 |
| V. Victoria Shroff |
Take for example, the watershed case of Donoghue v. Stevenson [1932] UKHL 100, handed down from the House of Lords 90 years ago on May 26, 1932. The case involved the remains of a snail found in a bottle of ginger beer and ended up revolutionizing tort law forever. Every law student in the common law world will have been taught the principles of the Paisley snail case. (For me, I heard about the snail long before law school as a bedtime story from my barrister father, but I digress.) When I teach this case to my animal law students at University of British Columbia’s Allard School of Law and at Capilano University, I teach it through the lens of an animal law practitioner.
Paisley snail as an animal law, access to justice case
The snail in the bottle was an unwitting participant in Donoghue. The snail was not even alive, having died sometime during the manufacturing process of the sweet and spicy beverage and was languishing in a bottle that had been shipped to a nearby cafe in 1928. In fact, Scottish courts at the time had discussions of snails and mice slipping into bottled beverages, so it was not that uncommon an occurrence.
The remains of the snail in question were discovered when customer May Donoghue, was drinking a beverage manufactured by David Stevenson while in the Wellmeadow Cafe in Paisley, Scotland. May was far from pleased, nor did she appreciate the gastropod as a cultural culinary delight. Quite the opposite. The snail was seen as a vile pest and caused much mental and physical distress to Donoghue. A lawsuit was filed by Donoghue against the manufacturer, Stevenson, for negligence. Yet another aspect of this case, important to highlight, is that it stands for access to justice. By most accounts, Donoghue was poor, and her case was litigated pro bono by her solicitor.
I describe the famous snail case as an animal law case in relation to the neighbour principle in some detail in my new animal law book Canadian Animal Law, pages 454-458:
“... British Columbia’s honourable Chief Justice Robert Bauman provided me with the following quote about the importance of the neighbour principle enunciated in the Donoghue case: ‘Who, then, in law is my neighbour? Fortunately, Lord Atkin’s answer, almost 90 years ago, stands the test of time. From simple facts emerge principles of the utmost importance to civil society — it reflects, surely, the majesty of the common law.’ ”
In the end, the mollusk case ushered in a revolution in common law jurisdictions when the House of Lords found that the manufacturer owed and breached a duty of care to Donoghue. A new type of liability was created in tort and delict law by this snail case. Ultimately, the case stands for a duty owed to our neighbours, proximate relationship between manufacturers and consumers and most importantly, establishment of key duty of care principles infused with morality.
Supreme Court Justice Brown, other Paisley experts weigh In
I asked Supreme Court of Canada Justice Russell Brown (via the good offices of Martin Taylor) what the Donoghue case means to him and Justice Brown sagely replied to my query as follows:
“As a simple doctrinal matter, Donoghue v. Stevenson represents the integration, both elegant and systemic, of previously disparate, case-specific duties of care into a single conception of the circumstances which give rise to a duty of care. But its effect was far more radical at the level of morality, because that doctrinal shift pulled us from our narrow conception of legal relationship, bounded by contract, to one that came to pervade nearly every aspect of our interactions with others. Donoghue v. Stevenson, to me, means bringing the law closer to the golden rule by which we should all live, every day.”
These powerful words show the abiding effects of the snail case and the application of the neighbour principle in how we govern ourselves daily in western society.
Over 30 years ago, Taylor, a highly regarded Paisley snail expert, opined about the enduring and important guiding principles of the case in a presentation for the anniversary of the case asking:
“Why then, does May Donoghue’s case continue to hold such an enduring fascination for lawyers the world over? The magnificent language of Lord Atkin, the profound mysteries of the neighbour principle, the clash between the Law Lords, as told in Professor Heuston’s splendid article on the twenty-fifth anniversary of the decision — this is the stuff of legal history. The meeting of the common and civil law worlds. The collision between principles of contract and tort law that started fifty years of jurisprudential upheaval. The contrast of sacred and mundane, splendour and poverty, the sublime and — at least in the manner of its pleading — the slightly ridiculous. Surely there will never be such a case again!”
Greg Pun posits: “As a matter of law, Donoghue v. Stevenson is important because it is the touchstone of modern negligence. But, as the Hon. Martin Taylor QC has long expounded, it is extraordinary because of its lore. In that light, I see it as a mythic journey, taking place in both the ordinary world (the Wellmeadow Cafe in Paisley) and the special world (the courts), with challenge, ordeal, and success, with heroine (May Donoghue), mentor (solicitor Walter Leechman), and deus ex machina (Lord Atkin). We, Martin Taylor’s Paisley Irregulars, are honoured to champion the law and lore of Donoghue v. Stevenson, through any opportunity, especially our Paisley Irregulars Essay Competition in Negligence Law.”
Aside from essay contests, plays, songs, books, odes and operettas have been written to honour the gingery snail. Devotees even go so far as to say, “Hail the snail.” Bruce Fraser of the Paisley Irregulars made a creative video featuring songs about snails for the lighter side of an upcoming Donoghue conference. Canadian lawyers including David Hay and Michael Bain have also creatively contributed to the immortality of the snail over the years. (Please see Canadian Animal Law ibid)
Immortal snail conference in Scotland
Michael Clancy of the Law Society of Scotland wrote to me recently to share that on May 26, the 90th anniversary of Donoghue is being celebrated in Scotland with a global conference. He noted how the case laid the foundation of the modern law of negligence and how deeply it still resonates today. Jurists and legal luminaries are slated to speak at the Scottish Law Society’s commemorative Immortal Snail event, including B.C.’s own Martin Taylor and Justice Brown of the Supreme Court of Canada. Click here for information and registration.
Law Society of B.C. president Lisa Hamilton replied to my query about the case: “Donoghue v. Stevenson boldly paved the way for the modern law of negligence. Lord Atkin was a true trailblazer (or snailblazer). The seminal case introduced the duty of care not only in the U.K., but around the world. On May 26th, 2022, I will raise my glass (of ginger beer of course) and celebrate 90 years of the duty of care.”
On May 26, let’s all hoist a celebratory glass of ginger beer to the eternal snail.
The immortal snail case was like a lit doorway through which new and exciting things happened in the law of tort that had never been done before. Ninety years later it endures as the tort case steeped with law, lore and morality and to me, it will also always be my earliest, and one of the most fascinating, animal law cases I’ve ever known.
V. Victoria Shroff is one of the first and longest serving animal law practitioners in Canada. She has been practising animal law for over 20 years in Vancouver at Shroff and Associates and she is erstwhile adjunct professor of animal law at UBC’s Allard Hall Law School and Capilano University. She is recognized internationally as an animal law expert and is frequently interviewed by media. Reach her at shroff@telus.net, @shroffanimallaw or LinkedIn.
Photo credit / i_panki ISTOCKPHOTO.COM
Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.