Of snails and ginger
I happened to see a tweet by Baroness Heather the other day, asking why Irn-Bru is referred to as “ginger” when it isn’t gingery.
In the west of Scotland, where I hail from and Baroness Heather has found herself, “ginger” is a generic term for all carbonated drinks. It’s the equivalent of “pop” or “soda” in other countries.
But the question reminded me of a tale I was told in my first year of law school, one that has tickled my fancy ever since it was first related to the first year Obligations class at Glasgow University by Professor Joe Thomson. It concerns a snail, a bottle of ginger beer, and my hometown of Paisley…
Donoghue v Stevenson 1932 SC (HL) 31 is probably the most famous case in British legal history, and is certainly up there in world legal history with the likes of Marbury v Madison. Even if you aren’t aware of it by name, chances are you have heard of “the snail in the bottle”, and if you live in Britain (even the Commonwealth) you will have benefited from the legal precedent established.
This Wikipedia article provides an excellent summary of the case. In August 1928 Mrs Mary Donoghue and a friend met at a cafe in Paisley owned by Francis Minchella. Mrs Donoghue’s friend ordered a bottle of Stevenson’s Ginger Beer from Mr Minchella. It was brought to the table, and the friend poured half the bottle into a glass for Mrs Donoghue. As she drank it, her friend poured the rest of the bottle out into a glass. And out popped the remains of a snail. Mrs Donoghue was later diagnosed with gastroenteritis and shock.
Now, up until this point Mrs Donoghue had no legal remedy available. She did not purchase the bottle of ginger beer, so no contractual relationship existed between her and Mr Minchella, or the manufacturer, Stevenson. Her friend did have a contractual relationship, as the purchaser. But they did not drink the ginger beer, so suffered no harm upon which a claim could be based.
The question was, did the manufacturer Stevenson have a general duty of care to all possible consumers of his product, not just those with whom a contractual relationship was created? General duties of care existed, but only in specific circumstances: if the product was inherently dangerous (ginger beer isn’t) or if the product had been misrepresented (it hadn’t).
In the end the case came before the House of Lords, and was decided in favour of Mrs Donoghue. The leading opinion was by Lord Atkin, who articulated the now famous “neighbour principle” based on the New Testament parable of the Good Samaritan, and the lawyer’s question of “who is my neighbour” in that parable. Whilst that always gets quoted, for me the true ratio decidendi of the case comes at the end of Lord Atkin’s opinion. He says:
“a manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products is likely to result in injury to the consumers life or property owes a duty to the consumer to take that reasonable care.”
And here is where legal history could have been very, very different. The following may or may not be true, but how different would British law have been if it were true?
When Mrs Donoghue, a west of Scotland native, brought her original case before the Court of Session in Edinburgh she was asked what she had drank. She replied that she had taken a drink of ginger. As noted at the start of this post, that means any fizzy drink, if you come from the west of Scotland.
But the advocate was from Edinburgh. And in Edinburgh they don’t use “ginger” to mean any fizzy drink. So he assumed it was Mr Stevenson’s Ginger Beer.
Stevenson’s Ginger Beer, unlike his other carbonated drinks, came in an opaque bottle.
Let’s return to Lord Atkin’s opinion: “a manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination“.
If the bottle is opaque, there is no reasonable possibility of intermediate examination. But if the bottle is clear, as all other Stevenson’s drinks bottles were, then that possibility exists. If Mrs Donoghue had drank any other Stevenson drink, then her case would have failed Lord Atkin’s test, and consumer protection law and negligence would look very different in this country.
Moreover, the entire case hinged on a question of law: whether this duty of care existed. Once established, the case was settled out of court, so the facts of the case were never tested in court. We cannot know for certain if there ever was even a snail!
So there you go. A misunderstanding over dialect and a possible misidentification of product conspired to create one of the most important legal verdicts in history, and enshrined the principle of duty of care to all potential consumers in consumer protection law.
Stevenson went out of business as a drinks manufacturer, and he died a year after the verdict. Minchella’s cafe is no more. The fate of Mrs Donoghue is unknown.