Fundamental Errors in Donoghue v Stevenson, Lecture notes of Law

Download Fundamental Errors in Donoghue v Stevenson and more Lecture notes Law in PDF only on Docsity! FUNDAMENTAL ERRORS IN DONOGHUE V STEVENSON? Speech to the Friends of University of Western Australia, London, July 2014 I was asked to speak this evening (1) on a topic with which all lawyers will be familiar as well as many non-lawyers, (2) to offer a different perspective, (3) to keep the discussion reasonably light, and (4) to speak for about 45 minutes. I am delighted to speak and I am confident that I will achieve one of the four requests. I will let you judge which one I succeed upon, although I would point out that the time is now 7pm and I expect to invite questions at 7:44. I want to speak tonight on a decision that is commonly regarded as one of the greatest works of the person who is Australia's most famous legal export to England: Lord Atkin. The decision is Donoghue v Stevenson. 1 Lord Hope of Craighead once said of Donoghue that 'one might even say that the modern law of negligence was created by it'. 2 Lord Rodger of Earlsferry described it as 'probably the most famous case in the whole Commonwealth world of the Common Law'. 3 On 26 May 2012 it was the 80th birthday of Donoghue v Stevenson. The writers of many hundreds of journal articles, and books, 4 joined in a celebration of the decision. It has not always been so. 5 I hope that I will be forgiven for asking, at the introduction of this conference, whether this decision is really worth celebrating. I emphasise at the outset, however, that I do not suggest that there is, or should be, any doubt about the result of the case. In my view, it was, and is, appropriate that the law recognises liability where one person carelessly causes reasonably foreseeable loss to another caused by negligent infringement of another's bodily integrity. But, I will ask whether Lord Atkin made four fundamental errors in reaching this conclusion. These were errors in his reasoning, errors in his theology, errors in his understanding of the manner that the common law should be developed, and errors in his 1 Donoghue v Stevenson [1932] AC 562. For further background, see A Rodger (Lord Rodger of Earlsferry), ‘Mrs Donoghue and Alfenus Varus’ (1988) 41 Current Legal Problems 1, and ‘Lord Macmillan’s Speech in Donoghue v Stevenson’ (1992) 108 LQR 236. 2 D Hope 'James McGhee - A Second Mrs Donoghue' (2003) 62 CLJ 587, 587. 3 A Rodger (Lord Rodger of Earlsferry), ‘Mrs Donoghue and Alfenus Varus’ (1988) 41 Current Legal Problems 1, 2. 4 Most recently, M Chapman, The Snail and the Ginger Beer (2010). 5 J C Smith and P Burns 'Donoghue v Stevenson - The Not so Golden Anniversary' (1983) 46 MLR 147. conception of the structure of the law of torts. And all of this in a case where the appeal was from a jurisdiction, Scotland, with a different system of law, and where the facts probably never happened. Donoghue v Stevenson in summary I begin with the well known allegations of fact of the case. It was a warm evening by Scottish standards on Sunday 26 August 1928. At about 8.50pm a lady named May Donoghue went into a café with her friend. They chose a small table by the window. Mrs Donoghue's friend ordered a drink, popular in Scotland, called a pear and ice. Then, her friend was alleged to have committed an act of generosity that has haunted our law of tort ever since. She purchased for Mrs Donoghue an ice cream and a ginger beer. Had Mrs Donoghue purchased the ginger beer herself she would have had a perfectly good action for breach of contract against the retailer. The ginger beer came in an opaque glass with the name of the manufacturer, David Stevenson, on the side. Her friend poured part of her drink and Mrs Donoghue drank it. As her friend was proceeding to pour the remainder of the contents of the bottle into the tumbler, a snail, which was in a state of decomposition, floated out of the bottle. Mrs Donoghue subsequently contracted what her lawyers described as “severe gastro-enteritis”. Mrs Donoghue sued the manufacturer, Stevenson and Co. The manufacturer brought a plea of relevancy (similar to a demurrer) all the way up through the Scottish courts to the House of Lords. Mrs Donoghue lost in all the courts below the House of Lords. On 26 May 1932, the judges in the House of Lords delivered their decisions. By a majority of 3:2 they allowed Mrs Donoghue's appeal. Lord Atkin, Lord MacMillan and Lord