Lord Macmillan: There is no contractual relation between the manufacturer and the consumer; and thus the plaintiff, if he is to succeed, is driven to try to bring himself within one or other of the exceptional cases where the strictness of the rule that none but a party to a contract can found on a breach of that contract has been mitigated in the public interest, as it has been in the case of a person who issues a chattel which is inherently dangerous or which he knows to be in a dangerous condition. If, on the other hand, you disregard the fact that the circumstances of the case at one stage include the existence of a contract of sale between the manufacturer and the retailer, and approach the question by asking whether there is evidence of carelessness on the part of the manufacturer, and whether he owed a duty to be careful in a question with the party who has been injured in consequence of his want of care, the circumstance that the injured party was not a party to the incidental contract of sale becomes irrelevant, and his title to sue the manufacturer is unaffected by that circumstance. The appellant in the present instance asks that her case be approached as a case of delict, not as a case of beach of contract. She does not require to invoke the exceptional cases in which a person not a party to a contract has been held to be entitled to complain of some defect in the subject-matter of the contract which has caused him harm. The exceptional case of things dangerous in themselves, or known to be in a dangerous condition, has been regarded as constituting a peculiar category outside the ordinary law both of contract and of tort. I may observe that it seems to me inaccurate to describe the case of dangerous things as an exception to the principle that no one but a party to a contract can sue on that contract. I rather regard this type of case as a special instance of negligence where the law exacts a degree of diligence so stringent as to amoung practically to a guarantee of safety.

Donoghue v. Stevenson  in comparison to Mustafa v. Culligan: A European soul loves justice just as much as any man from the Middle East who may be Christian or Muslim.  A Canadian soul loves justice also.  This is a brief comparative article.  Ms. Donoghue in one early  Tort case from the House of Lords in 1932 suffered physical injury and initially some nervous, emotional shock when seeing a decomposing snail pour out of her glass bottle of ginger beer at that Soda shop in Scotland so many years ago.  A seminal case that supported Ms. Donoghue's claim is  George v. Skivington, 1869 "..that related to the sale of a noxious hairwash, and a claim made by a person who had not bought it but had suffered from its use, based on its having been negligently compounded, was allowed."  Donoghue and Stevenson follows George v. Skivington which we mark now as the seminal case on the issue of product liability affecting the third party user of the product as the recipient of a gift possibly or as the guest of a hotel who is not in direct privity of contract with the manufacturer.   MS. Donoghue's experience is still evidently relevant to us today as consumers of food and beverages at restaurants any where in the world.  There are standards to food preparation that disallow,  dispel  and disapprove of diseased saliva, bugs, snails and any other contaminants from being in our food products and beverages.  MS. Stevenson was awarded damages for her foreseeable emotional and physical injury in 1932. The case demonstrates that the law accepts this as a category of Tort law involving product contamination where any such injury to the consumer is foreseeable in English law. The Canadian case involving Mustafa suggests that emotional injury alone, however, is not foreseeable which is rather unusual to suggest to any reasonable man.   How is the nervous shock or the tremendous emotional upset  induced by a human finger nail or a house fly floating in your bottle of spring water not foreseeable?  It is foreseeable.  There are certainly cases where injury for nervous shock leads to an award of damages.  Nervous shock is a recognised category of Tort law.    The Mustafa family  had a normal, reasonable consumer reaction.  In any event, we understand the Mustafa case as one where injury suffered as well as a duty of care in the Plaintiff's case is recognised in fact and in law but the injury, as a non-physical injury in this scenario, leads to a denial of an award of damages but not a denial of the Mustafa family in Canada and their humanity. They sued a bottled water company for Tortious injury after seeing a decomposing fly in the bottle of water they ordered. If the Mustafa family  claimed damages for physical injury in a manner similar to Ms Donoghue, they would have received an award of damages. It would appear that the jurisprudence in this case is centering on the evidence of the product defect and some evidence of injury when it may be physical, emotional or both. The existing line of cases confirm that non-physical injury is foreseeable according to the Common Law. George v. Skivington, 1869 was also referred to in the Common law jurisprudence in 1974 as seen in the Supreme Court of Canada case Rivtow Marine Ltd. v. Washington Iron Works [1974] S.C.R. 1189. The obiter dicta from the the Justices in Donoghue v. Stevenson confirm that public policy as in public safety is the real basis for the Court allowing damages in these fact scenarios involving product liability. See the dicta of Lord Thankerton here:

The special circumstances from which the appellant claims that such a relationship of duty should be inferred may, I think, be stated thus, namely, that the respondent, in placing his manufactured article of drink upon the market, has intentionally so excluded interference with, or examination of, the article by any intermediate handler of the goods between himself and the consumer that he has, of his own own accord, brought himself into direct relationship with the consumer, with the result that the consumer is entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to

    1 1909 S. C. 1314, at p. 1319.
    2 1191 S. C. 253, at p. 256.

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1932 HL

Donoghue v. Stevenson

60 Lord Thankerton

the consumer. If that contention be sound, the consumer, on her showing that the article has reached her intact, and that she has been injured by the harmful nature of the article owing to the failure of the manufacturer to take reasonable care in its preparation prior to its enclosure in the sealed vessel, will be entitled to reparation from the manufacturer.

