“THE LEGAL LANDSCAPE BEFORE THE PAISLEY SNAIL: WHAT AN ANALYSIS OF PRIOR SCOTS LAW MIGHT HAVE REVEALED”

6 March 2013, The Rt Hon. Lord Hamilton

[1] Donoghue v Stevenson ¹ , the snail in the ginger beer bottle, (decided by the House of Lords in May 1932) is perhaps the most famous case in Scottish jurisprudence. In it the House of Lords, by a majority of three to two, reversed the majority decision of the Second Division and held that Mrs Donoghue, the ultimate consumer of the ginger beer, had a relevant claim against the beer’s manufacturer, Mr Stevenson.

[2] The Second Division had followed its earlier decisions in Mullen v Barr & Co; McGowan v Barr & Co ² , the mice in the ginger beer, (both decided in 1929) where, largely on the basis of English authority, ultimate consumers had likewise been denied a remedy. Although Donoghue ³ was a Scottish case, the burden of the discussion was centred on the law of England, it being accepted by counsel and judges alike that Scots law and English law were, in this field, the same. There was, however, no want of prior Scottish case law.

[3] What I propose to do in this paper is to explore the antecedents of Donoghue ⁴ — with particular reference to how, from the close of the eighteenth century, the Scottish courts and textbook writers approached the questions of whether and when a duty of care was owed to avoid causing personal injury to another.

[4] This topic has been, in part, suggested by a fascinating article ⁵ by the late Lord Rodger of Earlsferry, appended to which is the text of an earlier version of Lord Macmillan’s speech in Donoghue ⁶ — that is an earlier version than that delivered by him when judgment was given in May 1932. In that earlier version Lord Macmillan had grounded his decision squarely on principles of Scots law, only going on thereafter to address the law of England.

[5] There has been much speculation about what communication there may have been among their Lordships during the unusually long interval (about five and a half months) between the conclusion of the hearing in December 1931 and the delivery of the speeches in May of the following year; and that communication may have had a part to play in the formulation of the second (published) version.

[6] Lord Macmillan’s earlier version commenced with some examination of Scottish authority; and it will be useful to start with these — bearing in mind that there appears to have been very little discussion of Scots authority at the hearing. Apart from Mullen v Barr ⁷ which was essentially the decision under review, the note of the argument in Donoghue ⁸ contains, with the exception of one American case, references exclusively to English cases and textbooks. No attempt was made to trace, from the numerous earlier Scottish decisions, any practice or principle of relevance. The Scottish judges (Lord Thankerton and Lord Macmillan) in their published speeches make only passing reference to some Scottish cases.

[7] Lord Macmillan in his earlier version starts with propositions from Stair’s Institutions ⁹ (first published in 1681), which are essentially gleaned from Book 1, Title 9 of that authority. Stair specifies that delinquencies arise ‘without any convention, consent or contract ¹⁰' and are ‘introduced by the law of nature ¹¹ ’. They are:

‘pursued under the general names of damage and interest. Which hath as many branches and specialties, as there can be valuable and reparable damage ¹² .’

Stair then lists a number of delinquencies which, apart from assythment — to which I shall return — have little connection with personal injury.

[8] Lord Macmillan then cites a passage from Erskine’s Institute, first published in 1773, where the author says:

‘…every unwarrantable act by which another suffers damage…subjects the delinquent to reparation. Wrong may arise not only from positive acts of trespass or injury but from blameable omission or neglect of duty ¹³ .’

[9] Finally, Lord Macmillan quotes the following from the tenth (Guthrie’s) edition of Bell’s Principles:

‘Gross negligence or imprudence is, as a ground for an action of damages, held as a delict to the effect of making the person guilty of the imprudence or negligence liable to indemnify the person who suffers by the default. These are by lawyers called quasi-delicts ¹⁴ .’ (I leave aside the aptness or otherwise of that descriptive title, on which there has been much subsequent legal debate.)

[10] Lord Macmillan then draws the following conclusion:

‘The law of Scotland is thus seen to be concerned primarily with the question whether delinquency has been established; if so, it gives redress to the person who has suffered by such delinquency. The grounds of action may be as various and manifold as human errancy and the conception of legal responsibility may change and develop in adaptation to altering social conditions and standards, unhampered by any restriction of form ¹⁵ .’

[11] Lord Rodger, who preferred Lord Macmillan’s later and final version, indicates that Lord Macmillan was in the earlier version running the risk of placing an anachronistic interpretation on the passages of Stair ¹⁶ and Erskine ¹⁷ , which he quoted ¹⁸ . In Stair and Erskine’s days Scots law appears, at least on one view, not to have had any remedy for negligently caused personal injuries. Instead, was the remedy of assythment. That remedy, which technically remained part of our common law until its abolition by statute in 1976 ¹⁹ , was learnedly discussed in McKendrick v Sinclair ²⁰ , (1972) where its limitations were expounded. Of it Stair had said:

‘Assythment, as it signifies the reparation, so it insinuates the obligation to repair damage, sustained by slaughter, mutilation, or other injuries in the members or health of the body; but it is chiefly pursued by the wife, children or nearest of kin of parties ²¹ .’

