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Donoghue v Stevenson [1932] AC 562: Case Overview and Critical Analysis


a)This assessment is weighted 100% towards your final module mark. Please submit your work on or before the deadline stipulated on the assessment forum.

b)Please read the facts and decision in Donoghue v Stevenson [1932] AC 562 in full.

c)You are then required to answer all the questions numbered 1-7. The word limit is 4000 words. Please note that there is a maximum 10% leverage to exceed the word count. However, any words over this threshold will result in a penalty or in the exceeding wordage not being marked by the moderators.

d)The aim of this assignment is an opportunity for you to demonstrate your understanding and legal skills in undertaking legal research, undertaking analysis of legal texts, reasoning skills, presenting research, and very importantly the ability to reference appropriately using the Oscola method.

•Demonstrate a critical and comprehensive understanding of the techniques and methods applicable to postgraduate legal research and legal methodology

•Critically evaluate and demonstrate the ability to conceive, design, implement and adapt a substantial piece of research with scholarly integrity

•Demonstrate critical, reflective and advanced intellectual engagement with difficult issues in law

•Analytically integrate knowledge, handle complexity and formulate judgments with incomplete or limited information

•Critically appraise and communicate your conclusions and the knowledge and rationale underpinning these, to specialist and non-specialist audiences clearly and unambiguously

1.What were the material facts of the case?

2.What were the legal issues involved?

3.What was the decision of the court?

4.What were the main differences in reasoning between the majority judgment(s) and the dissenting judgment(s)? Critically assess the extent to which Aitkin’s judgement accurately reflects the opinion of the majority judges.

5.What is the ‘neighbour principle’? Explain the term ‘neighbour’ and discuss where the term might be derived from

6.Critically analyse the development of this principle both in the UK and in other jurisdictions.

7.Read this article regarding the Oil Industry in Nigeria: niger-delta-shell. Explain how the principles of law from Donoghue v Stevenson might be relevant to this environmental problem and assess their effectiveness in regulation the conduct of oil companies.

Lord Buckmaster, Lord Atkin, Lord Tomlin , Lord Thankerton, and Lord Macmillan.

Negligence--Liability of Manufacturer to ultimate Consumer--Article of Food-- Defect likely to cause Injury to Health.

By Scots and English law alike the manufacturer of an article of food, medicine or the like, sold by him to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under a 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:-


So held,by Lord Atkin, Lord Thankerton and Lord Macmillan; Lord Buckmaster and Lord Tomlin dissenting.

George v. Skivington (1869) L. R. 5 Ex. 1 approved.

Dicta of Brett M.R. in Heaven v. Pender (1883) 11 Q. B. D. 503, 509-11 considered.

Mullen v. Barr & Co., Ld., and M'Gowan v. Barr & Co., Ld., 1929 S. C. 461 overruled.

Appeal against an interlocutor of the Second Division of the Court of Session in Scotland recalling an interlocutor of the Lord Ordinary (Lord Moncrieff).

By an action brought in the Court of Session the appellant, who was a shop assistant, sought to recover damages from the respondent, who was a manufacturer of aerated waters, for injuries she suffered as a result of consuming part of the contents of a bottle of ginger-beer which had been manufactured by the respondent, and which contained the decomposed remains of a snail. The appellant by her condescendence averred that the bottle of ginger-beer was purchased for the appellant by a friend in a café at Paisley, which was occupied by one Minchella; that the bottle was made of dark opaque glass and that the appellant had no reason to suspect that it contained anything but pure ginger- beer; that the said Minchella poured some of the ginger-beer out into a tumbler, and that the appellant drank some of the contents of the tumbler; that her friend was then proceeding to pour the remainder of the contents of the bottle into the tumbler when a snail, which *563 was in a state of decomposition, floated out of the bottle; that as a result of the nauseating sight of the snail in such circumstances, and in consequence of the impurities in the ginger-beer which she had already consumed, the appellant suffered from shock and severe gastro- enteritis.

The appellant further averred that the ginger-beer was manufactured by the respondent to be sold as a drink to the public (including the appellant); that it was bottled by the respondent and labelled by him with a label bearing his name; and that the bottles were thereafter sealed with a metal cap by the respondent.

She further averred that it was the duty of the respondent to provide a system of working his business which would not allow snails to get into his ginger-beer bottles, and that it was also his duty to provide an efficient system of inspection of the bottles before the ginger-beer was filled into them, and that he had failed in both these duties and had so caused the accident.


The respondent objected that these averments were irrelevant and insufficient to support the conclusions of the summons.

The Lord Ordinary held that the averments disclosed a good cause of action and allowed a proof.

The Second Division by a majority (the Lord Justice-Clerk, Lord Ormidale, and Lord Anderson; Lord Hunter dissenting) recalled the interlocutor of the Lord Ordinary and dismissed the action.

