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

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Law and change: Scottish legal heroes

3.2 Donoghue’s pleadings

The pleadings submitted on behalf of the pursuer (and appellant in the House of Lords), Mrs Donoghue, foreshadowed what is now the necessary elements of the delict of negligence, namely there is:

  • a duty of care
  • a breach of that duty by not acting to the standard of care expected of a person holding that duty
  • a breach having caused loss or injury.

These are shown in Box 1.

Box 1 Extract from the submission of the legal team for the pursuer

‘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, p. 32)

Now attempt Activity 3 where you explore these elements further.

Activity 3 The duty proposed

Timing: (Allow about 20 minutes)

Using the information in Box 1, drag and drop the sentences into an order that reflects the test for liability proposed by the pursuer’s legal team.

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This is the correct order, based on the information in Box 1.

  • In production a manufacturer must take reasonable care to ensure, through a safe system, that it is not contaminated by foreign bodies.
  • A reasonable system includes an efficient system of inspection of the product that would discover contamination before it is distributed.
  • The injury (shock and illness) must have been caused by the manufacture’s failure to exercise reasonable care.

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