Mr Donoghue Case

FACTS

On August 26, 1928, Mrs. May Donoghue, a shop assistant of very small means and a single parent, traveled from her brother’s house in Glasgow, Scotland to the small settlement of Paisley, nearby, to enjoy drinks with a friend. Mrs. Donoghue and her friend met at a shop bearing the sign ‘Real Italian Ice Cream Saloon’, (the so-called ‘Well meadow Café’), owned and operated by Francis Minghella, and located at Well meadow Street, Paisley. It is said that at in the region of 8:50 p.m., Mrs. Donoghue’s friend ordered and paid for their refreshments; ice cream and ginger beer for Mrs. Donoghue, and a ‘pear and ice’ for herself. Apparently the ‘float’ was served unassembled; that is, the ice cream was served in a glass and the ginger

Donoghue had a tricky legal problem. She could not effectively sue the café owner, Mr. Minghella (although she in fact tried to), either in contract or in tort. In the first instance, she had no agreement with Mr. Minghella, under which he could be said to have assured the ginger beer fit for consumption, Mrs. Donoghue’s mysterious friend having ordered and paid for the refreshments. Minghella poured the first ginger beer. But this is not relevant to the outcome in any way. In the second instance, she could not claim negligence on the part of Minghella because clearly he had neither don nor failed to do anything that could be construed as neglectful. The bottle of ginger beer came to him sealed with the clear intent that it remains that way until sold to the customer. Moreover, the obscurity of the bottle prevented Mr. Minghella from inspecting the contents for contaminants prior to the delivery to the customer. Mrs. Donoghue’s only probable recourse was to tackle the one player remaining on the field, David Stevenson, manufacturer of the ginger beer. Unluckily for Mrs. Donoghue, in 1928 neither the Scottish civil law nor the English common law as they were applied to the tort of negligence had yet progressed to the point of establishing and stating as a matter of general principle, that geographically, a duty of care would be owed by one person remote from another not to cause harm to that other person. Judges relied on model, and the absence of a general

It is important to remember that the debated and the subsequent decision of Lord Moncrieff in favour of Mrs. Donoghue were on the point of law: “Was there a duty of care owed, Stevenson to Donoghue?” This narrow question was set withing the framework of the larger objection that the claim contained in Mrs. Donoghue’s writ disclosed no cause of action. Lord Moncrieff dismissed Mr. Stevenson’s motion. Had Mr. Stevenson chosen not to appeal Lord Moncrieff’s ruling, but instead to take his chances on a trial of the issues of fact, Donoghue v. Stevenson might have remained an unclear Scottish case, perhaps useful only to demonstrate that it is difficult for a plaintiff to prove she found a snail in her ginger beer if she cannot produce the snail at trial. At this stage, it appears that Mr. Stevenson went against the advice of his lawyers and instructed them to appeal the decision of the Lord Ordinary, rather that proceed to a trial on the issues of fact. Predictably, the Second Division ruled in favour of Mr. Stevenson,. Having lost in the Second Division, Mrs.