Donoghue (or M'Alister) v Stevenson 

House of Lords [1932] All ER Rep 1

[For a brief case note summary see - Donoghue v Stevenson [1932]]

Appeal from an interlocutor of the Second Division of the Court of Session in Scotland.

On 26 August 1928, the appellant, a shop assistant, drank a bottle of ginger-beer manufactured by the respondent, which a friend had ordered on her behalf from a retailer in a shop at Paisley and given to her. She stated that the shopkeeper, who supplied the ginger-beer, opened the bottle, which she said was sealed with a metal cap and was made of dark opaque glass, and poured some of its contents into a tumbler which contained some ice cream, and that she drank some of the contents of the tumbler, that her friend then lifted the bottle and was pouring the remainder of the contents into the tumbler, when a snail which had been in the bottle floated out in a state of decomposition. As a result, the appellant alleged, she had contracted a serious illness, and she claimed from the respondent damages for negligence. She alleged 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 article, that he neglected such duty, and that he was, consequently, liable for any damage caused by such neglect...

LORD ATKIN: The sole question for determination in this case is legal: Do the averments made by the pursuer in her pleading, if true, disclose a cause of action? I need not re-state the particular facts. The question is whether the manufacturer of an article of drink sold by him to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. I do not think a more important problem has occupied your Lordships in your judicial capacity, important both because of its bearing on public health and because of the practical test which it applies to the system of law under which it arises. 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. I speak with little authority on this point, but my own research, such as it is, satisfies me that the principles of the law of Scotland on such a question as the present are identical with those of English law, and I discuss the issue on that footing. The law of both countries appears to be that in order to support an action for damages for negligence the complainant has to show that he has been injured by the breach of a duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury. In the present case we are not concerned with the breach of the duty; if a duty exists, that would be a question of fact which is sufficiently averred and for the present purposes must be assumed. We are solely concerned with the question whether as a matter of law in the circumstances alleged the defender owed any duty to the pursuer to take care.

It is remarkable how difficult it is to find in the English authorities statements of general application defining the relations between parties that give rise to the duty. The courts are concerned with the particular relations which come before them in actual litigation, and it is sufficient to say whether the duty exists in those circumstances. The result is that the courts have been engaged upon an elaborate classification of duties as they exist in respect of property, whether real or personal, with further divisions as to ownership, occupation or control, and distinctions based on the particular relations of the one side or the other, whether manufacturer, salesman or landlord, customer, tenant, stranger, and so on. In this way it can be ascertained at any time whether the law recognises a duty, but only where the case can be referred to some particular species which has been examined and classified. And yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist. To exist(1) a complete logical definition of the general principle is probably to go beyond the function of the judge, for, the more general the definition, the more likely it is to omit essentials or introduce non-essentials. The attempt was made by Lord Esher in Heaven v Pender (2) ... As framed it was demonstrably too wide, though it appears to me, if properly limited, to be capable of affording a valuable practical guide.

At present I content myself with pointing out that in English law there must be and is some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. 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 1 am directing my mind to the acts or omissions which are called in question. This appears to me to be the doctrine of Heaven v Pender(2) as laid down by Lord Esher when it is limited by the notion of proximity introduced by Lord Esher himself and A. L. Smith L.J in Le Lievre v Gould(3). Lord Esher MR says ([1893] 1 QB at p. 497):

'That case established that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.'

Footnotes.

(1) [This word does not appear in the Law Reports, [19321 AC 562 at 580, but is replaced by the word 'seek'.]

(2) (1883) 11 QPD 503.

(3) [1893] 1 QB 491.

This extract reproduced by Dr Peter Jepson from 'Tort Cases and Materials' (Hepple & Matthews) - published by Butterworths (1991) - fourth edition at pages 40-43.

See also - Donoghue v Stevenson [1932] - brief case note.