[12] So, although originally available for bodily injuries, which the injured party had survived, even by Stair’s day it had become largely restricted to cases where death ensued. By the end of the eighteenth century it was effectively restricted to such cases; and a remedy was available only where the deceased had met his death by the criminal act of the defender and where the defender had, for some reason, escaped capital punishment.

[13] Roman law appears to have provided no remedy for the negligent infliction of injury to a free man — although it did, under the Lex Aquilia, provide a right to damages in the owner for damage negligently inflicted on his property (which included slaves and herded animals). Under that system damage to the body of a free man was not regarded as properly assessable, and accordingly not compensatable. The Aquilian principle was, however, developed by Civilian lawyers in the early modern age and Voet’s commentary on the Pandects, discussing Roman-Dutch law ²² , refers to recovery by free persons. This may have had a part to play, albeit not expressly acknowledged, in the emergence in Scots law of a remedy for the negligent causation of personal injury — including that causing death.

[14] The first identified use of this principle in this context appears to have been in the case of Gardner v Ferguson ²³ in 1795. The case is unreported; but the pleadings in it were unearthed by Hector McKechnie and referred to by him in his highly regarded article on reparation, which appears in Green’s Encyclopaedia of the Law of Scotland ²⁴ . These pleadings are also to be found in the Hume Collection ²⁵ and in the Campbell Collection ²⁶ (both available in the Advocates Library ²⁷ ). As was common at the time, the pleadings contain much which would now be contained in a statement of argument, whether in a note or orally presented. The defender, a WS ²⁸ with apparently a sideline in urban development, was responsible for the execution of certain works in the vicinity of what must now be the site of the St James Centre in Edinburgh. In the course of these works a drainage ditch was dug and left unguarded and unfenced overnight. The pursuer, who on a dark January evening was visiting a friend in the neighbourhood, fell into the ditch and was injured. After proof before a single judge, Lord Ankerville, the defender was assoilzied.

[15] At this point I make a diversion. Until my research for this paper Lord Ankerville had not swum into my ken. But he has the distinction of being included in Kay’s Portraits ²⁹ , with an attached biographical sketch. He was born David Ross in 1727 and elevated to the bench in 1776. According to Kay:

‘He sat on the bench for twenty-nine years during which long period we are not aware that he was distinguished for any thing very extraordinary, either in the line of his profession or otherwise ³⁰ .’

He does, however, appear to have had a strong penchant for claret, which he much preferred to whisky — notwithstanding that his country seat was by Glenlivet.

[16] But to return to the case in hand, the pursuer (Gardner) reclaimed. In his reclaiming petition he stated, amongst other things:

‘It does not seem necessary to trouble your Lordships with authorities, in order to show that in such a case as the present, the suffering party is entitled to reparation of the injury which has befallen him, though there is no animus injuriandi on the part of him who occasioned the accident. In the civil law, very many amusing cases are put in the title Ad legem Aquiliam, and in other places of the Corpus Juris, in order to ascertain upon whom damage done unintentionally shall fall… ³¹ ’

[17] Three examples are then given, though two of those (damage to a slave and the burning of straw) are clearly instances of damage to property; the third (the death of a person from falling branches when trees were being pruned) looks more in point — although the relevant Roman law texts (in the Digest ³² and in Justinian’s Institutes ³³ ) suggest that this instance likewise referred to damage to a slave.

[18] The respondent (the defender) pled:

‘The respondent, as the petitioner admits, never controverted the general doctrine founded upon the Lex Aquilia: but admitted, that where any one had suffered an injury from the gross negligence or inattention of a person digging a hole or otherwise rendering dangerous any public road or passage, and not sufficiently notifying to the passengers the danger they incurred, he was liable to reparation of the injury sustained. It was not therefor at all upon the point of law upon which the parties differed… ³⁴ ’

[19] The reclaiming petition succeeded. So far as appears, no written judgment was issued, but there is in the Campbell Collection a marginal note, possibly in the hand of the Lord President (Ilay Campbell) himself. It is not altogether easy to decipher but appears to be as follows:

‘Claim of Damages against proprietor for leaving a drain open into which the Pursuer fell. Mr Walter Ferguson [the defender] trusted to what the workers in charge said that it was enough to fence it on each side by the earth and rubbish thrown out from the drain itself. This they should not have done but should have fenced it with a wooden rail. It is clear that there was a public passage at or near the place — and that an open drain in that situation was a most dangerous nuisance and was rendered still worse by the folly of the workmen in obstructing the entry to the Door — petn. found himself entangled with the loose Earth and trying to extricate himself fell in. [Keddie ³⁵ ] was mostly to blame but Respondent being the immediate Employer must also be answerable ³⁶ .’

[20] It is unfortunate that the legal issue proceeded on a concession — one might otherwise have had more reasoning on the applicable law. But it does appear that the court had no difficulty in accepting that a remedy lay for the negligent exposure to a hazard created in the immediate vicinity of a place where the public might be expected to pass. The imposition of vicarious liability is also interesting.

