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The Paisley Snail – Teacher’s Guide 1

LAW COURTS EDUCATION SOCIETY OF BC

Acknowledgements This curriculum guide was originally written by Chuck Garrows. We gratefully acknowledge the contributions of the following people who assisted in the review process and final production of the teacher’s guide:

Rick Craig Anne Goodfellow David Hay Sandra Hawkins Evelyn Neaman Brade Roberts Martin R. Taylor, Q.C. Nancy Tan Baljinder Sandhu

Copyright 1996 Law Courts Education Society of British Columbia All rights reserved, with the exception that permission is granted to photocopy material for educational use. Canadian Cataloguing in Publication Data Garrows, Chuck The Paisley Snail: Donoghue vs Stevenson: Teacher’s Guide Prepared by Chuck Garrows. Cf. Acknowledgements. Accompanied by videocassette. ISBN 0-7726-29410-2 1. Negligence – Study and teaching – Canada 2. Civil procedure – Study and teaching – Canada 3. Law – Study and teaching – Canada

I. Law Courts Education Society of British Columbia II. Title

KEB294.G37 1996 346.71032 C96-960210-3 KF1285.G37 1996



TABLE OF CONTENTS Unit Introduction Lesson One: “Who Makes the Laws in Canada” and Legal Terms”

Chart #1 – Who Makes the Laws in Canada

Legal Terms to Know

Legal Terms to Know Worksheet

Legal Terms to Know Answers Lesson Two: Video “The Paisley Snail”

Paisley Snail Homework Exercise

Paisley Snail Exercise Answers Lesson Three: Follow-up Activities: Principles of Law and Questions

Handout – Principles of Law

Questions & Answers Supplementary Activities – Advanced

Scenario A – A Falling Branch

Scenario B – The Olympic Athlete

Scenario C – Maxwell Wright

Topic for Debate



UNIT INTRODUCTION

The Paisley Snail: Donoghue vs Stevenson Lesson Guide Lesson One: Introduction: “Who Makes the Laws in Canada” and

“Legal Terms” Lesson Two: Video, “The Paisley Snail” Lesson Three: Follow-up Activities: Principles of Law and Questions Supplementary Lessons: Civil Law Scenarios (Advanced) Topic for Debate PURPOSE OF GUIDE This guide was designed with two purposes in mind. The first is to assist the students to understand:

i) the role of the courts in making law; ii) the tort of negligence; iii) the content and legal significance of the videotape, “The Paisley Snail”; and, iv) issues relating to the tort of negligence such as:

a) the “neighbour” principle b) product liability c) strict liability

The second purpose is to provide activities to assist students to appreciate the influence that “judge-made” or common law, especially as it relates to the tort of negligence, has on their daily lives. The activities included in this guide flow from relatively basic exercises that can be achieved in three sessions including the video, to more advanced exercises that would be more appropriate for extended studies. Activities suggested or provided include:

a) legal terms to know; b) simple questions and answers regarding comprehension of the videotape; c) scenarios (with variations) that illustrate situations that have arisen recently or that

might occur, with follow-up questions or group resolution activities; and, d) suggested topic for a class debate.



LESSON ONE

Introduction: “Who Makes the Laws in Canada” and “Legal Terms” OBJECTIVES 1. To review the different ways that laws are made in Canada

2. To introduce students to some legal terms related to the video “The Paisley Snail ACTIVITIES 1. Photocopy and distribute Chart #1, “Who Makes the Law in Canada” (Page 4). Discuss

the different ways that laws are made, and ask students for some examples for each. 2. Tell the students that in the next class, they will be viewing a video about a civil action

decided in the courts that has made a major change in how similar actions are decided today. This type of law is what is referred to as “The Common Law.”

Produce an overhead master or copies of the terms to know (). Select five or six of the more difficult terms and discuss them with the class as a whole. After this is completed, hand out definitions’ worksheets 1-3 and ask the students to complete the matching of the terms with their definitions. (Most definitions are from Black’s Law Dictionary [1983], The Law in Canada [1990], and Canadian Law Dictionary [1990]).



CHART #1: WHO MAKES THE LAWS IN CANADA? Canadian Parliament: Provincial Municipalities House of Commons Legislatures and the Senate Enact statutes such as: Enact statutes in the Pass by-laws under Criminal Code of Canada areas of: Education, authority from Provincial Young Offenders Act health, social assistance, Municipal Acts. By-laws Income Tax Act motor vehicle licensing, cover items such as: Excise Tax Act (GST) driver licensing, sales Park regulations, Bank Act tax, regulation of zoning, licensing of professionals (e.g. businesses, noise doctors, dentists, pollution. lawyers)

The Courts The Courts make laws in two ways: 1. Courts interpret what the federal and provincial acts and the municipal by-laws mean,

how they apply, and whether the city, province, or federal government had the power under the constitution to make the law.

