32. See, for example, Heaven v Pender (1883) 11 QBD 503 (Brett MR), Le Lievre v Gould [1893] 1 QB 491 (Lord Esher) and MacPherson v. Buick Motor Co. (1916) 217 N.Y. 382 (Cardozo J).

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