The Snail and the Ginger Beer

# *%( * 9# %*"5 5 # %*":(5 6 ,! ,*,"#: 9;*6,* 99#< #-)* %(>%)),*6 %(( :(%6#%*" The Snail and the Ginger Beer The Singular Case of Donoghue Stevenson Matthew Chapman WILDY, SIMMONDS & HILL PUBLISHING Copyright © 2010 Wildy, Simmonds & Hill Publishing The Snail and the Ginger Beer: The Singular Case of Donoghue v Stevenson The right of Matthew Chapman to be identified as the author of this Work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988 ISBN 9780854900497 First published in Great Britain 2010 by Wildy, Simmonds & Hill Publishing Website: www.wildy.com All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher. British Library Cataloguing‐in‐Publication Data: A catalogue record for this book is available from The British Library First published in 2010 by Wildy, Simmonds & Hill Publishing 58 Carey Street, London WC2A 2JB England ¢ ¢ ǰ ǰ For Benjamin, Matthew and Poppy &217(176 /LVW RI ,OOXVWUDWLRQV vi 1RWHV DQG $FNQRZOHGJHPHQWV vii 3URORJXH ix 1. Mrs Donoghue Travels to Paisley 1 2. Into the Scottish Courts 16 3. In the House of Lords 32 4. A Legal Cast List: Judges and Lawyers 55 5. Roots of the Neighbour Principle 79 6. Home Reaction 116 7. Into the Common Law World 142 8. Conclusion 170 6HOHFWHG %LEOLRJUDSK\ 178 ,QGH[ 183 /,67 2) ,//8675$7,216 Baron Atkin of Aberdovey (1867 – 1944) By permission of the Treasurer and the Masters of the Bench of the Honourable Society of Gray’s Inn. Viscount Buckmaster (1861 – 1934) By permission of the National Portrait Gallery. Baron Macmillan of Aberfeldy (1873 – 1952) By permission of the National Portrait Gallery. Wellmeadow Street, Paisley in the early 1900s. By permission of the Paisley Museum and Art Gallery. Wellmeadow Street, Paisley in the early 1900s. By permission of the Paisley Museum and Art Gallery. Mrs May Donoghue holding her twin granddaughters in June 1952. By permission of Margaret (Maggie) Tomlin Extract from 3DLVOH\ 'DLO\ ([SUHVV, 31 August 1988. By permission of the 3DLVOH\ 'DLO\ ([SUHVV. 'RQRJKXH Y 6WHYHQVRQ Memorial Park and Garden: August 2008. Author’s collection 'RQRJKXH Y 6WHYHQVRQ Memorial Tablet: August 2008 Author’s collection vi 127(6 $1' $&.12:/('*(0(176 This book could not have been written without the assistance of a large number of other people. I am grateful to the librarians at the Parliamentary archive for their assistance in my use of the Appeal papers in 'RQRJKXH Y 6WHYHQVRQ. I would also like to thank Andrew Mussell, the Archivist at Gray’s Inn, for arranging access to Lord Atkin’s papers and for permitting me to see again the magnificent portrait which hangs in the Hall of the Inn (and which now graces this book – for which I am grateful to the Treasurer and Masters of the Bench of the Inn). Emma Butterfield at the National Portrait Gallery archive was very helpful and efficient in arranging reproduction rights for the portraits of Lords Buckmaster and Macmillan which also appear in this book. David Roberts at the Paisley Museum and Art Gallery was tolerant of my repeated requests for assistance with the photographic archive held by the Museum. I am very grateful to the helpful librarians at the Institute of Advanced Legal Studies who patiently and uncomplainingly responded to many requests to collect material from the closed basement of the library. Faber & Faber Ltd and the literary executors of Ted Hughes and Philip Larkin kindly gave permission for the quotations with which the Prologue and Chapter 3 commence. Finally, I am particularly grateful to Margaret (Maggie) Tomlin. Ms Tomlin, who now lives in Dorset, is Mrs Donoghue’s granddaughter and was kind enough to permit me to reproduce the photograph of her grandmother which appears in these pages. The photograph was originally located by Ms Tomlin’s cousin, Lynne McAllister Donoghue, and so I record my thanks to her as well. Nicholas Mercer kindly agreed to read a large section of the unfinished manuscript and made a number of helpful editorial and other corrections. I would also like to express my gratitude to Andrew Riddoch and to Wildy, Simmonds & Hill Publishing who provided the opportunity to write on this subject. Finally, I should thank the late Professor RFV Heuston who, as I hope this book makes clear, vii first fired my interest in this subject and my parents whose home on the south coast provided a quiet place to complete the final chapters. I have, throughout this book, used the present English/Welsh procedural terms ‘claimant’ and ‘defendant’ to refer to the parties to litigation. I am well aware that this will grate horribly for any readers north of the border (and, perhaps, for those who pre-date the Civil Procedure Rules), but seemed to me, for reasons of consistency, preferable to the interchangeable use of ‘pursuer’, ‘plaintiff’ and ‘defender’. I should make it clear that, in spite of the assistance which is acknowledged in these notes, any errors in the material which follows are all my own work. Matthew Chapman 1 Chancery Lane 20 August 2009 viii 352/2*8( ‘The Cabbage murmurs: “I feel something’s wrong!” The Snail says: “Shhh! I am God’s tongue.” The Rose shrieks out: “What’s this? Oh, what’s this?” The Snail says: “Shhh! I am God’s kiss.”’ Ted Hughes, ‘Snail’ from &ROOHFWHG $QLPDO 3RHPV here are only four cases you need to know in order to pass your torts exam’. This was, it had to be admitted, a ‘Tgood start. More than a hundred undergraduates craned forward in the crowded lecture theatre. On the rostrum stood our guest lecturer: RFV Heuston (some time Regius Professor of Laws at Trinity College, Dublin, Professor of Legal Science at Cambridge, Fellow of Pembroke College, Oxford and bencher of the King’s Inns and Gray’s Inn). The students were, for the most part, 18 and 19 year olds. Professor Heuston was approaching his seventh decade, but, in his pin-striped three piece suit, seemed even older. He was, however, sufficiently attuned to the thought processes of the average undergraduate to know that what we wanted to hear was how we could pass our exams with the minimum of conscious effort. Decades of lecturing had equipped him with the tricks needed to grab an 18 year old’s attention. I can now remember only two of the cases to which Heuston referred, although I could probably make an educated guess at the other two. I remember $QQV Y 0HUWRQ /RQGRQ %RURXJK &RXQFLO1 The other case was, of course, what I shall call, and what Professor Heuston referred to as, 'RQRJKXH Y 6WHYHQVRQ.2 1 [1978] AC 728. 2 [1932] AC 562 (HL(Sc)). ix Heuston went on to tell us the story of 'RQRJKXH Y 6WHYHQVRQ. How, on anAugust evening in 1928, May Donoghue, a shop assistant, entered the Wellmeadow café in Paisley, Scotland. She was with a friend who ordered an ice cream and a ginger beer; Mrs Donoghue wanted to make an ice cream float. The proprietor of the café poured some of the ginger beer into a glass containing the ice cream. Mrs Donoghue drank some of the float. Her friend poured out the remainder of the ginger beer. Along with the drink, a decomposed snail tumbled into the glass. May Donoghue claimed that she suffered nervous shock and severe gastro-enteritis as a result of drinking an ice cream float with a snail unexpectedly swimming in it. She could not sue the café proprietor. Her friend had ordered and paid for the drink and Mrs Donoghue therefore had no contract with the café. Instead, she sued the manufacturer of the ginger beer. She alleged that the manufacturer had been negligent because its manufacturing processes had enabled the snail to enter the bottle and had not detected the snail once it was there. The question whether Mrs Donoghue had, in law, a claim against the manufacturer went from the Scottish Court of Session to the House of Lords. The House of Lords’ decision made legal history. There is not a corner of the common law world that has not been touched by it. As our tutors were later keen to emphasise, Professor Heuston was wrong to tell us that we only needed to know four cases to pass the exam, but the lecture that he delivered after his arresting opening line was lively, learned and, in the best sense, gossipy. His lecturing style was eccentric. He recited the lines that he wanted us to write down at dictation speed, but punctuated these staccato bursts of seriousness with lengthy digressions that were rich in anecdote and enlivened with biographical sketches. Each digression was introduced with the word, ‘Commentary’: a signal that we could put down our pens and listen (something that we were unaccustomed to doing in torts lectures). He repeatedly emphasised the significance of 'RQRJKXH Y 6WHYHQVRQ having been decided by a ‘Scottish House of Lords’. While researching this book I discovered that Professor Heuston had, in some lecture notes, referred to Lord Atkin as the leader of ‘the celtic x majority’ in the House of Lords:3 perhaps a source of pan-celtic pride to the Irish Professor. He produced, like a holy relic, a photograph of a ginger beer bottle similar to that purchased by Mrs Donoghue’s friend.

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