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The sliding snailNegligence has changed since Donoghue v Stevenson—and not for the better, argues Jon Holbrook

playground supervisor was at ‘fault’ the judge was not using this expression in a Donoghue sense. His finding that the supervisor “ought to have done rather more” expressed the view that with the benefit of hindsight she could have acted differently to avert a tiny risk of harm.

THE MORAL COMPASS

Another way of gauging the different approach is to recall the seminal way in which Lord Atkin justified the law of negli-gence. He noted that “[t]he liability for negli-gence…is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay”. It is easy to see how the company that allowed a snail to get into its bottle of ginger beer had acted in a morally reprehensible way and ‘must pay’ for the harm it caused. Yet a moral compass would shy away from finding that the play-ground supervisor acted equally badly or that she should pay. On the contrary most

Seventy-five years ago the House of Lords heard M’Alister (or Donoghue) v Stevenson [1932] AC 562, [1932] All

ER Rep 1. Thousands of law students will forever remember the case involving the snail and the bottle of ginger beer which gave birth to the law of negligence. Donoghue put the Donoghue put the Donoghuelaw of negligence onto a principled footing by establishing that: “You must take reason-able care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” Central to this principle was the notion of fault or, as their lordships put it, “taking reasonable care”.

Donoghue was a ground-breaking deci-Donoghue was a ground-breaking deci-Donoghuesion, possibly one of the most important that the House of Lords has ever given. The court took five months to consider its judgment amid talk of some brotherly arm-twisting that resulted in a 3:2 decision. The minority position was informed by a fear of opening the floodgates. In fact Donoghue did not open Donoghue did not open Donoghuethe f loodgates for many decades as judges applied the notion of negligence appropri-ately. However, over the last 20 years case law has widened the circumstances in which a claimant can succeed with a negligence claim—to the extent that our newspapers are full of reports of people suing for types of negligence that would have been unthinkable in 1931. The main reason why many of these headline-grabbing claims do not make it into court is because defendants see the writing on the wall and settle at an early stage.

One case that did recently go the distance involved a schoolgirl who sued her educa-tion authority after falling from a slide and breaking her arm in a school playground. The girl won her claim on the basis that her local authority was vicariously liable for the

actions of the playground supervisor who had noted some jostling on the slide and told the children to use it one at a time. As the supervisor turned round, when another child called for her attention, the girl, aged six, fell. The supervisor’s negligence arose from the court’s finding that she “ought to have done rather more, at least by remaining in a position where she could intervene if the children did not comply with the words that she had uttered” (see Spowart v Nottingham-shire CC, Sheffield County Court, 23 June shire CC, Sheffield County Court, 23 June shire CC2006, unreported).

THE BENEFIT OF HINDSIGHT

The schoolgirl’s cause of action was the same as the one Ms Donoghue had used 75 years earlier. But the court’s view of ‘reasonable care’ was not. In Donoghue the court had Donoghue the court had Donoghuestressed that “the standard of care exacted in human dealings must not be pitched too high”. Lord Atkin warned that “in a practi-cal world” fault must not be “treated so as to give a right to every person injured by them to demand relief”. And with this approach to fault in mind the court spelt out the particu-lar facts that enabled Donoghue to succeed: the ginger beer was manufactured for

the purpose of ingestion and, therefore, there was an onus on the manufacturer to avoid contamination;

the consumer bought the product expect-ing it to be drinkable, and would not have found it easy to detect the fault as the drink was sold in dark opaque bottles; and

the manufacturing process was such that one could readily ensure that snails did not have access to washed bottles.

The facts surrounding the schoolgirl’s fall of 1.5 metres from a slide in her school playground were entirely different. Whereas the ginger beer was faulty and dangerous, the playground slide was neither faulty nor dangerous. What happened in Nottingham-shire was an accident, the sort of incident that could happen in any environment where chil-dren play and have fun. In finding that the

IN BRIEF

Everyday accidents nowadays give rise to successful

claims.

Negligence should, but no longer does, carry a moral

stigma.

The Compensation Act 2006 could be used to arrest

the trend towards negligence claims without negligence.

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people would probably be shocked that legal responsibility for a playground accident had been laid at the door of a playground supervi-sor—though her employers were sued on the basis of vicarious liability, it was her ‘fault’ that gave rise to that liability.

