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This section is a result of a dispute in 2004 by the author, with a company in the UK and
itremainsamatterofpride,thattheBritishLegalsystem,withallitsfaultsofwhichtherearemany,isonewhe
argument:
"Might'snotright,whereargument'snottreason,
Treason'shiswho'sMight,deniesgoodreason."
asyouhaveseenelsewhereinthepoetrysection,meansthatlogicalarguments(whentheygetheard)doesnotb
consequenceofthedeathpenaltyunlessthatis:whenerrantpeccantcouncils,abusetheirpowersandtakepeo
endsoftheearthfor50breakingeverystatuteinthebookandendupcaughtincourt,andlose4000forthedi
liestheytold.
Thisiswhatsomepeopledo,whenattheendoftheirtether..
Queen'sGuardcommittedsuicidehere,andCouncilworkeralsofortheimmoralconductwearesurroundedwit
Winterstooduptothem.Here...
Thedoctrineofprivityofcontractdevelopedinthenineteenth centuryasacorollaryofthebargaintheoryof
contract.,Contractualbenefitsandburdenscouldonlybeconferredon apersonwhoprovidedsome
consideration. Thedoctrineof privityofcontractactsasaboundarymarkforthelawof contract,preventingco
obligationsfromspreading beyondthecontractualbond.
This privity rule has given many problems to legal professionals for 140 years until the Law Commission
under the Contracts (Rights of Third Parties) Act 1999 (c. 31)
Winter didn't need the changes, he simply used logic in a 3-5 minute argument, to take the obverse rule
argument brought the solicitor to tears, and the Judge went off to seek advice, returning to say you are r
give this a two and half hours hearing. The defendant lost their costs of 1200 for defending 8, being
deplorably opportunistic
There will be an expose of the application of 2. above, as used in 2004, against this author as a buyer where the
relied on the asymmetry of knowledge between their solicitor and the lay customer, to retain a revenue of 15
advantage; despite their MONEY BACK GUARANTEE, and dispose of the buyer quickly and without cost. Thi
that 'blurs the grace and blush of modesty, and sets a blister', (iii)** where "noblesse oblige" resides. The def
first argument, a fallacy called the 'appeal to authority' is better expressed I think in Shakespeaare's:
"For my authority bears of a credent bulk,
That no particular scandal once can touch But it confounds the breather. (iv)**
The father case; TWEDDLE v ATKINSON (1861)1 B & S 393, below (i)** was relied on in court by this autho
3rd August 2005. The application to dismiss the claimant's case was before the judge and the claimant stated sim
that "the reason for the failure of the case in 1861, was the absence of 'consideration' (money or some other
benefit), therefore the presence of consideration, which is declared as received by the defendant in their defen
the claim enforceable."
The 1861 Tweddle V Atkinson application was dismissed on absence of consideration, my claim had presence
consideration and proof of its moves. Hence it was allowed.....
This is derived from the principle of necessary and sufficient conditions in determination of simple causes. To
argument into a frame where an analogy with a law of nature; by way of the laws of logic; being perhaps even m
powerful, will be easily understood in the example:
"Oxygen is necessary for life if and only if the absence of oxygen is sufficient to extinguish life." This
extremely simple example, that could be initially qualified with the terms "for specific species, under specific
circumstances"
Transposing the analogy produces; if consideration is one of the necessary conditions then,
"Consideration is necessaryfor an enforceable contract, if and only if the absence of consideration is suffici
make a contract unenforceable." Appropriate qualifications like promisors and promisee may be added to rende
details more specific. The conditional, if andonly if, is the material implicative function that binds the nomic rela
While this relates to nomic relationships; sense 2 OED (ii), in laws of logic and nature, one can easily s
privity rule; as drawn from bargain theory, was constructed to be sufficient for the 'failure to enforce' in TWED
ATKINSON (1861) and by material implication the converse (presence of consideration) would make the judg
enforceable.
