The recent discovery of a dead bird in a bag of Tesco’s ready-to-eat baby leaf salad reminds me of a famous case from 1932 that all law students have to learn about and still holds strong today Donoghue v. Stevenson.
Whereas in the present case, James and Jasmine Watson were enjoying a candlelit dinner of steak ,chips and salad when they made the gruesome discovery of the bird, Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of Stevenson ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury and shock as a result. She commenced a claim against the manufacturer of the ginger beer and, after a lengthy battle,was successful. Indeed it went all the way to the House of Lords, and the case established the modern law of negligence and the neighbour test.
The case aroused so much attention because in most cases one would have brought a claim on the basis of a contract of sale between the seller and the consumer.However, Mrs Donoghue had no contractual relationship with the ice cream parlour as she had not purchased the ginger beer; and while her friend did have a contract due to placing the order, she had not suffered any injury. Moreover, neither had a contract with Stevenson, the manufacturer of the ginger beer. Mrs Donoghue was therefore required to claim damages for negligence. They studied the rule that “where anyone performs an operation, such as the manufacture of an article, a relationship of duty independent of contract may in certain circumstance arise, the extent of such duty in every case depending on the particular circumstances of the case“. It was argued that the ginger beer manufacturer owed a duty to take reasonable care in the manufacture of his ginger beer because the sealed bottles were opaque, and therefore could not be examined, and because the ginger beer was intended for human consumption.
And so emerged the neighbour principle: 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? According to Lord Atkin, 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. Maybe Tesco should take a leaf out of his Lord Atkin’s book with its washed and ready to eat salads…( Pardon the pun!)