Snails in bottles and the law of negligence

Evolution not revolution

The famous case of Donoghue v Stevenson¹ is often regarded as a turning point in private law. The discovery of a “snail in the bottle” of ginger beer is said to have led to the imperial march of the tort of negligence throughout the common law. I have even depicted it as such in my teaching.

But is it really?

The snail on the right is happy it is on a bottle, not in a bottle. Photo by Victoria Druc on Unsplash

For the non-lawyers, the tort of negligence arises when someone fails to exercise reasonable care in what they do (for example, failing to ensure gastropods are not included in the ginger beer bottling process) and someone to whom the wrongdoer owes a duty suffers injury as a result. Of course, there is a lot more to it than that, but that’s the general concept. A few years back, I wondered whether Donoghue v Stevenson heralded an immediate revolution. My research disclosed that the truth was more complex.²

The stages of development are outlined below.

1. Pre-Donoghue v Stevenson

As noted by Lord Atkin in Donoghue v Stevenson, a consumer who was harmed by a careless manufacturer had no recourse in law until that case.³ Nonetheless, in the second half of the nineteenth century, concepts of negligence infiltrated existing torts,⁴ including deceit, trespass, and nuisance, in actions such as bailment, for roles which had a “common calling” or a “public office” (eg, innkeepers and common carriers), and in contract law where there was a lack of care in carrying out an obligation.⁵ The advent of the railways was an important factor in the development of negligence law, because of trains’ capacity to cause injury and death.⁶ Indeed, when the first commercial railway from Liverpool to Manchester was opened in 1830, William Huskisson, a Member of Parliament, was run over and killed by Stevenson’s Rocket.⁷ By the mid-1800s, railway companies were liable for a variety of injuries.⁸

By the latter half of the nineteenth century, “a practical understanding of negligence liability required an analysis of the whole range of individual duty situations”.⁹ Brett MR attempted to formulate a general duty of care in Heaven v Pender,¹⁰ but it was not embraced by the other judges. However, ten years later in Le Lievre v Gould,¹¹ now as Lord Esher, he was more successful in persuading the other judges. The seeds for a general duty of negligence were laid, but there was no guarantee that they would germinate until Donoghue v Stevenson, and even then, there was still a possibility that the shoots would wither untimely.

2. Donoghue v Stevenson

The facts of Donoghue v Stevenson are well-known to students of the common law. Mrs Donoghue visited a café with her friend and ordered a ginger beer “float”. The ginger beer (manufactured by Stevenson) was poured onto the ice-cream from an opaque bottle, and Donoghue drank some. After the friend poured the remainder of the bottle into the glass, a decomposed snail was found.¹² Donoghue felt sick, and alleged that she suffered from gastroenteritis. However, she had no contractual relationship with Stevenson, nor any contractual relationship with the café owner, as her friend had purchased the drinks.

By a majority, the House of Lords held that Stevenson owed Donoghue a duty of care to manufacture products for public use with reasonable care, absent any contractual relationship.¹³ The court overruled Winterbottom v Wright,¹⁴ where the driver of a coach had unsuccessfully sought damages from the supplier of the coach after the coach broke down because of the supplier’s negligence and injured him. Because the driver was not a party to the contract between owner and supplier, no cause of action was available.

3. After Donoghue v Stevenson: evolution not revolution

It may seem in retrospect that Donoghue v Stevenson inevitably opened the door for “the imperial march of negligence”¹⁵ throughout tort law, but this was not so. As Ibbetson observes, there were three ways in which the case could be read, from conservative to revolutionary:¹⁶

• First, the case could be read as simply overruling Winterbottom v Wright, holding that a manufacturer owed a duty of care to the ultimate consumer (consistent with the judgments of Lords Thankerton and Macmillan).