Thankerton delivered speeches in the majority. Lord Buckmaster (with whom Lord Tomlin agreed) dissented. It is Lord Atkin's speech in the majority which has had a staggering historical influence. Lord Atkin had strong supporters. Lord Wright, for instance, wrote to Lord Atkin and said 6 I have been reading with admiration your magnificent and convincing judgment in the Snail case- also Macmillan’s which is 6 Letter from Lord Wright to Lord Atkin, 12 May 1932 quoted in G Lewis Lord Atkin (1983) 51. the book of Luke, and the parable of the Good Samaritan, was intended to contrast general legal liability for fault with morality. This common interpretation which casts the priest and Levite as morally blameworthy was described by the late Professor Geza Vermes, a leading biblical scholar at the University of Oxford as one which is as 'superficial as it is misleading'. 14 An alternative meaning is that the parable is not concerned with morality but with the notion of community. To appreciate this point several things about the parable of the Good Samaritan need to be appreciated. First, Luke introduces the parable by discussing an exchange between Jesus and a local expert in the law. The legal expert challenged Jesus to explain matters such as what is written in the law about how a person shall inherit eternal life. Jesus answers the question correctly, referring to the injunction in Leviticus to love your neighbour as yourself. The lawyer then attempts to justify his question by asking what is meant by 'neighbourhood'. Jesus' answer, and the parable, is concerned to explain the concept of neighbourhood. Secondly, the Samaritans were an extremely religious group who were not part of the general Jewish community. In contrast with the priest and the Levite, who would have been regarded as the leaders of their communities, the Samaritan was a foreigner. As Joseph Ratzinger said in his first book after his elevation, 'if the question had been "Is the Samaritan my neighbour, too?" the answer would have been a pretty clear-cut no'. 15 Thirdly, the story begins with an explanation that the man who was wounded had been going down from Jerusalem to Jericho. This again emphasises that he was not a member of the local community. The point of Jesus' parable was to show which of the three men was the neighbour of the man who was an outsider to the community. The answer was the Samaritan. Importantly, the story was not used to suggest that all three men were neighbours of the wounded man. Jesus' point was that none was in a relationship of neighbourhood. It was only the Samaritan who became a neighbour by creating the relationship of neighbourhood by his acts of kindness (treating him, taking him to the Inn, paying the Innkeeper). 14 G Vermes, The Authentic Gospels of Jesus (2004) 153. 15 J Ratzinger, Jesus of Nazareth (2008) 195. If this is correct, then Lord Atkin's use of the parable as a contrast with the concept of legal neighbourhood was inapt. The point of the parable was not, as Lord Atkin supposed, to suggest that each of the three men had a moral duty to assist the wounded man. Rather, it was to illustrate that neighbourhood was not limited to community but that it extended also to those with whom we interact and about whom our actions affect. There is an important difference. If the parable is one about the meaning of neighbourhood, and neither the Priest nor the Levite is a neighbour of the wounded man, then the point of the parable is not that we should love everyone we see but that we should love those with whom we interact. It was the Samaritan's actions of interacting with the wounded man that created his moral duty to love and care for the wounded man. Not only was Lord Atkin's understanding of the parable arguably flawed but even as an illustration of the nature of neighbourhood the parable was a poor example in 1932. Amartya Sen made this critique of the parable in The Idea of Justice. 