3.2 Canada
In Canada, non-contractual liability for negligent acts had actually been recognised more than a decade earlier than that in which Donoghue was heard. In Buckley Mot (1919), 50 DLR 408 (NSSC) a decision of the Nova Scotia Supreme Court, a manufacturer of a chocolate cream candy bar featuring powdered glass as an unintended extra ingredient was successfully sued in negligence by an injured consumer on the basis of a general ‘duty to the public’ not to sell such a dangerous article, even though the sale was not directly to the public. Essentially, the judge extended the ‘dangerous article’ exception to include normally harmless articles that were dangerous because of faulty manufacture, rather than just those articles (such as firearms and poisons) that were of an inherently dangerous kind.
Soon after Donoghue, Canadian law came to recognise and expand the existence of a duty of care in many situations in which a consumer has been injured by a food product. For example, a bakery owes a duty to a person who eats its bread and a dairy company to consumers of its chocolate milk.
In Canada, it has been held that it is not only consumers who lie in the contemplation of manufacturers or processors of food products. A duty of care is also owed to those who handle these products, regardless of whether consumption actually takes place. For example, in Cohen v. Coca-Cola [1967] SCR 469 a bottler was liable for the injuries suffered by a restaurant employee when one of its bottles exploded in his hand while he was stocking a refrigerator.
There are even Canadian decisions in French that cited with approval Donoghue. In Claudais c. La Ferme St. Laurent Ltée, CSM 500-05-005996-72, October 17, 1975, Meyer J (unreported), a decision of the Cour Supérieure du Québec, involving a mouse in butter, Mr Justice Meyer said:
La Cour croit bon de mentionner la décision dans la fameuse cause anglaise de M’Allister (or Donoghue) v. Stevenson (1932), A.C. 562, où la Chambre des pairs a décidé que, selon le droit écossais ou anglais, dans le cas d’aliments vendus par le manufacturer à un distributeur dans des circonstances qui empêchent le distributeur, ou l’ultimate acheteur ou consommateur, de découvrir par l’inspection un vice ou une défectuosité, le manufacturier á un devoir légal vis-á-vis l’ultimate acheteur ou consommateur d’agir comme un bon pére de famille et de voir á ce que l’article soit libre de tout vice ou défectuosité pouvant nuire á la santé. Il s’agissait en l’occurrence de la consommation d’une bouteille de soda contenant un escargot.
The case report is in French because, whilst Quebec is in Canada, the only official language is French. This is the translated text:
The court thinks it worth mentioning the decision of the famous English case of M’Allister (or Donoghue) v Stevenson (1932), AC 562, where the House of Lords ruled that, under Scottish or English law, in the case of food sold by the manufacturer to a distributor in circumstances that prevent the distributor, or the ultimate buyer or consumer, from discovering by inspection a flaw or defect, the manufacturer has a legal duty concerning the ultimate buyer or consumer to act in a prudent and responsible manner and see if the article is free from any flaw or defect that may be dangerous. This occurrence involved the consumption of a bottle of soda containing a snail.
Surely May Donoghue would be surprised to know that the story of her case has not only been told across the world, but told in the French language!