Donoghue V Stevenson - House of Lords

House of Lords

Donoghue filed a petition to appeal to the House of Lords on 25 February 1931. She also sought (and subsequently received) permission to pursue the case in forma pauperis (with the status of a pauper) – a status she had not, for unknown reasons, sought at the Court of Session – providing an affidavit declaring 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...". This claim was supported by the minister and two elders of her church and meant that Donoghue was not required to provide security for costs in case she lost the appeal. (Her legal team had agreed to work pro bono.)

The petition was granted and the appeal was heard 10 and 11 December 1931 by Lord Buckmaster, Lord Atkin, Lord Tomlin, Lord Thankerton and Lord Macmillan. A supplementary statement from Donoghue's appeal papers indicates that her counsel, George Morton KC and William Milligan (later the Lord Advocate and a Privy Counsellor), argued that "where anyone performs an operation, such as the manufacture of an article, a relationship of duty independent of contract may in certain circumstance arise, the extent of such duty in every case depending on the particular circumstances of the case". Stevenson, they argued, owed a duty to take reasonable care in the manufacture of his ginger beer because the sealed bottles were opaque, and therefore could not be examined, and because the ginger beer was intended for human consumption.

Stevenson's counsel, Wilfrid Normand KC (Solicitor General for Scotland and later a Law Lord), James Clyde (later the Lord President of the Court of Session and a Privy Counsellor), responded that "it is now firmly established both in English and Scottish law that in the ordinary case (which this is) the supplier or manufacturer of an article is under no duty to anyone with whom he is not in contractual relation". They denied that ginger beer was intrinsically dangerous or that Stevenson knew that the product was dangerous (the two established exceptions for finding a duty of care) and argued that the third exception that Donoghue was attempting to introduce had no basis in precedent.

The House of Lords gave judgment on 26 May 1932 after an unusually long delay of over five months since the hearing. The court held by a majority of 3–2 that Donoghue's case disclosed a cause of action.