The deeper logic here is: presence or absence as expressed in more formal notation P or ~P ( 'P' or not '
shown in the earlier short treatise on "hunt the proposition" on this website. The laws of logic applied here make
argument concerning the absence (~P) of consideration, focus on the first disjunct (P) which is presence. The su
condition is the more powerful element, since; in the argument above, Calcium or Magnesium may also be nec
life, but not sufficient for the absence of it except over a long period of time. Here the primary sufficient condi
was consideration; as was oxygen. Bear in mind that one disconfirming instance in the entire set of confirmin
is catastrophic for the principle. One disconfirming instance of life without oxygen means either the rule is inv
nature or not universal, and requires modification to a defined species of life to remain a simple cause.
Thus, finding a dispute in common law precedent where a promisee provided consideration to a
promisor and the relationship did NOT constitute an enforcable contract will I suggest be an impossible task.
should be found, then the privity rule is actually in contradiction with itself and subject to the LAW OF NON
CONTRADICTION. Which is simply expressed in the notation ~(P . ~P) (Not the case that P and Not P are tru
together). That is what makes the rule into a law of logic. These laws are true in all space and all time, and all u
They are the primary elements of Certain Knowledge, as opposed to Belief, which is why the author always pr
and truth, to rhetoric and proof:
Even where 'absence of evidence is not evidence of absence', the ring of truth can prevail, and any experienc
persons will instinctively KNOW this. If not then they must resort to the polygraph, or even more promising, the
fingerprinting techniques now being researched by Dr .L. A. Farwell in the USA. Proof, while necessary in a cou
needs to be sensitively combined with the behavioural sciences of body movement, also understood instinctively
a good look at the eyes, "The window to the soul.": Wittgenstein. If that is not used, then the "mind's eye" (Ham
even superior, where logic is applied as a filter to the data input to the stream of consciousness. The use of logic
with the latter, actually can be startling sometimes. Just as one knows the form of a predictable event, like the be
clear plastic ruler, leads to the eventual opaqueness developing at the juncture of a breach, then as predicted it sn
Linguistic exchanges of a social nature; being easier, have a form that can result in a sense of foreknowledge to t
response of ones interlocutor.
Certain Knowledge; existing as universals that are essentially tautologies as opposed to beliefs, is the b
which most if not all scientific constructs and methodologies should flow, The Cartesian proposition "Cogito er
think therefore I am, is at the boundary of certain and uncertain knowledge which then slopes in to the Platoni
areas of Belief. The Cartesian proposition is not even defeated by the 'clever devil principle', where hallucinatory
perception might be the foundation of false data n the percepts' stream of consciousness. One has to exist in ord
perceptions of such magnitude where the entire set of presented data may be false, thinking about it is a necess
condition of cognitive existence. This may be subject to controversy, but that hopefully is explained in the secti
to "Is existence a predicate?" where matters concerning the ontological and cosmological arguments for the exis
God are presented.
Of course the privity rule constructed by three judges in 1861, is fallible as a rule, and may be subject to changin
in human behaviour, just as flux in the laws of nature, revealed in the phrase from antiquity, "One cannot step in
the same stream of water twice." However the rule has been fixed in the 'firmament' as a precedent or frame of
and until removed or reformed; as in the Contracts (Rights of third Parties act) 1999, remains a rule many partie
contract will rely on to prevent the impact of contracts spreading beyond the parties or class members of its expr
implied terms.
The moral; for direct or third parties, would be to simply provide sufficient consideration as a promisee to one o
promisors, and then become a party to the contract in question. Nothing prevented Tweddle Junior giving 5 to e
and writing that into the contract. The fathers if necessary could provide that same amount of money as another
the contract. Clearly this first test was an unknown rule until created, perhaps quite fallaciously, since theere was
unfair in its terms, except perhaps to the family Atkinson, when his will and testament was read.
_________________________
(i)** TWEDDLE v ATKINSON (1861)1 B & S 393 is usually cited as the prime case which first
established the doctrine of privity of contract as part of English law. In reality the rule that consideration must m
the promisee is similar to, perhaps identical to, the privity rule...