[21] Shortly thereafter there was a similar accident when an individual walking home fell into a pit, which had been excavated as part of the works in creating what is now called the Old College on South Bridge, Edinburgh. The subsequent litigation (Innes v Magistrates of Edinburgh ³⁷ ) is reported twice in Morison’s Dictionary, briefly under the heading Reparation, and more fully under the heading Public Police. Both the Magistrates of the City and the trustees for the rebuilding of the University were sued, the latter ultimately being assoilzied. Morison reports:

‘The Court … were unanimous in thinking the action well founded against the Magistrates. One of their most important duties (it was observed) is to take care that the streets of the city are kept in such a state as to prevent the slightest danger to passengers. They are liable for the smallest neglect of this duty, and in this case, without some degree of culpa on their part, the pursuer could not have met with the misfortune ³⁸ .’

The pursuer had relied again on Roman law (certain passages from the Digest ³⁹ ) and the decision is consistent with Gardner ⁴⁰ to the effect that there is a duty of care owed to those legitimately passing by; it is not clear from the report how the trustees came to avoid liability.

[22] A fuller citation of authority is to be found in the last of this trilogy of persons precipitated into pits. In January 1801 Henry Black was returning home on horseback ‘in a dark and tempestuous evening’ by a road leading through the estate of William Cadell, when he fell into an old coal-pit near the road and was drowned, together with his horse. The deceased’s children brought an action of damages against the landowner — reported as Black v Cadell ⁴¹ (1804). The pleadings, as narrated in the report, disclose that in the Court of Session the pursuers relied, by way of example on Jewish and Roman law, including the Lex Aquilia; Innes ⁴² was also cited.

[23] The court found in favour of the pursuers. No judicial observations are recorded in the report in Morison ⁴³ or in the Faculty Collection ⁴⁴ report of that case under its date — 9 February 1804. The defender appealed this decision to the House of Lords. The appeal seems to have taken an extraordinary length of time. Judgment was eventually delivered on 20 February 1812 ⁴⁵ .The appeal was unsuccessful. No speeches are recorded in the report. It does, however, appear that the respondent, in support of the judgment below, relied solely on Roman law.

[24] As McQueen and Sellar say in their chapter on Negligence in A History of Private Law in Scotland, some scholars have seen in Stair a suggestion of a native remedy for personal injury apart from that based on assythment ⁴⁶ ; but it seems clear that this trilogy of fundamental cases was founded squarely on Roman law (as developed).

[25] Therefore, by the first decade of the nineteenth century Scots law had recognized that, in certain circumstances at least, a duty of care was owed to prevent personal injury — including injury causing death — and breach of that duty could give rise to a liability in damages. This duty was incumbent on those having control of public thoroughfares or of land immediately adjacent to such thoroughfares and was owed to members of the public passing along them. The principle underlying the duty lay in Roman law (as developed). Given the breadth of that principle, the law was ripe for further development.

[26] In 1815 the Jury Court was created to allow certain civil cases to be tried by jury. From 1815 until 1830 (when the court was absorbed into the Court of Session) cases tried in that court were reported in Murray’s Reports ⁴⁷ . Maclachan v Road Trs ⁴⁸ and Millar v Road Trs ⁴⁹ (1827 and 1828 respectively) are both cases where road trustees were held liable for obstructions on the road, which led to accidents involving personal injury. But the situations in which liability might be found were not restricted to such cases. In Allan v McLeish ⁵⁰ (1819) the owner of a coach was found liable for the negligent and improper conduct of the coach driver, which resulted in injury to a passenger. A similar result was reached in Gunn v Gardiner ⁵¹ (1820). Although the injured parties in both these cases were passengers, there is no suggestion that liability arose out of, or only out of, breach of any contract of carriage. There was a delictual liability — this is clear from the recognition of liability to other road users.

[27] Miller v Harvie ⁵² (1827) concerned the death of a child playing on the road, who was run over and killed by a coach. Although the action was unsuccessful, there is no suggestion that the child was beyond the range of those to whom a duty of care was owed. Another unsuccessful case on the facts was Anderson v Pyper ⁵³ (1820), where the fault was alleged to be in the condition of the coach.

[28] Successful cases from this period in the Court of Session (which continued to hear personal injury appeals from the lower courts) include Chapman v Parlance ⁵⁴ (1825) and Baird v Hamilton ⁵⁵ (1826) (a five judge case). In the former a female who, passing along a street, had stepped aside for what was described as a ‘necessary purpose’ into the door or entry of an unfinished building, suffered injury when she fell into an unguarded sunken area. In the latter, although the case was primarily concerned with the question whether a master was liable for the negligence of his servant (it was held that he was), it is clear that the award of damages in respect of a child knocked down in the street proceeded on the basis of delict.

