Advanced Legal Skills Assessment

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AdvancedLegal Skills Assessment

Case Study: Donohue v Stevenson [1932] AC 562

The case in perspective here is perhaps one of the most importantcases with regard to creation of the modern model of negligence asused in the judicial system. It sets out general doctrines where oneindividual is obligated to give duty of care to another. Popularlyreferred to as the ‘snail in a bottle’ or ‘Paisley snail’, itgives insight into a case where Mrs. Donohue encountered a dead snailin her ginger beer manufactured by Mr. Stevenson. She subsequentlyfell ill and sued the manufacturer for damages.

1.0Material Facts of the Case

On26th August 1928, a woman by the name Mrs. May Donohue, ashop assistant, travelled from her brother’s apartment in Glasgowto meet a friend in the small Scottish town of Paisley overrefreshments. They met in an establishment by the name ‘Well-meadowCafé’ under the ownership of Francis Minghella who also operatesthe Café. Her friend ordered and paid for the refreshments gingerbeer and ice cream for Mrs. Donohue and ‘pear and ice’ forherself. The ginger beer bottle was opaque-brown in color denotingthat the content could not be seen or investigated until its contentwas poured out. There was no reason to doubt that the content wasanything else but ginger beer. On the outside, the bottle had thetranscription, “D. Stevenson, Glen Lane, and Paisley”.

Minchella1,the attendant, poured out some of the beer into a tumbler from whichMrs. Donohue drank. Her friend added the remainder in the bottledafter she had consumed a significant portion of it. Mrs. Donohueobserved what turned out to be a decomposing snail flow out of thebottle into her tumbler. As a result of the upsetting sight inaddition to the thought of what she had just consumed, she sufferedfrom severe gastro-enteritis and shock. This diagnosis was made atGlasgow Royal Infirmary where she went to seek medical attentionafter the ordeal and was admitted for “emergency treatment”. Thebeer was manufactured by David Stevenson who owned and ran a companyby the same name dealing in lemonade and ginger beer. The company’slocation is ‘11 and 12 Glen Lane, Paisley’ not far from the café.The same information is contained on the beer bottle in question asstated earlier.

Mrs. Donohue averred that the manufacturer put the ginger beer onsale to the public for human consumption after manufacturing, sealingit with metal cap and engraving a legend of their name on the bottle.She further argued that it was the manufacturer’s duty to care thatno foreign object such as snails would enter beer bottles byestablishing proper systems in the production and packaging process.It was also his responsibility to make sure an efficient system ofbottle inspection is put in place before they are filled with freshginger beer all to which he had failed. Mr. Stevenson, themanufacturer, on his side objected to the accusations claiming themto be irrelevant and unsatisfactory to support the case against him.He denied presence of any snails in his beer bottles adding that thealleged injuries were extremely exaggerated and any illness sufferedby the victim was as a result of her poor health at the time.

2.0 Legal Issues

Injuries accruing from use of defective product in normal cases wereclaimed on the foundation of contract of sale between the consumervictim and the seller responsible. This case however posed a ratherchallenging legal problem considering its dimensions. Donohue did nothave any contractual relationship with the manufacturer because shedid not purchase the goods herself. The contract at the time ofpurchase was tied to her friend who was responsible for ordering andpaying for the beer but did not get injured by it. Mrs. Donohue wasunder no jurisdiction to charge Mr. Minghella and Mr. Stevenson ontort or contractual grounds. If she had purchased the beer herself,then it could have been justified that she would have had theirguarantee the beer was fit for human consumption and could thereforehold them liable in case of injuries from it.

Additionally, neither Mrs. Donohue nor her friend had a bindingcontract with the manufacturer, Stevenson and therefore should haveclaimed damages for negligence which is a more probable causecompared to ‘duty of care’ that she sued for. She couldn’thowever claim for negligence by Minghella who poured her the firstbeer. This is because it is clear he neither did nor failed to act ina way that could qualify as negligent. The bottle of ginger beer wassupplied to him sealed and just as a customer, could not inspect thequality of beer before selling it considering the bottle is dark.Moreover, he is required to sell the beer to a customer while stillsealed.

Her best recourse was to deal with the remaining player, DavidStevenson, the manufacturer. She could only rely on the question if amanufacturer is under any legal duty to be accountable for defectivegoods sold to a distributor who is incapacitated to inspect themuntil they reach the final consumer2.Unfortunately for her, neither British nor Scottish civil law at thetime had established a way of stating matter of general principlewith respect to tort of negligence. It didn’t specify that ifgeographically, a duty of care could be obligated to an individualdistant from another not to cause mischief to that individual. Judgesat the time relied majorly on precedent and it was difficult for themto establish existence of duty of care in a case with the absence ofa general statement of law. This meant they had to depend on pastrulings to base their judgment.

