Brief Facts and Procedural History

On August 26 1928, Mrs Darvy’s friend bought her a ginger-beer at a café in Glasgow. Darvy’s
companion ordered the bottle and paid for her drink. She consumed about half of the bottle,
which was made of dark opaque glass and not visible from outside. When the remaining drink of
the contents was poured into a tumbler at that point, the decomposed remains of a snail floated
out causing her alleged shock and severe gastroenteritis. Mrs. Darvy was not able to claim
directly as she was not involved in any contract. Darvy subsequently took legal action against Mr
Stephen, the manufacturer of the ginger beer. She lodged a writ in the Court of Sessions,
Scotland’s highest civil court, seeking £500 damages.

Darvy could not sue Stephen for breach of contract because she had not purchased the drink
herself. Instead, Darvy’s lawyers claimed that Stephen had breached a duty of care to his
consumers and caused injury through negligence. At the time, this area of civil law was largely
untested. Stephen’s lawyers challenged Darvy’s action on the basis that no precedents existed for
such a claim. They referred to an earlier action by Darvy’s lawyer, Mullen v. AG Barr, where a
dead mouse was found in a bottle of soft drink; judges dismissed this action due to a lack of
precedent. Darvy’s initial action failed but she was granted leave to appeal to the House of Lords
(which, at the time, had the judicial authority to hear appellate cases). Decide as a counsel
representing Mrs. Darvy before the House of Lords.
 BEFORE THE HONORABLE HOUSE OF LORDS

IN THE MATTER OF

DARVY LEWIS APPELLANT

V.

STEPHEN CLAUDE RESPONDENTS

WRITTEN SUBMISSION ON BEHALF OF THE PLAINTIFFS

Table of Contents

LIST OF ABBREVIATIONS - - - - - - - -

INDEX OF AUTHORITIES - - - - - - - -

STATEMENT OF JURISDICTION - - - - - - -

STATEMENT OF FACTS - - - - - - - -

STATEMENT OF ISSUES - - - - - - - -

SUMMARY OF ARGUMENTS - - - - - - - -

ARGUMENTS ADVANCED

1. Whether the defendant owed a duty of care to the plaintiff being as there is no
contractual term?

1.1. Defendant owes duty of care to Plaintiff (Neighbour Principle)

1.2. Principle of Reasonable Forseeability

PRAYER
List of Abbreviations

Index of Authorities

Name of the Cases and Citation

Treatises, Reports, Books and Digests

Journals Referred

Databases Referred

Legal Lexicons

Statutes Referred
Statement of Jurisdiction
Issues of the Case

1. Whether the defendant owed a duty of care to the plaintiff being as there is no contractual
term?

Summary of Arguments

1. Whether the defendant owed a duty of care to the plaintiff being as there is no contractual
term?

The ginger-beer was manufactured by the respondent to be sold as a drink to the public
(including the appellant). It was bottled by the respondent and labeled by him, with a label
bearing his name. The bottles were thereafter sealed with a metal cap by the respondent. She
further averred that it was the duty of the respondent to provide a system of working his
business, which would not allow snails to get into his ginger-beer bottles. It was also his duty to
provide an efficient system of inspection of the bottles before the ginger-beer was filled into
them, and that he had failed in both these duties and had so caused the accident. The general
principle as it stands today is that in an ordinary case a manufacturer is under no duty to [anyone]
with whom he is not in any contractual relation. To this rule, there are two well known
exceptions: where the article is dangerous per se; and where the article is dangerous to the
knowledge of the manufacturer. The appellant submits that the duty owed by a manufacturer to
members of the public is not capable of so strict a limitation. The question whether a duty arises
independently of contract depends upon the circumstances of each particular case. When a
manufacturer puts upon a market, an article intended for human consumption in a form which
precludes the possibility of an examination of the article by the retailer or the consumer, he is
liable to the consumer for not taking reasonable care to see that the article is not injurious to
health. In the circumstances of this case, the respondent owed a duty to the appellant to take care
that the ginger-beer, which he manufactured, bottled, labeled and sealed (the conditions under
which the ginger-beer was put upon the market being such that it was impossible for the
consumer to examine the contents of the bottles), and which he invited the appellant to buy,
contained nothing which would cause her injury.
Arguments Advanced