[29] In Hunter v Edinburgh and Glasgow Union Canal Co ⁵⁶ (1836) a pedestrian recovered damages where she had suffered damage from the negligent raising of a drawbridge. Similarly, in Edinburgh and Glasgow Union Canal Co v Johnston ⁵⁷ (1822), where a passenger on a canal boat was injured in a collision with another boat and the operators of both boats were found liable, it is clear that liability lay in delict.

[30] This approach may be contrasted with the (broadly contemporary) approach in England, where in Winterbottom v Wright ⁵⁸ (1842) — a case which featured significantly in Mullen ⁵⁹ and in Donoghue ⁶⁰ — Lord Abinger CB observed that if the plaintiff there could sue, ‘every passenger or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action ⁶¹ ’. This, he added, would lead to ‘the most absurd and outrageous consequences ⁶² ’. Although the defendant in Winterbottom ⁶³ was the supplier rather the operator of the coach, the relative narrowness of the scope of the duty of care, as laid down by the English judges, is evident.

[31] None of the Scottish reports of this period contains any definitive judicial statement of the scope of the duty of care, which had been held to exist. They simply recognize that in the particular circumstances of the case, there was such a duty.

[32] In 1829 Professor George Joseph Bell’s Principles of the Law of Scotland ⁶⁴ was first published. In this first edition the learned author states:

‘The law protects personal safety, not only against malice and crime, but also against negligence and gross disregard of the safety and interest of others… ⁶⁵ ’.

Moreover, under the heading “Injuries by negligence” he says:

‘These questions chiefly arise from the injuries so frequent amidst rivalship in rapid travelling by land or by water…The cause of action is, insufficiency of the vehicle; or negligence; or overloading; or illegally furious driving… ⁶⁶ ’

Furthermore, Bell notices ‘the responsibility of road trustees for acts or negligence of workmen employed by them or their surveyors or contractors ⁶⁷ ’.

[33] These first edition passages (which were not mentioned by Lord Macmillan in the earlier version of his speech in Donoghue ⁶⁸ ) can appropriately be read with the passage from the tenth edition of Bell’s Principles cited by Lord Macmillan in the final version of his speech:

‘Gross negligence or imprudence… is, as a ground of action for damages, to the effect of making the person, guilty of the imprudence or negligence, liable to indemnify the person who suffers by the fault… ⁶⁹ ’.

Accordingly, I suggest, a wide-ranging delictual obligation importing a duty of care with a liability in damages for breach had been recognized — albeit at that stage it had been illustrated only in particular situations.

[34] In passing, it is of note that a few years later (in Findlater v Duncan ⁷⁰ 1838) liability of public road trustees for personal injury to the driver of a gig — which had been overturned by a heap of stones left partly on the road by the negligence of the trustees’ contractors — was held to be settled law in Scotland (although certain English authorities cited tended to show that the rule was otherwise in that jurisdiction). The trustees were also found liable to the driver for the death of his son, who had been a passenger in the gig and fatally injured in the accident (Findlater v Duncan ⁷¹ 1837).

[35] This was not the only area of law in which the Court of Session, left to its own devices, was content to formulate rules different and more generous than those applying in England. In Dixon v Rankin ⁷² (1852) the Second Division rejected, as inconsistent with Scots law, the doctrine of common employment ⁷³ already established in England. Eleven months later the First Division likewise rejected the English doctrine (Gray v Brassey ⁷⁴ ). It was only when a third case (Reid v Bartonshill Coal Co ⁷⁵ 1856) was taken to the House of Lords that the English doctrine (ultimately derived from American jurisprudence) was foisted on Scots law. There the Lord Chancellor uttered the infamous words:

‘I consider that in England the doctrine (of common employment) must be regarded as well settled; but, if such be the law of England, on what ground can it be argued that not to be the law of Scotland? ⁷⁶ ’

The doctrine remained with us until its abolition by statute in 1948 ⁷⁷ .

[36] Dixon ⁷⁸ , Gray ⁷⁹ and Reid ⁸⁰ were all concerned with claims for damages brought by an employee (a ‘servant’) against an employer (a ‘master’). The Lord Justice-Clerk (Lord Hope) in Dixon discusses ‘the law of Scotland on the contract of service ⁸¹ ’, concluding that it was well settled to an effect very different from the law of England. He explains that in Scotland the master’s obligation:

‘to provide for the safety of the lives of his servants by fit machinery, is not greater or more inherent in the contract, than the obligation to provide for their safety from the acts done by others whom he employs ⁸² ’.

Although this discussion is in contractual terms — which may be of importance in relation to later developments in the law — it seems reasonably clear that, whatever the position under contract, Scots law recognized that the injured employee had a remedy against his employer in delict; that is, that the relationship arising out of the circumstances of the contract, and incidental to it, gave rise to a remedy in delict at common law independent of any remedy in contract.