One ruling3following on a case relevant to Donohue’s that could qualify asprecedent and potentially provides proof that could be a stumblingblock in her quest. In this case, two people4separately found dead mice in the in the bottles of their ginger beermanufactured by AG Barr &amp Co Ltd and claimed to have fallen sickafter consuming the contaminated liquid. Orbine won his case claimingcompensation while Mullen lost. The losing factions however chose toappeal to the Court of Session for further hearing. At their appeal,the claimants argued that as much as no direct evidence couldestablish that the manufacturer was negligent in the manufacture andpackaging of the beer, negligence could be presumed with respect tothe dead mice in the beer. The court ruled in favor of the respondentclaiming that manufacturers were only liable for duty of care to thefinal customer only if a contractual agreement existed between thetwo parties. Negligence would only apply is a manufacturer knowinglywithheld information of the product’s intrinsic dangerousness froma consumer or lack of warning. Only Lord Hunter dissented on groundsthat negligence is inferred and considering the content of the bottlecould not be investigated before hand, a specific duty of care wouldbe available to enable consumers claim for damages.

Neither of the exceptions provided in the above case existed inDonohue’s case to find product liability which amounted tonegligence. Thus, recuperation against a negligent manufacturer whodid not intentionally or directly cause physical harm became a hugechallenge. The ginger beer was not intrinsically dangerous and Mr.Stevenson did not intentionally fake the threat posed by his product.The claimants none the less argued that manufacturers were alsoobliged to have a duty of care towards their final customers it wasimpossible to examine the goods before consumption, as was Donohue’scase. With the fast transforming face of commerce at that time, itbecame highly necessary that the issue of legal responsibility isresolved to shield consumers from any harm they may cause as wassensitized by Lord Atkins at the commencement of judgment.

3.0 Decision of the Court

The opening interlocutory action was heard in the Court of Session onMay 21, 1929 by Lord Moncrieff. Minghella was added as a defender butlater abandoned due to the lack of a legal binding relationship andhis incapacity to scrutinize the content of the dark beer bottle. Mr.Stevenson’s counsel brought forward a motion to strike outDonohue’s claim on the plaintiff. The subsequent decision of thiscourt in favor of the claimant was on point of law which was set inthe structure of the bigger objection against the existence of a dutyof care owed to her. Lord Moncrieff rejected Mr. Stevenson’s motionand held that as a general principle, there exists liability fornegligent food preparation by the manufacturer. This decision forcedMr. Stevenson to make a decision to appeal to the Scottish seconddivision against the advice of his lawyers.

Stevenson’sappeal to the inner house was heard by the same judges in the Mullencase5:Lord Alness, Lord Ormidale, Lord Anderson and Lord Hunter. In theirruling made on 13 November 1930, reference was made back to theirjudgment in the Mullen case giving their statements relevant support.Lord Aness observed that the only material difference between the twocases is one involved a mouse6while the other involved a snail7thus, all but Lord Hunter approved the appeal.

Donohuenot satisfied with the ruling at the inner house filed for an appealto the House of Lords seeking permission to follow the case informa pauperis8.This meant that it was not necessary for her to provide securityfor costs in the event she lost the appeal due to her poverty. Thepetition was approved and the appeal heard on 10th and11th December 1931 by Lord Atkin, Lord Buckmaster, LordMacmillan, Lord Thankerton and Lord Tomlin. The plaintiff argued thatStevenson had an obligation to take due care in the ginger beermanufacturing process considering the beer bottles were opaque,sealed and intended for human consumption therefore impossible for aconsumer or distributor to examine before use. Stevenson’s counselresponded by mentioning that a manufacturer under English andScottish law is not under obligation with whom they don’t have acontractual relationship. Further, they denied the intrinsic dangerclaimed to have been possessed by the ginger beer in addition toStevenson not being aware of any danger in his product. The housegave judgment on 26 May 1932 where it held by a majority of 3-2 thatMrs. Donohue’s case revealed a cause of action.

