DONOGHUE v. STEVENSON IN RETROSPECT*
| Date | 01 January 1957 |
| Published date | 01 January 1957 |
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb00421.x |
| Author | R. F. V. HeustonM.A |
THE
MODERN LAW REVIEW
Volume
20
January
1957
No.
1
DONOGHUE
r).
STEVENSON
IN RETROSPECT
*
INTRODUCTORY
TWENTY-five years ago, the House of Lords reserved judgment in
an appeal from the Court
of
Session. The arguments of counsel
had lasted for two days. Six months later, by a majority of three
to two, the House allowed the appeal. Between the headnote and
the formal order lie eighty-one pages of the Appeal Cases, which
by common consent are recognised to contain some of the most
interesting and important speeches ever delivered
in
the history
of
the common law. After
a
quarter
of
a
century there is a
safe opportunity for
a
review and evaluation of the decision and
its development during the subsequent years. There are some
preliminary difficulties. There have been curious uncertainties
about two elements of the case-its title and its facts. The full
title
in
the
Luw
Reports
reads
“
M’AZister
(OT
Donoghue) (Pauper)
V.
Stevenson.”
The terminology of Scots law is
a
perpetual source
of fascination to all who live south of the Tweed.
It
appears to be
the Scots practice to name a married woman in legal documents
by her maiden
as
well as by her married surname “with the
(infelicitous) disjunctive
‘
or
’
interposed.” Despite this,
it
is
her married surname alone which is used
in
citing the case:
Donoghue
v.
Stevenson
is the correct form. Secondly, there has
been some dispute about the facts. Now the issue before all the
courts was
a
purely legal one: as Lord Atkin said,
it
was “DO
the averments made by the pursuer in her pleadings,
if
true,
disclose
a
cause of action?
”
or,
in the perhaps more appr-
priate phraseology of Lord Thankert~n,~
“
the only question in
*
An
abbreviated version of this paper
was
delivered
as
a
lecture at University
1
Macmillan,
(1933) 49
L.Q.R.
1; (1945) 61
L.Q.R.
109.
A8
R.
M.
W.
has
creates an impression in some
a
[1932]
A.C.
562.
.9
Ibid.,
at
601.
College, London,
on
December
5,
1955.
said
((1933) 49
L.Q.R.
333),
the praftice
quarters that the person
80
named
is
either
a
jailbird or
a
betting tout.”
Vor..
20
1
1
2
THE
MODERN
LAW
REVIEW
VOL.
20
this appeal is whether, taking the appellant’s averments
pro
veritate,
they disclose
a
case relevant in law
s6
as
to entitle her
to have them remitted for proof.” The House,
as
we have seen,
answered this question in the dinnative. Now the pursuer’s
averments were that she had entered
a
cafd in Paisley occupied
by one Minchella; and that
a
friend who accompanied her bought
from Minchella some refreshment for both of them. The refresh-
ment consisted of two slabs of ice-cream, each of which was
placed in
a
tumbler, and over which was then poured part of
the contents of
a
bottle of ginger-beer. The ginger-beer had been
manufactured by the defender Stevenson, and bought from him
by Bfinchella.
It
was
contained
in
a
bottle made of dark opaque
glass. When the pursuer had partly finished the confection, her
friend attempted
to
replenish her glass by pouring into
it
the
remains of the contents of the bottle. As she was doing this
a
decomposed
snail
floated out. The appellant averred that
as
a
result of the nauseating sight of the
snail
and the impurities
in
the
ginger-beer which she had already consumed, she had
suEered from shock and severe gastroenteritis.
Now
there has
been
a
persistent rumour (which has found support even in the
Court of Appeal’) that when the case went back
to
the Court
of Session “to do
as
shall be just and consistent with this
judgment
yy
it
was
discovered that there never had been
a
snail
in the bottle at all. The truth is that the issue
of fact was never decided: the defender died before proof and
the pursuer in consequence compromised the action and received
El00
in settlement of her claim.6
A few more introductory words may be allowed to describe the
members of the tribunal which decided
a
case
so
remarkable in
the history
of
the law, not only because the presence
of
particular
judges at decisive moments has always been recognised
as
a
signiscant factor in legal development, but also because the
composition of the House
on
this occasion has been the subject of
remark. The three members
of
the House who were in favour of
allowing the appeal were Lords Atkin, Macmillan and Thankerton.
Those who dissented were Lords Buckmaster and Tomlin. Of
these, all except Lord Buckmaster, who had been Lord Chancellor
for
the eighteen months of Asquith’s Coalition ministry of
1915-
1916,
had been appointed Law Lords within the preceding five
years. Lord Atkin comes first to mind. Although born in
Australia and educated in Great Britain, he came from
a
well-
known
Co. Cork family-like that other master of the common
This is not
so.
4
Adler
v.
Diokson
[1954] 1
W.L.R.
1482,
at
1483,
per
Jenkins
L.J.
6
On
the authorit
of
Lord Maomillan, this statement.
See
the addendum
pasted
into
the Lstitute
for
Advanced Legal Studies’
copy
of
Mffikinnon,
The
Btatute
Book
(Holdeworth Club
:
University
of
Birmingham,
1942)
;
Mffi-
millan,
A
Man
of
Law’s
Tale,
152;
Ashton-Cross
(1955)
71
L.Q.R.
472;
(1955)
a20
L.T.
291.
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