[37] In his Treatise on the Law of Reparation, first published in 1864, Guthrie Smith gave five examples where duties of care might arise ⁸³ . Three of these (use of dangerous implements, lawful operations carelessly conducted and insufficient machinery or other apparatus) were typical of operations carried out in the context of a master/servant relationship — though not exclusively so. The other two examples (reckless driving and want of professional skill) clearly on authority gave rise to delictual liabilities — for example, a patient could sue a doctor even though it was not the patient who had engaged him ⁸⁴ . There is no suggestion here that the primary remedy is otherwise than in delict. Moreover, the early master and servant cases — for example, Macauley v Buist & Co ⁸⁵ (1846) and Sneddon v Addie ⁸⁶ (1849) — appear to be founded on delict at common law, rather than on any breach of the contract of service.

[38] Certain cases from the 1850s give some indication of the scope of the duty of care owed generally and its subsequent development. In Little v Neilson ⁸⁷ (1855) a stranger who, while walking along a road, had been asked by the overseer of a group of workmen moving a load to assist in the operation, was held to have a relevant claim for damages against the overseer’s employer.

[39] Conversely, in Lumsden v Russel ⁸⁸ (1856) a nine-year-old boy, who was not employed by the mineworking employers but who, while on their premises, was asked by his father (an employee there) to fetch water met with a fatal accident, it was held that there was no liability on the part of the employers.

[40] Similarly, in Balfour v Baird & Brown ⁸⁹ (1857) — another fatal accident involving a child — it was held that there was no liability on the part of timber merchants who had piled wooden battens on unenclosed rented ground adjacent to a roadway running by a canal, when a ten-year-old boy had gone between two piles and been killed by battens falling from the top of a pile. There was some suggestion in the evidence that the boy may have been climbing on the pile. However the general ground of judgment rested on the basis that the boy had no business to be where he was. The Lord Justice-Clerk (Hope) described the boy as a ‘trespasser’ — although the English tripartite categories of visitor, licensee and trespasser had not yet been visited on Scots law.

[41] On the other hand, if the presence of an injured party in a dangerous place on premises was due solely to the fault of the occupier’s servants, the occupier would be liable (Fraser v Younger & Sons ⁹⁰ 1867).

[42] In his later work, The Law of Damages, Guthrie Smith said:

‘Failure to act with due care and attention, which is in England and America called negligence and Scotland is the omissio diligentiae — the failure to take the care which in a mixed community every one is bound to take, in the conduct of himself and the management of his property, to prevent harm to others, and which is embedded in the maxim sic utere tuo ut alienum non laedas [use your own property so that you do not interfere with the natural rights of a neighbour] ⁹¹ .’

This Latin maxim is of particular relevance to the use of property in a way harmful to other property (by nuisance or by the intentional causation of damage), rather than to the field of the duty of care to avoid personal injury; therefore I am unsure that is very illuminating in this context. However, the acknowledgement that ‘every one’ in a ‘mixed community’ has an obligation to take care to prevent harm to others is consistent with a wide-ranging principle.

[43] Nonetheless, as the law developed, attention was focused on the use of property, whether heritable or moveable, which affected personal safety.

[44] In the first Faculty Digest ⁹² , first published in 1924, cases decided in the Supreme Courts and the House of Lords (on appeal) between 1868 and 1922 were digested under various headings, one of which is entitled ‘Negligence’. Two of the classes of negligence listed under that title are ‘Heritable Property’ and ‘Moveable Property’. The former is further subdivided into invitees, licensees and trespassers, amongst other categories — notwithstanding the fact that the cases digested here preceded the ultimately authoritative imposition of these categories in Dumbreck v Addie & Sons ⁹³ (1929), a ruling which in turn was subsequently abolished by statute ⁹⁴ .

[45] Therefore, perhaps more germane to Donoghue ⁹⁵ is the treatment of those responsible for moveable property.

[46] In Edwards v Hutcheon ⁹⁶ (1889) a contractor, under a contractual arrangement with a farmer, brought on to farm premises a corn threshing machine. The farmer’s daughter aged 19, who was assisting in the threshing operation, was badly injured when her leg was caught in the unguarded drum of the machine. The girl, with the consent and concurrence of her father, brought an action of damages for personal injuries against the contractor. It was successful. The Lord Justice-Clerk (Macdonald), who agreed with the judgments of the sheriff and the sheriff substitute below, proceeded, it seems, on the basis that there was a duty of care owed by the contractor to the girl, the only question being whether he was at fault. Lord Rutherford Clark and Lord Lee concurred without elaboration.

[47] The remaining member of the court, Lord Young, also concurred. His approach was, however, somewhat different from that of the Lord Justice-Clerk. He posed for himself the question whether it was the contractor’s duty to send a reasonably safe machine. He answered this by saying: ‘I think under the contract it was ⁹⁷ .’ He then agrees with the sheriff (who, as it happens, was Guthrie Smith) that the protection given in England under statute to agricultural labourers was implied in Scotland under the common law. He then continues:

‘The only thing which can be said for [the contractor] is that the farmer was present, and seeing the state of the machine, allowed his daughter to feed it. I cannot think that this bars his daughter from suing this action. I regard it as an action by the father upon the contract which was fulfilled dangerously, with the result that his daughter, living in family with him, lost her foot. I do not enter upon the question whether either of them could have sued alone, or, rather, whether the daughter could have sued without his concurrence, she being no party to the contract. Indeed, I should be disposed to avoid deciding the point, even if it were hard to do so, and I should assume that the farmer and his daughter, as I have said living in family with him, are joint pursuers of this action ⁹⁸ .’

