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LOVE THY NEIGHBOUR

 

Chan Su-Li tells the tale of the snail in the ginger beer bottle

Imagine this scenario:

You are going through a particularly stressful period. One day, you notice in the mirror that quite a few white hairs have sprouted on your head. You inform your spouse, who quickly heads to a hair care salon and purchases a hair care product for you that, according to the claims on the packaging, will aid in preventing any more white hair growth.

You use the product daily, punctiliously following the instructions printed on the packaging. After a week, you notice that although there do not appear to be any additional white hairs, large clumps of your hair have started to drop-off instead, leaving unsightly bald patches on your head. You file a complaint with the manufacturer of the hair care product and demand for some sort of compensation for the damage you have suffered. However, the manufacturer refuses to acknowledge that your hair loss was caused by their defective product.

What further recourse do you have against the manufacturer? Well, thanks to the celebrated case of Donoghue v Stevenson [1932] AC 562, you will be able to make a claim for damages against the manufacturer of the defective product, whether under common law or under a specific consumer law.

THE FACTS OF THE CASE

It all began on a Sunday evening on 26 August 1928. May Donoghue ("Donoghue") boarded a tram in Glasgow to Paisley. Upon arrival, Donoghue met with a friend and they proceeded to the Bethany Cafe, owned by a man named Francis Minchella.

Donoghue's friend ordered from Minchella, and paid for, some refreshment for the both of them. The refreshment consisted of two slabs of ice-cream, each of which was placed in a tumbler, and over which was then poured part of the contents of a bottle of ginger beer.

The ginger beer had been manufactured by David Stevenson ("Stevenson"), and bought from him by Minchella. It was contained in a dark opaque glass bottle. Donoghue drank some of the contents of the tumbler. As her friend then poured the rest of the ginger beer into the tumbler, the remains of a decomposed snail floated out from the bottle.

Donoghue was later diagnosed by her doctor as having suffered from shock and severe gastroenteritis as a result of the nauseating sight of the decomposed snail and in consequence of the impurities in the ginger beer which she had consumed.

Donoghue brought an action against Stevenson, the manufacturer of the ginger beer, claiming £500 as damages for injuries sustained by her through drinking the contaminated ginger beer. By doing so, she sparked off a case that has arguably become one of the most famous cases in English legal history.

THE BASIS OF THE CASE

The foundation to Donoghue's case was that Stevenson, as the manufacturer of goods intended for consumption and contained in an opaque bottle that prevented inspection, owed a duty to her as a consumer to take care that there was no noxious element in the goods. Donoghue contended that Stevenson should be liable for the damage she suffered as he had neglected such duty.

The common law position at that point in time was that a duty of care was only owed in very specific circumstances, and in an ordinary case, a manufacturer was under no duty to anyone with whom he did not have contractual relations. There were limited exceptions to this rule, one of which was where the goods were dangerous per se, and another was where the goods were known by the manufacturer to be dangerous and there had been a deliberate concealment of such a fact, i.e. fraudulent misrepresentation by the manufacturer.

In the case of Donoghue v Stevenson, Donoghue could not claim a breach of contract as there was no contractual nexus between Donoghue and the manufacturer, or even the cafe owner, as it was her friend who had ordered and paid for the drink. In addition, ginger beer was not a dangerous product and the manufacturer had not fraudulently misrepresented it. This meant that her case fell outside the scope of the existing cases on product liability.

In the circumstances, Donoghue's claim was dismissed by the lower court as having no legal basis. However, following an appeal to the House of Lords, the court held, by a majority of three to two, that Stevenson did in fact owe a duty of care to Donoghue, who was the ultimate consumer of the ginger beer.

THE NEIGHBOUR PRINCIPLE

Lord Atkin delivered the leading judgement, whereby he explained the "neighbour principle" which was based on a teaching in the Bible that one should "love thy neighbour". According to Lord Atkin:

"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."

His Lordship then stated that:

"... a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care."

Applying the above principles, the learned Judge held that as the ginger beer was contained in an opaque bottle and could not be inspected before being consumed, Stevenson owed a duty of care to Donoghue as it was reasonably foreseeable that Donoghue would suffer injury if he failed to exercise reasonable care in the manufacture of the ginger beer.

The House of Lords then remitted the case back to the trial court for further determination. The case did not proceed to trial and was settled by the executors of Stevenson's estate after his demise.

SIGNIFICANCE OF THE DECISION

The majority decision of the House of Lords in Donoghue v Stevenson is a significant landmark in the English common law. Firstly, it established negligence as a distinct tort. Secondly, it also established that the absence of privity between the litigants did not preclude liability in tort.

Donoghue v Stevenson also established that the manufacturer of a product owes a duty of care to the ultimate consumer or user. Last but not the least, it established that the criterion for the existence of a duty in the law of negligence is whether the defendant ought reasonably to have foreseen that his acts or omissions would likely result in damage or injury to the plaintiff.

The case is also important to the development of consumer law. The legal position that manufacturers owe a duty of care to the end consumers, even in the absence of any contractual relationship, forms the basis of many consumer protection laws, such as the Consumer Protection Act 1999.

The "neighbour principle" has been further refined by the courts in various negligence cases that have followed suit. A number of other factors have now to be considered before a finding of negligence can be made. These include whether the damage was foreseeable, the proximity of the relationship between the parties, and whether it is just in the circumstances to impose a duty of care.

The case of the snail in the ginger beer bottle has defined and shaped the common law tort of negligence. Although it has been modified by subsequent case law and statutes, its influence can still be felt to this very day.

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