Everyone Needs Good Neighbours
Wednesday 7th December 2011
Julian Gibbons on how a humble snail caused chaos. It is sometimes said that the beating of a butterfly’s wings in Africa can cause a hurricane in America. This is a very simple description of what are known as chaotic systems, where slight variations in an initial condition lead to hugely varying consequences. If butterflies are possessed of such power, consider the influence of a simple snail. One such animal was destined to have a profound impact on the law of negligence, not only in England, but in Scotland and across the world.
Although the exact origins of the snail (if indeed that is what it was) are unknown, it popped onto the world stage on the 26th August 1928 in Paisley. That evening a Mrs Donoghue and friend visited a café in the town. The friend ordered drinks (said to be ginger beer) and an ice cream. Half of the drink was poured over the ice-cream, which Mrs Donoghue proceeded to eat. However, as her friend poured the rest of the drink, what was alleged later to be a snail in advanced stage of decomposition fell from the bottle.
Mrs. Donoghue, perhaps not surprisingly, fell rather unwell. In a forerunner of our compensation culture of today, she decided to sue. However, here she had a problem. She had no contractual relationship with the café owner (the friend had bought the drink), nor with anyone else. Her solicitor therefore issued a writ the following year in the Court of Session (the Scottish high court) against Mr. Stevenson, the maker of the drink. The writ claimed damages of £500, no small sum in 1929. It alleged that Mr. Stevenson had been negligent in his manufacture of the bottle of ginger beer and that Mrs Donoghue had suffered damage as a result. This was a very novel concept in 1929, as there was no established legal principle that people owed others a general duty of care for which they could be liable in damages if they breached it.
As with so many cases, the case of Donoghue v Stevenson became a series of skirmishes as the defender Stevenson tried to have the claim struck out as disclosing no cause of action. The appeal court in Scotland struck the case out and Mrs Donoghue eventually took her case to the House of Lords, the final appeal court for Scotland in civil matters. She was fortunate that her lawyers were prepared to act for free, for she had little money. Indeed, she had to petition the House to be declared a pauper so that she did not have to post money as security for the other side’s costs.
The decision of the House of Lords, and in particular the speech of Lord Atkin, is a classic know to every lawyer and established the principle of a common law duty of care to one’s “neighbours”, who he said were “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 that are called in question”. This principle is applied in almost every accident claim brought today and it founded the modern law of negligence, not only in Scotland but England and what is now the Commonwealth.
The case of Donoghue v Stevenson was an appeal on a preliminary point of law, namely whether Mrs Donoghue’s claim was one known in law. Although the House of Lords decided that it was, the case was then remitted for trial in Scotland. However, less than a year after the House of Lord’s judgment Mr. Stevenson died and his executors, probably quite rightly, decided to settle, which they did for £200. So the case was never tried and we shall never know if the snail was indeed a snail, a slug or, as some have since suggested, just a figment of Mrs Donoghue’s imagination.