Law / Study by subject / Torts

Student Companion: Torts



Case notes on important cases: DUTY OF CARE

McAlister (or Donoghue) v Stevenson [1932] AC 562, [1932] All ER Rep 1 (HL)

D was out with a friend. Her friend bought some ice cream and a bottle of ginger beer. The friend poured some of the beer over the ice cream and D drank some. The friend poured out the rest of the bottle and allegedly a decomposed snail came out. D then took ill and sued the manufacturer who attempted to strike the case out as disclosing no cause of action. The ginger beer bottle was opaque enough that you could not see inside it. The original trial judge refused the manufacturer’s request but the Appeal Court allowed his appeal. Although the case came from Scotland it was agreed that Scots law was no different from English law on this point.

For more than 80 years Lord Atkin’s speech has stood as almost the common law’s most sacred text. Lord Atkin led Lords Thankerton and Macmillan in allowing the appeal in sweeping tones which replaced old technical rules about when a negligence action might arise with a general test of foreseeability of harm; “proximity” between the plaintiff and the defendant really means simple closeness based on foreseeability.

At the heart of Lord Atkin’s speech is his neighbour principle — that in law there is only a duty not to hurt one’s neighbour, neighbours being restricted to those people who are:

… so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.

It appears that Lord Atkin was attempting a decisive, definitive restatement of the principles behind negligence to get rid of doubts that had been accumulating for a number of years and resolve conflicting cases about just what was negligence.

Foreseeability was easy to find. Ginger beer obviously can be consumed by someone other than the final purchaser. It was unlikely that a drinker would inspect the beer before drinking and, in any event, the opaque glass would make this impossible. The possibility of intermediate inspection remains one of the key ways of limiting a duty.

Lords Buckmaster and Tomlin countered with a logic that has resurfaced in Chicago School economics. They argued that, except when something is inherently dangerous or where the manufacturer knows the goods have a defect which makes them dangerous, the manufacturer should owe only a duty in contract, that is, as part of the contracted warranty. In other words, if you want a warranty you have to pay for it. Lord Buckmaster even said that the manufacturer can do whatever he or she likes so long as there is not a duty established by law, in that case contract law. There certainly could not be a contract between the manufacturer and D, who was given the beer by the ultimate purchaser free; there was not even privity between the manufacturer and the ultimate purchaser, because of all the middle men and women along the way.

After the appeal was allowed the parties settled; leaving the legal world to ponder the effect of a snail that may or may not have existed, and D to her Glaswegian obscurity.

A Rodger QC “Mrs Donoghue and Alfenus Varus” [1988] 41 CLP 1

  • A Rodger QC “Lord Macmillan’s Speech in Donoghue v Stevenson” (1992) 108 LQR 236
  • J C Smith and P Burns “Donoghue v Stevenson — The Not So Golden Anniversary” (1983) 46 MLR 147


For the full text and more see McLay, Student Companion: Torts (LexisNexis, Wellington, 2012)