rule as a soft drink, any drink, any food or drink, any household product, or
any consumer good.
To illustrate different possible levels of generalisation from an actual case, let
us return to Donoghue v Stevenson
and consider parts of the judgment.
136
Discussion there took place on two levels of generalisation. In one part of his
judgment Lord Atkin treated Mrs Donoghue's difficulty with her ginger beer as
a consumer problem:
My Lords, the sole question for determination in this case 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.
137
Yet another account, also by Lord Atkin, saw the problem as the much
broader question of the duty that each person owes to his neighbour. This was
stated when he propounded the legal rule which the court should create:
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 I am directing
my mind to the acts or omissions which are called in question.
138
Thus one version of the rule concerned the duty of a manufacturer to a
consumer to avoid harmful product, while a second and wider version was a
general duty of care which each of us owed to those who can reasonably be
foreseen as affected by our actions. As is well known, in the result the wider
view of Donoghue v Stevenson has been accepted as the ratio, and for this
reason the case is the foundation of the modern law of negligence in English
common law. While this answers the immediate question of what is the
accepted ratio of Donoghue v Stevenson, the point to be made is that different
degrees of generalisations throw up different version of an element, leading to
different version of a rule.
To illustrate generalisation of a fact to make an element let us use a slightly silly
example. Assume that a court is faced with facts involving Clement, a bell
ringer, destroying an orange. Here the three material facts are Clement,
destroying and orange. Let us consider some of the degrees of generalisation
that are possible:
136
Donoghue v Stevenson [1932] AC 562
137
Donoghue v Stevenson [1932] AC 562, 578-579
138
Donoghue v Stevenson [1932] AC 562, 580
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