    In my opinion, the existence of a legal duty under such circumstances is in conformity with the principles of both the law of Scotland and the law of England. The English cases demonstrate how impossible it is to catalogue finally, amid the ever-varying types of human relationships, those relationships in which a duty to exercise care arises apart from contract, and each of these cases relates to its own set of circumstances, out of which it was claimed that the duty had arisen.

Lord Macmillan: There is no contractual relation between the manufacturer and the consumer; and thus the plaintiff, if he is to succeed, is driven to try to bring himself within one or other of the exceptional cases where the strictness of the rule that none but a party to a contract can found on a breach of that contract has been mitigated in the public interest, as it has been in the case of a person who issues a chattel which is inherently dangerous or which he knows to be in a dangerous condition. If, on the other hand, you disregard the fact that the circumstances of the case at one stage include the existence of a contract of sale between the manufacturer and the retailer, and approach the question by asking whether there is evidence of carelessness on the part of the manufacturer, and whether he owed a duty to be careful in a question with the party who has been injured in consequence of his want of care, the circumstance that the injured party was not a party to the incidental contract of sale becomes irrelevant, and his title to sue the manufacturer is unaffected by that circumstance. The appellant in the present instance asks that her case be approached as a case of delict, not as a case of beach of contract. She does not require to invoke the exceptional cases in which a person not a party to a contract has been held to be entitled to complain of some defect in the subject-matter of the contract which has caused him harm. The exceptional case of things dangerous in themselves, or known to be in a dangerous condition, has been regarded as constituting a peculiar category outside the ordinary law both of contract and of tort. I may observe that it seems to me inaccurate to describe the case of dangerous things as an exception to the principle that no one but a party to a contract can sue on that contract. I rather regard this type of case as a special instance of negligence where the law exacts a degree of diligence so stringent as to amoung practically to a guarantee of safety. 

Clearly Mustafa v. Culligan, 2008, SCR is such a case. It follows that The issue of forseeability of any kind of injury has already been averred  in a long line of authorities  and does not need to be addressed again in Tort law.   This is the evidence in the case involving Mustafa v. Culligan.  The Supreme Court decision is a helpful discussion and, without a doubt, the Mustafa had settled confidence  in existing law when proceeding with their case. It is humbly submitted that their case, on the facts, succeeds under the law governing manufacturer liability and there is Canadian  statute law  that would support their claim as consumers in the public interest.

Warren A. Lyon,  Company  Secretary,  Senior Client Liaison Officer, Litigator, Angel Ronan Greenfield Law Firm.  Photo of Warren A. Lyon.jpg. 

Photo of Warren A. Lyon.jpg.  