16 He observed that the concept of community and neighbourhood is no longer restricted to the immediacy of those with whom we live or those who we assist when in need in front of us. We are all linked inter se by trade, commerce, music, literature, politics, news and so on. Our relationships of neighbourhood span the world and our actions can affect those all over the world. They are not limited to those with whom we interact physically. Was Lord Atkin's premise legally accurate? Although the use of the parable of the Good Samaritan may have been erroneous, I am content to proceed on Lord Atkin's assumption that it is morally blameworthy not to assist someone who can easily be assisted, although even this point has been disputed. As Professor Sen relays the story, John Sparrow, the former Warden of All Souls, Oxford, used to delight in asking audiences whether the priest and Levite had acted wrongly. Sparrow would reply, 'Of course they did', but then explain to his shocked audience that their wrong was crossing the road to get away from the wounded man. They should not have felt obliged to walk to the other side of the road. They should have walked straight past. 17 Unlike Sparrow, my previous point was not to question whether the priest and the Levite acted immorally by failing to assist. My point was that the parable was misunderstood. More fundamentally, and assuming Lord 16 A Sen, The Idea of Justice (2009) 171 - 172. 17 A Sen, The Idea of Justice (2009) 172. Atkin's view about the purpose of the parable as an illustration of immorality, I turn now to the question whether Lord Atkin's premise was legally accurate. Was Lord Atkin correct to say that '[t]he rule that you are to love your neighbour becomes in law, you must not injure your neighbour'? In contrasting his assertion of the moral blameworthiness of the priest and the Levite with the lack of legal liability, Lord Atkin spoke in the active tense of 'injuring'. He did not speak of causing to be injured. In other words, he was saying that the law does not impose liability for omissions however morally blameworthy they might be. My doubt concerns Lord Atkin's assertion that the law of civil wrongdoing is only concerned with a person's positive acts, not with his or her omissions. It is true that, generally, there is no liability for an omission. The most extreme hypothetical is the adult who stands by while a baby drowns in a pool of shallow water. 18 But some pure omissions have always been actionable as civil wrongs because the common law sometimes does recognise a duty of positive action. One obvious example is a duty to act that is created by the law of contract. Another is a duty to act undertaken by a trustee to a beneficiary who might be strangers or might not even be born. A further example is that it was both a civil wrong and a criminal offence for a person who professes a common calling to refuse to provide their service to a stranger. 19 The best known example was the innkeeper who is asked by a stranger with funds to provide available accommodation. But the innkeeper is not an isolated example. As A W B Simpson explained, the adjective 'common' was applied to hangmen, prostitutes, informers, sergeants, labourers, attorneys, innkeepers, carriers, and many others. It meant no more than available to or for the public generally. 20 The above examples all concern positive duties to act that are based upon undertakings by the person who owes the duty. But, in Australia, liability for omissions goes beyond those circumstances involving duties that have been positively undertaken. In Brodie v Singleton Shire Council, 21 the question concerned the liability of a local council for failing to maintain a bridge which collapsed when Mr Brodie drove his truck over it. In the majority, Gaudron, McHugh and Gummow JJ in a joint judgment, and 18 Stovin v Wise [1996] AC 923, 930–931 (Lord Nicholls). 19 See discussion in Stapley v Towing Masters Pty Ltd (trading as Dynamic Towing) [2009] NSWCA 382 [92]; Pozzi v Shipton (1838) 1 Per & Dav 4, 12 per Patteson J (arguendo, although the passage does not appear in the report at [1838] Eng R 205; 8 Ad & E 1106; 112 ER 1106); Belfast Ropework Co v Bushell at 212 per Bailhache J. 20 A W B Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (1987) 230. 21 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512. law of torts which focuses upon the protection of particular rights. That conception of the law of torts could easily have answered the problem in Donoghue v Stevenson. The way the decision could have been given is as follows below. There are powerful modern advocates for this structure, either generally 39 or in relation to areas such as torts involving interferences with chattels. 