[48] While an equitable result, this reasoning appears flawed. It confuses the question of title to sue with that of the right to a remedy. It is also, perhaps, an early example of the misconception, which began to creep in and was not cured until Donoghue ⁹⁹ , that in a contractual context the only remedy was a contractual one.

[49] In Cramb v Caledonian Railway Co ¹⁰⁰ (1892) three individuals had consumed sugar which, while in transit by rail, had been contaminated by arsenic which had leaked from its container. Two of them died; the third was taken ill but recovered. Proceedings for reparation were brought by the survivor and by members of the families of the deceased. The action was directed against three parties: the consignor of the arsenic, the railway company and the grocers who had sold the contaminated sugar. The action failed, for various reasons, against the railway company and the grocers.

The claim against the consignor (the chemical manufacturer) was settled by a payment to the pursuers. As to them, Lord President Robertson said:

‘The fact is, the party to blame and legally responsible was the chemical company, who in dealing with a substance of such enormous peril were bound to have taken the greatest precaution for its safe package, and to have given to the railway company the fullest warning of the extraordinary risk to all the world which attended its transit ¹⁰¹ .’

[50] There was, of course, no contractual relationship between the injured parties and the chemical company. The claim lay solely in delict. The subsumption is that a duty of care rested on the chemical company towards anyone who might be harmed by the leakage of the arsenic. This may, of course, be illustrative of what, prior to Donoghue ¹⁰² , emerged as the special duty of care in respect of goods ‘dangerous in themselves’ (that is, inherently dangerous). As appears from Cramb ¹⁰³ English cases were, by this time, being liberally cited in argument and the significance of a contractual relationship, or its absence, was being highlighted. But the case does, at least, illustrate that a party unrelated contractually to the ultimate consumers might be liable to them for the injurious consequences of what was consumed.

[51] Cited in Cramb ¹⁰⁴ was the decision of the English Court of Appeal in Heaven v Pender ¹⁰⁵ (decided in 1883), where a general statement of principle was attempted by Sir William Brett, MR. At p 507 he said:

‘Actionable negligence consists in the neglect of the use of ordinary skill and care towards a person to whom the defendant owes the duty of observing care and skill, by which the plaintiff, without negligence on his part, has suffered injury to his person or property…’

He then refers to drivers (of carriages), masters of ships and railway companies, with whom the injured party may have no contractual relationship; and continues at p 509:

‘…whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.’

[52] His fellow judges, Cotton and Bowen LLJ, while concurring in the result, distanced themselves from the breadth of the MR’s observations. Later, in Le Lievre v Gould ¹⁰⁶ (1893) Brett MR (by this time Lord Esher) himself stepped back somewhat from the scope of his observations in Heaven ¹⁰⁷ . His fellow judges on this occasion (Bowen and AL Smith LLJ) read Heaven v Pender ¹⁰⁸ narrowly. In Donoghue v Stevenson ¹⁰⁹ Lord Atkin opined that Brett MR’s formulation in Heaven v Pender ¹¹⁰ was too widely stated, the restriction of proximity not having been included.

[53] The latter case had, however, been noticed in Scotland. It was cited, albeit without comment, in Guthrie Smith’s Law of Damages ¹¹¹ ; referred to, but distinguished, in Caledonian Railway Co v Warwick ¹¹² (1897); and, interestingly, picked up by Lord Kinnear (with whom Lord President Kinross and Lord Adam agreed) in Traill & Sons v Actieselskabat Dalbeattie ¹¹³ (1904) — a case more frequently cited in relation to the validity of an assignation.

[54] Traill & Sons ¹¹⁴ concerned the death of a stevedore when a sling-rope supporting a cargo broke and the cargo fell on the workman. The stevedoring company settled with the widow and children of the deceased but, having obtained an assignation from them, then sued the shipowners who had provided the defective sling-rope. Having dealt with the issue concerning the assignation, Lord Kinnear continued, at pp 807-8:

‘…the next question is whether there is a relevant averment of fault on the part of the defenders, and I agree with the Lord Ordinary that the case which the pursuers undertake to prove must be allowed to go to trial. The strength of the pursuers’ case lies in their averment that the defective rope to which the accident is attributed was provided by the defenders, and furnished to the stevedores’ men for the special purpose of being used by them for unloading the ship; that they failed to take reasonable care to see that the ropes were in a fit state to be used so as to expose the men who used them to danger or risk not necessarily incident to the service on which they were engaged; and that the stevedores had no opportunity for examining or testing them for themselves. If all this can be made out, it appears to me that the case may be brought within the rule of Heaven v Pender [ ¹¹⁵ ], as explained by Lord Herschell in Caledonian Railway Company v Mulholland (or Warwick)[ ¹¹⁶ ].’

