Duty of Care – The Snail Case

It is often assumed – wrongly – that damages can only be claimed where one person deliberately intends to harm the other. However, under Scots Law, damages may be payable in relation to careless conduct where one person caused harm to the other unintentionally . This raises the question of what exactly is the standard or duty of care owed by one person to another?

It is generally accepted under Scots Law that a person is only liable in damages to another for careless conduct if he has owed a duty of care to the other person in the first place. The famous court case of Donoghue v Stevenson sets out the basic criteria under Scots Law in determining whether a duty of case exists. Although this case was decided in 1932 it is still regarded as the foundation stone in this important area of the law.

The Donoghue case involved Mrs Donoghue visiting the Wellmeadow Café in Paisley along with a friend. They both decided to have iced drinks (lemonade poured over ice-cream). Mrs Donoghue’s friend also bought a bottle of ginger beer with her ice-cream. She poured some of the ginger beer over Mrs Donoghue’s ice-cream and out of the bottle popped the decomposing remains of a snail . Mrs Donoghue became unwell at the sight of the snail and the consumption of the iced drink and she subsequently sued the manufacturer of the ginger beer, Stevenson.

In the Donoghue case, the courts had to consider whether the manufacturer, Stevenson, was liable to Mrs Donoghue even if it could be proved that Stevenson had been careless in producing a bottle of ginger beer containing a decomposed snail. It should be remembered that the bottle of ginger had been purchased by Mrs Donoghue’s friend from the owner of the Wellmeadow Café, Mr Minchella. Mrs Donoghue’s friend had not purchased the bottle directly from the manufacturer, Stevenson .

The House of Lords held that Mrs Donoghue was entitled to sue the manufacturer , Stevenson, because he owned a duty of care to Mrs Donoghue. The court decided that the manufacturer owed a duty to the consumer to take reasonable care in the preparation of the product, in this case, the ginger beer. This case is therefore the authority for the rule of Scots law that the manufacturer of products, such as food or drink – which is intended to be available to the public for consumption without the opportunity of being interfered with before use – owes a duty of care to the consumer to prevent him or her suffering injury as a result of the manufacturer’s carelessness when manufacturing a product.

The Donoghue case has been interpreted widely and is now authority for the principle that the manufacturer of any product owes a duty of care to the ultimate consumer not to cause injury as a result of any latent defect in the produce which could not be discovered by inspection before use. If the manufacturer breaches this duty, and injury is caused to the consumer or his or her property is damaged, then the manufacturer is liable to pay compensation for the harm suffered and reasonable losses sustained by the consumer.

It should be noted that the duty of care only extends to “latent defects” , i.e. defects which are not immediately obvious. If the defect is obvious to the consumer, but the consumer chooses to ignore this, then the manufacturer may not be liable to pay compensation. In the Donoghue case, the glass bottle of ginger beer was opaque and it was not possible to see the snail inside the bottle.

The traditional approach in Scotland involving duty of care cases has always been to apply the test laid down in the Donoghue case and the case was something of a milestone in the development of the law of delict.