Exploring the Advocates Library, I came across a remarkable archive that I hope will be familiar to every first year torts teacher: the records of what Scots Lawyers know as (Poor) Mrs Mary M’Alister or Donoghue, Pursuer (Appellant) v. David Stevenson, Defender (Respondent)
What becomes interesting is the wealth of social detail involved. The case was brought as an in pauperis proceeding, but that Latin abstraction doesn’t ring as the following does:
She averred that “I am very poor, and am not worth in all the world the sum of Five Pounds, my wearing apparel and the subject matter of the said Appeal only excepted, and am, by reason of such my poverty, unable to prosecute the said Appeal.
At or about 8.50 p.m. on or about 26th August 1928 the pursuer was in the shop occupied by Francis Minchella, and known as Wellmeadow Cafe, 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 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 said bottle. In consequence of the nauseating sight of the snail in said circumstances and of the noxious condition of the said snail-tainted 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.
For a comparativist, the case is remarkable since the common law of torts is built on a case that didn’t come from a common law jurisdiction. Indeed the lower court decisions make it clear that the case was initially pleaded as part of the Scots law of obligations. But when it reached the Lords, their Lordships saw its potential as a case to reformulate the duty principle. The Lord Chancellor rewrote his opinion to downplay the Scots authorities.
The Canadian linkage to the case comes from the fact that a group of Vancouver lawyers made a pilgrimage to the site of the cafe, where the legendary ginger beer was bought. You can buy a comprehensive study of this fascinating case for $75. Canadians should read
Martin Taylor’s fine introduction to the case has been reproduced by the Scottish Council on Law Reporting. There is also a Mini-Trial to use the case as a teaching tool in secondary school.
Ah but was there actually a snail in the bottle? Because the case proceeded on an interlocutory basis the ruling of the House of Lords was on a point of law only, on the assumption that the facts alleged were true. The trial of the actual action was set down for 10 January 1932, but by then Stevenson had died and the case was settled for £200.
Delightfully a Scots legal blog is named after the cafe where it all allegedly took place.