Donoghue v Stevenson [1932] UKHL 100 was a landmark court decision in Scots delict law and English

tort law by the House of Lords. It laid the foundation of the modern law of negligence, establishing
general principles of the duty of care.

FACTS

On the evening of Sunday 26 August 1928, during the Glasgow Trades Holiday, Donoghue took a train to
Paisley, Renfrewshire.[3][7]:1[7]:2 In Paisley, she went to the Wellmeadow Café. A friend,[Note 2] who
was with her ordered a pear and ice for herself and a Scotsman ice cream float, a mix of ice cream and
ginger beer, for Donoghue.[7]:4 The owner of the café, Francis Minghella,[Note 3] brought over a
tumbler of ice cream and poured ginger beer on it from a brown and opaque bottle labelled "D.
Stevenson, Glen Lane, Paisley". Furthermore, although the bottle was labelled as Stevenson's, McByde
suggests it is possible it did not originally belong to him. Bottles were often reused, and in the process
occasionally returned to the incorrect manufacturer. Moreover, Stevenson initially claimed he did not
issue bottles matching the description provided by Donoghue.[3][7]:9–10 Donoghue drank some of the
ice cream float. However, when Donoghue's friend poured the remaining ginger beer into the tumbler, a
decomposed snail also floated out of the bottle. Donoghue claimed that she felt ill from this sight,
complaining of abdominal pain.[3][9] According to her later statements of facts, she was required to
consult a doctor on 29 August and was admitted to Glasgow Royal Infirmary for "emergency treatment"
on 16 September.[7]:23[10]:7 She was subsequently diagnosed with severe gastroenteritis and
shock.[3][8]:566

The ginger beer had been manufactured by David Stevenson, who ran a company producing both ginger
beer and lemonade at 11 and 12 Glen Lane, Paisley, less than a mile away from the Wellmeadow
Café.[7]:6–7 The contact details for the ginger beer manufacturer were on the bottle label and recorded
by Donoghue's friend.[7]:11

Donoghue subsequently contacted and instructed Walter Leechman, a local solicitor and city councillor
whose firm had acted for the claimants in a factually similar case, Mullen v AG Barr & Co Ltd,[11] less
than three weeks earlier [3] (see also George v Skivington).

Despite the ruling in Mullen, Leechman issued a writ on Donoghue's behalf against Stevenson on 9 April
1929.[3][12]:31 The writ claimed £500 in damages, the same amount a claimant in Mullen had
recovered at first instance, and £50 in costs.[7]:22[10]:4 The total amount Donoghue attempted to
recover would be equivalent to at least £27,000 in 2012.[7]:22[13]

Condescendences

The full allegations made by Donoghue were presented in five condescendences, which claimed that
Stevenson had a duty of care to Donoghue to ensure that snails did not get into his bottles of ginger
beer, but that he had breached this duty by failing to provide a system to clean bottles effectively, a
system that would usually be used in the business and was necessary given that the ginger beer was
intended for human consumption.[7]:22–23 The ineffectiveness of the cleaning system was alleged to
result from the bottles being left in places "to which it was obvious that snails had freedom of access ...
and in which, indeed, snails and snail trails were frequently found",[10]:6 an allegation described by
Matthew Chapman as "somewhat gratuitous".[7]:7 This breach of duty was alleged to have caused
Donoghue's subsequent illness.[10]:7

Stevenson responded to the condescendences by denying that any of his bottles of ginger beer had
contained snails and "that the alleged injuries are grossly exaggerated ... any illness suffered by the
[claimant] was due to the bad condition of her own health at the time".[10]:6–7 In response to the writ,
Stevenson pleaded (1) that the claim had no legal basis, (2) that the facts could not be substantiated, (3)
that he had not caused Donoghue any injury and (4) that the claimed amount was excessive.[7]:22–
23[10]:8

JUDGMENT

Court of session , Outer House

The first interlocutory action was heard on the Court of Session on 21 May 1929 in front of Lord
Moncrieff. After an adjournment, Minghella was added as a defender on 5 June; however, the claim
against him was abandoned on 19 November, likely due to his lack of contractual relationship with
Donoghue (Donoghue's friend had purchased the ginger beer) and his inability to examine the contents
of the dark glass bottle. On 12 December, Minghella and Stevenson were awarded a combined costs
claim of £108 6s 3d against Donoghue for this abandoned strand of litigation. However, it was recorded
on 20 December that Donoghue did not pay the costs awarded to Minghella.[7]:23–25

The case was heard by Lord Moncrieff in the Outer House on 27 June 1930. In his judgment, delivered
on the same day, he held that, as a general principle, there should be liability for negligent preparation
of food.[7]:25–26