1. Whether the defendant owed a duty of care to the plaintiff being as there is no
contractual term?

The ginger-beer was manufactured by the respondent to be sold as a drink to the public
(including the appellant). It was bottled by the respondent and labeled by him, with a label
bearing his name. The bottles were thereafter sealed with a metal cap by the respondent. She
further averred that it was the duty of the respondent to provide a system of working his
business, which would not allow snails to get into his ginger-beer bottles. It was also his duty to
provide an efficient system of inspection of the bottles before the ginger-beer was filled into
them, and that he had failed in both these duties and had so caused the accident. The general
principle as it stands today is that in an ordinary case a manufacturer is under no duty to [anyone]
with whom he is not in any contractual relation. To this rule, there are two well known
exceptions: where the article is dangerous per se; and where the article is dangerous to the
knowledge of the manufacturer. The appellant submits that the duty owed by a manufacturer to
members of the public is not capable of so strict a limitation. The question whether a duty arises
independently of contract depends upon the circumstances of each particular case. When a
manufacturer puts upon a market, an article intended for human consumption in a form which
precludes the possibility of an examination of the article by the retailer or the consumer, he is
liable to the consumer for not taking reasonable care to see that the article is not injurious to
health. In the circumstances of this case, the respondent owed a duty to the appellant to take care
that the ginger-beer, which he manufactured, bottled, labeled and sealed (the conditions under
which the ginger-beer was put upon the market being such that it was impossible for the
consumer to examine the contents of the bottles), and which he invited the appellant to buy,
contained nothing which would cause her injury.

1.1. Defendant owes duty of care to Plaintiff (Neighbour Principle)

In the celebrated case of Donoghue v. Stevenson, Lord Atkin had remarked 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”.
He supported this broad test by citing Heaven v Pender 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”. 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.”

Lord Atkin then rejected cases that did not support his approach and cited Benjamin N.
Cardozo in MacPherson v. Buick Motor Co. in favour of his view. 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.”
In the same case, 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.”

Lord Atkin’s neighbour principle, that people must take reasonable care not to injure others who
could foreseeably be affected by their action or inaction, was a response to a question a lawyer
posed. The neighbour principle itself was first mentioned in relation to law by Francis
Buller in An Introduction to the Law relative to Trials at Nisi Prius, which was printed in 1768.

"Of Injuries arising from Negligence or Folly” Every man ought to take reasonable care that he
does not injure his neighbour; therefore, wherever a man receives any hurt through the default of
another, though the same were not wilful, yet if it be occasioned by negligence or folly, the law
gives him an action to recover damages for the injury so sustained.

The Donoghue v. Stevenson case produced Lord Atkin’s controversial “neighbour principle”,
which extended the tort of negligence beyond the tortfeasor and the immediate party. It raised the
question of exactly which people might be affected by negligent actions. In Donoghue’s case,
she had not purchased the ginger beer but had received it as a gift; she was a “neighbour” rather
than a party to the contract. Atkin said of this principle: “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 to have them in [mind] when I am [considering these]
acts or omissions. which are called in question”.

This was also the doctrine in Heaven v. Pender as laid down by Lord Esher when it is limited by
the notion of proximity introduced by Lord Esher himself and A. L. Smith L.J. in Le Lievre v.
Gould, Lord Esher says: “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 to the property of another a duty lies upon him not to do that which may cause
a personal injury to that other or may injure his property." So A. L. Smith L.J.: “The decision of
Heaven v. Pender was founded upon the principle 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." I think that this sufficiently
states the truth if proximity be not confined to mere physical proximity; but be used, as I think it
was intended, to extend to such close and direct relations that the act complained of directly
affects a person whom the person alleged to be bound to take care would know would be directly
affected by his careless act.

1.2 Reasonable Forseeability

Lord Macmillan examined previous cases and held that “the law takes no cognizance of
carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take
care and where failure in that duty has caused damage.” Whether there was a duty and breach
would be examined by the standard of the reasonable person. These circumstances “must adjust
and adapt itself to the changing circumstances of life. The categories of negligence are never
closed.”  Lord Macmillan held that, according to this standard, Stevenson had demonstrated
carelessness by leaving bottles where snails could access them; that he owed Donoghue a duty of
care as commercial manufacturer of food and drink; and that Donoghue’s injury was reasonably
foreseeable. He therefore found that Donoghue had a cause of action and commented that he was
“happy to think that in ... relation to the practical problem of everyday life which this appeal
presents ... the principles of [English and Scots law] are sufficiently consonant with justice and
common sense to admit of the claim which the appellant seeks to establish.”
In light of the arguments averred, it has been sufficiently established that all the requisites of the
tort of negligence has been established.

Prayer

Wherefore in the light of facts presented, issues raised, arguments advanced and authorities cited,
the Counsels on behalf of the Plaintiff humbly pray before this Hon’ble Court that it may be
pleased to adjudge and declare that:
1. Mr. Stephen owed a duty of care toward our client and there was a breach of the same.
2. Damages to the tune of £500 be awarded to our client for the physical and mental agony she
has suffered.
Or pass any other order that the court may deem fit in the light of equity, justice and good
conscience and for this Act of kindness of Your Lordships the Plaintiffs shall as duty bound ever
pray.