2. Courts also make law by deciding disputes between two or more parties where there is

no statute (government-made) law that covers the entire situation. For example, courts decide disputes about contracts, about wills and estates, about civil wrongs (or torts) done by one person to another, and many other disputes. Each case that is decided by a court and approved by the Court of Appeal in the province or ultimately by the Supreme Court of Canada becomes a precedent for the next similar case that comes along. This “judge-made” law is called The Common Law.

3. All court-made decisions can be overruled, or changed by legislation enacted by

government, either by ordinary legislation or by a constitutional amendment.



LEGAL TERMS TO KNOW Contract Tort Interlocutory Common Law Statute Ratio Decidendi Civil Law Duty of Care Negligence In Forma Pauperis Pursuer Standard of Care Appellant Defendant Respondent Vicarious Liability Strict Liability Motion “Neighbour” Principle Product Liability Solicitor Court Costs Barrister Obiter Dicta Balance of Probabilities



Legal Terms to Know Worksheet – Part 1 Match the term with its definition: Contract In Forma Pauperis Court Costs Vicarious Liability Common Law “Neighbour Principle” Civil Law Appellant Tort 1. ___________________ An agreement between two or more persons which creates an

obligation to do or not to do a particular thing. 2. ___________________ As distinguished from law created by legislatures. This law

comprises the body of principles and rules of action applied by the courts in deciding individual cases.

3. ___________________ These laws are concerned with civil or private rights and

remedies, as contrasted with criminal laws. Roman law, such that as that of Scotland and Quebec is sometimes called “civil law”.

4. ___________________ Literally, “as an impoverished person”. A person making an

application to a court in forma pauperis is not required to post security for costs in case the applicant losses.

5. ___________________ The party who takes an appeal from one court to another. 6. ___________________ In certain circumstances, a blameless person will be held

responsible for the torts of another. For instance, the owner of a car will be held vicariously liable if the or she lends it to someone who negligently injures a third person.

7. ___________________ You must take reasonable care to avoid acts or omissions which

you can reasonably foreseeable would be likely to injure your neighbour. Neighbours are persons who are closely and directly affected by your acts.

8. ___________________ A sum of money for expenses in bringing or defending an

action. It is paid by the losing party to the successful party. 9. ___________________ A private or civil wrong or injury, other than breach of contract,

for which the court will provide a remedy in the form of an action for damages

Legal Terms to Know Worksheet – Part 2



Match the term with its definition: Balance of Probabilities Strict Liability Statute Purser Duty of Care Barrister Defendant Products Liability 10. ___________________ An act of the legislature declaring, commanding, or prohibiting

something; a particular law enacted and established by the will of the legislative department of government.

11. ___________________ Taking all aspects into consideration, the likelihood of a

proposition or hypothesis being true. 12. ___________________ Just, proper, and sufficient care, so far as the circumstances

demand it; the absences of negligence. That care which an ordinarily prudent person would have exercised under the same or similar circumstances.

13. ___________________ In Scots law, the person who follows, prosecutes, or enforces a

matter judicially, as a complaining party. Referred to in common law jurisdictions as the “Plaintiff”.

14. ___________________ In Scots law, the person defending or denying; the party against

whom relief or recovery is sought in an action or suit. Referred to in common law jurisdictions as the “Defendant”.

15. ___________________ The concept applied by the courts in product liability cases in

which a seller is liable for defective or hazardous products which cause injury to the purchaser, without proof of negligence on the seller’s part.

16. ___________________ Refers to the legal liability of manufacturers and sellers to

compensate buyers, users, and even bystanders, for damages or injuries suffered because of defects in goods purchased.

17. ___________________ In England, a lawyer who is engaged in conducting the trial or

argument of causes. The barrister does the actual court work, presenting and arguing the case in court. In Canada, there is no distinction between barrister and solicitor (all lawyers are both).

Legal Terms to Know Worksheet – Part 3 Match the term with its definition:



Interlocutory Solicitor Negligence Standard of Care Ratio Decidendi Motion Respondent Obiter Dicta 18. ___________________ Something intervening between the commencement and the

end of a suit which decides some point or matter, but is not a final decision of the whole controversy.

19. ___________________ The ground or reason for a decision. The point in a case which

determines the judgment. 20. ___________________ The omission to do something which a reasonable person,

guided by those ordinary considerations which regulate human affairs would do, or the doing of something which a reasonable and prudent person would not do.

21. ___________________ In law of negligence, that degree of care which a reasonably

prudent person should exercise under same or similar circumstances. If a person's conduct falls below such standard, he or she may be liable for injuries or damages resulting from this.

22. ___________________ In an appeal, the person who must respond to the appeal made

by the appellant. 23. ___________________ An application made to a court or judge for the purpose of

obtaining a rule or order directing some act to be done in favour of the applicant.