[55] What is of particular interest is that, while there was no contract between the deceased and the shipowners, the latter had supplied something (in that case a piece of equipment) which was in fact defective, but the defect was such that the deceased’s employer had no opportunity of examining or testing that item. There being averments of lack of reasonable care by the shipowners, the assigned claim was held relevant for inquiry. The anticipation of some of the reasoning in Donoghue ¹¹⁷ is striking.

[56] Glegg in the first edition of his Treatise on Reparation ¹¹⁸ (published in 1892) cites Heaven v Pender ¹¹⁹ , though with the observation that it has been ‘subject to much hostile criticism ¹²⁰ ’. However, the learned author also recognises that a duty giving rise to reparation may exist independently of any contractual relationship. In the second edition ¹²¹ (published in 1905) he is somewhat more cautious. Referring to Heaven v Pender ¹²² he says:

‘… the decision quoted has no application to a case when defect in materials or appliances supplied by the original party does not imply a breach of duty on his part towards the pursuer. If the thing supplied is of such a nature as to constitute a trap, or is itself noxious or dangerous, a wider duty may be raised but if the defect complained of is not of this kind there may be no responsibility therefor as between the person supplying and a person other than one to whom it is supplied ¹²³ .’

[57] Glegg cites in that connection, among other cases, Campbell v A & D Morison ¹²⁴ (1891), where both Lord Young and Lord Traynor were dismissive of there being any case in delict where a workman was injured having fallen from a defective gangway erected by a third party; but, only some English cases were cited and it does not appear that any reference was made to Heaven v Pender ¹²⁵ . Nor are Lord Young’s narrowly formulated grounds of judgment readily reconcilable with earlier Scots authority, none of which was cited.

[58] Before coming to the immediate antecedents of Donoghue ¹²⁶ it is necessary to notice a limiting consideration, which appears to be implicit in Scots law, at least as it developed. That is, that negligence (that is, carelessness), albeit causing harm, is not of itself sufficient to give rise to liability. In Clelland v Robb ¹²⁷ in 1911 Lord President Dunedin deprecated the use made by the Lord Ordinary of an English dictum and continued:

‘Negligence per se will not make liability unless there is first of all a duty which there has been a failure to perform through that neglect ¹²⁸ .’

Lord Kinnear agreed adding:

‘… I think it is extremely important that it should be said, because we constantly find in discussions of this kind that the primary necessity for resting the charge of negligence upon some relation of duty is forgotten ¹²⁹ .’

The other members of the Division concurred. The question in every case was whether there was such a relation of duty.

[59] This review of early twentieth century Scottish authority should include a reference to Cameron v Young ¹³⁰ (1908), a decision trenchantly criticized by Hector McKechnie in his article in Green’s Encyclopedia ¹³¹ .

[60] In Cameron ¹³² the House of Lords, following English precedent, rejected earlier Scottish authority and denied a remedy to the members of the family of a tenant of a dwellinghouse — these individuals having suffered disease as a result of the unhealthy state of the dwellinghouse. Lord Robertson, who delivered the leading speech in the House of Lords, makes an unconvincing distinction between the obligations of a proprietor to what he calls ‘external neighbours’ (such as a person passing in the street) and those who are in the house by virtue of the licence granted to the tenant.

 

[61] Cameron ¹³³ was distinguished in McCormick v Fife Coal Co ¹³⁴ in 1931 — which was reported before Donoghue ¹³⁵ . It is said in Walker on Delict (first edition) to be inconsistent with Donoghue ¹³⁶ and that it should now ‘be ignored as a bad decision’ ¹³⁷ . It should be noticed, however, that the case was presented, both by the tenant and by the members of his family, as one of breach of contract — clearly a misconceived basis as regards the latter. It is thus readily distinguishable. In Donoghue Lord Macmillan described it as in ‘a different chapter of the law ¹³⁸ ’.

[62] Thus, in broad terms, that was the Scottish jurisprudential background against which Donoghue v Stevenson ¹³⁹ was decided. Donoghue was, as I have said, immediately preceded by Mullen v Barr ¹⁴⁰ (the mice in the ginger beer bottles), where the Second Division (Lord Hunter dissenting) held that the ultimate consumer had no right to reparation from the negligent manufacturer of the ginger beer. That decision had proceeded on the premise that the law of Scotland and the law of England were identical and that a line of authority in England was fatal to the pursuers’ cases.

[63] As is well known, the House of Lords decided, by a majority, that the Second Division in Mullen ¹⁴¹ had been wrong to hold that there was a line of authority in England fatal to the pursuers’ claims. The House held that the pursuer’s averments in Donoghue ¹⁴² of a duty of care at common law owed to her by the manufacturer of the ginger beer were, on the basis of what came to be known as the ‘neighbour principle’, relevant for inquiry.