4.0Difference between Majority and Dissenting Judgment

4.1Majority Judgment

The majority consisted of three of the five judges on the fivejudges: Lord Thankerton, Lord Atkins and Lord Macmillan. In LordAtkin’s statement on the case, he commented on the complexity ofthe case in question with regard to its bearing on public health andthe practical test it posed on the relevant systems. He supported thecounsel’s position that English and Scottish law wereindistinguishable in requiring a duty of care for negligent acts andillustrated his general ‘neighbor principle’ with perspective towhen duty of care arises. He further supported his argument by citingHeaven v Pender9,rejecting the legal dimensions under English law at the time insupport of a narrower interpretation of duty of care with anillustration of negligently poisoned food to which no claim was madeagainst the perpetrator. He continued by suggesting that allmanufacturers should be held liable for “articles of commonhousehold use” produced by them citing medicine, cleaning productsand soap. He criticized the jurisprudence at the time for assumingits principles as remote from the daily needs of ordinary people inaddition to ordinary claims made upon members of judicial systems whodeny legal remedies in situations where there is evident socialwrong. He went on to reject cases that were not in support of hisapproach citing, Benjamin N Cardozo in Macpherson v Buick MotorCompany10in his favor. He concluded by saying that this case disclosed anappropriate cause of action because the manufacturer sold the productin such a form that it should reach the final customer in the stateit left him. Therefore, he is obligated to take reasonable care inpreparation of the product to prevent eventual harm to consumers.

Lord Thankerton in his part ruled that Donohue was not in a bindingcontract with Mr. Stevenson nor was her case in context to pastscenarios concerning duty of care. He however concurred that themanufacturer had at his own accord brought a direct relationship withthe final consumer by restricting examination or interference of thebeer until the time of consumption. A consumer was therefore requiredto rely on diligence exercised by the manufacturer to secure withguarantee that the article would not pose any danger to the consumer.This is an exception to the common nonexistence of a duty of carewith reference to Donohue’s case. He finalized by mentioning thatit was difficult to catalogue the numerous differing relationshipsbetween human beings to discern which qualify for execution of dutyof care other than those under contract.

Lord Macmillan in his perspective investigated previous casesholding that the law only concerns itself with negligence where thereis duty of care failure to which damage is incurred. It doesn’trecognize carelessness in context of the case at hand. He observedthat to determine the dimensions duty or lack of in this case,examination by standard of a ‘reasonable person’ is required. Thecircumstances of these standards should adjust to ever changingcircumstances of life. He held that according to this standard, themanufacturer demonstrated negligence in his part by leaving bottlesin a state that a snail could get access but no proper investigationis done before packaging. This meant that Stevenson was obligated topossess duty of care towards Donohue, an ultimate customer, andtherefore considerable cause of action was found against him.

4.2 Dissenting Judgment

The minority side in the ruling consisted of Lord Tomlin and LordBuckmaster. In his statement, Lord Buckmaster paid attention toprecedent and began by warning principles of common law cannot bechanged nor can additions be made as much as they can be applied tomeet new un-contemplated thresholds because most meritorious casesmay seem to be out of its context. He cited Baron Alderson’s rulingin Winterbottom v Wright11that “the only safe rule is to limit the right to pick up those whoenter into a contract”. Lord Buckmaster went on to dismiss George vSkivington12stating, “Only few cases have existed so dangerously and lived fora long time”. He refuted Heaven v Pender13as a tabula in naufragio14and was unrelated to the case at hand. He finished by sayingthere wasn’t any common law support for Donohue’s claim andseconded Anderson’s decision in Mullen v AG Barr &amp Co Ltd15.

In his part, Lord Tomlin supported Lord Buckmaster’s judgment whileconcurring with Lord Atkin on the aspect that duty of care owed by amanufacturer to its final consumers was similar regardless of thenature of product in question. He held that no general duty of carewas available in the case despite the fact that the product wassealed. He went further and approved concerns that if Lord Atkin’sperspective of liability was endorsed, victims of the Versailles railaccident would be legitimately enabled to seek compensation for thebroken axle responsible for the crash

4.3 Remarks

From the above discussion concerning perspective of the majority anddissenting sides, it is clear that their judgment was based on theaspect of adjusting existing laws to consider unique circumstancescovered by law16or follow the law as it is without any adjustments17.They differed on the matter of if Donohue’s case qualified forprobable cause resulting from negligence of duty of care byStevenson.

Aitkin’s judgment accurately reflects the opinion of the majoritybench with regard to the case. This is because he brought into lightthe aspect of making general law flexible enough o accommodate uniquecases such as Donohue’s. This was the same opinion generally fromthe other two judges who found cause in her claim. Additionally, thefact that the goods could not be inspected before consumption eitherby a distributor directly obligated the manufacturer to be liable forany harm on consumers as a result of consuming their product. Thiswas the same perspective seconded by his colleagues.