• Secondly, the case could be read as broadening the specific categories of negligence cases, another possible reading of Lord Macmillan’s judgment, as he said that, “[t]he categories of negligence are never closed”.¹⁷

• Thirdly, the case could be read as creating an overarching duty of care bounded by a “neighbour principle”, as in Lord Atkin’s judgment. Lord Atkin said a duty of care could be owed to anyone who was a “neighbour” – in other words, “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 into question.”¹⁸

Immediately afterwards, many commentators adopted the first, most conservative of the three interpretations.¹⁹ The English Court of Appeal read the decision narrowly and precluded liability for a death caused by a negligently manufactured crane.²⁰ Courts in Canada and Australia also read the decision restrictively in other defective consumer product cases.²¹ However, in 1933, Sir Fredrick Pollock noted the radical possibilities of Donoghue v Stevenson. “[I]n the lowest terms” he said, the decision required manufacturers to ensure products were not dangerous or defective,²² but he observed that the decision could be read more broadly.²³

Grant v Knitting Mills, the 1936 Australian case of the defective woollen underwear, allowed a wider application of the principles.²⁴ Sulphites were present in the wool, causing severe dermatitis, but there was no apparent defect in the manufacturing process.²⁵ The fact that injury had occurred was an instance of res ipsa loquitur—Latin for “the thing speaks for itself”—there was obviously something wrong given that the plaintiff had suffered this reaction. The Privy Council held the manufacturer liable in any case.²⁶

Grant v Knitting Mills made it clear that negligence was a separate cause of action distinct from other tortious heads of liability:

It is clear that the decision [Donoghue v Stevenson] treats negligence, where there is a duty to take care, as a specific tort in itself, and not simply as an element in some more complex relationship or in some specialized breach of duty, and still less as having any dependence on contract.²⁷

Twenty-five years after Donoghue v Stevenson, Heuston says, “even at a fairly high level of abstraction, it [the neighbour principle] needs considerable qualifications and reservations before it can be accepted.”²⁸ The approach to negligence law was (at that time) an amalgam of the second and third possible readings of Donoghue v Stevenson. The “neighbour principle” was regarded as a general principle which governed negligence liability, but it was subject to important exceptions to the rule, with no liability for omissions, pure economic loss, negligently constructed houses or rental properties, or for occupier’s liability.²⁹

In 1964, the House of Lords said that defendants could be liable for pure economic loss resulting from negligent misrepresentation in some circumstances in Hedley Byrne v Heller;³⁰ and in 1972, it decided that an occupier of land owned a duty of “common humanity” to trespassers in Herrington v British Railways Board.³¹ A general duty in relation to other entrants had already been imposed on occupiers by the Occupiers’ Liability Act 1957 (UK). The two largest obstacles to a general principle of negligence law applying to all instances were thereby removed.³²

Fifty years after Donoghue v Stevenson was decided, it was possible for Smith and Burns to observe:

Over the ensuing years the courts have gradually shifted their approach from that of ascertaining a specific duty of care for each kind of situation or class of relationships, to that of starting from the position of the general duty of care as enunciated in Donoghue v Stevenson, and in particular Lord Atkin’s formulation in the ‘neighbour principle’.³³

In England and Wales, there has been a retraction from the expansive general duty approach of Anns v Merton London Borough Council,³⁴ particularly in relation to liability for pure economic loss.³⁵ In Australia, the legislative reforms introduced in the wake of the Ipp Report³⁶ have also resulted in curtailment of the general duty.

Courts have therefore retreated somewhat from the general duties of the 1970s and 1980s. In some jurisdictions, legislative intervention has curtailed the law of negligence, and in others, there have been calls for a return to a less expansive principle of negligence, or perhaps to separate instances of duties.³⁷

4. Conclusion

This post seeks to illustrate the fact that the common law tends to be evolutionary, not revolutionary. We tend to see these big cases—and perhaps especially a case like Donoghue v Stevenson—as being a turning point, but a more detailed inspection shows that they were not necessarily regarded as such in their time, nor was it inevitable that they would change the law. There were three factors which led Donoghue v Stevenson to have the impact it did.

Photo by Eugene Zhyvchik on Unsplash

First, before Donoghue v Stevenson, there were strong signs of a nascent law of negligence. Moreover, the existing doctrines of law which dealt with accidental injury and death of consumers were inadequate, and courts were required to distort doctrine.

