Scottish courts and the law
Scottish courts and the law

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3 Reading case reports

Delict and in particular the delict of negligence focuses upon the idea of a duty of care. In Activity 1 you will consider this idea by reading an extract from the judgment in a well-known case which explored to whom a duty of care may be owed.

Before attempting Activity 1 you should watch these two videos which provides some context and background.

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Session Cases: The History of Law Reporting
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Download this video clip.Video player: Donoghue v Stevenson
Donoghue v Stevenson: The History of Law Reporting
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Activity 1 The case of Donoghue v Stevenson

Timing: Allow about 30 minutes

This activity is in two parts.

  1. Read the extract in Box 1, it is from the House of Lords, where the case was heard on appeal from the Court of Sessions.

Box 1 Extract from the judgments given in Donoghue v Stevenson [1932] SC (HL) 31

The facts of this case are simple. On 26 August 1928, the appellant drank a bottle of ginger beer, manufactured by the respondent, which a friend had bought from a retailer and given to her. The bottle contained the decomposed remains of a snail which were not and could not be detected until the greater part of the contents of the bottle had been consumed. As a result she alleged, and at this stage her allegations must be accepted as true, that she suffered from shock and severe gastroenteritis. She, accordingly, instituted the proceedings against the manufacturer, which have given rise to this appeal. The foundation of her case is that the respondent, as the manufacturer of an article intended for consumption and contained in a receptacle which prevented inspection, owed a duty to her as consumer of the article to take care that there was no noxious element in the goods, that he neglected such duty, and that he is, consequently, liable for any damage caused by such neglect. [. . .] The law applicable is the common law, and, though its principles are capable of application to meet new conditions not contemplated when the law was laid down, yet themselves they cannot be changed nor can additions be made to them because any particular meritorious case seems outside their ambit. The common law must be sought in law books by writers of authority and in the judgments of judges entrusted with its administration. The law books give no assistance because the works of living authors, however deservedly eminent, cannot be used as authorities, though the opinions they express may demand attention, and the ancient books do not assist. I turn, therefore, to the decided cases to see if they can be construed so as to support the appellant’s case. [. . .] The case has to be determined in accordance with Scots law, but it has been a matter of agreement between the experienced counsel who argued this case, and it appears to be the basis of the judgments of the learned judges of the Court of Session, that for the purposes of determining this problem the law of Scotland and the law of England are the same. [. . .] 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 lawyers’ 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. [. . .] The duties which the appellant accuses the respondent of having neglected may be summarised as follows: (a) that the ginger beer was manufactured by the respondent or his servants to be sold as an article of drink to members of the public (including the appellant) and that, accordingly, it was his duty to exercise the greatest care in order that snails should not get into the bottles, render the ginger beer dangerous and harmful, and be sold with the ginger beer; (b) a duty to provide a system of working his business which would not allow snails to get into the sealed bottles, and, in particular, would not allow the bottles when washed to stand in places to which snails had access; (c) a duty to provide an efficient system of inspection, which would prevent snails from getting into the sealed bottles; and (d) a duty to provide clear bottles, so as to facilitate the said system of inspection.

Donoghue v Stevenson [1932] SC (HL) 31
  1. Answer the questions that follow.
  • a.What were the facts in the case?
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  • b.What law was applicable?
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  • c.What sources can be used as authorities?
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  • d.Why do laws arise?
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  • e.What legal rule was outlined?
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  • f.What law was applicable?
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Comment

  • a.From the extract you were given you could have identified the following facts.
    • The appellant had consumed a bottle of ginger beer.
    • It was manufactured by the respondent.
    • A friend had bought the bottle from a retailer and given to it the appellant.
    • The bottle contained the decomposed remains of a snail.
    • The decomposed remains could only be seen when most of the contents of the bottle had been consumed.
    • The appellant alleged that she suffered from shock and severe gastroenteritis as a result.

You may be interested to know a little more about the background to the appeal. One Sunday evening Mrs Donoghue went to visit a friend in Paisley. They went to Well Meadow Café in Paisley. The café was owned by a Mr Minchella. Mrs Donoghue and her friend decided to have iced drinks (ice cream over which a drink was poured). Mrs Donoghue’s friend bought the ice cream and a bottle of ginger beer. The case proceeded on the presumption that Mrs Donoghue’s friend had in fact bought a bottle of ginger beer which was contained in an opaque bottle. The friend poured some of the ginger beer over Mrs Donoghue’s ice cream. Later in the evening when the friend poured the remainder of the contents of the ginger beer bottle over the melting ice cream out floated the decomposing remains of a snail. The sight of the snail and her consumption of the snail-tainted iced drink resulted in Mrs Donoghue becoming ill and she sued Stevenson (the manufacturers of the ginger beer) in delict. The courts had to decide whether the manufacturer was liable to Mrs Donoghue. There was no contractual relationship between Mrs Donoghue and Stevenson as she had not purchased the bottle of ginger beer. There was no contractual relationship between Mrs Donoghue and the café’s owner as she had not bought the drinks and ice cream. For these reasons Mrs Donoghue’s only option was an action in delict against the manufacturer on the basis of fault in not taking care in the production of the ginger beer.

  • b.The applicable law which was identified was common law. No legislation covered the legal principles which were being debated.
  • c.The extract considers law books by writers in authority and judgments of those entrusted with the administration of the law. It was decided that law books could not be used as the works of living authors, no matter how good, are not regarded as authority. Decided cases therefore had to be considered using the system of precedent. It was noted that the ancient books, did not assist.
  • d.Laws exist to determine the range of complaints that would be allowed and the remedies that will be awarded.
  • e.The case considered the duty of care which could be owed. A principle was stated: ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’ Neighbour was defined as any person who could be directly affected by the act or omission. The House of Lords held, by a majority, that Mrs Donoghue was entitled to sue Stevenson in delict because he owed her a duty of care; he had broken his duty towards her by his careless conduct and she had suffered loss. The majority was prepared to hold that Stevenson owed Mrs Donoghue a duty of care for the purpose of liability in delict. Stevenson was the manufacturer of a product consumed by Mrs Donoghue; their relationship was one of manufacturer and consumer.

You may have noticed that the extract in Box 1 made reference to the fact that whilst the case was to be determined by Scots law it was agreed that for the purposes of determining the case the same principle of law would be applicable in England.

To succeed in a claim the following must be proved: that a duty of care existed, that the standard required to meet that duty of care was breached and that damage was suffered as a result and that the damage was not too remote.

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