Tort law / Negligence
In 1932 the House of Lords had to say whether a woman who said a snail was in her bottle of ginger beer could sue the maker. Donoghue v Stevenson decided, by three to two, that her claim could go forward. This page tells the case as a story, then follows how the law moved.
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On or about 26 August 1928, at about 8.50 in the evening, the pursuer, Donoghue, was in the Wellmeadow Café, Wellmeadow Place, Paisley, with a friend. The shop was occupied by Francis Minchella. The friend ordered ice cream for her, and ginger beer to go with it as an iced drink.
The ginger beer came in a bottle of dark opaque glass and was manufactured by the defender, Stevenson. She pleaded that a snail, unknown to her, her friend or Mr Minchella, was in the bottle in a state of decomposition, and that she suffered "shock and illness" and "severe gastro-enteritis".
None of that was ever proved. The House of Lords decided the case on the facts as she pleaded them. The Scottish Law Reports say it was decided as a question of relevancy, "taking the pursuer's averments pro veritate", that is, as true, and that whether there was a snail in the bottle was "never proven or disproven". Judgment was given on 26 May 1932. The action later settled, and was recorded as settled extrajudicially on 6 November 1934.
The Lord Ordinary allowed a proof, and the Second Division recalled it and dismissed the action. Five Lords heard the appeal: Lords Buckmaster, Atkin, Tomlin, Thankerton and Macmillan. The question was whether, taking the pursuer's averments as true, the law gave her a claim against the manufacturer.
The appeal was allowed by 3 to 2. Lords Atkin, Thankerton and Macmillan were in the majority, and Lords Buckmaster and Tomlin dissented.
Lord Atkin put the narrower holding this way: "a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care."
Lord Atkin said: "in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances."
The passage is at 1932 SC (HL) 31, pages 44 to 45.
"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, 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 in question."
Lord Atkin also said, in words Lord Bridge quoted in Caparo at page 616:
"To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials."
Seven cases, from 1883 to 2018. Open each stop to read what happened, what the court did and what it left open.
(1883) 11 QBD 503 (CA), 1883
The House of Lords in Donoghue described it as a case about an unsound staging on premises the plaintiffs were invited to enter.
Whether the court should lay down a larger principle for when one person owes another a duty of care.
Cotton LJ, with Bowen LJ agreeing, was "unwilling to concur with the Master of the Rolls in laying down unnecessarily the larger principle".
"whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises"
Brett MR, as quoted in Donoghue v Stevenson
Lord Atkin said of Brett MR's principle: "As framed, it was demonstrably too wide, although it appears to me, if properly limited, to be capable of affording a valuable practical guide."
(1883) 11 QBD 503 (CA), 1883
As the law currently stands in England and Wales, the approach is the one the Supreme Court explained in Robinson [ 2018] UKSC 4. Lord Reed said Caparo's point "was to repudiate the idea that there is a single test which can be applied in all cases" (paragraph 21). "It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles" (paragraph 27). "In the ordinary run of cases, courts consider what has been decided previously and follow the precedents" (paragraph 29).
In a novel case, Lord Bridge set out three ingredients in Caparo: "in addition to the foreseeability of damage", a relationship "characterised by the law as one of 'proximity' or 'neighbourhood'", and a situation in which the court "considers it fair, just and reasonable that the law should impose a duty of a given scope". He added that proximity and fairness "amount in effect to little more than convenient labels" (page 618).
Brennan J, quoted by Lord Bridge, preferred that "the law should develop novel categories of negligence incrementally and by analogy with established categories..." In Robinson Lord Mance said: "Outside any established category, the law will proceed incrementally, and all three stages of the Caparo analysis will be material." (paragraph 83).
On the police, Lord Reed said there is "no general rule that the police are not under any duty of care when discharging their function of preventing and investigating crime" (paragraph 69), but that "the police are not normally under a duty of care to protect individuals from a danger of injury which they have not themselves created" (paragraph 70).
On economic loss, the Supreme Court said in URS v BDW [ 2025] UKSC 21, paragraph 27, that the damage in a defective building is "not physical damage to the building but is rather the pure economic loss of having a defective building".
Glencar Exploration v Mayo County Council [ 2002] 1 IR 84 concerned gold prospecting licences in Mayo and a mining ban in the county development plan.
In Barlow v Minister for Communications, Marine and Natural Resources [ 2025] IESC 14, decided on 11 April 2025, Murray J said Glencar "has held sway for over two decades as the point of departure in this jurisdiction for the resolution of any case presenting a novel duty of care issue" (paragraph 139). He said it is "properly read as proposing an inquiry with three features": reasonably foreseeable loss, "sufficient proximity", and "whether it was just and reasonable to impose a duty of care" (paragraph 140).
"In this jurisdiction, Caparo as applied in Glencar continues to define the law" (paragraph 153). He also said: "The decision of Keane CJ. in Glencar should not be viewed as prescribing a 'test' to be rehearsed in all cases in which a duty of care is asserted and disputed." (paragraph 155(i)). The first reference point is "whether the existing case law provides a binding precedent" (paragraph 155(ii)).
In paragraph 143 Murray J refers to Whelan v Allied Irish Banks [ 2014] IESC 3, where O'Donnell J spoke against testing a duty against "some undefined concept of fairness in the particular case". In paragraph 142 he records that McMahon and Binchy "preferred incrementalism to broad theory".
House of Lords, 1932. [1932] AC 562
A pursuer said a snail was in her bottle of ginger beer. The House of Lords allowed her appeal by three to two.
House of Lords, 1970. [1970] AC 1004
The House of Lords held that the Home Office could owe a duty of care for damage done by escaping young offenders.
House of Lords, 1977. [1978] AC 728
Lord Wilberforce set out two stages for deciding whether a duty of care arises.
House of Lords, 1990. [1990] 2 AC 605
Auditors were held to owe no duty of care to a company that bought shares and took over Fidelity plc relying on the accounts.
House of Lords, 1991. [1991] 1 AC 398
Overruled Anns v Merton on a limited basis, as Robinson describes it.
Supreme Court, 2018. [2018] UKSC 4
A woman of seventy-six was knocked over by officers making an arrest, and the Chief Constable was held liable.
Supreme Court of Ireland, 2001. [2002] 1 IR 84
The Irish decision that Barlow, in 2025, calls the point of departure for a novel duty of care issue.
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A police force argues it owes no duty of care to a member of the public injured during an arrest. Build the strongest argument that a duty is owed.
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