24. ___________________ The lawyer who assembles the legal materials, does the

research, and compiles the legal precedents. A solicitor also prepares documents like wills and mortgages. In Canada, there is no distinction between barrister and solicitor (all lawyers are both).

25. ___________________ A remark made, or opinion expressed, by a judge, in a decision

“by the way,” that is, incidentally, and not directly involved in the determination of the cause.



LEGAL TERMS TO KNOW – ANSWERS

1 Contract 10 Tort 18 Interlocutory

2 Common Law 11 Statute 19 Ratio Decidendi

3 Civil Law 12 Duty of Care 20 Negligence

4 In Forma Pauperis 13 Pursuer 21 Standard of Care

5 Appellant 14 Defendant 22 Respondent

6 Vicarious Liability 15 Strict Liability 23 Motion

7 “Neighbour Practice” 16 Product Liability 24 Solicitor

8 Court Costs 17 Barrister 25 Obiter Dicta

9 Balance of Probabilities



LESSON TWO

Video, “The Paisley Snail”

OBJECTIVES 1. To view the video, “The Paisley Snail” (42 minutes), and gain an appreciation for

impact that “Donoghue vs Stevenson” has on Commonwealth common law. 2. To have students review the main points of the video using a written handout with

questions. ACTIVITIES 1. Briefly review the previous lesson with the students about law-making and

definitions of legal terms. This information is relevant to their viewing of the video, “The Paisley Snail”. After confirming comprehension, show the video.

2. After the video is finished, explain to the class that the case arose in Scotland,

which has “Roman law” system like Quebec and continental Europe, rather than a “common law” system as does England and English speaking Canada, and that it was ultimately decided in the House of Lords, the judicial members of which constitute the highest court in the United Kingdom. The House of Lords decided that on the point in issue the laws of Scotland and England were the same. This case has since been followed in Commonwealth common law jurisdictions around the world.

3. Photocopy and distribute pages 10 to 14 and ask students to read them and

answer the questions on page 15 as a homework assignment.



“THE PAISLEY SNAIL” VIDEOTAPE: DONOGHUE VS STEVENSON1 1. THE PAISLEY SNAIL: Outline “The Paisley Snail” videotape relates the history and the impact of Donoghue vs Stevenson, perhaps the most memorable and important case in the history of the Commonwealth common law. Through narration, re-enactment, interviews and still photography, the video takes the audience on a trip to Paisley, as we can imagine May Donoghue doing some 67 years ago, and from there to the Scottish Court of Session, the Second Division and ultimately to the House of Lords. Many themes are woven into the fabric of the video as it follows May Donoghue on her journey and beyond. Some of these themes are:

a) the enormous effect that “judge-made” or common law has on our daily lives; b) the difference between breach of a duty owed under a contract and the

general duty of care owed to one’s “neighbour”; and c) the concept of product liability.

The next few pages of the guide provide a brief outline of the facts, a discussion of the principal legal issue raised, and a summary of the court procedures followed in Donoghue vs Stevenson, all as depicted in the videotape. 2. A TRIP TO PAISLEY: The Facts On August 26, 1928, Mrs. May Donoghue, a shop assistant of very meager means and a single parent, travelled from her brother’s flat in Glasgow, Scotland to the small town of Paisley, nearby, to enjoy a refreshment with a friend. Mrs. Donoghue and her friend met at an establishment bearing the sign “Real Italian Ice Cream Saloon”, the so-called “Wellmeadow Café”), owned and operated by one Francis Minghella, and located at 1 Wellmeadow Street, Paisley. It is said that at approximately 8:50 p.m., Mrs. Donoghue’s friend ordered and paid for their refreshments; ice cream and ginger beer – a Scottish float – for Mrs. Donoghue, and a “pear and ice” for herself. Apparently the “float” was served unassembled; that is, the ice cream was served in a glass and the ginger beer came in its bottle. The bottle in which the ginger beer was contained was of brown opaque glass so that the contents of the bottle could not be seen until it was poured out. The bottle bore the legend, “D. Stevenson, Glen Lane, Paisley”.

1 [1923] A.C. 562, [1932] Sess. Cas. (H.L.) 31.



