type of citrus fruit, a fruit, a thing that grows on trees, a thing that grows, and
so on. (This, needless to say, is a major source of ambiguity in common law
since it creates two or more possible versions of a rule. This ambiguity is more
fully considered in discussion of classifying ambiguity.
132
)
Therefore to construct an element the court is confronted with a choice in
determining the level to which it should generalise each material fact to make
the elements of the new common law rule. By making these choices the court
defines the elements of the rule. In doing this, the court also determines the
conduct delineated by the elements and the categories of persons involved in
this conduct, at the same time guaranteeing that the ensuing common law rule
fits the facts of the case.
133
It was Julius Stone who enunciated the notion that the elements of common
law rules are constituted by a generalisation of the material facts of their parent
case. Stone did this in his famous analysis of Donoghue v Stevenson,
134
the
case
which laid down for English common law the duty of care as the basis
for the tort of negligence.
135
These are the facts of this case. Mrs Donoghue
went into a cafe with a friend. Her friend purchased a bottle of ginger beer,
which had been manufactured by Stevenson. The cafe proprietor poured some
of the ginger beer into a tumbler. Mrs Donoghue drank some of the ginger
beer. The proprietor then topped up her glass. As he poured the ginger beer a
dead snail came out of the bottle. Mrs Donoghue suffered gastroenteritis from
drinking the contaminated ginger beer and suffered shock when she saw the
dead snail and realised what she had done. She sued Stevenson in negligence.
In analysing this case Julius Stone listed and classified the material facts of the
case and under each classification showed how successive degrees of
abstraction or generalisation of the facts could be made. This can be illustrated
using just two material facts - the dead snail and the bottle of ginger beer - and
recasting Stone's analysis in simple language:
(1)
The thing causing harm was a dead snail. To indicate just some of the
possibilities, the dead snail could be generalised to form an element of a rule as
a dead mollusc, a dead animal, a dead animal or decomposed vegetable
matter, or any foreign thing likely to cause harm, for example a rusty nail.
(2)
The snail was in a bottle of ginger beer. Again, to indicate just some of
the possibilities, the ginger beer could be generalised to form an element of a
132
Chapter 10 Classifying Meanings
133
This analysis is deeply in debt to Professor Julius Stone, my lecturer in
jurisprudence - see Stone (1959).
134
Donoghue v Stevenson [1932] AC 562
135
Stone (1959). Donoghue v Stevenson is discussed in Chapter 2 Law.
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