By Bella Dimattina
On a summer afternoon in August 1928, at Wellmeadow Cafe in Paisley, a woman bought some ice cream and a bottle of locally manufactured ginger beer for her friend, Mrs Donoghue. A thirsty snail had become trapped and then slowly decomposed in the ginger beer bottle, revealing itself to Mrs Donoghue only as she poured the last half of the opaque bottle’s contents over her ice cream. Three weeks later, she was in hospital for emergency treatment.
Due to the generosity of her friend, there was no contract between the manufacturer, David Stevenson, and Donoghue, as Donoghue had not bought the drink herself. Under the law as it stood at the time, the manufacturer could not be held liable for Donoghue’s eventual illness.
A landmark case
Lord Moncrieff – who heard the case at first instance – found that the manufacturer should be held liable under negligence in relation to food preparation. However, the manufacturer appealed, and Moncrieff’s initial decision was overturned in the Court of Sessions. The case was thus brought to the House of Lords, where Lord Atkins provided the ratio we know today. The parties waited five months after the hearing to receive the judgement, which was split 3-2.
Prior cases relating to the duty of care of manufacturers were confined to their facts by Lord Atkin’s leading judgement, and said to have a more tenuous connection between victim and respondent than that present in Donoghue’s circumstances. Lord Atkin found a general law of duty of care to exist, which would protect those vulnerable to the non-contractual actions of others. This ‘general’ law comprises what is now known as the tort of negligence: there must be a duty of care between the parties between whom there was a proximate relationship, and a reasonably foreseeable risk of harm. In such cases, reasonable steps must be taken to minimise such risks.
These ideas were encapsulated in a now commonly quoted judgement from Lord Atkin, etched into the minds of all those who are so negligent as to venture into law school:
‘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.
These words served to establish the ‘neighbour principle’, the bane of many a freshman’s life, but the cornerstone of the modern tort of negligence.
Social justice warriors: then and now
The case is etched into the minds of law students, due not only to its legal significance, but also because of the justice Lord Atkin meted out to a negligent manufacturer. The facts also appeal to the idealistic goals of social justice and aiding the downtrodden that first year students bring with them to law school.
The case promises that one can make valuable and ethical contributions to law in a commercial setting. Indeed, Mrs Donoghue’s lawyer, David Leechman, worked pro bono on the case. Some attribute Leechman’s willingness to work pro bono to his demonstrated desire to advance tort law in Scotland. Paisley was known as a centre of industrial era political activism, and Leechman was a radical left wing activist. Mere weeks before he took up Donoghue’s case, Leechman had acted for the Mullens children after a mouse was found in their ginger beer. Mullen v Barr and Co Ld failed at the Court of Sessions. However the judgement in this case listed some instances where duty of care could be deduced – it was using this previous judgement that Leechman reasoned a duty of care in the case of Mrs Donoghue. Presumably swayed by his liberal political views, the value that Leechman placed on the claim of a woman harmed by ginger beer appeals strongly to those who enter law school with the intent of helping clients with everyday problems.
The case is now celebrated with plaques, Paisley legal conferences and even musical performances (see Leading Cases in Song by Stephen Todd).
The neighbour principle was criticised at the time Lord Atkin handed down his judgment as a radical legal finding with little grounding in precedent. Atkin drew on the parable of the Good Samaritan in the Gospel of Luke (through which Jesus instructs his disciples to ‘love thy neighbour as thyself’), and the principle has therefore been seen as an attempt to align Judeo-Christian morality with the legal system. In fact, this was more likely an attempt to make the principle referable to some kind of social (Christianity being the prevailing faith in the United Kingdom at the time) precedent, lacking legal precedent as it did.
The neighbour principle remains controversial in its current broad form. The case of Liebeck v McDonald’s Restaurants continues to garner international attention: the elderly Stella Liebeck was initially awarded $2.7 million in compensation for burns from her scalding hot coffee. The courts did not hesitate to find McDonalds negligent, as their coffee was sold 30 degrees above a safe temperature despite most customers drinking the coffee immediately. Stella Liebeck faced intense ridicule internationally as a pedantic and opportunistic litigant. Liebeck became the namesake for the ‘Stella Awards’, which for five years provided recognition to ‘outrageous and frivolous’ lawsuits. The awards, run by Colorado writer Randy Cassingham, exemplify mainstream derision of a duty of care, at least in its broadest form, in which it can place onerous and overbearing duties on persons at law.
These principles, which exist not only in the common law, but which have been enshrined in modern legislation such as the Australian Consumer Law, also face new challenges from technological advances that change the manufacturer-consumer relationship.
Professor of law Giuseppe Dari-Mattiaci from the University of Amsterdam and Italian economist Luigi Alberto Franzoni argue that technological advances alter the duty of care required of individuals and manufacturers. As technology automates common functions – through the development of products such as car safety systems and GPS – less care and attention is required of the individual (who can ‘sit back and relax’) necessarily requiring more of the manufacturer. As we place further functions in the hands of technology, we rely more on Atkin’s principles to protect us: our neighbour is, to a degree, no longer human. However this poses questions about what level of care is required in a modern environment – can reliance on faulty technology obviate our duty of care? Or do we accept the risks technology brings when we adopted cutting edge tech? Sould manufacturers still be held liable? Modern lawyers and everyday consumers must judge how best to balance caution and innovation, as entrepreneurs provide new technologies for living our lives.
Animals in bottles: the sequel
In the case of rodents in fizzy drinks, times have certainly changed. While a mouse found in a ginger beer by the Mullens children in the 1920s was beyond the reach of negligence laws as they stood, in 2012 a mouse found in a can of Mountain Dew resulted in an out-of-court settlement for the consumer. Pepsi nonetheless announced that such an occurrence would be impossible. Research provided by the company showed that any animal would have been decomposed by the corrosive chemicals in Mountain Dew.
While the products have undoubtedly changed, the principles established by Donoghue v Stevenson have provided an invaluable foundation on which to construct modern legal frameworks to protect our neighbours. While the developing legacy of Lord Atkin remains controversial, the adaptation of the tort of negligence to the conditions of today’s world is essential to provide redress for those affected by negligent acts. Whether it be a snail, a mouse, or a self-driving car that causes you harm, you should be confident that Lord Atkin will have your back.