40 Lord Atkin could have explained that in many cases a defendant will be liable if he or she intentionally interferes with a right of the claimant, intending to commit the act. In other words, a plaintiff would need to show (1) an existing right; and (2) an intentional interference with that right. Thus, (a) if a defendant strikes a plaintiff, intending to make contact with the plaintiff he will be liable for battery. The plaintiff's rights to bodily integrity have been intentionally violated. (b) If a defendant interferes with a plaintiff's goods, intending to act in relation to the goods, he commits the tort of conversion. The plaintiff's rights to his goods have been intentionally violated. (c) If the defendant locks the plaintiff in a room, intending to lock the door, he commits an act of false imprisonment. The plaintiff's rights to liberty have been intentionally violated. And so on. The focus of all these torts is an intention of the defendant and a violation of a particular right of the plaintiff. Lord Atkin could then have said that a defendant can also be liable for the violation of a right of the plaintiff if the defendant acts negligently. Thus: (d) if a defendant strikes a plaintiff, not intending to make contact with the plaintiff but acting carelessly he will be liable for battery. The plaintiff's rights to bodily integrity have been carelessly violated. useful reference but we hold that this is an unscientific way of treating the law of torts’: Anon (1886- 1887) 12 Law Mag & L Rev 5th Ser 270, 275, 277. 38 P Winfield, The Province of the Law of Tort (1931), 32-39. 39 R Stevens, Torts and Rights (2007). 40 S Douglas, Liability for Wrongful Interferences with Chattels (2011). (e) If a defendant interferes with a plaintiff's goods, not intending to act in relation to the goods but doing so carelessly then he commits the tort of conversion. The plaintiff's rights to his goods have been carelessly violated. (f) If the defendant locks the plaintiff in a room, not intending to lock the door, but acting carelessly he commits an act of false imprisonment. The plaintiff's rights to liberty have been carelessly violated. And so on. The answer to Donoghue v Stevenson would have been easy: a defendant who negligently interferes with the plaintiff's right to bodily integrity where there is a foreseeable risk of injury will be liable for battery. This path was not taken by Lord Atkin. Lord Atkin did not focus at all upon the rights of the plaintiff. Instead he focused only on the fault of the defendant. The Atkinian conception of the law of torts as focused upon fault was, I should admit, supported by the vision of great jurists such as Oliver Wendell Holmes, 41 Arthur Goodhart, 42 and John Salmond. 43 It was also the conception of the law of torts in Article 1382 of the French Code Civil. There are powerful modern advocates for this view. 44 It was a view that very nearly prevailed. Its apogee was the decision of Lord Wilberforce in the House of Lords in Anns v Merton London Borough Council. 45 Lord Keith later described this decision as 'judicial legislation'. 46 In it Lord Wilberforce relied on Donoghue v Stevenson, to create a prima facie liability for negligence. Lord Wilberforce said: 47 … the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as 41 Anon, ‘The Theory of Torts’ (1872) 7 Am L Rev 652. Although the article is not signed, as Vandevelde has observed much of the language in the article appears in O W Holmes The Common Law (1889): K Vandevelde ‘A History of the Prima Facie Tort: The Origins of a General Theory of Intentional Tort (1990) 19 Hoftstra L Rev 447. Holmes’ biographer also attributes the article to Holmes: M Howe Justice Oliver Wendell Holmes The Proving Years 1870-1882 (1963), 184. 42 J Salmond, Torts (2 nd edn 1910), 8-9. 43 A Goodhart, ‘The Foundations of Tortious Liability’ (1938) 2 MLR 1. 44 Particularly E Descheemaeker, The Division of Wrongs: A Historical Comparative Study (2009). 45 Anns v Merton London Borough Council [1978] AC 728. 46 Murphy v Brentwood District Council [1991] 1 AC 398, 471. 