The snail that changed the world

IT IS a well-worn observation that the law often moves at a snail’s pace, trailing behind changes in society. Next month there will be a celebration in Paisley marking the 80th anniversary of the House of Lords decision in the case of Donoghue v Stevenson in which, it is asserted, the mortal remains of a snail led to the development of a new concept of consumer law.

Over 25-26 May, the University of the West of Scotland, Renfrewshire Law Centre, the Law Society of Scotland and the Faculty of Advocates will collectively host a conference, a parade, a dinner – and a performance of the Donoghue v Stevenson Operetta.

Speakers will be flying in from around the world to re-examine the legal legacy of the day in August 1928 when May Donoghue, a shop assistant from Glasgow, and an unnamed friend went into the Wellmeadow Café in Paisley. The friend bought May a bottle of ginger beer. Some was poured over an ice-cream float which May started to eat. When the friend emptied the remainder from the bottle into May’s glass, along with the ginger beer out slid the decomposing remains of a snail. It could have been a slug. No forensic examination was conducted.

May was later unwell and eventually was directed to Glasgow solicitor Walter Leechman, who raised an action for £500 damages against David Stevenson, proprietor of the aerated water company that had manufactured the bottled drink. Leechman’s legal team offered its services for nothing as he argued that the manufacturer and bottler had a duty of care to the end consumer. The law as it stood recognised only defined contractual relationships. In this case, May Donoghue hadn’t bought the drink and the friend who did was not ill.

Leechman had previously been some way down the path of attempting to establish a broader concept of ‘duty of care’, having been defeated in the Court of Session in Mullen v A G Barr and Company Ltd. In that case, the evidence comprised a dead mouse in a bottle of ginger beer.

In fact, lest Scottish self-congratulation get out of hand, the Donoghue case was also defeated on appeal in the Court of Session. It is the decision in 1932 of the House of Lords that is to be celebrated next month, although two of the three judges who found in her favour were Scots – Lords Thankerton and Macmillan, both former lord advocates. It was a narrow 3-2 majority, but a win is a win. May Donoghue eventually settled out of court for £200.

The leading judgment by Lord Atkin is often cited as basing the broader duty of care on the biblical concept of loving one’s neighbour. There is a revisionist view that Lord Atkin, given to literary flourishes in his judgments, did not intend the decision to be quite as epoch-making as it later became, but there has been no chance since of squeezing the snail back into the bottle.

In fact, the publicity for next month’s celebration describes Donoghue v Stevenson as “the most famous case of all time”. As modern perceptions of ‘claims and descriptions’ can probably also be traced to the obligations rooted in Donoghue v Stevenson, it seemed only fair to test the assertion among some leading legal brains around the world.

Donoghue v Stevenson is one of the cases explained in the permanent exhibition space within the UK Supreme Court to illustrate its “relevance to everyday life”, along with Airedale NHS Trust v Bland, 1993 (the case of Tony Bland, crushed at Hillsborough, which led to a debate on removing life-prolonging treatment for patients in a persistent vegetative state) and Thorner v Majors, 2009 (relating to ‘proprietary estoppel’ and the perceived inheritance rights, in this case of a Somerset farmer).

A Supreme Court spokesman says that “Donoghue is an example that younger students seem to particularly enjoy”, while Supreme Court Judge Lord Wilson says: “I studied the law of tort at Oxford as long ago as 1964. The first case my tutor made me read was Donoghue v Stevenson. I have never forgotten the facts. Who could?

“Before the decision of the House of Lords the law’s answer to Miss Donoghue’s claim against the manufacturer of the ginger beer, Mr Stevenson, would have been: ‘sorry, since your contract was not with Mr Stevenson, you have no claim against him’. But the House of Lords said: ‘yes, although you had no contract with Mr Stevenson, he owed you a duty of care’. This was about the most important development in our law of negligence that has ever occurred. Does the café still exist? I feel like making a pilgrimage to it.”

Alas, the Wellmeadow Café has not survived to take its part in the 80th anniversary celebrations but, according to organiser Joe Bryce, a plaque nearby has been specially reinstated for the event.

US Supreme Court Justice Stephen Breyer acknowledges that the ‘snail in the ginger beer’ is very famous: “It is well-known to every first-year law student, though under different guises (mouse in the cola bottle, ant in the teapot etc) to illustrate the principle of reasonable foreseeability.

“However, my contender for the most famous case of all time is that of the two women appearing before King Solomon, each claiming to be the mother of the same baby and he awarding it to the woman who rejected the ‘cut-the-baby-in-half’ solution.”

Albie Sachs, retired from the South African Constitutional Court, also remembers being introduced to the Paisley snail as a student. “The profs loved it, the quaint and quintessential common law conundrum, the purest form of judge-made law. In apartheid South Africa, the issues raised were deliciously remote, an escape to a world of juridical fantasy far removed from the cruel dilemmas facing lawyers in a country where law itself was an instrument of cruelty and injustice. In our dour and deadly environment, we needed at least a moment of intellectual fun and curiosity, and so were grateful to Donoghue and Stevenson for furnishing the most famous trivial case in the world.

“But the most famous case of all time? I would choose the US Civil Rights case of Brown v Board of Education.”

Lord Falconer, former Lord Chancellor, says: “The most famous cases tend to be those associated with the greatest injustices – like the Rivonia trial of Nelson Mandela and his co-defendents in South Africa. The most important tend not to be so famous. They don’t have much ‘crossover’ potential, as they say in pop music circles. If you ask law students they will all know about Donoghue v Stevenson. Ask anybody else and I suspect you’ll get a blank look.

“Among the most important cases, some are recognised at the time as being legal landmarks – like Brown v Board of Education – but with others, like Donoghue v Stevenson, it is the use that is made of the judgment in decades to come that gives them significance. In that respect I would nominate the UK House of Lords Belmarsh case in which the supremacy of the Human Rights Act was established.”

The crossover distinction is also endorsed by Akira Kawamura, president of the International Bar Association. “I have never heard of Donoghue v Stevenson,” he says. “In Japan, our consumer law was influenced by cases around the same time from the United States. But ask Japanese citizens for judgments they know and they will tell you about the wise decisions of Judge Ooka from the shogun (17th-century) time.

“For example, a man found three gold coins in the street. He searched for the owner to return them. It was a matter of honour to return the coins to their rightful owner. But when he found the man who had lost the money, he refused to take them saying it was a matter of honour that the finder should keep them. Their dispute came before Judge Ooka who added a gold coin of his own and told both the finder and the loser to take two coins away. ‘In that way,’ he said, ‘we have all three lost one coin.’”

The first Scottish sheriff to follow that precedent will deserve his or her place in legal legend – on equal terms to the Paisley snail.