If you have ever wondered where your rights as a consumer come from and why suppliers of goods and services are compelled to deliver us a consumer experience free from danger you may be surprised to find that you actually don’t have any rights at all.
The people whom supply you with goods and services do however owe you a duty of care and it all started with a snail and a bottle of ginger beer and ended in a court case known to every law student as Donohue v Stevenson.
Before Donohue v Stevenson was decided in 1932 it was unclear whether the manufacturer or transferor of a goods owed any duty of care to the ultimate receiver of the goods. It was taken as a matter of fact that if the ultimate receiver was not the purchaser there was a clear absence of contractual obligation between the parties. The only duty of care implied was if the goods were in a class of “Dangerous Chattels” or if the goods in question were known to the seller as being dangerous.
The problem with this legal dilemma was not only the fact that ultimate receiver of the goods and the purchaser of the goods were often different individuals, but also in the confusion of the classification of “Dangerous Chattels”. This confusion was not limited to consumers but also to Legal officers tasked with interpreting Tort law statutes.
So just what role did a snail and a bottle of ginger beer play in shaping the future of consumer protections?
On Sunday 26 August 1928 May Donoghue left her apartment at 49 Kent St Glasgow and took a thirty-minute tram journey along Paisley Rd West toward Paisley. At approximately 8.50pm, Ms. Donoghue, and a friend entered the Wellmeadow Café in Paisley. The friend ordered a “Pear and Ice” for themselves and a “Scotsmans Ice Cream Float”, a mixture of Ice Cream and Ginger Beer, for Ms. Donohue. The café owner, Mr. Francis Minghella brought a tumbler of ice cream to the table and poured the contents of a Ginger Beer branded "D. Stevenson, Glen Lane, Paisley" over the Ice Cream. This particular brand of Ginger Beer was manufactured by David Stevenson, whom produced both Ginger Beer and Lemonade at 11 and 12 Glen Lane, Paisley, which incidentally was only several blocks away.
Ms. Donohue consumed some of the ice cream float before her friend then poured the balance of the contents from the opaque Ginger Beer bottle into the tumbler in which appeared a dead and decomposing snail. Upon seeing the decomposed snail deposited onto the remaining ice cream Ms. Donohue became nauseas and suffered from shock.
According to the statement of facts, Ms. Donohue was admitted to Glasgow Royal infirmary for Emergency Treatment on 29th of August whereupon a diagnosis of severe Gastroenteritis and shock was made.
Following the incident Ms. Donoghue contacted and instructed a solicitor and city councilor named Walter Leechman, to issue a statement of claim on her behalf against D. Stevenson, the Ginger Beer manufacturer. The claim was for 500 Pounds in damages and 50 Pounds in costs, not an insignificant amount for the time.
The case was bought before county court where it was dismissed in favor of Mr. Stevenson and eventually bought on appeal before the House of Lords on May 26th 1932.
The foundation of the case was that Ms. Donohue alleged that the Manufacturer, Mr. Stevenson, did not exercise due care in producing goods that was safe for consumption.
The basis of the Mr. Stevenson’s defense to Ms. Donohue’s claim was that she has no contract with the Manufacturer due to the fact that Ms. Donohue did not purchase the bottle of Ginger Beer in question, instead the Ginger Beer was purchased by Ms. Donohue’s friend.
If Ms. Stevenson’s friend had not been so generous and purchased the Ginger Beer and Ice Cream as a gift to Ms. Donohue, then perhaps the case would have presented itself as more straightforward. However as there was no contract of sale between Ms. Donohue and the manufacturer Mr. Stevenson, the defense argued that there was no legal precedent of liability beyond the contract of sale and as such the case should be dismissed.
Previous to Stevenson v Donoghue it had been a generally accepted point of view that no liability or duty of care extended beyond parties that had established a contract or implied contract of sale.
By the time the case of Donohue v Stevenson came before the House of Lords, there were two general schools of thought when it came to fashioning a tort law doctrine from which to take precedent. Some of England’s finest legal minds such as Thomas Cooley, William Blackstone, Frederick Pollock and Percy Winfield had predisposed a more general idea that Tort Laws should be more structured toward the protection of individual’s rights.
Lord Atkin, incidentally one of Australias most famous legal exports to the United Kingdom, had another idea that he believed would serve the courts and society in a less rigid way. Lord Atkin was one of five Lords hearing the appeal of Donohue v Stevenson on 26th of May 1932 and the dilemma posed in the case to the House presented an opportunity for Lord Atkin to deliver his judgment and in the process create one of the most read judgments in legal history.