47 Anns v Merton London Borough Council [1978] AC 728, 751-752. between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter-in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise...." This broad approach did not prevail either. Our law of torts became bifurcated. Some torts focus upon particular rights of a plaintiff which have been infringed. Other torts, most particularly negligence, focus upon the fault of the defendant. In the latter group there are then many difficult value judgments required to determine the boundaries of such liability for fault, particularly in cases where economic loss is caused to a plaintiff but no particular right is infringed. In seeking to impose on the law of torts a general model of fault, as we see in French law, Lord Atkin undeniably failed. We still have many, many torts in our law which are based on strict liability protection of rights. Trespass to land, trespass to chattels, conversion, detinue, false imprisonment, libel, slander, and so on. These torts protect the particular rights we have. They are not based around an Atkinian notion of fault. As many writers have observed, this bifurcated nature of the law of torts has created difficulty in the cross-cutting or overlap with torts which allow liability based on infringements of particular rights which we have. Consider the English case of Spring v Guardian Assurance plc . 48 In that case, a reference was negligently written by an employer which caused loss to the employee by damaging his future employment possibilities. A claim for defamation would have been met by a defence of qualified privilege which meant that the employer could not be liable in the absence of proof of malice. 49 The employee realised that he could not claim for infringement to his rights to reputation. So the employee sued for negligence. He succeeded, in the teeth of arguments that the generalised claim for negligence would undermine the defence of qualified privilege. In direct opposition to this, Lord Phillips, subsequently remarked in the Court of Appeal in D v East Berkshire NHS 48 Spring v Guardian Assurance plc [1995] 2 AC 296. 49 Spring v Guardian Assurance plc [1995] 2 AC 296, 346. system or science'. 58 This careful approach contrasts with the sweeping dicta of Lord Atkin. It is also helpful to contrast the approach of Lord Buckmaster with that of Lord Atkin as a study of judicial method. In Donoghue v Stevenson, the two Chancery lawyers in the House of Lords had dissented. Lord Buckmaster was the leader of those dissentients. Lord Denning famously caricatured Lord Buckmaster as a 'timorous soul' in contrast to Lord Atkin's 'bold spirit'. 59 And Frederick Pollock suggested that Lord Buckmaster had forgotten that he was judging in a court of last resort. 60 But Lord Buckmaster was not this timorous, reluctant, hesitant judge that he is painted to be. Lord Macmillan, whom Buckmaster led on occasion at the bar, described Buckmaster as a man who 'possessed the most relevant and cogent powers of exposition and argument that I have ever known'. 61 He had been Solicitor-General, and Lord Chancellor. Lord Dunedin explained that although he did not have any sympathy with Buckmaster's 'sentimental' politics, he considered that as a lawyer Buckmaster was 'one of the most learned, one of the most acute, and the fairest judge I ever sat with'. 62 Lord Buckmaster was also the most experienced of the judges who sat on the case. Each of the others had sat on the bench for fewer than 5 years. Lord Atkin had leapfrogged his former pupilmaster (who had become Scrutton LJ) to become a peer in 1928, effectively ending Scutton's prospects of future advancement. 63 Perhaps the reason why Lord Atkin's reasoning in Donoghue v Stevenson emerged unscathed from Lord Buckmaster's dissent was the use of sarcasm by Lord Buckmaster to very poor effect. Lord Buckmaster (with whom Lord Tomlin said he agreed with every word) said that if Mrs Donoghue were allowed to succeed, then a builder would also be liable if the builder negligently built a house that collapsed and injured or killed the occupants. Lord Buckmaster asked 'How could a builder possibly be liable in such circumstances?': 64 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 58 Lord Wright, 'The Study of Law' (1938) 54 Law Quarterly Review 185, 186. 59 Candler v Crane, Christmas & Co [1951] 2 KB 164, 178. 60 F Pollock, 'The Snail in the Bottle and Thereafter' (1933) 49 LQR 22, 22. 61 Lord Macmillan, A Man of Law's Tale (1951) 119. 62 See W Goodhart, 'Buckmaster, Stanley Owen, first Viscount Buckmaster (1861-1934)' Oxford Dictionary of National Biography (2004 online edition). 63 See the excellent discussion in D Foxton, The Life of Thomas E Scrutton (2013) esp 297 – 299. 