Donoghue v Stevenson

A person must take reasonable care to avoid acts or omissions which are reasonably foreseeable as likely to injure persons closely and directly affected by them. Accordingly, a manufacturer owes an ultimate consumer a duty of reasonable care where the product is intended to reach that consumer substantially unchanged, there is no reasonable opportunity for intermediate examination, and careless preparation is likely to cause injury. The absence of a contract between manufacturer and consumer does not prevent an independent duty in negligence. Whether the duty was breached and caused injury remains a question of proof.

Donoghue v Stevenson concerned an opaque, sealed bottle of ginger-beer which allegedly contained a decomposed snail. The appellant consumed part of the drink, which her friend had purchased from a retailer, and alleged shock and gastro-enteritis. She sued the manufacturer in negligence despite having no contract with him.

The Lord Ordinary rejected the manufacturer's challenge to the relevancy of the pleadings and allowed a proof. The Second Division of the Court of Session recalled that interlocutor and dismissed the action, following Mullen v Barr & Co and M'Gowan v Barr & Co 1929 SC 461. The central issue was whether the pleaded circumstances disclosed a duty of care owed by the manufacturer to the ultimate consumer.

1. Disposition. By a majority of three to two, the House allowed the appeal. Lord Atkin, Lord Thankerton and Lord Macmillan held that the pleadings disclosed a relevant cause of action. Lord Buckmaster and Lord Tomlin dissented. The interlocutor of the Second Division was reversed, the Lord Ordinary's interlocutor was restored, and the cause was remitted for proof.

2. The duty of care. Per Lord Atkin, a person must take reasonable care to avoid acts or omissions which can reasonably be foreseen as likely to injure persons so closely and directly affected that they ought reasonably to be contemplated. Proximity means a sufficiently close and direct relationship, rather than mere physical nearness. Lord Thankerton expressly agreed with Lord Atkin's discussion and reasoning. Lord Macmillan adopted materially the same analysis through reasonable foreseeability and the relationship created with intended consumers.

3. Application to manufacturers. Per Lord Atkin, a manufacturer who intends a product to reach the ultimate consumer in the form in which it left the manufacturer, without a reasonable possibility of intermediate examination, owes that consumer a duty to take reasonable care where want of care is likely to injure life or property. Lord Thankerton emphasised that an opaque, sealed container could place the manufacturer in a direct relationship with the consumer by excluding interference and inspection. Lord Macmillan similarly held that a manufacturer of food or drink intended for public consumption owes a duty to intended consumers not to make the product dangerous through carelessness.

4. Contract and established categories. The absence of a contract between manufacturer and consumer did not prevent an independent action in negligence. The rule that a stranger cannot sue upon another person's contract remained intact, but it did not exclude a duty arising independently from the parties' relationship. The majority rejected the proposition that liability was confined to things dangerous in themselves or known to be dangerous. Such cases illustrated the general law of negligence and could require a particularly exacting degree of care.

5. Scope of the decision. At this stage the allegations were assumed to be true. Breach and causation remained to be proved. Lord Macmillan added that the consumer bore the burden of proving that the defect existed when the product left the manufacturer, resulted from that manufacturer's carelessness, and arose within circumstances creating a duty. There was no presumption of negligence and no basis merely from the pleaded facts for applying res ipsa loquitur.

6. Dissent. Lord Buckmaster, with whose reasoning Lord Tomlin agreed, considered the established authorities to deny any wider duty to a consumer absent a contract, an inherently dangerous article, or the manufacturer's knowledge of danger. They regarded the proposed duty as incapable of principled confinement and would have dismissed the appeal.

1. House of Lords — [1932] UKHL 100: By a majority of three to two, allowed the appeal, reversed the interlocutor of the Second Division, restored the Lord Ordinary's interlocutor and remitted the cause for proof.
2. Second Division of the Court of Session: Recalled the Lord Ordinary's interlocutor and dismissed the action, following Mullen v Barr & Co and M'Gowan v Barr & Co 1929 SC 461.
3. Lord Ordinary: Rejected the manufacturer's plea to the relevancy of the action and allowed a proof.