It demonstrates some of the issues associated with privity and consideration in contracts.
Tweddle's father (whom I'll call Tweddle senior), and Atkinson -- Tweddle's father in law -- contracted to
a sum of money each to the support of Tweddle and his wife. Tweddle senior kept up his part of the barga
Atkinson died before paying anything. Tweddle sued the executors of Atkinson's estate. His suit was reject
because he himself was not party to the contract, even though it was for his benefit (see: Privity Of Contra
not possible to claim that there is an implicit contract between Tweddle (junior) and Atkinson, because the
consideration from Tweddle to Atkinson.
It seems likely that Tweddle senior could have enforced the contract at law (though he did not), because th
requirements of a contract were fulfilled. The consideration in this case would be that Tweddle senior acce
detriment at the request of Atkinson, rather than the Tweddle senior gave some benefit to Atkinson.
William Tweddle, the son of John Tweddle, married the daughter of William Guy.The two fathers made a
agreement with each other to give young Tweddle a sum of money on the marriage. Guysubsequently died
the money was not paid William Tweddle sued Atkinson, who was Guys executor. The
agreement between the fathers expressly provided that William Tweddle has full power to sue the said pa
any Court of law or equity for the aforesaid sums hereby promised and specified. The three judges were u
that William Tweddle had given no consideration for the agreement which
was, after all, between the fathers and they gave him short shrift, not even troubling counsel for the execu
apparently weak was the new husbands argument. This seems to ignore the fact that young Tweddle had
Guys daughter and, even if she were a great beauty so that he suffered no detriment, the entry into marri
have been perceived by a more sympathetic tribunal as
consideration, with William Tweddle taking Guys daughter off his hands. Although consideration must m
the promisee, it need not move to the promisor.
(ii)** Nomic, That pertains to or is concerned with a discoverable scientific or logical law.
Notes from case:
(v) ** Aristotle "To say of what is, that it is, or of what is not, that it is not, is true." Metaphysics (Book 4)
and its converse "To say of what is, that it is not, or of what is not, that it is, is false
Culpability is a function of 1) the harm one does, and 2) the responsibility one has in the act of 'intending
negligence' as opposed to simple negligence. Understanding the defendant's teleology, the claimant was able to p
precisely this tortious willful negligence, at first sight of their filed allocation questionnaire on 22nd April 2005, b
construct of delay and intended breach; not merely to the claimant, but towards the court.
Privity of contract
Contract law
Part of the common law series
Contract formation
Lack of capacity
Duress Undue influence
Illusory promise Statute of frauds
Non est factum
Contract interpretation
Mistake Misrepresentation
Frustration of purpose Impossibility
Impracticability Illegality
Privity of contract
Assignment Delegation
Novation Third party beneficiary
Breach of contract
Remedies
Specific performance
Liquidated damages
Penal damages Rescission
Quasi-contractual obligations
Promissory estoppel
Quantum meruit
vde
The doctrine of privity in the common law of contract provides that a contract cannot confer rights or impose
obligations arising under it on any person or agent except the parties to it.
The premise is that only parties to contracts should be able to sue to enforce their rights or claim damages as such.
However, the doctrine has proven problematic due to its implications upon contracts made for the benefit of third
parties who are unable to enforce the obligations of the contracting parties.
Contents
[hide]
1 Third-party rights
2 History
3 Exceptions
4 See also
5 References
[edit]Third-party
rights
Privity of contract occurs only between the parties to the contract, most commonly contract of sale of goods or
services. Horizontal privity arises when the benefits from a contract are to be given to a third party. Vertical privity
involves a contract between two parties, with an independent contract between one of the parties and another
individual or company.
If a third party gets a benefit under a contract, it does not have the right to go against the parties to the contract
beyond its entitlement to a benefit. An example of this occurs when a manufacturer sells a product to a distributor and
the distributor sells the product to a retailer. The retailer then sells the product to a consumer. There is no privity of
contract between the manufacturer and the consumer.
