Two Girls, One Superinjunction

A podcast looking at the funny side of the law. Law student Tierney describes the weird and wonderful world of litigation to Charis; whose legal credentials include watching half an episode of Defending the Guilty, and going on a date with a barrister.

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#01 The Snail and the Ginger Beer


Ever wondered what role fizzy drinks and molluscs play in a court of law? We hadn't either, but it apparently involves far more decomposing snails than we would like...

Legal Notes

Donoghue v Stevenson has been told in our episode primarily for entertainment purposes, and I touched on its importance only very lightly. That being said, there are serious consequences to cases even as strange as this one - hence why there is so much discussion about it. For those who are interested in learning more, I have provided a short summary (in as close to plain English as I can manage), and there are plenty of resources available all over the internet. I have linked below to the ones I used - though there are many, many more.

This case set some of the foundations for the principle of negligence, which has been later developed by other cases as well as legislation. It was held that a manufacturer was responsible for the quality and safety of the end product; regardless of whether there was any direct contract between them and the individual who then purchased it.

Related to this, it was held that a manufacturer has a duty of care to the people who eventually use/own/consume their products - at the time, this was only defined as a general duty to "take reasonable care"; but has since been developed to be more specific.

Finally, it established what is known as "the neighbour principle" - which comes from a section from one of the judges in the House of Lords judgment. Lord Atkin said: "acts or omissions which any moral code would censure cannot, in a practical world, be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. 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."

Essentially, you have a duty of care to somebody who you could reasonably see as being directly affected by your actions (or inactions). This came up in Donoghue v Stevenson because Mrs Donoghue was not the person who bought the drink - it was her friend. However, as the person who was going to drink the ginger beer, she was directly affected by there being a snail in her drink; therefore she should be the one who has a way of getting justice.

Was the snail real?

Frankly, we don't really know. Probably, as it seems like such a ridiculous and strange thing to make up; but stranger things have happened.

Once the House of Lords judgment had been handed down, what this meant was that Mrs Donoghue had the right to bring her case. She then had to start again back at the original court level; however, before it could get to court, Mr Stevenson died. His estate decided to settle - there is some dispute over how much Mrs Donoghue received, though it was most likely about £100 (approximately £5,000 today).

From a legal perspective, this means that we have to say that we don't know - her claims were never tested in court, and therefore there isn't a definitive legal answer. A case being settled out of court doesn't mean that either party is admitting guilt; it usually just means they would like it to go away. Generally, this is much, much cheaper than going to court.

There is a commonly held belief that the snail never existed - this probably stems from a speech given by a judge to the House of Lords (the chamber of parliament rather than the court). He said: "when the law had been settled by the House of Lords, the case went back to Edinburgh to be tried on the facts. And at that trial it was found that there never was a snail in the bottle at all. That intruding gastropod was [...] a legal fiction". This was not accurate, but likely not maliciously done.



Cases referenced:

Smith v Hughes [1960] 1 WLR 830

Donoghue v Stevenson [1932] UKHL 100

Mullen v A G Barr & Co. Ltd. [1929] SC 461


Textbook on Contract Law (13th Edition) by Jill Poole

Tort Law: Text, Cases, and Materials (4th Edition) by Jenny Steele

I used some of the information from this resource, which provides copies of original documents relating to the case - including the judgment and a photograph of Mrs Donoghue: the Scottish Law Reports.

And, of course, Wikipedia.

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Filetype: MP3 - Size: 34.37MB - Duration: 35:48 m (134 kbps 44100 Hz)