some of the contents of the tumbler. Her friend then poured the remainder
of the contents of the bottle into the tumbler. As the friend did this, a snail,
which was in a state of decomposition, floated out of the bottle and into the
tumbler. In consequence Mrs Donoghue suffered from shock because of
seeing the decomposed snail and severe gastro-enteritis because of drinking
the contaminated ginger beer. Consequently she sued the manufacturer of
the ginger beer, Stevenson.
The issue before the court was whether the plaintiff Donoghue had an action
against the defendant (or the defender as they are called in Scotland). Each of
the five law lords hearing the case wrote separate judgments endeavouring to
answer this question. They consume 62 pages of the law report. However, the
key part of the decision was a finding of three judges (a majority) that there
existed a general tort of negligence as distinct from specific actions for
negligence for defined circumstances. By wide agreement the following
passage from the judgment of Lord Atkin fairly accurately describes the tort of
negligence as propounded by the case:
At present I content myself with pointing out that in English law there must
be, and is, some general conception of relations giving rise to a duty of
care, of which the particular cases found in the books are but instances. The
liability for negligence, whether you style it such or treat it as in other
systems as a species of "culpa," is no doubt based upon a general public
sentiment of moral wrongdoing for which the offender must pay. But acts
or omissions which any moral code would censure cannot in a practical
world be treated so as to give a right to every person injured by them to
demand relief. In this way rules of law arise which limit the range of
complainants and the extent of their remedy. The rule that you are to love
your neighbour becomes in law, you must not injure
your neighbour; and
the lawyer’s question, Who is my neighbour? receives a restricted reply.
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.
27
Judgments
Since common law is made by the courts, it is found in “the judgments of
judges entrusted with its administration”.
28
Cases are published. Originally this
was done solely in the printed law reports but cases are also published
27
Donoghue v Stevenson [1932] AC 562 at 580 per Lord Atkin
28
Donoghue v Stevenson [1932] AC 562 at 567 per Lord Buckmaster
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