As the friend added more ginger beer to Mrs. Donoghue’s float, after she had already consumed part of the ice cream and ginger beer, Mrs. Donoghue observed what appeared to her to be the partially decomposed remains of a snail flow into her glass. Mrs. Donoghue claimed that she was made ill both by what she had seen and by what she feared she had eaten: namely, the rotting carcass of a presumed gastropod. Mrs. Donoghue stated that the resulting illness forced her to see her doctor for treatment three days later and that she again was treated about mid-September at the Royal Glasgow Infirmary. 3. ON THE HORNS OF A SNAIL: The Legal Issue Mrs. Donoghue had a difficult legal problem. She could not successfully sue the café owner, Mr. Minghella (although she in fact tried to), either in contract or in tort. In the first instance, she had no contract with Minghella, under which he could be said to have guaranteed the ginger beer fit for consumption, Mrs. Donoghue’s mysterious friend having ordered and paid for the refreshments. Minghella poured the first ginger beer. But this is NOT relevant to the outcome in any way. In the second instance, she could not claim negligence on the part of Minghella because clearly he had neither done nor failed to do anything that could be construed as negligent. The bottle of ginger beer came to him sealed with the clear intention that it remain that way until sold to the consumer. Moreover, the darkness of the bottle prevented Mr. Minghella from inspecting the contents for contaminants prior to delivery to the customer. Mrs. Donoghue’s only possible recourse was to tackle the one player remaining on the field, David Stevenson, manufacturer of the ginger beer. Success for Mrs. Donoghue hung upon the single question:

…whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health2

Unfortunately for Mrs. Donoghue, in 1928 neither the Scottish civil law nor the English common law as they were applied to the tort of negligence had yet progressed to the point of establishing and stating as a matter of general principle, that geographically, a duty of care would be owed by one person remote from another not to cause harm to that other person. Judges relied on precedent, and the absence of a general statement of the law meant that it was difficult to determine if a duty of care existed in a particular case unless a similar fact situation had been ruled upon by the courts previously.

2 Supra, note 1 at 578, per Lord Atkin.



Thus, recovery against a negligent manufacturer who did not directly and in person caused physical harm or property damage was difficult. Given the rapidly changing face of commerce at the time – the shift from small local industries with small local markets to large manufacturers shipping securely packaged foods, beverages, medicines and other household goods across country – it became increasingly important to resolve the issue of legal responsibility for the safety of such items and for any harm they might cause to consumers. Lord Atkin said, at the beginning of the judgment which ultimately decided her case: “I do not think a more important problem has occupied your lordships in your Judicial capacity…”3 4. PROGRESS AT A SNAIL’S PACE: The Court Process

Mrs. Donoghue sued Mr. Stevenson in April 1929, seven months after the events at the Wellmeadow Café; however a series of Interlocutors (today we would call them interlocutory motions [ see definitions]) delayed proceeding for more than a year. In May 1930, David Stevenson’s counsel brought a motion in the Scottish Court of Session before Lord Moncrieffe, the Lord Ordinary, to strike out her claim on the grounds that he owned no duty of care to the plaintiff, Donoghue. It is important to remember that the debate and the subsequent decision of Lord Moncrieff in favour of Mrs. Donoghue were on the point of law: “Was there a duty of care owed, Stevenson to Donoghue?” This narrow question was set within the framework of the larger objection that the claim contained in Mrs. Donoghue writ disclosed no cause of action. Lord Mancrieff dismissed Mr. Stevenson’s motion. Had MR. Stevenson chosen not to appeal Lord Moncrieff’s ruling, but instead to take his chances on a trial of the issues of fact, Donoghue v. Stevenson4 might have remained an obscure Scottish case, perhaps useful only to illustrate that is is difficult for a plaintiff to prove she found a snail in her ginger beer if she cannot produce the sail at trial! At this stage, it appears that Mr. Stevenson went against the advice of his lawyers and instructed them to appeal the decision of The Lord Ordinary, rather than proceed to a trial on the issues of facts.5 So it was then in late 1930 the decision of Lord Moncrieff came before the Scottish Second Division. As it happened, the Second

8. Supra, note 1 at 579.

8. Supra, note 1. 8. See Mcbryde, Professor William W, “The Story of the ‘Snail in the Bottle’ Case”, in Donoghue and Stevensons and the Modern Law of Negligence: The Paisley Papers, (Vancouver BC: University of British Columbia, 1991) at 51.