This, however, does not mean that the parties do not have another form of action e.g. Donoghue v. Stevenson here
a friend of Ms. Donoghue bought her a bottle of ginger beer, which was defective. Specifically, the ginger beer
contained the partially decomposed remains of a snail. Since the contract was between her friend and the shop
owner, Mrs. Donoghue could not sue under the contract, but it was established that the manufacturer has a duty of
care owed to their consumers and she was awarded damages in tort.
Privity is the legal term for a close, mutual, or successive relationship to the same right of property or the power to
enforce a promise or warranty.
[edit]History
Prior to 1861 there existed decisions in English Law allowing provisions of a contract to be enforced by persons not
party to it, usually relatives of a promisee, and decisions disallowing third party rights[1][2]. The doctrine of privity
emerged alongside the doctrine of consideration, the rules of which state that consideration must move from the
promisee. That is to say that if nothing is given for the promise of something to be given in return, that promise is not
legally binding unless promised as a deed. 1833 saw the case of Price v. Easton, where a contract was made for
work to be done in exchange for payment to a third party. When the third party attempted to sue for the payment, he
was held to be not privy to the contract, and so his claim failed. This was fully linked to the doctrine of consideration,
and established as such, with the more famous case of Tweddle v. Atkinson. In this case the plaintiff was unable to
sue the executor of his father-in-law, who had promised to the plaintiff's father to make payment to the plaintiff,
because he had not provided any consideration to the contract.
1.
2.
The doctrine was developed further in Dunlop Pneumatic Tyre v. Selfridge and Co. Ltd. through the judgment of Lord
Haldane.
Privity of Contract played a key role in the development of negligence as well. In the first case of Winterbottom v.
Wright (1842), in which Winterbottom, a postal service wagon driver, was injured due to a faulty wheel, attempted to
sue the manufacturer Wright for his injuries. The courts however decided that there was no privity of contract
between manufacturer and consumer.
This issue appeared repeatedly until MacPherson v. Buick Motor Co. (1916), a case analogous to Winterbottom v
Wright involving a car's defective wheel. Judge Cardozo, writing for the New York Court of Appeals, decided that no
privity is required when the manufacturer knows the product is probably dangerous if defective, third parties (e.g.
consumers) will be harmed because of said defect, and there was no further testing after initial sale. Foreseeable
injuries occurred from foreseeable uses. Cardozo's innovation was to decide that the basis for the claim was that it
was a tort not a breach of contract. In this way he finessed the problems caused by the doctrine of privity in a modern
industrial society. Although his opinion was only law in New York State, the solution he advanced was widely
accepted elsewhere.
[edit]Exceptions
[edit]Common
law exceptions
There are exceptions to the general rule, allowing rights to third parties and some impositions of obligations. These
are:
Collateral Contracts (between the third party and one of the contracting parties)
Trusts (the beneficiary of a trust may sue the trustee to carry out the contract)
Third-party insurance.a third party may claim under an insurance policy made for
their benefit, even though that party did not pay the premiums.
Contracts for the benefit of a group where a contract to supply a service is made
in one person's name but is intended to sue at common law if the contract is
breached; there is no privity of contract between them and the supplier of the
service.
Attempts have been made to evade the doctrine by implying trusts (with varying success), constructing the Law of
Property Act 1925 s. 56(1) to read the words "other property" as including contractual rights, and applying the concept
of restrictive covenants to property other than real property (without success).
[edit]Statutory
exceptions
The Contracts (Rights of Third Parties) Act 1999 now provides some reform for this area of law which has been
criticised by judges such as Lord Denning and academics as unfair in places. The act states:
1. - (1) Subject to the provisions of this Act, a person who is not a party to a contract (a "third party") may in his own
right enforce a term of the contract if(a) the contract expressly provides that he may, or
(b) subject to subsection (2), the term purports to confer a benefit on him.
(2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not
intend the term to be enforceable by the third party.
This means that a person who is named in the contract as a person authorised to enforce the contract or a person
receiving a benefit from the contract may enforce the contract unless it appears that the parties intended that he may
not.
