Almost a century on, the case of Donoghue v Stevenson [1932] AC 562 remains an important landmark decision in English tort law. This case established the modern doctrine of negligence as we now know it, including what’s widely referred to as the ‘neighbour principle’.
Donoghue has not only provided a memorable read for generations of law students about a “snail in a bottle of ginger beer”, but also a practical starting point for both lawyers and the judiciary in any negligence claim: whether or not a duty of care exists between the claimant and the defendant such that, if the defendant has breached that duty, liability may arise.
What are the facts of Donoghue v Stevenson?
On 26 August 1928, the appellant, Mrs Donoghue, drank a bottle of ginger-beer, manufactured by the respondent, and bought by a friend as part of an ice-cream float at a cafe in Paisley. The drink allegedly contained the decomposed remains of a snail which were not and, because of the opaque brown glass, could not be detected until most of the drink had been consumed.
As a result of ingesting the contaminated ginger beer, Mrs Donoghue was said to have suffered from both shock and severe gastro-enteritis for which she claimed damages.
What were the legal issues in Donoghue v Stevenson?
As the consumer but not the purchaser of the ginger beer, Mrs Donoghue was not able to claim for breach of warranty as against the retailer because she was not party to any contract. The contract of sale to buy the ginger beer was between Mrs Donoghue’s friend and the cafe owner, so there was no direct contractual relationship between either Mrs Donoghue and the retailer, or Mrs Donoghue and Mr Stevenson, the manufacturer.
Still, Mrs Donoghue brought a claim against Mr Stevenson, who it is alleged through his carelessness had permitted a snail to be left in the bottle. The foundation of her case was that Mr Stevenson, as the manufacturer of a product intended for consumption and contained in a bottle which prevented any inspection, owed a legal duty to her as consumer of that product to take care that there was no noxious element contained in it.
Having initially been heard by the Scottish courts, the case ultimately came before the House of Lords, now the Supreme Court, where it was accepted that the same principles under the Scots law doctrine of delict apply to the English doctrine of negligence.
The House of Lords was therefore tasked with deciding — in the absence of contractual relations and contrary to established case law at the time — whether the manufacturer of the bottle of ginger beer was placed under any legal duty to the ultimate consumer to take reasonable care that the drink was free from defect likely to cause injury to health.
This was effectively a test case to determine if the appellant had a cause of action in negligence upon which she could pursue a claim for compensation for the injuries suffered. Interestingly, the case of Donoghue was never tried on its facts, where the case went all the way to the House of Lords on a preliminary point of law. As such, whether or not there was a snail in the bottle of ginger beer, or whether Mrs Donogue could establish a causative link between the presence of the snail and her subsequent illness, was never ruled upon.
Still, despite the fact that the case is commonly remembered for its unpleasant facts, the decision remains important for the legal principles that it established all those decades ago.
What did Donoghue v Stevenson establish?
By a majority of 3 to 2, it was held by the House of Lords that the manufacturer did indeed owe Mrs Donoghue a duty of care as the ultimate consumer, establishing for the first time a general duty to take care of others outside of any contractual or pre-existing relationship.
The law of negligence at the time of the decision in Donoghue v Stevenson was very narrow, in the main limiting the liability of manufacturers to cases in which there was an established contractual relationship.
In the absence of any contract, a manufacturer owed no duty of care to the end-user, except where either the manufacturer made a fraudulent representation as to safety, failed to disclose a known danger or the product was dangerous in itself.
In finding for the appellant, it was said that where the manufacturer of a product — sold to a retailer in a form intended to reach the ultimate consumer in the form in which it left the factory, with no reasonable possibility of intermediate examination — and with the knowledge that want of reasonable care in the preparation of the product may result in injury to the consumer — the manufacturer owes a duty to take such care.
What is the neighbour principle in Donoghue v Stevenson?
In reaching their decision, the House of Lords had to consider whether the relationship between a manufacturer and consumer is sufficiently close that Mr Stevenson should be required by law to exercise a certain degree of care in preparing that product for consumption, even though there was no contractual or pre-existing relationship between them.
In handing down the leading judgment, Lord Atkin held: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” This is known as the neighbour principle that has become the foundation of tortious liability under the English doctrine of negligence.
Lord Atkin then went on to ask: “Who, then, in law is my neighbour?”. In response he said: “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.”
The neighbour principle is essentially a way of describing which relationships give rise to a duty in law to take reasonable care. This is based on two important concepts which have since come to dominate the law of negligence: foreseeability of harm, as expressly referenced by Lord Atkin, and proximity of relationship, a notion implicit within his definition of ‘neighbour’.
