5 Finding the ratio in Donoghue
In this section we are interested in the process of reasoning used by the law lords.
Identifying the ratio of Donoghue is not an easy task – even with the benefit of the succinct headnote which appears in the law report. But the case is a good illustration of how logical reasoning is transformed into legal reasoning because even though each judge attempted to answer the same question, using the same set of facts, and by looking at previously decided cases, the route each judge took to reach his conclusion was different.
Now attempt Activity 4 which is in two parts.
Activity 4 Finding the ratio
Read the extracts from the judgments of Lords Macmillan, Atkin and Thankerton, the three ‘majority’ judges who agreed that Mr Stevenson owed a duty of care to Mrs Donoghue.
- a.Identify the points that the extracts set out below have in common and identify any additions or limitations mentioned by the judges.
- b.Identify any additions or limitations mentioned. For example, they all mention that what is manufactured is a product or an article, but while Atkin does not narrow it down further than this, Macmillan limits it to ‘food and drink’ and Thankerton specifies ‘article of drink’ only. The agreed part is the most restricted definition of the product, which is a drink.
Extracts from the judgments in Donoghue:
I have no hesitation in affirming that a person, who for gain engages in the business of manufacturing articles of food and drink intended for consumption by members of the public in the form in which he issues them, is under a duty to take care in the manufacture of these articles. That duty, in my opinion, he owes to those whom he intends to consume his products. He manufactures his commodities for human consumption; he intends and contemplates that they shall be consumed. By reason of that very fact, he places himself in a relationship with all the potential consumers of his commodities, and that relationship, which he assumes and desires for his own ends, imposes upon him a duty to take care to avoid injuring them.
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.
The respondent, in placing his manufactured article of drink upon the market, has intentionally so excluded interference with, or examination of, the article by any intermediate handler of the goods between himself and the consumer that he has, of his own accord, brought himself into direct relationship with the consumer, with the result that the consumer is entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the consumer.
There are a number of points that the three extracts had in common. These are:
- the object is a drink
- a manufacturer
- intended for the consumer / placed on the market
- in the original form/ to exclude interference / examination
- duty of care owed to the customer
A number of additions and / or limitations were mentioned.
- in relation to the object as a drink. Macmillan mentions food and drink; Atkin talks about products in general
- Thankerton describes the duty of case as an entitlement ‘to rely upon the exercise of diligence by the manufacturer’.
Having completed Part 1, and, using the points the extracts from the three judges have in common decide which of the following statements best suits the ratio. Then, in the box provided, put togther a short statement that might be a possible agreed ratio for the case.
- a.A manufacturer owes a duty to take reasonable care that the consumer is not injured as a result of a snail in a bottle of ginger beer.
- b.A manufacturer owes a duty to take reasonable care that the consumer is not injured by a foreign body in a container.
- c.A manufacturer owes a duty to take reasonable care that the consumer is not injured by defective products.
- d.A manufacturer of a drink who intends it for the consumer in its original form, and manufactures it in such a way to exclude the possibility of interference or examination prior to being consumed, owes a duty to take care to the consumer.
- e.A person owes a duty to take reasonable care that they do not commit any act which they could reasonably foresee as harming another person.
Clearly option (a) is too specific to the facts and creates an unrealistically narrow ratio to be applied in later cases. The fact of the snail might not be material in subsequent cases – it might be a mouse or some broken glass.
Option (b) is wider but still limits the ratio to foreign bodies in containers – what if the foreign body was in a sandwich, or it was a harmful chemical in the product?
Option (c) is more useful – it creates a legal principle that could be used in a range of less restricted situations.
Option (d) is wider and does not move beyond the legal responsibility of manufacturers.
Option (e) is more general and akin to the neighbour principle. It was the one followed in later cases but was later restricted with additional elements, such as it must be fair, just and reasonable to impose a duty as it was found to be too wide and allow too many claims.
What is not too wide as a possible ratio will look something like option (d), which was:
A manufacturer of a drink who intends it for the consumer in its original form, and manufactures it in such a way to exclude the possibility of interference or examination prior to being consumed, owes a duty to take care to the consumer.
This option is reasonably similar to the shorter of the explanations offered by their Lordships. A wide ratio such as the ‘neighbour principle’ is often resisted because it can lead to unforeseen consequences and might be found to apply to unintended situations.
Activity 4 produced one example of what the ratio for Donoghue might be. Hopefully you will have seen that finding a single ratio (one binding legal principle) is not straightforward.
How to interpret the judgments is even more confusing when the obiter dicta comments of the judges that surround the ratio are taken into account. You will see this very clearly in the next section, where we will consider how the lords in Donoghue used previous case law in their reasoning.