64 Donoghue v Stevenson [1932] AC 562, 577 – 578. apply to the construction of a house. If one step, why not fifty? Yet if a house be, as it sometimes is, negligently built, and in consequence of that negligence the ceiling falls and injures the occupier or any one 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. Did the facts really occur? Mrs Donoghue's case was brought as a plea of relevancy, the Scots equivalent of a demurrer. After the decision of the House of Lords, the case was set down for a Proof (of the facts). The Proof was to be held on 10 January 1933. But Mr Stevenson died before the Proof. A motion was brought to discharge the Proof by reason of Mr Stevenson's death. The Proof was discharged. The matter did not come back before the Court of Session until 6 December 1934. On that date it was only to approve a settlement. 65 His estate had allegedly settled the claim for £100 (adjusted for inflation, in today's terms around £6,000). In 1942 Lord Justice Mackinnon told the Holdsworth Club that he had heard from senior counsel for Stevenson that there was no snail at all and that the case had been litigated as a test case. There is a very real likelihood that this was the case. Mrs Donoghue was a pauper. Her Glasgow solicitor, Walter Leechman, acted pro bono. Mr Leechman had acted pro bono previously against a soft drink manufacturer. In that earlier case, Mr Leechman alleged that his clients, two children, had found the body of a decomposed mouse in their ginger beer. 66 The two children suffered injury which Lord Hunter described as 'so slight that the Pursuer might well have been advised to leave the litigation alone'. 67 Just how the mouse managed to squeeze through the narrow entrance of the ginger beer bottle was never explained. Nor was it explained how the mouse had the speed to dive into the bottle of ginger beer, through the narrow entrance, between the time the liquid was inserted and the time when the top was fastened on the bottle. In the Inner Court of Session, Lord Anderson described the odds of the mouse getting into the ginger beer as 'many millions to one'. 65 See D Ashton-Cross, 'Donoghue v Stevenson' (1955) 71 LQR 472, 472. 66 Mullen v A G Barr & Co Ltd; M'Gowan v A G Barr & Co Ltd [1929] ScotCS CSIH 3; [1929] SC 461. 67 Mullen v A G Barr & Co Ltd ; M'Gowan v A G Barr & Co Ltd 1929] ScotCS CSIH 3; [1929] SC 461. Despite these odds of many millions to one, there was another woman, also in Glasgow, called Mrs M'Gowan who allegedly also found a mouse in her ginger beer. By another coincidence she also engaged Mr Leechman to act for her. These coincidences may have been a matter of concern to their Lordships. Although they held that no duty of care was owed and that was enough to dispose of the case, Lord Hunter nevertheless remarked that he 'saw no reason to think that the two cases had their origin in a conspiracy to extract money from the defenders'. Shortly after these cases were decided against his clients, Mr Leechman then brought Mrs Donoghue's case. Instead of a sizeable mouse, Mr Leechman now pleaded that it was the body of a slippery snail which had been found by Mrs Donoghue. For her gastro-enteritis, Mrs Donoghue claimed damages of ₤500. In today's money that is about ₤25,000. Conclusion One of the first lectures I ever received in Law School was from Professor John Phillips who was then Dean of Law and a lecturer in contract at the University of Western Australia. It is a great pleasure to see John here this evening because he was an inspirational teacher, and later colleague. His lecture was about the importance of reading for a degree, the need for an open mind and, consistently with the motto on UWA's coat of arms, the seeking of wisdom. The need to question, to challenge, and to debate, lies at the core of every great University. As alumni and friends of the UWA law school we are all affected by this legacy. Consistently with this mantra, the purpose of my lecture tonight was to question existing understanding of one of our most well known cases. Two years ago, a conference was held in Paisley to celebrate Donoghue v Stevenson as one of the most famous common law decisions in history. 68 A group of the most learned torts scholars from around the world, which included Professor Peter Handford from the University of Western Australia, carefully debated the reception and decision in Donoghue. The decision, particularly that of Lord Atkin, generally met with great praise. But when we consider the decision closely we might ask whether Lord Atkin was wrong in law, wrong in theology, wrong in the manner that the common law should be developed, and wrong in his conception of the 68 Proceedings published as a special edition of the Juridical Review: Donoghue v Stevenson: The Paisley Papers (2013).