What is the impact of Donoghue v Stevenson on the law of negligence?
On first reading of the judgment in Donoghue v Stevenson, the decision could be narrowly interpreted so as to merely establish a duty of care owed by a manufacturer to consumers in circumstances where there is no opportunity for intermediate inspection of those goods. This in itself was an important extension to the doctrine of negligence, providing a cause of action for those who had been injured by a defective product that they had not purchased.
However, the wider impact of Donoghue v Stevenson on English tort law cannot be understated. It established for the first time the doctrine of negligence as separate from contract law, where the absence of privity of contract as between the claimant and defendant does not preclude liability in tort for breach of duty of care.
It also provided clear legal precedent for the all-important neighbour principle, where Lord Atkin moved away from the situation-by-situation approach to duty of care previously adopted, so as to establish a more general principle that would apply across all situations.
How has the neighbour principle been further developed?
Although the neighbour principle provided a solid foundation for the determination of duty of care issues — reversing the law as it stood at the time of being unable to establish a duty simply because the parties were not in a relationship in which a recognised duty of care already existed —it did not provide an overarching formula applicable in every scenario.
The neighbour principle as defined by Lord Atkin in Donoghue would require further qualification so as to provide a more useable definition. This was merely the starting point, where in any given case, it would need to be particularised and adapted to the situation.
However, it was not until the 1960’s, in the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, that the House of Lords were able to consider the neighbour principle in the context of a case concerning financial loss flowing from reliance on negligent words, rather than physical injury resulting from negligent acts.
In this case the appellant, an advertising agency, had sought a financial reference from the respondent, a bank, for the creditworthiness of one of its customers with whom the appellant intended to do business with. The reference provided by the respondent turned out to be incorrect, resulting in significant financial losses to the appellant.
The facts of this case raised the important question of whether and in what circumstances a party can recover damages for loss suffered by reason of having relied on an innocent but negligent misrepresentation.
Although the appeal in Hedley was dismissed by reason of the respondent’s express disclaimer of liability, the special relationship between the parties was considered “sufficiently proximate” so as to create a duty of care. This is because it was reasonable for the respondent to have known that the information they had given would likely have been relied upon, such that there was an assumption of responsibility on their part to exercise due care.
The approach to pure economic loss in Hedley was then further refined in the case of Caparo Industries Plc v Dickman [1990] 2 AC 605. This case introduced policy considerations, ie; what is “fair, just and reasonable”, as a third essential ingredient to the neighbour principle.
Clearly therefore, the simplicity of the approach to duty of care propounded by Lord Atkin is, in reality, far too simple, where there is unlikely to be any universal formula to duty that works in all circumstances. As Lord Oliver stated in Caparo: “it has to be recognised that to search for any single formula which will serve as a general test of liability is to pursue a will-o’-the-wisp”.
In cases involving physical injury caused by a positive act, the neighbour principle still works well, because those are cases where foreseeability and proximity will often get the claimant over the duty of care hurdle.
However, once we stray into liability for either non-physical injuries, or even for omissions or the conduct of third parties, other considerations beyond foreseeability and proximity begin to acquire much greater significance.
Still, the more modern approach is not to cast aside the attempts in Donoghue v Stevenson to establish a general test for the existence of a duty, or even insist that the courts rely solely on the 3-stage test in Caparo, but rather to depart from the strict application of these principles when other new important considerations apply. This is an approach that has been endorsed by recent decisions in the Supreme Court in Michael v. Chief Constable of South Wales Police [2015] UKSC 2 and Robinson v. Chief Constable of West Yorkshire Police [2018] UKSC 4.
In this way the law has returned to a more incremental approach, developing novel categories of negligence by analogy with established categories, to help capture all the complex variations of fact that can arise under the doctrine of negligence. That said, but for the infamous snail, the law in this area would be a very different creature altogether.
What are the 4 parts of negligence?
Duty of care, of course, forms just one ingredient in any claim for negligence. There are four essential parts that must be present to establish a claim:
- Duty of care
- Breach of that duty
- Damage, which is caused by the breach
- Foreseeability of such damage
Liability in negligence is based on fault. This means the claimant must prove not only that the defendant owed them a duty of care, but that the duty was breached by failing to meet the required standard of care; that the breach caused the damage complained of; and the damage was not too remote, ie; it was or ought to have been foreseeable at the time of breach.
Considering each element in turn is the only way of testing whether an actionable claim in negligence has arisen, and for this an academic analysis alone is rarely sufficient, where expert legal advice should be sought from a specialist experienced in dealing with such complexities.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
