On May 24 and 25, 2012, the community of Paisley, Scotland, celebrated the 80th anniversary of a landmark House of Lords legal decision that changed the law of negligence and paved the way for products liability cases of the present day.
On August 26, 1928, May Donoghue, a modest shop worker on a daytrip to Paisley from nearby Glasgow, stopped for refreshment at the Wellmeadow Café, where a friend bought her a bottle of Stevenson’s Ginger Beer. Unbeknownst to Mrs. Donoghue, according to the documents in a subsequent law suit, the opaque bottle hid its deep dark secret – a snail. Imagine Mrs. Donoghue’s delight when she emptied the bottle of liquid refreshment to find the carcass of a snail. This was not the proverbial worm in the tequila!!
No doubt Mrs. Donoghue had splendid legal advice for she immediately commenced a lawsuit to recover damages for the shock of coming across the surprise in her ginger beer. There were a couple of hurdles, however. First, the friend had purchased the ginger beer so Mrs. Donohue had no contract with the Café. Second, the most obvious culprit was Stevenson, the manufacturer of the ginger beer but likewise she had no contract with that company. Nevertheless, the action was commenced against Stevenson alleging that the company was negligent and owed a duty not to harm Mrs. Donoghue even though she had no contract.
As the position taken by Mrs. Donoghue in the lawsuit was novel, the lawyers for Stevenson brought a motion in court to strike out the action without having to proceed to a trial. The legal issue raised by the motion eventually made its way to the House of Lords, where, in 1932, the decision was made that Mrs. Donoghue was entitled to proceed with her action against Stevenson in negligence even though there was no contractual relationship.
The decision in Donoghue v. Stevenson changed the law of negligence and products liability when Lord Atkins pronounced the following words:
“Love your neighbour becomes in law you must not injure your neighbour…You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour… a duty of reasonable care.”
So Mrs. Donoghue’s lawsuit survived this attack on her right to sue and the case could proceed. The unfortunate conclusion to the story is that there is no record of there ever being a trial. There was, therefore, no proof in a court of law that the snail was in the bottle, that Mrs. Donoghue had drunk the ginger beer (or the snail) or what consequences Mrs. Donoghue suffered as a result of the presence of the creature.
Fast forward to 2008 and the decision of the Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd. This was a case where there literally was a fly in the ointment. While in the course of replacing an empty bottle of drinking water with a full one, Mr. Mustapha saw a dead fly and part of another dead fly in the unopened replacement bottle. Obsessed with the event and its “revolting implications” for the health of his family, he developed a major depressive disorder, phobia and anxiety. He sued Culligan, the supplier of the bottle of water, for psychiatric injury. The trial judge awarded him general and special damages, as well as damages for loss of business, but the Court of Appeal overturned the judgment on the basis that the injury was not reasonably foreseeable and hence did not give rise to a cause of action.
The Supreme Court of Canada held that Culligan had breached the duty of care which it owed to Mr. Mustapha. However, the Court held that Mr. Mustapha had failed to show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. In the end result, Mr. Mustapha received no compensation for the psychiatric injury.
When the celebrations in Paisley took place, I am sure that all participants examined their bottles, whether of water or other liquid refreshment, to make sure that no unusual creatures were present. As summer approaches, we might all want to do the same!