5.0 Neighbor Principle

Lord Atkin laid down the preliminary doctrine of the ‘neighborprinciple’ in the Donohue case18analyzed earlier in this paper. He provided the conceptual frameworkleading to the development of the law of negligence as used today injudicial institutions. The facts surrounding the mentioned case andthe ruling by the House of Lords in favor of the plaintiff’s claimthereafter belie the importance of this principle. What is theneighbor principle? Generally, the principle states that people areobliged to take reasonable care in their actions or inaction so asnot to injure other people who could potentially be affected. Who isa neighbor? A neighbor on the other hand was defined as anyone whowas either directly or closely affected by actions that theperpetrator ought to have in thought as possible victims whenmeditating on acts. Definition of the term neighbor however remainscontentious with regard to range of applicability both in terms ofdistance and level of actions.

6.0 Development of the Neighbor Principle

Prior to 1932 when Donohue’s appeal was heard, no standardized dutyof care existed with respect to negligence. The judicial system atthe time acknowledged the tort or wrong as it was depending on thecourt’s finding a contractual link or under special circumstances.This case however acted as precedence for similar cases thatfollowed1920.These cases involved situations where there was no direct contractbetween the two parties but existence of liability for negligenceagainst one party. The neighbor principle definitely changed judicialperspective of negligence and continues to be used in cases to thisday both in the U.K and other jurisdictions.

7.0 Principles of Law in Donohue v Stevenson

Four law principles can be identified with the case in question.First is negligence as a distinct tort that is reflected in thedecision settling negligence as an independent civil wrong or tort.This aspect stood out because the case established a framework forunique situations involving personal injury or property damage as adirect foreseeable result of an act or omission by another. Victimswere given a platform in the form of precedent to claim for damagesout of negligence of duty to care by the person responsible.Litigants no longer required dependence on a contractual relationshipas proof in their case in addition to negligence not necessarilybeing part of other torts. The second principle is that a contract isnot a necessity to give a case probable cause for negligence. At thetime of the aforementioned case, plaintiffs were keen to look out forany contract that would legitimize their claim. In the modern worldhowever, the opposite is more common where plaintiffs suing fordamages in civil cases in a bid to avoid contractual impositions thatmay be tied to them.

Thirdly, obligation of liability on manufacturers under narrowcircumstances was established. This factor is prescribed in LordAtkin’s statement claiming a manufacturer to be liable to a finalconsumer of his products if the item is sold in a form that restrictsinvestigation of the content until consumption. The customer consumesthe product with guarantee that the manufacturer took due care toprevent injury to them. In addition, they can be held culpable bothif knowledge of potential danger is not passed to the customer or duecare against potential hazards is not taken during preparation of aproduct. The fourth principle is ‘the neighbor’ principle thatholds one person liable for acts or omissions that could lead toforeseen dangers against another.