Division panel consisted of the same four judges who had heard two similar cases6 the previous year. Each of those cases involves an alleged mouse in ginger beer and in both, the court found that the mouse actually was in the beverage. The court held that there was no negligence in the brewing and bottling methods employed by the defendant manufacturer in those cases but the court indicates that it would have ruled in favour of the manufacturer even if the negligence had been found, on the basis that a manufacturer owned no duty of care to an unknown non-contractual consumer of it’s products. Predictably, the Second Division ruled in favour of Mr. Stevens, in a case really only distinguishable from the mouse cases by virtue of the species of the contaminant. Having lost in the Scottish Second Division, Mrs. Donoghue’s final avenue of appeal was in the House of Lords. Remember that Mrs. Donoghue was a poor shop assistant, that there was no legal aid in the early 1930’s, and that is was a very expensive proposition to bring a matter before the Law Lords for considering. Mrs. Donoghue was very fortunate to find a lawyer willing to argue a case where the prospects of reward to them were negligible. In addition, at the time a person wishing to launch an appeal before the House has to lodge security for costs to indemnify that respondent in the event that the appellant lost. This Mrs. Donoghue could not afford to do. Fortunately, a process was available whereby an individual could apply to the House of Lords for permission to appeal in forma pauperis; that is, as an impoverished person. This Mrs. Donoghue did. Her application was granted; she was not required to post security for costs and her case before the Judicial Committee of the House of Lords7 for consideration on December 10, 1931. Almost four years had elapsed since Mrs. Donoghue’s visit to the Wellmeadow Café when Lord Atkin rose in the House of Lords on May 26, 1932, to deliver his landmark speech. No court was ever to pass judgment on the facts of the case. The truth regarding the misadventures alleged by Mrs. Donoghue was never ruled on because David Stevenson dies on November, 1932 and, after the executors of his estate were added as parties to the action, they settled the matter out of court. Thus we do not know if there was a snail and id so, whether it was the cause of Mrs. Donoghue’s illness. We do not even know if Mrs. Donoghue was really ill. We do not know whether the ginger beer in the bottle was actually brewed by David Stevenson or by someone else who had pirated a “Stevenson” bottle for his own product, a practice that was apparently common at the time. Finally, even if David Stevenson did brew that offending ginger beer, we do not know if the methods he used in so doing would have been found by the courts to have been negligent. There is so much we do not know about the case of the snail, the ginger beer and the poor lady from Glasgow with a stomach ache! Yet the shock waves from the 8. Mullen v. A.G.Barr & Co. and McGrowan v. Barr Co., [1929] Sess. Cas. 461. 8. Consisting of: Lord Atkins, Buckmaster, Macmillan, Thankerton and Tomlin. The

final decision in the case went 3 to 2 in favour of Mrs. Donoghue. Lord Buckmaster and Tomlin dissented



decision of the House of Lords in Donoghue v. Stevenson8 were felt around the common law world and reverberate still today, more than sixty-five years after Mrs. Donoghue met her friend for refreshments at a small café in Paisley, Scotland.

QUESTIONS: “THE PAISLEY SNAIL”

1. Why couldn’t Mrs. Donoghue sue Mr. Minghella, the café owner, fore breach of contract?

2. Why couldn’t Mrs. Donoghue successfully sue owner for negligence? 3. The case of Dooghue v. Stevenson went through three levels of court. If she

had the same experience here today what would be the corresponding levels of courts. Donoghue would have to go through to obtain a final decision?

4. Did any court ever determine whether there was a snail in the ginger beer? 5. Was the defendant, David Stevenson, negligent in the way he brewed and

bottled his ginger beer? 6. If Mrs. Donoghue’s friend (the one who actually brought the ginger beer) has

sued the café owner for breach of contract, how much do you think she should have recovered? Why?

7. How did Lord Atkin’s decision change the concept of who our neighbours are so

far as the law is concerned? 8. What does the term in forma pauperis mean, and when was its legal significance

in the Donoghue v. Stevenson case? Do we have anything similar in Canadian law? What assistance is available to people in our society who can’t afford to take a case through the courts?

9. What were (and are) the different functions of barristers and solicitors in Great

Britain? Compare these functions to those of Canadian lawyers. __________________ 8 Supra, note 1.



ANSWERS: “THE PAISLEY SNAIL”

1. Mrs. Donoghue did not have a contract with Mr. Minghella. Mrs. Donoghue’s

friend brought the ginger beer so the friend was the one who had the contract. 2. There was nothing that the café did or failed to do that could be considered

negligent. The ginger beer came in a sealed bottle from the manufacturer with the intention that it be delivered in the state to the consumer and that it be opened just prior to delivery. Also, the bottle was opaque, so the café owner was prevented from inspecting the contents prior to delivery to the consumer.

3. Assuming that Mrs. Donoghue ‘s claim today would be for more then $10,000,

then in British Columbia , she would go from the Supreme Court to the Court of Appeal for British Columbia and finally to the Supreme Court of Canada.

4. No. From the very beginning, Stevenson had raised the legal argument that Mrs.

Donoghue has no cause of action against him. The House of Lords decision in effect said the Mrs. Donoghue did have a cause of action against Mr. Stevenson and that she would be entitled to damages if she proved the facts of her case at trial. Shortly after the House of Lords decision, Mr. Stevenson died and the executors of his estate decided to settle the case rather then fight it in court. The settlement is said to have been for £200.

5. We do not know whether Stevenson was negligent or not. The House of Lords

was not concerned with that aspect of the case in their decision. Negligence would have been one of the elements that Mrs. Donoghue would have had to prove at trial.

