Last edited 07 Jun 2013

Donoghue v Stevenson

The tort of negligence is concerned with breach of a duty to take care. In order to succeed in an action for negligence, a plaintiff must prove:

  • The defendant owed to the plaintiff a legal duty of care, and,
  • The defendant was in breach of that duty, and,
  • The plaintiff has suffered damage as a result of that breach.

The legal duty of care referred to is one that arises independently of a contractual obligation and, indeed, in the absence of contract. Over many years, the courts have produced a long series of decisions to assist in deciding whether or not, on particular facts, a duty of care arises.

The modern law of negligence really begins in 1932 when the famous decision in Donoghue v. Stevenson reached the House of Lords. A young lady was bought a bottle of ginger beer by a friend. She had drunk some of the ginger beer, which was in an opaque bottle, before she discovered that
there was a decomposing snail in the bottle. It was alleged that she became ill as a result. There was no question in this case of the friend bringing an action in contract under the Sale of Goods Act against the retailer from whom the ginger beer had been purchased because the friend had not suffered any damage. The young lady could not sue the retailer because she had no contract herself with him.

It was in this way that the House of Lords came to be asked whether the young lady had a cause of action in negligence against the manufacturer. They held by a majority that a manufacturer who sold products in such a form that they were likely to reach the ultimate consumer in the state in which they left the manufacturer with no possibility of intermediate examination, owed a duty to the consumer to take reasonable care to prevent injury, Some understanding of the radical development in English law that this case represented can be gained from the dissenting judgment of Lord Buckmaster, who did not agree with the majority in the House of Lords:

'There can be no special duty attaching to the manufacturer of food apart from that implied by contract or imposed by statute. If such a duty exists, it seems to me it must cover the construction of every article, and I cannot see any reason why it should not apply to the construction of a house. If one step, then why not fifty? If a house be, as it sometimes is, negligently built and in consequence of that negligence the ceiling falls and injures the occupier or anyone else, no action against the builder exists according to the English law, although I believe such a right did exist according to the Laws of Babylon’

Little did Lord Buckmaster, in his dissenting judgment, appreciate how the Donoghue case would be the basis for a rapid expansion of the law of tort in negligence over the following 56 years, along the very lines that he robustly refused to contemplate in his judgment. However, his view did not prevail in 1932; in the same case, Lord Atkin formulated a principle so as to test whether a duty of care exists:

'The liability for negligence whether you style it such or treat it, as in other systems, a species of culpa is no doubt based upon a general public sentiment of moral wrong doing for which the offender must pay. But acts or omissions which any moral code would sensor 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 complaints 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 then is my neighbour?" receives a restrictive reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, 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 into question.'

The law in this respect remained fairly static until the early 1960s; through the 1960s and 1970s there was rapid development of the law of negligence, in particular in construction cases.

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