[64] As I said at the outset, no reference was made in the discussion to any prior Scottish authority — other than to Mullen v Barr ¹⁴³ . I do not suggest that in that line of authority there was a decision, or even a judicial dictum, which would have been conclusive in the pursuer’s favour. But, although some dicta — and even some decisions — might have appeared unhelpful, a distillation of the general trend of Scottish authority would surely have supported the decision in principle to which the majority in Donoghue ¹⁴⁴ came.

[65] In that connection it is worth reminding ourselves of Lord Macmillan’s statement of principle. At p 70 he said:

‘The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence, and entails the consequences of negligence. What then are the circumstances which give rise to this duty of care? In the daily contacts of social and business life, human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other. The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty ¹⁴⁵ .’

[66] As we have seen, Scots law seems to have had no difficulty in recognising from the outset of its development a general duty of care in delict, imported from Roman law (as developed). Admittedly, the earliest cases were largely concerned with the management of heritable property and of public roads; but there was also recognised from an early stage a duty of care incumbent on those driving carriages or other means of transport. That duty was not owed, or not solely owed, under any contract of carriage but in delict to the public at large exposed to the risks presented by moving traffic.

[67] The duty in delict was also recognised in the management of moveable property, the operations of which were liable to injure persons legitimately coming in contact with it. Although Lord Young’s observations in Edwards v Hutcheon ¹⁴⁶ (the corn thresher case) are, in my respectful view, open to serious criticism, the rest of the court seems to have had no difficulty in holding that the contractor owed a duty of care in delict to a third party (the farmer’s daughter). It is difficult to see why a like duty was not owed to any other farm labourer working in close proximity to the machine.

[68] Likewise, in relation to systems of working a duty of care came to be recognised. Although this was commonly in employment situations, it was not a contractual but a delictual duty which was relied on.

[69] In the Scots cases discussed above there appears to have been no express reference to ‘the standards of the reasonable man ¹⁴⁷ ’ (Lord Macmillan’s phrase); but in developing the law in changing social and industrial circumstances the court seems implicitly to have applied a standard of reasonableness, not inhibited by the need to find any exact precedent. Lord Kinnear’s observations in Traill & Sons ¹⁴⁸ (the defective rope case) about the absence of an opportunity of intermediate inspection or testing anticipate similar considerations in Donoghue ¹⁴⁹ . Although Cameron v Young ¹⁵⁰ might, at first sight, appear to have been a step backwards, that case can readily be distinguished as having proceeded on a misconceived argument.

[70] The judges in Mullen ¹⁵¹ and Donoghue ¹⁵² had to address what may, in their time, have been a relative novelty in commercial life — the distribution by a manufacturer of a consumable in a packaged form which rendered it incapable of examination between distribution and consumption.

[71] In an interesting paper delivered at a Paisley conference last year ¹⁵³ entitled ‘Lord Buckmaster: The Reluctant Villain in Donoghue v Stevenson’, Erika Chamberlain of Western University in Ontario, Canada observed that, generally speaking, we tend to be critical of Lord Buckmaster (who headed the minority in Donoghue ¹⁵⁴ ) for his failure to recognise the changing needs of society, and in particular the changing nature of retail trade. She continued:

‘Consumers were no longer relying on local shopkeepers to produce and package, and be knowledgeable as to the quality of, the food and drink they sold. More and more products were being manufactured at a single location, to arrive at local shops ready to be sold directly to the consumer. During the inter-war years, products were increasingly advertised by their brand names, and were specifically requested by those seeking to purchase them. Accordingly, consumers looked to the manufacturer, and no longer to the individual retailer, to guarantee the quality of the product. ¹⁵⁵ ’

It was right that, when the opportunity arose, the courts should recognise that new relationship for the purposes of the law of reparation.

[72] Lord Buckmaster, while acknowledging that the principles of the common law were capable of application to meet new circumstances, found in English law authority which, in his judgment, precluded him from holding that Mrs Donoghue had a relevant case against the manufacturer. In principle, Scots law should have had no difficulty in recognising that, in the new commercial situation, a duty of care was owed by the manufacturer to the ultimate consumer.

[73] In Mullen ¹⁵⁶ Lord Ormidale had posed two questions, the first of which was whether, in the absence of any contractual relation between the pursuers and the defenders, the latter owed a duty to the pursuers, as consumers of the beer, of taking precautions to see that nothing of a poisonous or deleterious nature was allowed to enter and remain in the bottles. He said, in response to his own question:

‘I recognise the difficulty of determining the first of these questions with either confidence or satisfaction; and were it not for the unbroken and consistent current of decisions beginning with Winterbottom v Wright ¹⁵⁷ to which we were referred, I should have been disposed to answer it in the affirmative ¹⁵⁸ .’

That instinctive disposition was ultimately demonstrated to be well founded. A fuller examination of the fundamentals of Scots law might have achieved that demonstration earlier. However that may be, it is, you may think, reassuring that a decision of such profound significance as was Donoghue ¹⁵⁹ in the common law world was wholly consistent with the prior law of the legal system in which it arose.

* Lord President of Court of Session and Lord Justice General of Scotland 2005–2012. Lord Hamilton retired from office on 10 June 2012.