I am unhesitatingly of opinion that those who deal with the production of food or produce fluids for
beverage purposes ought not to be heard to plead ignorance of the active danger which will be
associated with their products, as a consequence of any imperfect observation of cleanliness at any
stage in the course of the process of manufacture ... Tainted food when offered for sale is, in my
opinion, amongst the most subtly potent of 'dangerous goods', and to deal in or prepare such food is
highly relevant to infer a duty. I fail to see why the fact that the danger has been introduced by an act of
negligence and does not advertise itself, should release the negligent manufacturer from a duty, or
afford him a supplementary defence.[17]:4,6

English case law that required that liability for injuries resulting from goods that were not intrinsically
dangerous to have a contractual basis (breach of warranty) was dismissed by Lord Moncrieff (citing John
Salmond) for the narrowness of the approach and because there was no decision that incorporated it
into Scots law.[7]:26–27[17]:15–16 Finally, Mullen, despite its factual similarity, was discounted by a
"very close reading of the precedent opinions".[7]:27–29[17]:17–19

Court of Session, Inner House

Stevenson appealed the case to the Inner House, where it was heard by the same four judges who had
found against Mullen: Lord Alness (the Lord Justice-Clerk), Lord Ormidale, Lord Hunter and Lord
Anderson.[7]:29 In their judgment, given on 13 November 1930,[17]:21 they all referred back to and
supported their statements in Mullen, Lord Alness observing that "the only difference — and, so far as I
can see, it is not a material difference — between that case [Mullen] and this case [Donoghue] is that
there we were dealing with a mouse in a ginger-beer bottle, and here we are dealing with a snail in a
ginger-beer bottle".[17]:22 Thus, Lord Alness, Lord Ormidale and Lord Anderson all allowed the appeal
while Lord Hunter dissented

House of Lords

Donoghue filed a petition to appeal to the House of Lords on 25 February 1931.[7]:32 She also sought
(and subsequently received) permission to pursue the case in forma pauperis (with the status of a
pauper) – a status she had not, for unknown reasons, sought at the Court of Session[7]:33–34 –
providing an affidavit declaring that "I am very poor, and am not worth in all the world the sum of five
pounds, my wearing apparel and the subject matter of the said appeal only excepted...".[3] This claim
was supported by the minister and two elders of her church and meant that Donoghue was not required
to provide security for costs in case she lost the appeal.[7]:34 (Her legal team had agreed to work pro
bono.[3])

The petition was granted and the appeal was heard 10 and 11 December 1931 by Lord Buckmaster, Lord
Atkin, Lord Tomlin, Lord Thankerton and Lord Macmillan. A supplementary statement from Donoghue's
appeal papers indicates that her counsel, George Morton KC and William Milligan (later the Lord
Advocate and a Privy Counsellor), argued that "where anyone performs an operation, such as the
manufacture of an article, a relationship of duty independent of contract may in certain circumstance
arise, the extent of such duty in every case depending on the particular circumstances of the
case".[10]:16 Stevenson, they argued, owed a duty to take reasonable care in the manufacture of his
ginger beer because the sealed bottles were opaque, and therefore could not be examined, and because
the ginger beer was intended for human consumption.[7]:35–37[10]:16–17

Stevenson's counsel, Wilfrid Normand KC (Solicitor General for Scotland and later a Law Lord) and James
Clyde (later the Lord President of the Court of Session and a Privy Counsellor), responded that "it is now
firmly established both in English and Scottish law that in the ordinary case (which this is) the supplier or
manufacturer of an article is under no duty to anyone with whom he is not in contractual
relation".[18]:7 They denied that ginger beer was intrinsically dangerous or that Stevenson knew that
the product was dangerous (the two established exceptions for finding a duty of care)[18]:7–8 and
argued that the third exception that Donoghue was attempting to introduce had no basis in
precedent.[7]:37–38[18]:8–11
The House of Lords gave judgment on 26 May 1932 after an unusually long delay of over five months
since the hearing.[Note 4][19]:236–237 The court held by a majority of 3–2 that Donoghue's case
disclosed a cause of action.[8]:562 The majority consisted of Lord Atkin, Lord Thankerton and Lord
Macmillan.[8]:562

Lord Atkin commented that he did "not think a more important problem has occupied your Lordships in
your judicial capacity, important both because of its bearing on public health and because of the
practical test which it applies to the system under which it arises".[12]:43 He agreed with counsel, based
on his own research, that Scots and English law were identical in requiring a duty of care for negligence
to be found and explained his general neighbour principle on when that duty of care arises.[7]:40–41