The Act enables the aim of the parties to be fully adhered to. Taking the situation in Beswick v Beswick whereby the
only reason why Mr Beswick and his nephew contracted was for the benefit of Mrs Beswick. Under the Act Mrs
Beswick would be able to enforce the performance of the contract in her own right. Therefore, the Act realises the
intentions of the parties.
The law has been welcomed by many as a relief from the strictness of the doctrine, however it may still prove
ineffective in professionally drafted documents, as the provisions of this statute may be expressly excluded by the
draftsmen.
[edit]Third-party
beneficiaries
In Australia, it has been held that third-party beneficiaries may uphold a promise made for its benefit in a contract of
insurance to which it is not a party (Trident General Insurance Co Ltd v. McNiece Bros Pty Ltd(1988) 165 CLR 107). It
is important to note that the decision in Trident had no clear ratio, and did not create a general exemption to the
doctrine of privity in Australia.
Queensland, the Northern Territory and Western Australia have all enacted statutory provisions to enable third party
beneficiaries to enforce contracts, and limited the ability of contracting parties to vary the contract after the third party
has relied on it. In addition, section 48 of the Insurance Contracts Act 1984 (Cth) allows third-party beneficiaries to
enforce contracts of insurance.
Although damages are the usual remedy for the breach of a contract for the benefit of a third party, if damages are
inadequate, specific performance may be granted (Beswick v. Beswick [1968] AC 59).
The issue of third-party beneficiaries has appeared in cases where a stevedore has claimed it is covered under the
exclusion clauses in a bill of lading. In order for this to succeed, four factors must be made out:
The bill of lading must clearly intend to benefit the third party.
It is clear that when the carrier contracts with the consignor, it also contracts as
an agent of the stevedore.
The carrier must have had authority by the stevedores to act on its behalf, or the
stevedores must later endorse the actions of the carrier.
Any difficulties with consideration moving from the stevedores must be made out.
The last issue was explored in New Zealand Shipping Co Ltd v. A M Satterthwaite & Co Ltd [1975] AC 154, where it
was held that the stevedores had provided consideration for the benefit of the exclusion clause by the discharge of
goods from the ship.
New Zealand has enacted the Contracts Privity Act 1982, which enables third parties to sue if they sufficiently
identified as beneficiaries by the contract, and in the contract it is expressed or implied they should be able to enforce
this benefit.
[edit]See
also
Consumer protection
Privity of estate
Official text of the Contracts (Rights of Third Parties) Act 1999 as amended and in
[edit]References
force today within the United Kingdom, from the UK Statute Law Database
Official text of the Contracts (Rights of Third Parties) Act 1999 as originally
enacted within the United Kingdom, from the UK Statute Law Database
Official text of the Contracts (Rights of Third Parties) Act 1999 Explanatory Notes,
from the UK Statute Law Database
Beatson, J, Q.C. (1998). Anson's Law of Contract (27th Ed.). Oxford University
Press ISBN 0-19-825262-5
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Donoghue v Stevenson
From Wikipedia, the free encyclopedia
Donoghue v Stevenson
Court
House of Lords
Date decided
26 May 1932
Citation(s)
[1932] UKHL 100, 1932 SC 31, [1932] AC 562, [1932] All ER Rep
1
Judge(s)
sitting
Donoghue v Stevenson [1932] UKHL 100[1] was a decision of the House of Lords that established
the modern concept of negligence in Scots law and English law, by setting out general principles
whereby one person would owe another person a duty of care. It is the origin of the modern law
of delict in Scots law and the tort ofnegligence in English and Welsh law as well as in many
other Common Law jurisdictions.
The case originated in Paisley, Renfrewshire and is therefore an authority principally in Scots law,
but the House of Lords determined that the English law of negligence and the Scots law of delict
were identical. Donoghue v Stevenson is often referred to as the "Paisley snail" or the "snail in the
bottle" case, and is one of the most famous decisions in British legal history.