Spowart illustrates a typical modern day Spowart illustrates a typical modern day Spowartapproach to fault. Since the 1950s the use of the word ‘dangerous’ in judgments has fallen out of favour as the notion of risk has taken centre stage in negligence claims. Over the last few years nearly all negligence cases, as reported in the Law Reports, have considered risk to be relevant.

TREE DEFLECTION

The impact that notions of risk have had on negligence claims can be illustrated by considering two cases involving golf, a sport that is not usually considered to be danger-ous. In 1967, a court dismissed a claim brought when a golfer hooked his tee shot so that his ball struck a golfer on an adja-

cent hole 200 yards away (see Brewer v Delo[1967] 1 Lloyd’s Rep 488). But in 1998 a similar claim succeeded. The defendant’s shot def lected off a tree and his golf ball injured the claimant at an adjacent hole. On appeal the defendant asserted that the trial judge had failed to consider “how unlikely it was that the ball would both deflect as it did and yet have sufficient impetus left to cause injury to the plaintiff some 80 to 90 yards away”. The fact that the ball had only injured the claimant because it deflected off a tree would suggest that this golfer was less culpa-ble than the golfer in the earlier case. But the Court of Appeal dismissed the defend-ant’s appeal in trenchant terms on the basis that although the risk he took was ‘relatively small’ it was sufficient to render him liable (see Pearson v Lightning [1998] 20 LS Gaz R Pearson v Lightning [1998] 20 LS Gaz R Pearson v Lightning33, 142 Sol Jo LB 143).

The golfing and school playground cases illustrate the central role that risk now plays when the courts assess fault. The fact that one golfer took a relatively small risk was sufficient for the court to find him negli-gent. Likewise, the playground supervi-sor took a small risk in not doing more to watch over the children on a school slide. In both cases, absent the benefit of hindsight, the reasonable bystander would describe the risk of injury as not just relatively small but negligible. Everyday life is replete with people taking the sort of negligible risks that were taken by the golfer and the playground supervisor. What caused these individuals to end up in court was not the negligence of their actions but the fact that from time to time actions have improbable consequences.

COMPENSATION

It may be that judges are nowadays moti-vated by a desire to compensate claimants. But laws have an impact that stray beyond the parties to any particular action. If negli-gence becomes merely a means of compen-sating somebody who has been harmed, then the tort loses its meaning. This happens when a standard of care ceases to represent a standard of conduct that reasonable people should meet and becomes instead a means of fixing liability on an individual. Nowadays there is a tendency for liability to attach to an individual who did something that anyone could reasonably have done, but which had consequences that nobody could reasonably have foreseen without the benefit of hind-sight. Individual claimants may benefit from this approach but society loses out. Defensive

medical practices and school trip cancella-tions are but two often talked about conse-quences of this claimant-friendly approach to negligence.

The problem has not escaped Parliament’s attention. The Compensation Act 2006 (ComA 2006), which received Royal Assent on 25 July 2006, requires a court when considering standards of care to consider whether the required standard would prevent or discourage a desirable activity from being undertaken (see ComA 2006, s 1). However, the legislation was passed not from a desire to change the court’s approach to standards of care but to reassure the public that “normal activities are not prevented because of the fear of litigation” (see ComA 2006, explana-tory notes, para 10). What Parliament failed to appreciate was that the public perception stems from a real problem—namely the rela-tive ease with which courts will nowadays find a defendant to have been negligent. What needs to be changed is not the public perception but the reality that underpins that perception. It remains to be seen if the courts will use ComA 2006 to rise to this challenge.

Seventy five years after Donoghue there are still many negligence claims that succeed because the defendant has been at fault in the meaningful sense then envisaged by the House of Lords. However, grafted onto this tort are an ever increasing number of claims that purport to be fault-based but which in reality have nothing to do with Lord Atkin’s “general public sentiment of moral wrong-doing for which the offender must pay”. These claims are decided on the basis that an ordinary everyday risk had improbable consequences that, with the benefit of hind-sight, could have been avoided. These are negligence claims without negligence. Lord Atkin and his brother judges will be turning in their graves.

Jon Holbrook is a barrister at 2–3 Gray’s Inn Square, London. E-mail: jon.holbrook@2-3gis.co.uk

This article is based on a talk given by the author at the Battle of Ideas, an initiative of the Institute of Ideas, in October 2006

“Donogue was a ground-breaking decision, possibly one of the most important that the House of Lords has ever given”