The Snail in the Ginger Beer
Material Facts of the Case-
An action was bought in the Court of Session by the appellant who sought to recover damages from the respondent, who was the manufacturer of the aerated waters, for injuries she suffered as a result of consuming the contents of a bottle of ginger beer that contained decomposed remains of a snail. The appellant contended that the bottle of ginger beer was purchased by a friend at a café at Paisley; which was occupied by one Minchella. The bottle was made of dark opaque glass and there was no reason to suspect that it contained anything else than pure ginger beer. Minchella poured the contents into the tumbler, and that the appellant drank some of the contents of the tumbler. When her friend, proceeding to pour the remaining contents into the tumbler, when a snail, in a state of decomposition floated out of the bottle. As a result of the nauseating sight of the snail and the impurities from the ginger beer that she had already consumed, the appellant suffered from shock and severe gastro-enteritis.
The appellant averred that the ginger beer was manufactured by the respondent to be sold to the public; that it was bottled, labelled and sealed with a metal cap by the respondent. She contended that it was the duty of the respondent to make sure that the product is free from any defect by following an efficient system of inspection, and that the respondent has failed to do so.
Issues at Hand-
The main issues that were involved in the case were Privity of Contract, Duty of Care, and the liability of a manufacturer while dealing negligently and in dangerous articles.
Privity of Contract- There was an absence of contract between the parties involved in this case. The Privity doctrine was developed in the classic case of Dunlop Pneumatic Tyre Co. Ltd v. Selfridge & Co. Ltd[i], which stated that a contract could enforce obligations or rights upon a person who is not a party to the agreement. The reasoning behind this doctrine is that, only the parties involved in the contract can sue for damages. Following this traditional line of reasoning, it appears that a man deciding to put a product in the market has no duty to anyone regarding any possible damage caused by the product except the person with whom he contracts, unless two precise conditions: a) he is well aware that the article is dangerous per se and hides this detail from the buyer, committing a fraud; 2) he is normally a vendor of perilous products (e. g. Explosives, weapons, dangerous substances, etc.), and gives no warning to the purchaser about the real danger inherently connected with the handling of the product.
Duty of Care- Lord Atkin while defining the ‘duty of care’ quoted A.L. Smith L.J. in the case of Heaven v. Pender[ii], “A duty of due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other”. He also stated the case of Le Lievre v. Gould[iii], with the lines, “That case established that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near the property to another, a duty lies upon him not to do that which may cause a personal injury to that other or may injure his property.” He expressly stressed on the concept of Proximity where he stated, “in the case of supplying those goods which entail a reasonable risk of defect that could probably cause danger to the person or property for whose use was supplied”.
Majority Judgements-
Lord Atkin- The legal principles used by Lord Atkin was that of Scots Law, as they were identical at that point. The point stressed by Lord Atkin is that he wanted to examine, as a matter of law in the circumstances alleged, the defendant owed any duty of care or not. The principle used by Lord Atkin was that of the famous “Neighbor Principle”. In the case of Heaven v. Pender[iv], A.L. Smith L.J. held, “That a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other.” Proximity as held by Lord Esher in Le Lievre v. Gould[v] is not mere physical proximity but extends to such close and direct relations that the act complained of directly affects a person by his careless act. It was held imperative that in cases where there can be no inspection by any purchaser and no reasonable preliminary inspection by the consumer, consumer must have the remedy against the negligent manufacturer.
Other instances such as food and drinks, where goods are sold intended to be used immediately by the consumer, such as goods sold for cleaning purposes, liability must be established. Lord Atkin confined his reasoning to articles of common household use, where everyone, including the manufacturer knows that the article will be used by other persons than the actual ultimate purchaser. Thus, a legal remedy must be provided if there is an obvious social wrong.
A direct authority of George v. Skivington[vi] was used in which the defendant professed to sell a hair wash made by himself and that the plaintiff one, Joseph George bought a bottle, to be used by his wife, the plaintiff two, Emma George, as the defendant then knew, and that the defendant had so negligently conducted himself in preparing and selling the hair wash that it was unfit for use, whereby the female plaintiff was injured. Kelly C.B. said that there was no question of warranty, but whether the chemist was liable in an action on the case for unskillfulness and negligence in the manufacture of it. Unquestionably, there was such a duty towards the purchaser, and it extends, in his judgment, to the person for whose use the vendor knew the compound was purchased.
Lord Thankerton- The reasoning adopted by Lord Thankerton was that of the law of Scotland.
It lies upon the party claiming redress in such a case to show that there was some relation of duty between her and the defender that required the defender to exercise due and reasonable care for her safety. In the landmark judgement of Kemp Dougall v. Darngavil Coal Co[vii], it was held that it is not necessary that there should be a direct contract between them because the action is based upon negligence; but it is necessary to show that a duty was owed by the defendant and had the ability to exercise diligence.
