#17702 - Laws301 Lecture Notes Part 3

Because of the breach, the plaintiff has suffered loss and incurred costs that they should not be liable for.
If there are no costs incurred by the plaintiff, there is no claim for negligence.

Lecture 37: (14/08/20)

Originally, negligence comes from 12^th to 14^th Century Trespass

In the 12^th century, you could trespass if there was a direct and forcible interference with a person or land.
In the 13^th century, two writs developed – a writ of trespass to the person and one of ‘trespass on the case’.
In the 14^th century, there was a separation of trespass to the person, and ‘trespass on the case’ (like negligence).

Trespass to the person – assault, battery, wrongful imprisonment.

There must be directness
There must be fault – interference
The plaintiff does not necessarily need to prove damages – strict liability.

Trespass on the case – nuisance and negligence

Can be direct or indirect
There can be liability without an intention to interfere
The plaintiff must prove damages.

The plaintiff alleged that she visited a café with a friend and consumed a tumbler-full of ginger beer, poured from an opaque bottle, purchased by her friend from the owner of the café.

A portion of the ginger beer was poured into a glass which was drunk by Donoghue – when her friend poured the remainder of the bottle, a decomposed snail floated out of the bottle.
Donoghue claimed that she felt ill from this sight, complaining of abdominal pain/
She was subsequently diagnosed with severe gastroenteritis (physical harm) and mental shock (psychiatric harm).
The plaintiff sued the manufacturer of the ginger beer in tort.

The question before the House of Lords was whether if the allegations could be proved, the manufacturer owed any obligation of care to the consumer of their products:

If there is a contractual basis between a consumer of a product and a manufacturer, negligence is not needed.
Here, there was no contractual relationship between both parties, because Donoghue’s friend bought the ginger beer and it was not bought from the manufacturer directly.
The minority held that there was no duty, as the manufacturer was only liable in contract to which the plaintiff is not a party of – privity of contract.

Lord Atkin for the majority recognised that the case was irrelevant to privity of contract as the plaintiff was not suing on the contract but for the defendant’s negligent conduct:

“a duty to take due care arises when a person or property of one was in such proximity to the person or property of another than, if due care was not taken, damage might be done by the one to the other.” – Lord Atkin at 581.

An appropriate basis for imposing a legal duty to take care – proximity and foreseeability.

General public sentiment dictates that a moral wrongdoer should pay for their carelessness which causes damage:

“Love thy neighbour” translates to “you must not injure your neighbour” in law.
If Mr. Stevenson had not taken reasonable care to ensure his bottles are safe for human consumption, he should be held liable for the damage that it causes.

“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 at 580.

Although Stevenson was not the plaintiff’s geographical neighbour, he was held to have owed a duty of care as there was no possibility of inspection due to the bottle being opaque.
Stevenson was also held to have known that the absence of reasonable care in the preparation or putting up of the ginger beer would result in an injury to the consumer.

It was concluded that in the circumstances, a manufacturer owes a duty to the ultimate consumer to take reasonable care so that products are free from defects likely to cause injury.

Duty of care

Stevenson’s ginger beer contained a snail which caused injury to the ultimate consumer.
Therefore, the defendant did not comply with the duty of care.

Breach

There were no processes for checking and ensuring that snails or other matter does not get into bottles before they are filled with ginger beer
This is not reasonable to ensure that bottles are free of defects likely to cause injury.
Therefore, there is a breach.

Causation

Expert opinion – the snail in fact caused Donoghue’s stomach pain and psychiatric shock.
No policy reasons not to extend the principle to this case – there were no laws to protect consumers at this time and imposing liability would meet the needs of ordinary people.

Damages

Plaintiff suffered physical injury and psychiatric injury.

Lord Macmillan – the categories of negligence are not closed.

“There are other instances than of articles of food and drink where goods are sold intended to be used immediately by the consumer, such as many forms of goods sold for cleaning purposes, where the same liability must exist.”

What if Stevenson did not produce the ginger beer?

During this time, manufacturers often have bottles with their names printed on them.
The bottles were re-used. Manufacturers would obtain bottles with other people’s names on them and would sell them with their own product in them.
There were multiple manufacturers of ginger beer in this region of Scotland – Stevenson argued at trial that the ginger beer was in fact not his product.
The Court did not accept this argument – his name was still on the bottle. If he wants to ensure his product is not being falsely labelled, he must protect his brand.
Product liability – if a manufacturer produces a product which is defective in some way, the manufacturer may be liable even if there are multiple buyers before the ultimate consumer.

Lecture 38: (18/08/20)

A duty of care of a negligent statement arising from a pure economic loss might arise when

There is a special relationship between the parties – sufficient proximity
The party giving advice has voluntarily assumed the ability to do that
The third party has relied on advice
It is reasonable for the third party to rely on that advice.

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#17702 - Laws301 Lecture Notes Part 3 - Tort Law

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