From the outset of the appeal it seemed clear to Lord Atkin that if the snail had decomposed in the opaque Ginger Beer bottle and had contaminated the contents then therefore the contents had been rendered to some degree Dangerous. As contaminated Ginger Beer was not on the list of “Dangerous Chattels” but by virtue of fact was contaminated by decomposition, Lord Atkin insisted that more flexibility was needed in the defining of Dangerous Chattels, and by enshrining the concept of Duty of Care, consumers would be afforded greater protection against everyday objects or goods that became contaminated.
Duty of Care was a real turning point in Tort Law. It’s the point from which the relationship between manufacturers and consumers moved from contractual rights based structure to a care-based ideal. The Duty of Care ideal was enshrined in Lord Atkins judgment through the creation of a doctrine known as the “Neighbor Principle”, whereupon that all manufacturers, providers of goods and services have a overarching duty of care to the eventual consumer of the goods, regardless of whether they had personally purchased the goods or not. The principle is defined by Foreseeability, “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor and Proximity, which is to say “reasonably to have them in contemplation as being so affected”.
The Neighbor Principle also had the effect of rendering the list of Dangerous Chattels somewhat irrelevant by allowing for goods that may have commenced its life cycle as safe, but had become dangerous through spoilage or some transformation.
Had Lord Atkin supported the concept of consumer rights and chosen a different argument he should have easily been able to explain his verdict in favor of Ms. Donohue based upon her rights. A straightforward rights based reasoning applied to the case would have framed the context as that, if Ms. Donohue is injured by Mr. Stevenson, not intending to injure the Ms. Donohue but through acts of carelessness, then Mr. Stevenson will be liable for negligence as Ms. Donohue’s rights to bodily integrity have been violated. Purposely Lord Atkin avoided this argument instead focusing solely on the actions of Mr. Stevenson and the Duty of Care he as manufacturer, owed Ms. Donohue.
The ambiguity of Duty of Care has allowed for reams of discussion about the levels of Duty of Care and the reasonableness of claims without the distraction of consumer rights. If rights based Tort law became doctrine on that day in 1932 then without any doubt, if an injury was conferred on the ultimate consumer then the case outcomes would be fait acompli. Lord Atkin believed however that this is too fraught with potential problems. If we were to have a Tort based legal precedent based on the rights of the consumer then we would have to acknowledge the responsibilities of the consumer as part of those rights.
Although rights seem logical and prudential in a modern world we need to understand exactly what are rights, do we automatically have them or are they conferred? Perhaps to see the problem with rights we need to look at another familiar issue to see their potential shortfalls.
Animal rights have long since been argued as a way to guarantee the treatment of animals however the problem with animal rights is that once we confer rights to an animal, then we must confer responsibility. If we cannot confer responsibility thence we clearly cannot confer rights. That’s why we have animal protections as opposed to rights. The distinction is important and so is therefore the distinction between Duty of Care and consumer rights.
Perhaps it was Ms. Donohue’s solicitor Mr. Leechman’s expertise in Ginger Beer that moved Lord Atkin to make his now famous monologue on Donohue v Stevenson but more likely it was Lord Atkins concern for the growing movement towards a rights based Tort precedent that motivated his judgment. In framing the “Neighbor Principle” he provided a basis from which consumers interests can be protected without encumbering trade and the courts with a rigid set of consumer rights that could have been an enormous burden on the legal system, the ongoing innovation of goods and the growth of economies and companies like Mr. Stevenson’s.
An interesting footnote to the Donoghue v Stevenson case is that two other judges sitting with Lord Atkins, Lord Thankerton and Lord Macmillan , passed judgment conditional upon a presentation of proof. A Proof of Facts hearing was set to be held on 10th January 1933. Unfortunately Mr. Stevenson passed away before the Proof of Facts hearing leading to a settlement between the Donohue and the Estate of Stevenson of 100 pounds.
Mrs. Donohue’s selection of Mr. Leechman as her counsel was also in itself somewhat curious given that only three weeks earlier he had unsuccessfully attempted to sue a beverage maker. In the case Mullen V A G Bar & Co Ltd, Mr. Leechman, alleged that his clients found the body of a decomposed mouse in a bottle of Ginger Beer. Although it was never really explained just how it was that the Plaintiffs thought the Mouse came to be in the Ginger Beer bottle, The judge presiding over that case, Lord Hunter, compelled that the boys injury to be “so slight that the pursuer might well have been advised to leave the litigation alone” and as such the case was dismissed in favor of the defendant. Another woman called Mrs. McGowan also allegedly found a decomposing Mouse in her bottle of Ginger Beer and by seemingly complete coincidence also found herself with pro bono representation by Mr. Leecham.
So next time you enjoy a ginger beer, take a moment to remember that it was this quaint beverage, a Scottish widow, an opportunistic solicitor and an Australian Lord whose brief intersection became the catalyst for the quality of the products around us today and the duty of care that manufacturers and providers of services owe us as consumers.
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