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Notes from Donoghue v. Stevenson: Donoghue v. Stevenson. No. 5. 26 May 1932 HL Lord Buckmaster. Lord Atkin. Lord Tomlin. Lord Thankerton. Lord Macmillan. (POOR) MRS MARY M'ALISTER OR DONOGHUE, Pursuer (Appellant)– Morton, K.C.–Milligan. DAVID STEVENSON, Defender (Respondent).– Sol.-Gen. Normand–Clyde–T. Elder Jones. Negligence–Whether duty owed to person injured–Duty of manufacturer of article to ultimate consumer–Bottle of ginger beer bought from retailer–Bottle containing dead snail–Purchaser poisoned by drinking contents-Liability of manufacturer to consumer. Where the manufacturer of a product intended for human consumption sends it out in a form which shows that he means it to reach the ultimate consumer in the form in which it left his factory, with no reasonable possibility of intermediate examination by the retailer or consumer, and with the knowledge that want of reasonable care on his part in the preparation of the product may result in injury to the consumer, the manufacturer owes a duty to the consumer to take such care, and will be liable to the latter, in damages if he suffers injury through the failure to take such care.     So held (rev, judgment of the Second Division, diss. Lord Buckmaster and Lord Tomlin) in an action of damages brought against a manufacturer of ginger beer by a person who averred that she had been poisoned by ginger beer, which was bought from a retail dealer in an opaque sealed bottle in which it had left the manufacturer's premises, and which contained a decomposed snail.     George v. Skivington, (1869) L. R., 5 Ex. 1, approved.     Dicta of Brett, M.R., in Heaven v. Pender, (1883) 11 Q. B. D. 503, at pp. 509 to 511, considered.     Ground of judgment of Lord Ormidale and Lord Anderson in Mullen v. Barr & Co. and M'Gowan v. Barr & Co., 1929 S. C. 461, disapproved.     Authorities reviewed. (IN the Court of Session 13th November 1930.)     On 9th April 1929 Mrs Mary M'Alister or Donoghue brought an action against David Stevenson aerated water manufacturer Paisley, in which she claimed £500 as damages for injuries sustained by her through drinking ginger beer which had been manufactured by the defender.     The pursuer averred, inter alia:–(Cond. 2) "At or about 8.50 P.M. on or about the 26th August 1928, the pursuer was in the shop occupied by Francis Minchella, and known as Wellmeadow Café, at Wellmeadow Place, Paisley, with a friend. The said friend ordered for the pursuer ice cream, and ginger beer suitable to be used with the ice cream as an iced drink. Her friend, acting as aforesaid, was supplied by the said Mr Minchella with a bottle of ginger beer manufactured by the defender for sale to members of the public. The said bottle was made of dark opaque glass, and the pursuer and her friend had no reason to suspect that the said bottle contained anything else than the aerated water. The said Mr Minchella poured some of the said ginger beer from the bottle into a tumbler containing the ice cream. The pursuer then drank some of the contents of the tumbler. Her friend then lifted the said ginger beer bottle and was pouring out the remainder of the contents into the said tumbler when a snail, which had been, unknown to the pursuer, her friend, or the said Mr Minchella, in the bottle, and was in a state of decomposition, floated out of the 1932 HL Donoghue v. Stevenson 32 said bottle. In consequence of the nauseating sight of the snail in said circumstances, and of the noxious condition of the said snailtainted ginger beer consumed by her, the pursuer sustained the shock and illness hereinafter condescended on. The said Mr Minchella also sold to the pursuer's friend a pear and ice. The said ginger beer bottle was fitted with a metal cap over its mouth. On the side of the said bottle there was pasted a label containing inter alia, the name and address of the defender, who was the manufacturer. It was from this label that the pursuer's said friend got the name and address of the defender." (Cond. 3) "The shock and illness suffered by the pursuer were due to the fault of the defender. The said ginger beer was manufactured by the defender and his servants to be sold as an article of drink to members of the public (including the pursuer). It was, accordingly, the duty of the defender to exercise the greatest care in order that snails would not get into the said bottle, render the said ginger beer dangerous and harmful, and be sold with the said ginger beer. Further, it was the duty of the defender to provide a system of working his business that was safe, and would not allow snails to get into his ginger beer bottles (including the said bottle). Such a system is usual and customary, and is necessary in the manufacture of a drink like ginger beer to be used for human consumption. In these duties the defender culpably failed and pursuer's illness and shock were the direct result of his said failure in duty. The pursuer believes and avers that the defender's system of working his business was defective, in respect that his ginger beer bottles were washed and allowed to stand in places to which it was obvious that snails had freedom of access from outside the defender's premises, and in which, indeed, snails and slimy trails of snails were frequently found. Further, it was the duty of the defender to provide an efficient system of inspection of said bottles before the ginger beer was filled into them, and before they were sealed. In this duty also the defender culpably failed, and so caused the said accident. The defender well knew, or ought to have known, of the frequent presence of snails in those parts of his premises where the ginger beer bottles were washed and dried, and, further, ought to have known of the danger of small animals (including snails) getting into his ginger beer bottles. The pursuer believes and avers that the said snail, in going into the said bottle, left on its path a slimy trail, which should have been obvious to anyone inspecting the said bottle before the ginger beer was put into it. In any event, the said trail of the snail should easily have been discovered on the bottle before the bottle was sealed, and a proper (or indeed any) inspection would have revealed the presence of the said trail and the said snail, and the said bottle of ginger beer with the snail in it would not have been placed for sale in the said shop. Further, the defender well knew, or in any event ought to have known, that small animals like mice or snails left in aerated water (including ginger beer), and decomposing there, render aerated water exceedingly dangerous and harmful to persons drinking the contaminated aerated water. Accordingly, it was his obvious duty to provide clear ginger beer bottles, so as to facilitate the said system of inspection. In this duty also the defender culpably failed, and the said accident was the direct result of his said failure in duty. If the defender and his said servants had 1932 HL Donoghue v. Stevenson 33 carried out their said duties the pursuer would not have suffered the said shock and illness."     The pursuer pleaded, inter alia:–"(1) The pursuer, having sustained loss, injury, and damage through the fault of the defender, is entitled to reparation therefor from the defender."     The defender pleaded, inter alia:–"(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed."     On 27th June 1930 the Lord Ordinary (Moncrieff) repelled the first plea in law for the defender and allowed a proof.     The defender reclaimed, and on 13th November 1930 the Second Division recalled the interlocutor of the Lord Ordinary and dismissed the action.*     The pursuer appealed to the House of Lords in forma pauperis, and the appeal was heard on 10th and 11th December 1931.
LORD MACMILLAN: I can readily conceive that, where a manufacturer has parted with his products and it has passed into other hands, it may well be exposed to vicissitudes which may render it defective or noxious, for which the manufacturer could not in any view be to blame. It may be a good general rule to regard responsibility as ceasing when control ceases. So, also, where between the manufacturer and the user there is interposed a party who has the means and opportunity of examining the manufacturer's product before he re-issues it to the actual user. But where, as in the present case, the article of consumption is so prepared as to be intended to reach the consumer in the condition in which it leaves the manufacturer, and the manufacturer takes steps to ensure this by sealing or otherwise closing the container so that the contents cannot be tampered with, I regard his control as remaining effective until the article reaches the consumer and the container is opened by him. The intervention of any exterior agency is intended to be excluded, and was in fact in the present case excluded. It is doubtful whether in such a case there is any redress against the retailer– Gordon v. M'Cardy.2.