1931. Dec. 10, 11. George Morton K.C. (with him W. R. Milligan) (both of the Scottish Bar) for the appellant. The facts averred by the appellant in her condescendence disclose a relevant cause of action. In deciding this question against the appellant the Second Division felt themselves bound by their previous decision in Mullen v. Barr & Co., Ld. [FN1] It was there held that in determining the question of the liability of the manufacturer to the consumer there was no difference between the law of England and the law of Scotland - and this is not now disputed - and that the question fell to be determined according to the English authorities, and the majority of the Court (Lord Hunter dissenting) were of opinion that in England there was a *564 long line of authority opposed to the appellant's contention.

The English authorities are not consistent, and the cases relied on by the Court of Session differed essentially in their facts from the present case. No case can be found where in circumstances similar to the present the Court has held that the manufacturer is under no liability to the consumer.

The Court below has proceeded on the general principle that in an ordinary case a manufacturer is under no duty to any one with whom he is not in any contractual relation. To this rule there are two well known exceptions: (1.) where the article is dangerous per se, and (2.) where the article is dangerous to the knowledge of the manufacturer, but the appellant submits that the duty owed by a manufacturer to members of the public is not capable of so strict a limitation, and that the question whether a duty arises independently of contract depends upon the circumstances of each particular case.

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.

Demonstration of Learning and Skills

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: George v. Skivington [FN2]; and see per Brett M.R. in Heaven v. Pender [FN3] and per Lord Dunedin in Dominion Natural Gas Co. v. Collins & Perkins. [FN4] George v. Skivington [FN5]has not always been favourably commented on, but it has not been overruled, and it has been referred to by this House without disapproval: Cavalier v. Pope. [FN6] In the United States the law is laid down in the same way: Thomas v. Winchester. [FN7]

FN1 1929 S. C. 461.

FN2 L. R. 5 Ex. 1.

FN3 11 Q. B. D. 503, 509 et seq.

FN4 [1909] A. C. 640, 646.

FN5 L. R. 5 Ex. 1.

FN6 [1906] A. C. 428, 433.

FN7 (1852) 6 N. Y. 397.
*565 [He also referred to Dixon v. Bell [FN8]; Langridge v. Levy [FN9]; Longmeid v. Holliday [FN10]; Bates v. Batey & Co., Ld. [FN11]; Weld-Blundell v. Stephens. [FN12]]

FN8 (1816) 5 M. & S. 198.

FN9 (1837) 2 M. & W. 519; (1838) 4 M. & W. 337.

FN10 (1851) 6 Ex. 761.

FN11 [1913] 3 K. B. 351.

FN12 [1920] A. C. 956, 985.

W. G. Normand, Solicitor-General for Scotland (with him J. L. Clyde (of the Scottish Bar) and T. Elder Jones (of the English Bar)) for the respondent. In an ordinary case such as this the manufacturer owes no duty to the consumer apart from contract. Admittedly the case does not come within either of the recognized exceptions to the general rule, but it is sought to introduce into the law a third exception in this particular case - namely, the case of goods intended for human consumption sold to the public in a form in which investigation is impossible.

The reason now put forward by the appellant was no part of Lord Hunter's dissent in the previous case; nor is there any hint of any such exception in any reported case. There is here no suggestion of a trap, and there are no averments to support it. 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? In Heaven v. Pender [FN13]Brett M.R. states the principle of liability too widely, and in Le Lievre v. Gould [FN14] that principle is to a great extent whittled away by the Master of the Rolls himself and by A. L. Smith L.J. The true ground was that founded on by Cotton and Bowen L.JJ. in Heaven v. Pender. [FN15] In Blacker v. Lake & Elliot, Ld. [FN16] both Hamilton and Lush JJ. treat George v. Skivington [FN17]as overruled. Hamilton J. states the principle to be that the breach of the defendant's contract with A. to use care and skill in the manufacture of an article does not per se give any cause of action to B. if he is injured by reason of the article proving defective, and he regards George v. Skivington [FN18], so far as it proceeds on duty to the ultimate user, as inconsistent with Winterbottom v. Wright. [FN19] *566 [Counsel also referred to Pollock on Torts, 13th ed., pp. 570, 571, and Beven on Negligence, 4th ed., vol. i., p. 49.] In England the law has taken a definite direction, which tends away from the success of the appellant.

Material Facts of the Case

FN13 11 Q. B. D. 503.

FN14 [1893] 1 Q. B. 491.

FN15 11 Q. B. D. 503.

FN16 (1912) 106 L. T. 533.

FN17 L. R. 5 Ex. 1.

FN18 L. R. 5 Ex. 1.

FN19 (1842) 10 M. & W. 109.

George Morton K.C. replied.

The House took time for consideration. 1932. May 26.

(read by LORD TOMLIN). My Lords, the facts of this case are simple. On August 26, 1928, the appellant drank a bottle of ginger-beer, manufactured by the respondent, which a friend had bought from a retailer and given to her.

