May 2012 – The month to talk of mice and snails

Author: Brian
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The most famous case of all time – at least so far – is the Scots case of Donoghue v Stevenson decided in 1932. A Note headed up “bullet point update” suggests topicality and reference to a 1932 case may not appear very topical. But the fame of the case is such in legal circles that there is an 80-year jubilee  International Conference taking place this month in Paisley. So the Note has a topicality even if the case is an old one. The Paisley location has a particular point: that is where May Donoghue (the pursuer in the case) had her encounter with a snail. But before turning to the story a bit of legal background is given.


Some legal background


  • If Mr Nasty owes Mr Nice a “duty of care” and breaches that duty so that Mr Nice suffers an injury then Mr Nice has a case to sue Mr Nasty for his losses caused by the breach.


  • But suppose, say: Mr Nasty and Mr Nice are fellow employees; Mr Nasty sees the short-sighted Mr Nice walking down the works corridor; someone else has dropped a banana skin which lies in his path; Mr Nasty knows that Mr Nice may well fail to see it and slip; Mr Nasty stands by on the other side and gives no warning. Mr Nice does slip and injures himself. Can Mr Nice sue Mr Nasty for his losses? No: because Mr Nasty did not owe Mr Nice a “duty of care”.


  • Mr Nice might, nevertheless, have a remedy against his employers who do owe him a “duty of care” for his safety at work.


  • Donoghue v Stevenson was a case which revolutionised the parameters of who owes whom a “duty of care” in this sort of context. Now we can turn to the story.


The snail story


  • In August 1928 May Donoghue went to a café in Paisley with a friend. Her friend ordered and paid for some ice-cream and ginger beer for May, and a “pear and ice” for herself. The ginger beer was in a dark bottle. The cafe owner poured some out into May’s glass. May drank some. Her friend then re-filled May’s glass. Out of the bottle floated a snail in a state of decomposition.


  • As the case report puts it: “in consequence of the nauseating sight of the snail…and of the noxious condition of the….snail-tinted ginger beer” May suffered shock and illness.


  • The narrow legal question was whether the manufacturer of the ginger beer owed a “duty of care” to May. If they did then, as long as May could show that the presence of the snail was a breach of that duty, and that it caused her shock and illness, she could recover damages from the manufacturer.


The mice story


  • This case did not involve May. But it did, again, involve ginger beer. It did not involve a snail. But it did involve a mouse. A mother had bought ginger beer (again in a dark bottle) and gave it to her children. They drank. It was then noticed that there was a dead mouse in the bottle. The children became ill.
  • The mice story came to court not long before the snail story and the essential facts were the same (but for a mouse not being a snail). The court held that the manufacturers owed no “duty of care” to the children as consumers and so were not liable.


  • So things were not looking promising for May’s case. She had to argue that the manufacturers did owe her a duty of care in relation to her snail when, in virtually the same circumstances, the court had recently held that the manufacturers owed no “duty of care” over the mouse.


May undaunted


  • May had a lengthy battle on her hands eventually ending up in the House of Lords who decided, by a 3 – 2 majority, that the manufacturers did indeed owe May a “duty of care”. And so the modern law of negligence was born.


  • Its approach is one which is now so well-established it is easy to assume it was always thus. But far from it. The fact that May won by only a 3 – 2 majority is suggestive of the decision’s being ground-breaking. Two of the judges clearly felt it was ground that should remain unbroken. An extract from Lord Buckmaster’s dissenting speech can give a flavour.


“Little short of outrageous”


Lord Buckmaster was one of the judges in the House of Lords who heard May’s case and felt that finding in her favour would be the thin end of the wedge: “if one step, why not fifty?” In rejecting May’s case he endorsed what one the judges had said in the “mouse case”:


“’In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. It is obvious that, if such responsibility attached to the defenders, they might be called on to meet claims of damages which they could not possibly investigate or answer.’ In agreeing, as I do, with the judgment of Lord Anderson, I desire to add that I find it hard to dissent from the emphatic nature of the language with which his judgment is clothed. I am of opinion that [May’s case] should be dismissed…”


A final thought


  • May must have been a woman of some spirit to pursue her case all the way to the House of Lords. One wonders if she would have had a spirited remark or two to make about these two points:
    • The disclaimer at the foot of this Note owes something to May: its aim is to avoid this firm’s owing a “duty of care” (by virtue of publishing this Note on our website) to anyone who might read it; and
    • there will be legal luminaries from here, there and everywhere beetling to Paisley this month to discuss – over two full days – May’s ginger beer and her snail.


Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly:

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