Law and change: Scottish legal heroes
Law and change: Scottish legal heroes

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Law and change: Scottish legal heroes

1.1 The facts

Mrs May Donoghue travelled from Glasgow to Paisley on 26 August 1928: a Sunday which fell during the annual trades’ holiday for the working people of the city. Paisley was a popular resort. At that time she living in a flat at 49 Kent Street in the heart of Glasgow around seven or eight miles away. During her visit to Paisley she went to the Wellmeadow Café with a friend.

Figure 2 Mrs Donoghue

It was late in the evening. The proprietor of the cafe was Francis Minchella. He sold, among other things, ice cream and fizzy drinks. Every lawyer and law student can recall or, at least, thinks they can recall what happened next, but it is always sensible to check one’s recollection against the primary material. The primary source for this case can be found in a leather bound book in the Parliamentary Archives under the reference 1 Vol 873. File reference HL/PO/JU/4/3/873. It can also be found online at http://www.scottishlawreports.org.uk/ resources/ dvs/ donoghue-v-stevenson-report.html [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] . However, you are not expected to access and read the full report for the purposes of this course. You will explore a number of extracts from the case report during your studies of this week. Now attempt Activity 1.

Activity 1 Finding the facts

Timing: Allow about 20 minutes

The pleading from May Donoghue the pursuer (the person making the claim for damages) is set out below. Read the pleading and summarise the key elements of the claim.

At or about 8:50 pm on or about 26th August 1928, the pursuer was in the shop occupied by Francis Minchella, and known as Wellmeadow Café, at Wellmeadow Street, Paisley, with a friend. The said friend ordered for the pursuer ice-cream, and ginger beer, suitable to be used with the ice-cream as an iced drink. Her friend, acting as aforesaid, was supplied by the said Mr Minchella with a bottle of ginger-beer manufactured by the defender for sale to members of the public. The said bottle was made of dark opaque glass, and the pursuer and her friend had no reason to suspect that the bottle contained anything else than the aerated water. The said Mr Minchella poured some of the said ginger-beer from the bottle into a tumbler containing ice-cream. The pursuer then drank some of the contents of the tumbler. Her friend then lifted the said ginger-beer bottle and was pouring out the remainder of the contents into the said tumbler when a snail, which had been, unknown to the pursuer, her friend, or the said Mr Minchella, in the bottle and was in a state of decomposition, floated out of the said bottle. In consequence of the nauseating sight of the snail in such circumstances, and of the noxious condition of the said snail-tainted ginger-beer consumed by her, the pursuer sustained ... shock and illness

[…]

The said Mr Minchella also sold to the pursuer's friend a pear and ice. The said ginger beer bottle was fitted with a metal cap over its mouth. On the side of the said bottle there was pasted a label containing inter alia, the name and address of the defender, who was the manufacturer. It was from this label that the pursuer's said friend got the name and address of the defender." (Cond. 3) "The shock and illness suffered by the pursuer were due to the fault of the defender. The said ginger beer was manufactured by the defender and his servants to be sold as an article of drink to members of the public (including the pursuer). It was, accordingly, the duty of the defender to exercise the greatest care in order that snails would not get into the said bottle, render the said ginger beer dangerous and harmful, and be sold with the said ginger beer. Further, it was the duty of the defender to provide a system of working his business that was safe, and would not allow snails to get into his ginger beer bottles (including the said bottle). Such a system is usual and customary, and is necessary in the manufacture of a drink like ginger beer to be used for human consumption. In these duties the defender culpably failed and pursuer's illness and shock were the direct result of his said failure in duty. The pursuer believes and avers that the defender's system of working his business was defective, in respect that his ginger beer bottles were washed and allowed to stand in places to which it was obvious that snails had freedom of access from outside the defender's premises, and in which, indeed, snails and slimy trails of snails were frequently found. Further, it was the duty of the defender to provide an efficient system of inspection of said bottles before the ginger beer was filled into them, and before they were sealed. In this duty also the defender culpably failed, and so caused the said accident. The defender well knew, or ought to have known, of the frequent presence of snails in those parts of his premises where the ginger beer bottles were washed and dried, and, further, ought to have known of the danger of small animals (including snails) getting into his ginger beer bottles. The pursuer believes and avers that the said snail, in going into the said bottle, left on its path a slimy trail, which should have been obvious to anyone inspecting the said bottle before the ginger beer was put into it. In any event, the said trail of the snail should easily have been discovered on the bottle before the bottle was sealed, and a proper (or indeed any) inspection would have revealed the presence of the said trail and the said snail, and the said bottle of ginger beer with the snail in it would not have been placed for sale in the said shop. Further, the defender well knew, or in any event ought to have known, that small animals like mice or snails left in aerated water (including ginger beer), and decomposing there, render aerated water exceedingly dangerous and harmful to persons drinking the contaminated aerated water. Accordingly, it was his obvious duty to provide clear ginger beer bottles, so as to facilitate the said system of inspection. In this duty also the defender culpably failed, and the said accident was the direct result of his said failure in duty. If the defender and his said servants had carried out their said duties the pursuer would not have suffered the said shock and illness.

(Donoghue v Stevenson [1932] AC 562, 31)
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Comment

An important part of legal study is skills. These include the ability to write concise summaries of the facts and law. There are rarely model answers and the example that follows highlights the key facts and issues.

Figure 3 Example summary of the key facts in Donoghue

When reading the pleadings in Activity 1 you might have thought that the facts of the case were somewhat ordinary, perhaps even moderately amusing (if unpleasant for May Donoghue). It is not the factual background which resulted in the case gaining common-law-wide infamy. It is well known because of the legal principle established when the case reached the House of Lords, ‘the neighbour principle’. That legal principal is found in the judgment of Lord Atkin; an Australian born Welshman who became a Law Lord.

In order to understand why the legal principle emerged it is necessary to look at the issue on which an appeal was made from the decision of the Court of Sessions (in Edinburgh) to the House of Lords (in London). That issue was whether, in the absence of a contractual relationship between a producer of a product and its user, a producer could be liable to pay damages for any harm suffered by the user which resulted from a fault in the product brought about by carelessness.

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