Contents
[hide]
1 Facts
2 Judgment
3 Significance
4 See also
5 Notes
6 References
7 External links
[edit]Facts
Memorial to the case in Paisley, unveiled by Lord Mackay of Clashfern and legal figures from around the Commonwealth in 1990
On the evening of Sunday 26 August 1928 May Donoghue, ne MAlister, boarded a tram in
Glasgow for the thirty-minute journey to Paisley. At around ten minutes to nine, she and a friend took
their seats in the Wellmeadow Caf in the town's Wellmeadow Place. They were approached by the
caf owner, Francis Minchella, and Donoghue's friend ordered and paid for a pear and ice and
an ice-cream drink. The owner brought the order and poured part of an opaque bottle of ginger
beer into a tumbler containing ice cream. Donoghue drank some of the contents and her friend lifted
the bottle to pour the remainder of the ginger beer into the tumbler. It was claimed that the remains
of a snail in a state of decomposition dropped out of the bottle into the tumbler. Donoghue later
complained of stomach pain and her doctor diagnosed her as having gastroenteritis and being in a
state of severe shock.
On 9 April 1929, Donoghue brought an action against David Stevenson, an aerated
water manufacturer in Paisley, in which she claimed 500 as damages for injuries sustained by her
through drinking ginger beer which had been manufactured by him. Following the House of Lords
judgement, which dealt with a preliminary matter, the case was settled out of court and so the full
facts were not heard in court. The identity of Donoghue's friend is unknown, but that person is
referred to as "she" in the case reports (including the first paragraph of the judgement of Lord
Macmillan in the House of Lords). Other factual uncertainties include whether the animal (if it
existed) was a snail or a slug, whether the bottle contained ginger beer or some other beverage (as
'ginger' in Glaswegian and West of Scotland parlance refers to any fizzy drink) and whether the drink
was part of an ice-cream soda.
[edit]Legal
background
In common law, a person can claim damages from another person where that other person owed the
first person a duty of care and harmed that person through their conduct in breach of that duty. This
concept existed prior to Donoghue, but it was generally held that a duty of care was only owed in
very specific circumstances, such as where a contract existed between two parties or where a
manufacturer was making inherently dangerous products or was acting fraudulently.[2]
There was no contractual relationship between Donoghue and the drinks manufacturer or even the
caf owner, as Donoghue had not ordered or paid for the drink herself. Although there was a
contractual relationship between the caf owner and Donoghue's friend, the friend had not been
harmed by the ginger beer. As ginger beer was not a dangerous product, and the manufacturer had
not fraudulently misrepresented it, the case also fell outside the scope of the established cases on
product liability. On the face of it, the law therefore did not provide a remedy for Donoghue.
Donoghue's solicitor, Walter Leechman of W G Leechman & Co in Glasgow's West George Street,
had already tried to establish liability against aerated water manufacturer A. G. Barr when a dead
mouse was alleged to have found its way into a bottle of its ginger beer. However, an action for
damages was rejected by the Inner House of the Court of Session, when the appeal court judges
ruled that there was no legal authority allowing such an action.[3]
[edit]Progress
of the case
The writ lodged in the Court of Session on April 1929 alleged that May Donoghue had become ill
with nervous shock and gastroenteritis after drinking part of the contents of an opaque bottle of
ginger beer, and David Stevenson, the manufacturer, "owed her a duty to take reasonable care that
ginger beer he manufactured, bottled, labelled and sealed, and invited her to buy, did not contain
substances likely to cause her injury." Donoghue claimed damages of 500.
Counsel for the manufacturer denied that any such duty was owed but, in June 1930, the judge Lord
Moncrieff ruled there was a case to answer. Stevenson appealed the ruling on a number of legal
grounds, and the judges of the Inner House granted the appeal in November 1930, dismissing
Donoghue's claim as having no legal basis following the authority of their earlier decision in Mullen v
AG Barr. One of the judges said that "the only difference between Donoghue's case and the mouse
cases was the difference between a rodent and a gastropod and in Scots law that meant no
difference at all."