My Lords, the sole question for determination in this case is legal: Do the averments made by the pursuer in her pleading, if true, disclose a cause of action? I need not restate the particular facts. The question is whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or 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 *579 is free from defect likely to cause injury to health. I do not think a more important problem has occupied your Lordships in your judicial capacity: important both because of its bearing on public health and because of the practical test which it applies to the system under which it arises.

The case has to be determined in accordance with Scots law; but it has been a matter of agreement between the experienced counsel who argued this case, and it appears to be the basis of the judgments of the learned judges of the Court of Session, that for the purposes of determining this problem the laws of Scotland and of England are the same. I speak with little authority on this point, but my own research, such as it is, satisfies me that the principles of the law of Scotland on such a question as the present are identical with those of English law; and I discuss the issue on that footing.

The law of both countries appears to be that in order to support an action for damages for negligence the complainant has to show that he has been injured by the breach of a duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury. In the present case we are not concerned with the breach of the duty; if a duty exists, that would be a question of fact which is sufficiently averred and for present purposes must be assumed. We are solely concerned with the question whether, as a matter of law in the circumstances alleged, the defender owed any duty to the pursuer to take care.

Legal Issues Involved

It is remarkable how difficult it is to find in the English authorities statements of general application defining the relations between parties that give rise to the duty. The Courts are concerned with the particular relations which come before them in actual litigation, and it is sufficient to say whether the duty exists in those circumstances. The result is that the Courts have been engaged upon an elaborate classification of duties as they exist in respect of property, whether real or personal, with further divisions as to ownership, occupation or control, and distinctions based on the particular relations of the one side or the other, whether manufacturer, salesman or landlord, customer, tenant, stranger, and so on.

*580 In this way it can be ascertained at any time whether the law recognizes a duty, but only where the case can be referred to some particular species which has been examined and classified. And yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist. To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non- essentials. The attempt was made by Brett M.R. in Heaven v. Pender [FN79], in a definition to which I will later refer. As framed, it was demonstrably too wide, though it appears to me, if properly limited, to be capable of affording a valuable practical guide.

FN79 11 Q. B. D. 503, 509.

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 liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," 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.

Decision of the Court

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.

This appears to me to be the doctrine of Heaven v. Pender [FN80], *581 as laid down by Lord Esher (then Brett M.R.) when it is limited by the notion of proximity introduced by Lord Esher himself and A. L. Smith L.J. in Le Lievre v. Gould. [FN81] Lord Esher says: "That case established that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.

"So A. L. Smith L.J.: "The decision of Heaven v. Pender [FN82]was founded upon the principle, that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other." I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.

That this is the sense in which nearness of "proximity " was intended by Lord Esher is obvious from his own illustration in Heaven v. Pender [FN83] of the application of his doctrine to the sale of goods. "This " (i.e., the rule he has just formulated) "includes the case of goods, etc., supplied to be used immediately by a particular person or persons, or one of a class of persons, where it would be obvious to the person supplying, if he thought, that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be of such a nature that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it.

Reasoning Differences Between Majority and Dissenting Judgments

It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used *582 or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect, or where the goods would be of such a nature that a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property." I draw particular attention to the fact that Lord Esher emphasizes the necessity of goods having to be "used immediately" and "used at once before a reasonable opportunity of inspection.

"This is obviously to exclude the possibility of goods having their condition altered by lapse of time, and to call attention to the proximate relationship, which may be too remote where inspection even of the person using, certainly of an intermediate person, may reasonably be interposed. With this necessary qualification of proximate relationship as explained in Le Lievre v. Gould [FN84], I think the judgment of Lord Esher expresses the law of England; without the qualification, I think the majority of the Court in Heaven v. Pender [FN85]were justified in thinking the principle was expressed in too general terms. There will no doubt arise cases where it will be difficult to determine whether the contemplated relationship is so close that the duty arises. But in the class of case now before the Court I cannot conceive any difficulty to arise. 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. 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.

I would point out that, in the assumed state of the authorities, not only would the consumer have no remedy against the *583 manufacturer, he would have none against any one else, for in the circumstances alleged there would be no evidence of negligence against any one other than the manufacturer; and, except in the case of a consumer who was also a purchaser, no contract and no warranty of fitness, and in the case of the purchase of a specific article under its patent or trade name, which might well be the case in the purchase of some articles of food or drink, no warranty protecting even the purchaser-consumer. There are other instances than of articles of food and drink where goods are sold intended to be used immediately by the consumer, such as many forms of goods sold for cleaning purposes, where the same liability must exist.

The doctrine supported by the decision below 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. I confine myself to articles of common household use, where every one, including the manufacturer, knows that the articles will be used by other persons than the actual ultimate purchaser - namely, by members of his family and his servants, and in some cases his guests. I do not think so in 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.

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