6. The friend probably would only have recovered the price of the defective ginger

beer. Her only claim would have been that the café owner sold her a drink that was not fit for consumption: a breach of the implied promise contained in their oral contract that the ginger beer would be drinkable. Since the friends did not drink any of the ginger beer and become ill, she did not suffer any other loss.

7. Prior to the decision in Donoghue v. Stevenson, the legal concept of who our

neighbours were was confined to physical of geographic closeness. Lord Atkin said that closeness or proximity should not be though of strictly in a physical sense but more in a mental sense. He stated that:

(My neighbours are) … persons who are so closely and directly affected by y 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 which are called in question.

8. In forma pauperis is a Latin term meaning, literally, “in the form of a poor person.”

A litigant (a person suing or being sued in court), allowed to proceed in forum pauperis is not liable to pay court costs.



In Canada, legal assistance is often available to people who cannot afford lawyers for serious criminal charges and for some family law. Contact the Legal Services Society for more information or for eligibility requirements.

9. In England, barrister only do court work and are trained only to do that. They do

not have “clients” in the same sense that court lawyers do in Canada. Rather, barristers accept “briefs” or cases from solicitors. The solicitors do all of the investigating and interviewing work and the paper-work for the case. The barrister’s sole job is to argue the case in court. Solicitors practice in areas of the law other then in court; for example, real estate, tax, company law, wills, estates, ect. Lawyers in Canada are generally licensed as both barristers and solicitors. While some lawyers do practice as both, most choose to specialize in either barrister’s or solicitor’s work. In Scotland barristers are called “advocates”.



LESSON THREE

Follow-up Activities: Principles of Law and Questions

OBJECTIVES: 1. To go over the four main principles of law highlighted in the vide, “The Paisley

Snail,” 2. Through the review of homework questions, to discuss aspects of the law

brought out in the video ACTIVITES: 1. Discuss the video that the students viewed during the last class, and go over the

four principles of law that were laid down in Donoghue v. Stevenson. Hand out the Principles laid down in Donoghue vs Stevenon as a part of the discussion or as a sum up. (pages 19 & 20)

2. Review the video homework questions with the class. Answers are provided on

pages 21. 3. If time permits, explore the legal issues involved by discussing the following

questions:

• Why has the concept of “neighbour” following Donoghue v. Stevenson changed the law of negligence so much?

• Do you have to have a contract or some other special relationship with someone to sure them for negligence under the law of tort?

• What is the difference between “pure economic loss” and a loss resulting from personal injury or property damage? After all, both types of loss are compensated for in terms of money. (page 21)



PRINCIPLES LAID DOWN IN DONOGHUE V. STEVENSON

It has been said that the case of Donoghue v. Stevenson laid down or settles four main principles of law 9. 1. Negligence is a distinct tort. The decision settled that negligence as a tort or

civil wrong , stood by itself and that it could be actionable in any circumstances in which one person suffered personal injury or physical damage as a direct, close and foreseeable result of the act or omission of another. Litigants do not have to rely on special relationships to prove their cases nor is negligence a dependant component of other torts.

2. A contract is not necessary. Ironically, while at the time of Donoghue plaintiffs

sought to hang their hats on any contract they could, today often the opposite is the case, such as the plaintiffs suing in tort for damages in order to avoid restrictions imposed upon them by contracts they have entered into.

3. Manufacturer’s Liability. The actual decision in Donoghue v. Stevenson, or the

ration decidendi, related to the imposition of liability on manufacturer under certain narrow (by today’s standards) conditions. In the words of Lord Atkin:

…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 the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumers life or property, owes a duty to the consumer to take that reasonable care.10

4. The Neighbour Principle. The definition of “my neighbour” continues to be the most controversial aspect of Lord Atkin’s decision, enlarging as it does, the range of persons we ought to have in mind as neighbours and hence the range of acts or failures to act and the types of damages for which we might be held liable, should someone be injured as a consequence of our activities. Lord Atkin stated:

…acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complaints and the extent of their remedy. The (moral) rule that you are to love your neighbour becomes in law; you must not injure your neighbour; and the lawyers question,

____________________ 9. See Heuston, Professor R.F.V., “An Overview of the Law of Negligence: 60 years

After Mrs. Donoghue’s Visit to Paisley” in Donoghue v. Stevenson and the Modern Law of Negligence: The Paisley Papers, (1991), University of British Columbia, Vancouver, 57 at pp. 60 – 68.

10 Supra, note 1 at 599.



‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonable 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 to have them in contemplation as being so affects when I am directing my mind to the acts or omissions which are called question. 11

____________________________

11. Supra, note 1, at 580



LESSON THREE

Questions 3 – Answers

1. By broadening the concept of “neighbour” to include people whom we should have in mind when we start an activity, the number of potential plaintiff and the number and types of potentially harmful activities expand enormously. For example, we can all imagine doing financial harm to someone across the country simply imaging that the physical harm we do to one person’s property may have a severe financial effect on another person.