“ At present I content myself with pointing out that in English law there must be, and is, some
general conception of relations giving rise to a duty of care, of which the particular cases found in the
books are but instances. The liability for negligence, whether you style it such or treat it as in other
systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing
for which the offender must pay. But acts or omissions which any moral code would censure cannot, in a
practical world, be treated so as to give a right to every person injured by them to demand relief. In this
way rules of law arise which limit the range of complainants and the extent of their remedy. 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."[12]:44 ”

He supported this broad test by citing Heaven v Pender[20] and rejected the cases in favour of a
narrower interpretation of a duty of care with the example of negligently poisoned food, for which there
had been no claim against the manufacturer. "If this were the result of the authorities, I should consider
the result a grave defect in the law, and so contrary to principle that I should hesitate long before
following any decision to that effect which had not the authority of this House".[7]:41[12]:44–46 He
went on to suggest that there should be a duty of care owed by all manufacturers of "articles of
common household use", listing medicine, soap and cleaning products as examples. "I do not think so ill
of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilised
society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so
obviously a social wrong."[7]:42[12]:46

Lord Atkin then rejected cases that did not support his approach and cited Benjamin N. Cardozo in
MacPherson v. Buick Motor Co.[21] in favour of his view.[7]:42[12]:46–56

He concluded:
“ If your Lordships accept the view that this pleading discloses a relevant cause of action, you will
be affirming the proposition that by Scots and English law alike 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 the
knowledge that the absence of reasonable care in the preparation or putting up of the products will
result in an injury to the consumer's life or property, owes a duty to the consumer to take that
reasonable care.

It is a proposition which I venture to say no one in Scotland or England who was not a lawyer would for
one moment doubt. It will be an advantage to make it clear that the law in this matter, as in most
others, is in accordance with sound common sense. I think that this appeal should be allowed.[12]:57

Lord Thankerton ruled that Donoghue had no contract with Stevenson, nor that her case was covered by
one of the scenarios in which a duty of care had previously been found. However, he held that where
goods could not be examined or interfered with, the manufacturer had "of his own accord, brought
himself into direct relationship with the consumer, with the result that the consumer [was] entitled to
rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to
the consumer", an exception to the general nonexistence of a duty of care that applied to
Donoghue.[7]:51[12]:59–60

Precedent

The case was reviewed by Frederick Pollock in a 1933 edition of Law Quarterly Review, in which he
commented that there was no doubt as to the importance of the decision and that "a notable step has
been made in enlarging and clarifying our conception of a citizen's duty before the law ... not to turn
dangerous or noxious things loose on the world".[35]:22 However, Donoghue otherwise attracted little
attention; it was understood only as precedent that manufacturers were liable for injuries their goods
cause their ultimate consumers rather than that there was a general principle of liability in
negligence.[36]:61 The majority of the Court of Appeal (Lord Justice Cohen and Lord Justice Asquith)
therefore held in Candler v Crane, Christmas & Co[37] that Donoghue had not affected tortious liability
for negligent misstatement.[36]:61 This narrow understanding of Donoghue changed with the cases of
Hedley Byrne v Heller[38] in 1963 and Home Office v Dorset Yacht Co[39] in 1970.[7]:116–117

Hedley Byrne v Heller

In Hedley Byrne, Hedley Byrne, advertising agents, had been indirectly informed by Heller & Partners
Ltd, the bankers of Easipower, a company wishing to place a large order, that Easipower was a
"respectably constituted company, considered good for its ordinary business engagements".[36]:62
Hedley Byrne relied on this information and subsequently lost over £17,000 when Easipower went into
liquidation. The House of Lords held that Heller owed Hedley Byrne a duty of care as they used a special
skill for Hedley Byrne and because this skill was relied upon by the company (although the negligence
claim was unsuccessful due to a disclaimer of responsibility included in Heller's letter).[7]:127–128

The application of Donoghue was discussed and, while all the judges agreed that it would be taking
Donoghue too far to immediately apply it to Hedley Byrne, Lord Devlin suggested that "what Lord Atkin
did was to use his general conception [the neighbour principle] to open up a category of cases giving rise
to a special duty" and that the case could incrementally expand the duty of care.[7]:128–129[38]:524–
525

Case Summary of Donoghue v Stevenson [1932] A.C. 562, [1932] UKHL

100, 1932 S.C. (H.L.) 31, 1932 S.L.T. 317, [1932] W.N. 139.The doctrine
of negligence
INTRODUCTION

Donoghue, a Scottish dispute, is a famous case in English law which was instrumental in shaping the law
of tort and the doctrine of negligence in particular.