Secondly, the facts of Donoghue v Stevenson (a consumer injured by a defective product) were common. Similar facts came up before courts frequently, even if not in precisely the same manner.

Thirdly, notwithstanding the above, Donoghue v Stevenson was initially interpreted it in the narrowest way possible. The subsequent uptake of Lord Atkin’s obiter dicta took a long time, and his vision of a general duty of negligence was only fully realised in the late 1970s in the United Kingdom (almost 50 years later).

1. [1932] AC 562.

2. This research never got published, and then a decision of the UKSC outflanked the broader point I wanted to make. Waste not want not! I kept the research anyway, and here you are.

3. Donoghue v Stevenson [1932] AC 562, 582.

4. D Ibbetson, A Historical Introduction to the Law of Obligations (Oxford, 1999) 165.

5. PH Winfield, ‘The History of Negligence in the Law of Torts’ (1926) 42 LQR 184.

6. Ibbetson, above n 3, 195.

7. See “Railway’s first accident victim remembered”, 27 June 2001, BBC News <http://news.bbc.co.uk/2/hi/uk_news/1410235.stm>.

8. M Lobban, ‘Daniel v Metropolitan Railway Company (1871)’ in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Tort (Hart, Oxford, 2010) 95, 109–11.

9. Ibbetson, above n 3, 178.

10. (1883) 11 QBD 503, 509.

11. [1893] 1 QB 491, 497, 504.

12. I leave to the side a controversy about whether the snail ever existed at all.

13. Lords Atkin, Thankerton and Macmillan in the majority; Lords Buckmaster and Tomlin dissenting.

14. (1842) 10 M & W 109; (1842) 152 ER 402.

15. Astley v Austrust Pty Ltd (1999) 197 CLR 1, 23.

16. Ibbetson, above n 3, 190 - 91.

17. [1932] AC 562, 619.

18. [1932] AC 562, 580. See also Heaven v Pender (1883) 11 QBD 503, 509.

19. Ibbetson, above n 3, 190.

20. Farr v Butters [1932] 2 KB 606.

21. Willis v Coca-Cola Co [1934] 2 DLR 173; Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 (rev’d Grant v Australian Knitting Mills Ltd [1936] AC 85 (PC)).

22. F Pollock, ‘The Snail in the Bottle, and Thereafter’ (1933) 49 LQR 22, 23.

23. Ibid, 24.

24. [1936] AC 85.

25. FC Underhay, ‘Manufacturers’ Liability: Recent Developments of Donoghue v Stevenson’ (1937) 54 South African Law Journal 52, 57–62.

26. [1932] 2 KB 606. Cf Farr v Butters [1932] 2 KB 606.

27. [1936] AC 85, 103.

28. RFV Heuston, ‘Donoghue v Stevenson In Retrospect’ (1957) 20 Mod LR 1, 28.

29. Ibid, 18–22.

30. [1964] AC 465.

31. [1972] AC 877. Note the later Occupiers’ Liability Act 1984 (UK) was necessary to extend a general duty.

32. Ibbetson, above n 3, 192.

33. JC Smith and P Burns, ‘Donoghue v Stevenson – The Not-So-Golden Anniversary’ (1983) 46 Mod LR 147, 150. See also Home Office v Dorset Yacht Co Ltd [1970] AC 1004, 1026–27; Anns v Merton London Borough Council [1978] AC 728, 751.

34. [1978] AC 728.

35. See eg, D&F Estates Ltd v Church Commissioners [1989] 1 AC 177 (distinguishing Anns); Murphy v Brentwood District Council [1991] 1 AC 398 (overruling Anns). See R Stevens, Torts and Rights (Clarendon, Oxford, 2007), Ch 3.

36. Ipp Panel, Review of the Law of Negligence: Final Report, September 2002. See Civil Law (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW); Personal Injuries (Liabilities and Damages) Act 2003 (NT); Civil Liability Act 2003 (Qld); Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic); Civil Liability Act 2002 (WA).

37. See esp, Stevens, above n 33.