2. You do not need a contract. That issue was settled once and for all in Donoghue

v. Stevenson. The only relationship that is necessary is that of being a neighbour as described by Lord Atkin.

3. A pure economic loss is a financial loss or a reduction in the vaile of his

property suffered by a plaintiff but not incurred as a result of ersonal injury to him or physical damage done to his property. Some examples are:

a) An investor relies upon the negligent advice of a financial advisoer, invests

invests in the stock market and loses money when the company he invested in goes bankrupt.

b) A railway which uses but does not own a bridge is put o additional expense to reroute traffic when the bridge is damaged and temporarily put out of service by the negligence of a tug-boat operator.

c) A company loses business (and therefore money) when it is forced to repair defective equipment during the busiest part of the year. The manufacturer knew the equipment was defective a ling time before the plaintiff found out and the manufacturer was negligent in not warning thw equipment user a lot.



Supplementary Activities

1) Scenarios 2) Topic for debate

Scenarios

Goals

1. To enable students to examine scenarios that could lead to civil action.

2. To provide students with the knowledge and understanding

requires to discuss the legal implications of the scenarios under review

Activities NOTE: These scenarios are not equal in complexity and will require varying amounts of time. 1. Divide the class into three groups to discuss scenarios that could lead to

litigation. Three scenarios have been provided (see pages 23 to 28). Give them time to answer the questions in their groups.

2. Use the work done in the groups as the basis for a class discussion of all three

scenarios



SCENARIO A

1. A Falling Branch You are walking to school and you notice the partially broken branch of a tree dangling over the sidewalk across the street. A pedestrian is approaching the tree but you don’t warn him about the branch. The branch falls and injures the pedestrian. Questions for Discussion 1. Does the law impose a duty upon you to warn the pedestrian? 2. Would it make any difference if you were the owner of the land that the tree was

on and you were aware of the hanging branch? 3. In question 2, suppose that you were at work when the branch cracked and that it

fell on the pedestrian just minutes later. Would your legitimate lack of knowledge protect you from liability?

4. Should property owners be held strictly liable for all dangerous situations on or

arising from their property which cause injury or damage? 5. Most people accept that it is morally right to help others when they are in trouble.

Why do you think the courts have not made that moral obligation a legal duty as well?



SCENARIO B

2. The Olympic Athlete Millie Miler is a top-ranked distance runner on the world scene. She exudes wholesomeness and good health and in the past has overcome extreme physical adversity to reach the top. As a result she is somewhat of a hero and very public figure in Canada and to a lesser extent, around the world. Also, as a result of her efforts, Millie has several lucrative contracts with athletic wear, soft drinks, and other companies to endorse their products. All of the endorsement contracts she has signed contain a provision that is Millie ever tests positive for a banned substance during competition, then the company would have the option of termination the contracts at once. In the recent Pan-Am Games, Millie ran individually in the 1500 metre race and she also ran the anchor leg on the 5000 metre relay team. She won gold medals in both events. Two days prior to the first of her races, the relay, Millie developed a cough which naturally interfered with her breathing and her overall health. She therefore bought an over-the-counter cough remedy. Before taking it , however, Millie, ever aware of the possibility that even seemingly innocent enough drugs might contain banned substances, took the medicine to the doctor employed by the Canadian Pan-Am Games Committee and asked if the medicine she had bought was safe from a competition point of view. The doctor assured her that it contained no banned substances. On her way back to the athletes village, Millie met another doctor she know from her home town. He was on vacation. She showed him the medicine and he said he was “pretty sure” that it did not contain any banned substances. Immediately following her victory in the 1500 metres, Millie was tested for doping in accordance with standard procedure at the Pan-Am Games. Much to her horror, Millie tested positive for pseudo ephedrine, a banned substance. Even though the amount of the drug in her system was so small it could not possibly have enhanced her performance, game officials had no choice but to strip Millie and her relay teammates of their victories and their medals. Millie’s reputation with the public was so outstandingly solid that it did not suffer much. However, two of the companies with whom Millie had endorsement contracts terminated the contracts as allowed, and another company with whom Millie was about to sign backed out when the positive test results were announced. The loss of assured and potential future income to Millie was in the area of $250,000 annually over a period of at least three years. Betty Baton, one of Millie’s relay teammates, was also about to sign an endorsement contract that was conditional on the relay winning a gold. When the team lost the gold and was disqualified, the company cancelled the contract. It was worth $75,000 a year for three years.



Questions for Discussion

1. Were either or both of the doctors negligent and if so, of what did their negligence consist?

2. Was Millie more of a “neighbour” to the team doctor than to the vacationing

doctor? In what way? 3. Is it necessary for the doctor to know how important the correct answer was for

Millie? Suppose that the doctor does not know about the endorsement contracts and he therefore only contemplates that the worst that will happen if he errs, is that Millie will lose her medals. Should that make a difference?