FACTS

On August 26 1928, Mrs Donoghue’s friend bought her a ginger-beer from Wellmeadow Café1 in
Paisley. She consumed about half of the bottle, which was made of dark opaque glass, when the
remainder of the contents was poured into a tumbler. At this point, the decomposed remains of a snail
floated out causing her alleged shock and severe gastro-enteritis.

Mrs Donoghue was not able to claim through breach of warranty of a contract: she was not party to any
contract. Therefore, she issued proceedings against Stevenson, the manufacture, which snaked its way
up to the House of Lords.

ISSUES

The question for the HoL was if the manufacturer owed Mrs Donoghue a duty of care in the absence of
contractual relations contrary to established case law.2 Donoghue was effectively a test case to
determine if she had a cause of action, not if she was owed compensation for any damages suffered.

The law of negligence at the time was very narrow and was invoked only if there was some established
contractual relationship. An earlier case3, involving two children and floating mice, held that:
Absent a contract, a manufacturer owed no duty of care to a consumer when putting a product on the
market except:

If the manufacturer was aware that the product was dangerous because of a defect and it was
concealed from the consumer (i.e., fraud);4 or

The product was danger per se and failed to warn the consumer of this.5

Unlike Mullen, which stopped at the Court of Session, Mrs Donoghue took her case to the HoL.

DECISION/OUTCOME

The HoL found for Mrs Donoghue with the leading judgment delivered by Lord Atkin in a 3-2 majority
with Buckmaster L and Tomlin L dissenting. The ratio decidendi of the case is not straightforward.
Indeed, it could be interpreted as narrow as to establish a duty not to sell opaque bottles of ginger-beer,
containing the decomposed remains of a dead snail, to Scottish widows.6

Read more broadly, the decision has several components: first, negligence is distinct and separate in
tort; second, there does not need to be a contractual relationship for a duty to be established; third,
manufacturers owe a duty to the consumers who they intend to use their product.7

However, the primary outcome of Donoghue, and what it is best known for, is the further development
of the neighbour principle by Lord Atkin, who said:8

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.

Mrs Donoghue had proved her averments that she had a cause of action in law.

ANALYSIS

Donoghue was not the first case to attempt to sever the dependence of negligence on contract; a few
years previously, Lord Ormidale in Mullen, said, ‘. . . it would appear to be reasonable and equitable to
hold that, in the circumstances and apart altogether from contract, there exists a relationship of duty as
between the maker and the consumer of the beer.’9 Thus, the doctrine is based in law and morality. The
impact of Donoghue on tort law cannot be understated; it was a watershed moment effectively
establishing tort as separate from contract law.

However, it is important to remember that Donoghue was a milestone in a new principle which needed
refining, as Lord Reid said, ‘. . . the well knownpassage in Lord Atkin’s speech should, I think, be regarded
as a statement of principle. It is not to be treated as if it were a statutory definition. It will require
qualification in new circumstances.’10

The next major development in the ‘neighbour principle’ came from Hedley Byrne v Heller11 which
concerned economic loss. However, the locus classicus of the ‘neighbour test’ is found in another
economic loss case called Caparo Industries v Dickman:12

What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation
giving rise to a duty of care are that there should exist between the party owing the duty and the party
to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and
that the situation should be one in which the court considers it fair, just and reasonable that the law
should impose a duty of a given scope on the one party for the benefit of the other.13

Thus, boiled down the requirements are: forseeability, proximity, and fairness (policy considerations).
There has been a certain degree of overlap between the requirements with Lord Hoffman stating that
the distinctions between them, ‘. . .somewhat porous but they are probably none the worse for that.’14

It was argued unsuccessfully in Mitchell and another v Glasgow City Council15 that because Caparo was
concerned with economic loss it had little application to personal injury claims; Lord Hope said that,
“….the origins of the fair, just and reasonable test show that its utility is not confined to that
category.”16

The outcome of Donoghue has reverberated through law as a whole. It essentially birthed a new area of
law to the benefit and detriment of some. For example, personal injury which is steeped in both
statutory duty and the ‘neighbour principle’. Indeed, it has grown to the point where there are concerns
of an American style ‘compensation culture’ best expressed by Lord Hobhouse17 when he linked it to
the restriction of the liberty of individuals: ‘the pursuit of an unrestrained culture of blame and
compensation has many evil consequences and one is certainly the interference with the liberty of the
citizen.’18
Interestingly, the facts were never tested in Donoghue; we will never know if there was a snail in the
bottle.