On the evening of Sunday 26th August 1928, Ms May Donoghue was embarking on the serious business of establishing the single most important case in the common law (laws made by precedent in court as opposed to those passed in Parliament) for tort (a wrong that causes someone else to suffer loss or harm which includes acts of negligence amongst others).
What she thought she was doing was having a relaxing evening out with her friend in the Wellmeadow Café in Paisley. She had ordered, via her friend, a Scotsman ice cream float which is, or was, a mixture of ice cream and ginger beer. The store owner brought over a bowl of ice cream and a bottle of ginger beer with the label “D. Stevenson, Glen Lane, Paisley”.
The ice cream float was presented by pouring the ginger beer over the ice cream, something which Francis Minghella the store owner duly did. She couldn’t fit the entire bottle’s content into the tumbler so she left the half empty (full?) bottle on the table next to the float.
“Ms Donoghue gratefully tucked in and once she had made some more room in the tumbler was pleased to see her friend oblige by pouring the rest of the ginger beer for her.”
She was somewhat less pleased to see a decomposed snail emerge from the bottle following on from the last drops of the ginger beer. Realising that she already consumed a great deal of the ginger beer Ms Donoghue reported immediately feeling ill and suffering from abdominal pain. She was apparently admitted to Glasgow Royal Infirmary the next day for “emergency treatment” and diagnosed with severe gastroenteritis and shock.
Ms Donoghue decided to sue Stevenson (the manufacturer of the ginger beer) for damages.
What was the law before this case?
In those days, the common law only acknowledged a duty of care was owed to people harmed by the negligent acts of others in specific and limited circumstances.
As the law stood, May Donoghue could not take legal action over her snail.
As her unnamed friend had paid for the drink, it meant Ms Donoghue had not entered into a contract with the cafe owner. Clearly, neither Ms Donoghue nor her friend had a contract with the manufacturer of the ginger beer. The latter had not committed fraud and ginger beer could hardly be described as dangerous.
Crucially though, what the manufacturer had done is put a product on the market that could not be inspected prior to consumption. It was in an opaque brown bottle.
Ms Donoghue’s barrister argued that anyone who does this should be held liable for any damages caused.
The case went up through the lower courts and was eventually heard in the House of Lords on 10th December 1931, three years after May allegedly discovered the snail. Lord Atkin of Aberdovey, one of the greatest judges of the twentieth century, was on the panel who heard the appeal.
Love thy neighbour?
It was on 26th May 1932 (almost 4 years after that snail plopped out of the bottle) that Aberdovey found in favour of May Donoghue and rose to give the leading judgment in the case.
“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.”
Thus the modern law of negligence was born.
For some this has meant the unlocking of the floodgates that lead to a US style “compensation culture”, for others (me included) it provides the safety net that catches those who are injured through no fault of their own. Either way, there is no going back. The genie (well the snail) is most definitely out of the bottle.
About the Author
The author who brought this story to life is Michael Shaw, head of the Clinical Negligence and Personal Injury department at Carter Moore Solicitors. Find out more about how we can help with your medical negligence claim here.