Decomposed snail has much to answer for

She drinks some of the ginger beer and pours the rest over her ice cream (odd, but perhaps normal for the roaring twenties). A decomposed snail comes out of the opaque bottle and is swallowed by Donoghue who subsequently suffers nausea and shock. And so begins Donoghue v Stevenson, a landmark case in consumer protection and the law of negligence.

There was a problem with the law as it stood at the time. If Donoghue’s friend had bought the ginger beer (and hence entered into a contract with the café), consumed the snail and suffered nausea they could have sued as the café who owed them a duty of care to make sure the drink was safe. But, as Donoghue was not a party to the contract, she was not owed the same duty of care.

However, Donoghue was fortunate to know a sharp lawyer who seemed to specialise in cases involving foreign bodies, with two previous, albeit unsuccessful attempts to secure compensation for the victims of mice in bottles.

His third attempt, Donoghue’s claim of £500 (approximately £25,000 today) was initially against both the café owner and the manufacturer of the ginger beer (Stevenson), but the café was dropped from proceedings and it continued against Stevenson on a point of principle rather than the facts of the case.

Donoghue lost in 3 Scottish courts before it went to the House of Lords in 1931. They voted 3 to 2 in favour of Donoghue and established the neighbour test – you owe a duty of care to avoid acts or omissions that you can reasonably foresee could injure your neighbour (in this case the ultimate users of the ginger beer). Afterwards, the case was set down for proof of the facts, but this never happened as by that time Stevenson had died and it is believed his estate settled Donoghue’s claim for £100.

Perhaps there is some irony that the case some feel set us on the road to the compensation culture may have been fraudulent. There was some doubt as to whether there had been a snail in the bottle, whether it was consumed by Donoghue and whether if she did, it was the cause of her nausea. Also and possibly a sign of things to come, the solicitor worked for free as Donoghue could not fund the case herself, presumably seeing the opportunity for richer pickings.

However, few today would have an argument that the principle the case established was sound and if you produce goods you owe a duty of care to the users that they are safe. It is probably more surprising that it took until the 1930s for such a decision to be made.

Since then, the law has moved on, particularly in respect of consumer protection and the 1987 Consumer Protection Act introduced a regime of strict liability for defects in products with limited defences available to the producers of goods.

It is not known whether insurers paid the compensation to Donoghue, but Products Liability insurance has moved with the times to provide cover for the legal liability faced by companies for injury or damage caused by the products or services they provide.

No doubt the law will continue to evolve. In recent weeks Whirlpool have been criticised over delays in repairing faulty tumble dryers and a Daily Mirror investigation revealed that the fire brigade had attended nearly 4000 fires involving tumble dryers since 2010. Campaigners are now asking for a toughening in the law to force suppliers (where they know there is problem) to notify customers and if necessary order a recall of potentially dangerous goods. Products Recall insurance is already available as an extension to Products Liability cover and would no doubt be in greater demand if the law is changed.