Lecture 4 - Negligence part 2

Question 1

Donoghue v. Stevenson

Answer 1

At a café, the claimant’s friend bought her a bottle of “ginger-beer” manufactured by the defendant. The bottle “was made of dark opaque glass”. The claimant had no way to ascertain its contents while in the glass. She poured it out “into a tumbler” and drank the contents. Her friend then poured the rest out, “when a snail, which was in a state of decomposition, floated out of the bottle”. Because of the “nauseating sight” and the “impurities” already drunk, the claimant suffered “shock and severe gastro-enteritis.”

Question 2

Reasoning of Lord Buckmaster:

Answer 2

The basis of the claim is tort based on negligence
The principles of (English) common law “are capable of application to meet new conditions” but “these principles cannot be changed […] “because any particular meritorious case seems outside their ambit.”
Common law in the legal literature and case law.

Langridge v. Levy (“often quoted and variously explained”) – clearly a case of fraudulent misstatement
Winterbottom v. Wright – “an authority that is closely applicable”. “[…] the manufacturer of any article is not liable to a third party injured by negligent construction […]”

Question 3

Brett MR:

Answer 3

“The proposition which these recognised cases suggest, and which is, therefore, to be deduced from them, is that whenever one person is by circumstances placed in such a position with regard to another that every one 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 to use ordinary care and skill to avoid such danger.”

Question 4

Lord Atkins’ reasoning (2)

Answer 4

“But there must be some practical limits to moral sense of wrong
The rule that you are to love your neighbor becomes in law, you must not injure your neighbor; and the lawyer’s question, who is my neighbor? 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 neighbor. Who, then, in law is my neighbor? 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. This appears to be the doctrine of Heaven v. Pender.”

Question 5

Lord Macmillan’s reasoning

Answer 5

Established that “negligence apart from contract gives a right of action to the party injured by that negligence.”
Equally established that there is no action in contract for a non-party
“It must always be a question of circumstances whether the carelessness amounts to negligence and whether the injury is not too remote from the carelessness.”
“It may be a good general rule to regard responsibility as ceasing when control ceases.”
Liability here since the manufacture controls – sealed bottle, only opened when consumed.