Donoghue was allowed to appeal her case to the House of Lords but, whilst her legal team had
agreed to provide their services free, she was unable to put up the security needed to ensure the
other side's costs were met should she lose in the Lords. However, as such security would not be
required if she could gain the status of a pauper, she petitioned the House of Lords, saying, "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...". A certificate of poverty signed by a minister and two elders of
her church was attached to the petition, and the House of Lords agreed to grant her pauper status.
The leading judgment was delivered on 26 May 1932 by Lord Atkin. The most famous section was
his explanation of the "neighbour" principle, which was derived from the Christian principle of "loving
your neighbour" (found, for example, in James 2:8[4] and the Parable of the Good Samaritan):
There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the
books are but instances. ...The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the
lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer
seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question . . . a
manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form
in which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable
care in the preparation or putting up of products will result in an injury to the consumer's life or property, owes a duty to the
consumer to take that reasonable care.
"A man has a Duty of Care to conduct himself in such a way as to avoid harm to others, where a
reasonable man would have seen that such harm could occur".
Lords Thankerton and Macmillan supported Lord Atkin's opinion, with Lords Buckmaster and Tomlin
dissenting. Buckmaster said it was impossible to accept such a wide proposition and (anticipating
later "floodgates" arguments) that it was difficult to see how trade could be carried on if Lord Atkin's
principle was law. Buckmaster also opined, as did Lord Tomlin, that if such a duty of care existed it
must cover the construction of every article, not just food: "If one step, why not fifty?" Tomlin referred
to the Versailles train crash in 1842 caused by a defective axle, noting that, if Lord Atkin's principle
were to be law, every injured party would be permitted to sue the axle manufacturer in such a case.
The case was returned to Scotland for the Court of Session to apply the ruling to the facts of the
case. In the event, David Stevenson died within a year of the decision and his executors settled out
of court, for less than the original claim of 500.
[edit]Significance
As Justice Allen Linden has pointed out, Donoghue is an extension of a principle articulated
by Benjamin Cardozo in an earlier case in the United States, MacPherson v. Buick Motor Co., which
the judges referred to in Donoghue. MacPherson pioneered the tortious principle of a general duty of
care, the starting point for any action in negligence, though the principles were expressed within the
context of product liability only.
Donoghue is perhaps best known for the speech of Lord Atkin[5] and his "neighbour" or
"neighbourhood" principle, where he invoked Luke 10 to law so that, where an established duty of
care does not already exist, a person will owe a duty of care not to injure those whom it can be
reasonably foreseen would be affected by his acts or omissions. The effect of this case was not only
to provide people in the United Kingdom with a remedy against suppliers of consumer products even
where the complainant had no privity of contract with those individual or company tortfeasors, but to
allow such people to bring negligence claims in any circumstance where the conditions for
establishing a duty of care were met.
In 1990, the House of Lords revised Lord Atkin's "neighbour" speech of Lord Atkins principle to
encompass public policy concerns articulated in Caparo Industries Plc. v Dickman ([1990] 1 All ER
568). The three-stage Caparo test for establishing a duty of care requires (i) foreseeability of
damage, (ii) a relationship characterised by the law as one of proximity or neighbourhood and (iii)
that the situation should be one in which the court considers it would be fair, just and reasonable that
the law should impose a duty of given scope on one party for the benefit of the other. In other
jurisdictions, such as New Zealand, there is now a two-part test for novel fact situations, where the
establishment of a duty must be balanced against applicable policy matters.
Because of the significance of the case, in 1996 former Supreme Court of British Columbia Justice
Martin Taylor, Vancouver lawyer David Hay and filmmaker Michael Doherty produced an educational
documentary of the case. Besides recreating the events leading up to the case and "interviews" with
actors playing the significant participants in the case, the production includes a 1995 interview
with Lord Denningthen aged 96.[6] This was one of the last interviews with Lord Denning, who died
three years later. The film has been exhibited worldwide.[7]
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Rule of Privity
There have been cases which show how the rules of privity work.