7.1 Relevance of These Principles to Environmental Issues in theArticle21

Thearticle ‘Nigeria`s agony dwarfs the Gulf oil spill. The US andEurope ignore it’22focuses on the issue of oil spillage in the Niger delta that hascaused major environmental damage in addition to negative impacts ithas had on the lives of native villagers. Behind this problem is inpart, the Nigerian government and international oil corporations suchas shell and BP responsible for crude oil extraction andtransportation via pipelines. The oil is in-turn sold in countrieslike the U.S for consumption. These pipelines are reported to be indeplorable conditions some of which are rusty subsequently leading toregular leakage that spill millions of liters in crude oil to theenvironment. This has led to health complication for people living inthe vicinity in addition to loss of livelihood as they directlydepend on nature for the daily needs such as drinking water, farming,washing and fishing. No significant steps have been taken to curbthis issue that has been a thorn in the flesh for native people. Inaddition, comparison is made to response and mitigation of an oilspill in America tens of times smaller than the regular spillswitnessed in the Niger delta. It stands to show how the west hasneglected Nigeria with its problems despite being able to make apositive change with regard to the issue. Likeevery scuffle, there are two sides of the story one being thevillagers who are victims and oil corporations as the perpetrators.There is sufficient physical evidence to show that pipelines ownedand run by these corporations are responsible for the numerousspillages in the delta. To make matters worse, reports are made oncea spill happens but response from relevant authorities is poor,aggravating an already bad situation. In their part, oil companiesblame locals for vandalism that is responsible for most of theleakage cases. There is evidence showing tapped points along thepipeline amounting to 300 in addition to explosives used to destroyportions of the pipeline. This scenario provides a complicatedsituation from a judicial perspective that would take major effortand substantial cause to arrive at a conclusion.Similarto Donohue’s case, this scenario involves a company whoseactivities and product has a direct negative impact on people insociety. The major difference in this case however is that the peopledid not purchase the product causing them harm and the fact thatenvironmental impact from the spills are on a large scale compared tothe former case. However, the underlying principles in her case areapplicable and relevant here. To begin with, the neighbor principlehas been infringed by the fact that oil corporations are aware of thepotential hazards in their pipeline that could cause harm to theenvironment and people living along it but have taken little steps tocontain them. Furthermore, the pipelines have been in deplorableconditions for decades with the operators well aware and little hasbeen done to save the affected people from adverse effects caused byspills either through sensitization or compensation. Secondly,it is clear that these companies are liable for negligence withregard to duty of care. This is seen in the fact that they take along time to fix leakages or replace worn-out parts of the pipelinedespite knowing that it affects local people. They also haven’t putsystems in place that would ensure leaks do not happen nor do theyhave proper mitigation procedures incase spills happen. Anotherprinciple in play here is that a contract is not reason enough togive a probable cause for negligence. The affected communities havenot entered into any direct contract with individuals corporations.This factor however does not guarantee that negligent acts by oilcorporations that have harm are lawful. By creating a pipeline, thecompanies are liable for any destruction or harm caused directly onthe environment and local populous. They are required to maintain andkeep tab of the whole pipeline to ensure it is in proper workingconditions factoring in the safety of people, animals and nature inits vicinity. Additionally, the people surrounding the pipelineshould not vandalize the pipeline as it would amount to a criminalact.7.2Effectiveness in Regulation and Conduct of Oil CompaniesAsillustrated earlier, these principles have the potential to hold oilcompanies liable for negligence with regard to duty of care. Thiscould amount to millions in compensation and other penaltiesdetrimental to their corporate image. In the Nigerian situation forexample, the companies involved can be sued for negligenceconsidering the amount of evidence that can qualify as probablecause. The poorly maintained pipeline and slow response to leakagereports can be used to prove they had probable cause that led toenvironmental damage in addition to negative implications on localcommunities. References

Vidal, John. ‘Nigeria’s Agony Dwarfs the Gulf Oil Spill. The U.Sand Europe Ingore It’. The Guardian, 2010.


1.Minghella’s surname was spelt incorrectly as ‘Minchella’ in lawreports attached to the case ‘Donohue v Stevenson’.

2.supra, note1, 578, as per Lord Atkins

3.Mullen v AG Barr &amp Co Ltd [1929] SC 461

4.Mullen and Oribine


6. Mullen’s case

7.Donohue’s case

8. ‘With the status of a Pauper’

9.Heaven v Pender [1883] 11 QBD 503

10.Macpherson v Buick Motor Co. [1916] 217 NY 382

11.Winterbottom v Wright [1842] 10 M&ampW 109

12.George v Skivington [1869] LR 5 EX 1


14. ‘Plank in a shipwreck’

15.Ibid 2

16.Majority side

17.Minority faction

18.Donohue v Stevenson [1932] AC 562

19.See Dorset Yacht Co. Ltd v Home Office [1970] AC 1004

20.Anns v Merton London Borough Council [1978] AC 728

21Vidal,‘Nigeria’s Agony Dwarfs the Gulf Oil Spill. The U.S and EuropeIgnore It’.


1 Minghella’s surname was spelt incorrectly as ‘Minchella’ in law reports attached to the case ‘Donohue v Stevenson’.

2 Supra, note 1, 578, as per Lord Atkins

3 Mullen v AG Barr &amp Co Ltd [1929] SC 461

4 Mullen and Oribine

5 Ibid

6 Mullen’s case

7 Donohue’s case

8 ‘With the status of a Pauper’

9 Heaven v Pender [1883] 11 QBD 503

10 Macpherson v Buick Motor Co. [1916] 217 NY 382

11 Winterbottom v Wright [1842] 10 M&ampW 109

12 George v Skivington [1869] LR 5 EX 1

13 Ibid

14 ‘Plank in a shipwreck’

15 Ibid 2

16 Majority side

17 Minority faction

18 Donohue v Stevenson [1932] AC 562

19 See Dorset Yacht Co. Ltd v Home Office [1970] AC 1004

20 Anns v Merton London Borough Council [1978] AC 728

21 Vidal, ‘Nigeria’s Agony Dwarfs the Gulf Oil Spill. The U.S and Europe Ignore It’.

22 Ibid

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