Lord Thankerton affirmed that, the defendant, in placing his product upon the market, had intentionally excluded any examination by an intermediary, thus in so doing, he rendered his relationship with the plaintiff, undoubtedly direct. Besides, he expressed his concern about the fact that, under pre-existing English and Scottish law, the consumer was left without any remedy to instigate legal actions against manufacturers of harmful products. For all these reasons, he recognized that Mr. Stevenson owed a duty of care to Mrs. Donoghue.
Lord Macmillan- Lord Macmillan reached the same conclusion as Lord Atkin but formed his argument in a different manner. He used the principle of the “reasonable person”, in deciding whether a duty of care had to be taken into account or not. According to this theory, “a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances to avoid liability”. To be even more precise, he affirmed that a manufacturer of articles for human consumption has clearly an obligation of attention to observe in the manufacture of these goods, towards members of the public, considered as potential consumers. Finally, after arguing his positions, he averred that Mr. Stevenson owed Mrs. Donoghue a duty of care.
Dissenting Judgements-
Lord Buckmaster-The legal reasoning used by Lord Buckmaster can be divided into two parts- (a) That the appellant’s case rests solely on the ground of negligence and is not based on fraud (b) Proceeding in the current case will be according to the precedents as laid down in English law and not Scots law.
He quoted the landmark judgement of Langridge v. Levy[viii], where a man sold a gun, which he knew, was dangerous to the purchaser’s son. The gun exploded in the son’s hands and he was held to have a right of action against the manufacturer. Justice Parke B. in his judgement stated, “We should pause before we made a precedent by our decision which would be an authority for an action against the vendors, even of such instruments and articles as are dangerous in themselves, at the suit of any person whomsoever into whose hands they might happen to pass, and who should be injured thereby”. However, in Longmeid v. Holliday[ix], the same judge points out that the reasoning used in Langridge was fundamentally flawed, a fraudulent misstatement, and expressly repudiates the view that it had any wider implications. Hence, the case of Langridge holds no significance whatsoever in the present case.
The case of Winterbottom v. Wright[x] was referred in which, owing to the negligence in the construction of a carriage, it broke down. A stranger to the manufacturer and the sale sought to recover the damages for injuries but it was held that he had no action in either tort or contract. Alderson B. in this case held, “The only safe rule is to confine the right to recover to those who enter into the contract; if we go one step beyond that, there is no reason why we should not go fifty.” It was observed that the statement of Parke B. does not cover ‘Negligent Construction’ but the omission to exercise reasonable care while discovering a defect is negligent in itself.
Lord Tomlin- The reasoning adopted by Lord Tomlin was in consonance with the reasoning of Lord Buckmaster. Lord Tomlin pointed out upon the proposition that every manufacturer of an item is under a duty to every person who may use the item to exercise due care in the manufacture or repair. It is logically impossible to draw a distinction at that point of time. He further pointed out that, the fact that the article of food is sent out in a sealed container does not hold any relevancy in the question of duty, it just becomes easier to bring negligence claims for the manufacturer.
Lord Tomlin pointed out the alarming consequences of accepting the validity of defendant’s negligence and duty to care. He stated that every one of the sufferers by such an accident as that which recently happened on the Versailles Railway might have his action against the manufacturer of the defective axle. He also quoted Lord Abinger, “By permitting this action, we should be working this injustice, that after the defendant had done everything to the satisfaction of his employer, and after all matters between them had been adjusted and all accounts settled on the footing of their contract, we should subject them to be ripped open by this action of tort being brought against him.”
Comment-
The case, which evolved the modern-day negligence law, has been scrutinized by commentators for some 88 odd years now. While, it is impossible to know what was argued in the two-day hearing, appeal papers shows the numerous arguments that turned out to be precedents. Donoghue’s counsel only cited around seven cases with assertion that, “no case was found where in circumstances similar to the present, the Court has held that the manufacturer is under no liability to the consumer”. This approach adopted by Donoghue’s counsel met a scathing resistance by Lord Buckmaster. However, Lords Atkin and Thankerton had a grander scheme in mind and developed the grander principles of policy and law. The case also goes on to provide a greater insight into themes of Anglo-Saxon law. The principles established in this case have a very wide ambit for transformation and reconstruction and will be a hot area of law for the commentators and jurists.
BIBLIOGRAPHY-
[i][1915] A.C. 847 (HL).
[ii](1883) 11 QBD 503.
[iii][1893] 1 QB 491.
[iv] 11 Q. B. D. 503, 509.
[v][1893] 1 Q. B. 491, 497, 504.
[vi]L. R. 5 Ex. 1.
[vii] 1909 S. C. 1314, 1319.
[viii]2 M. W. 519; 4 M. W. 337.
[ix]6 Ex. 761.
[x]10 M. W. 109.
By-
Yug Sinha
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