4. Put question 3 into a different context. Suppose a driver lightly hits a pedestrian.

The impact would normally result at worst in some bruising and stiffness. Unknown to the driver though, is the fact that the pedestrian suffers from osteoporosis (a bone disease) and the impact breaks both his legs.

5. Does the element of reliance distinguish the situation of the two doctors? That is,

would it be more evident to the team doctor than the other doctor that Millie was relying on his expertise, and is that element of reliance important in determining liability?

6. Suppose you are allergic to a certain substance. You ask your doctor if the

medicine you are about to take her hat substance in it and you tell him that you are allergic to the substance. The doctor says the medicine is all right, you take it and suffer permanent brain damage. Should the doctor have to pay you for “pain and suffering” and your loss of future income and for all the special care and medical attention you will require in the future?

7. What is the difference between the situation in question 6 and Millie’s? In

question 6, would it make any difference to the doctor’s liability if you did not tell him you were allergic to the substance?

8. Do you think Betty Baton should be entitled to recover from either of the doctors?

What is the important difference between Betty’s relationship to the doctors and Millie’s?

9. If you were the judge in the case between Millie and the team doctor:

a) Would you rule in favour of Millie or the doctor? Why? b) Would you award Millie damages for the old contracts that were

cancelled? What about the contract that Millie was about to sign?



SCENARIO C 3. Maxwell Wright Maxwell Wright who lived in a densely forested neighbouhood decided to have a backyard barbecue. It was a hot day in late August and there had been no rain in the area for over a month. Everything was bone-dry and water restrictions were in effect. Wright was in a hurry so, as in the part, he over-soaked the charcoal briquets with lighter fluid to make sure they would ignite and burn quickly. From previous experience, Wright knew that sometimes the flames leap 8 feet high or more when he lit the charcoal. Nonetheless, Wright proceeded to light the coals. Unfortunately, he had placed the barbecue beneath a dead fir tree in an attempt to get some shade from the summer heat. When Wright lit the barbecue, the flames shot up, ignited the dead fir and started a forest fire. The fire destroyed Wright’s neighbour’s house, several houses further away, and 50 hectares of prime old growth Douglas fir parkland owned by the city where Wright lived. Several people, either walking in the park or trying to flee their homes, suffered personal injuries. Among the people injured, was Bob Robber, a young man who had broken into and entered the house next door to Wright intending to burglarize it.

Questions for Discussion

1. Was Wright negligent? How was he negligent? 2. What standard of care would a reasonable person have followed in Wright’s

situation 3. Did Wright owe a duty of care to :

a) his next door neighbour; b) the other people whose houses were destroyed; c) the home owners who were injured; d) the park users who were injured; e) Bob Robber; f) The city?

4. If Wright does not owe a duty of care to all of the above persons, what is the

difference between the persons to whom he does owe a duty of care and thoes to whom he does not?

5. Should Wright have to pay the costs of fighting the forest fire? Does it make any

difference that the fire fighters and the equipment would have been employed fighting forest fires elsewhere even if the Wright fire had not happened?

6. The economic reality of the above situation is that even though all of the damage

was caused by Wright, he would never be able to pay all of the damages. Bearing this in mind, do you think that the “neighbour” concept of Lord Atkin



should be allowed as wide an interpretation as possible by the courts? Instead, should the provincial legislature intervene and put in place public policy that would take the decision in such cases out of the hands of the courts? What might such public policy be? Who would pay for the damages?

7. How would you resolve this case?



CLASS

TOPIC FOR DEBATE

Free Enterprise v. Legislative Intervention

This debate has been going on for a number of years now. It concerns the question of whether we, as a society, allow the courts to continue to function relatively unrestricted by legislation, in their role as law-makers in the field of negligence. Some would argue that if present trends continue, the time will come when it will be very potential liability constantly dogging one’s heels. They might also say that there are more efficient ways of resolving these typed of disputes and they both as private citizens and as a society we can no longer afford the luxury oh huge monetary awards in favour of “neighbours” who seem to become more and more distant each day. They would be in favour of some form of state intervention. The free enterprisers, on the other hand, might say that the system has worked for centuries and that it should be allowed to continue to function as in the past. They would point out that we, as a society and as individuals, are less and lesaa able to afford business or enterprises that do sloppy, negligent work and the poor performers. If public intervention occurs, they would argue, we will all suffer in the form of allowing businesses to operate which are not competent to do so and that ultimately we will end up paying more. The question for debate is: “RESOLVED legislation be passed by the province to codify the law of negligence and to provide clear guidelines as to: (a) the circumstances under which recovery shall be permitted; and (b) the monetary award that would be allowed in those circumstances.”

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