LIM Seminar 4- Formalism and Realism (28/11/17)
Task 1-
Donoghue v Stevenson case summary
Citation- Donoghue v Stevenson [1932] A.C. 562
Parties- Donoghue (Appellant), Stevenson (Respondent)
Nature of case- negligence, injury, health, appeal, manufacture of food, discovery by inspection, duty
of reasonable care, liability, carelessness
Status of court- House of Lords, 5 Judges
Facts- Appellant bought a bottle of Ginger-Beer from a cafe occupied by Minchella. The respondent
was the manufacturer of the drink. After drinking part of the Ginger-Beer the decomposed remains of
a snail were found. the appellant suffered from shock and gastro-enteritis as a result of consumption.
The bottle is dark and opaque, sealed with a metal cap.
Legal issue(s)- Did Stevenson have a duty of care towards Donoghue so should’ve ensured that the
bottles were cleaned effectively. Were the injury’s suffered by the appellant caused by drinking the
beer or his own health at the time. Does negligence/liability arise in the absence of a contract?
Outcome- Appeal allowed 3:2
Reasoning- Lord Atkin; the issue was important because of its bearing on public health and the
practical test applied (the neighbour principle). He said you must take reasonable care to ensure you
take reasonable care to avoid acts which have to ability to injure your neighbour. A neighbour being
people “so closely and directly affected by my act” that they should be considered of being effected
when performing the act. “People must take reasonable care not to injure others who could
foreseeably be affected by their action or inaction”. Heaven V Pender (duty of care owed, "whenever
one person is by circumstances placed in … a position with regard to another that … of ordinary sense
... recognise that if he did not use ordinary care and skill in his own conduct ... he would cause danger
of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid
such danger"). Rejected other cases involving poisoned food. Claims there should be a duty of care
owed by manufacturers of products such as medicine, soap and cleaning products as denying a legal
remedy would be “so obviously a social wrong”. MacPherson V Buick Motor Co (“if he is negligent,
where danger is to be foreseen, a liability will follow”). By accepting the cause of action, it affirms
that in (English and Scottish) law a manufacturer of products who intends for his products to reach the
consumer in the same state as leaving them with no intermediate examination owes a duty of
reasonable care to that consumer.
Task 2-
Legal Formalism; applying principles to the facts
1) Rational, logical approach (deductive (major and minor premise, top-down reasoning) and
inductive (infer principle from decisions) reasoning)
2) Consistency and uniform
3) Mechanical application of laws (legal and procedural certainty)
4) External factors (moral/political judgement and social morality) are irrelevant
Schauer and MacCormick
Legal Realism; a more naturalistic approach
1) Rule scepticism and fact scepticism
2) Challenges that the law is a set of rules
3) Law is experience rather than logic (Holmes) also social context decides decision making
4) Law in action vs law in books (Pound)
Task 1-
Donoghue v Stevenson case summary
Citation- Donoghue v Stevenson [1932] A.C. 562
Parties- Donoghue (Appellant), Stevenson (Respondent)
Nature of case- negligence, injury, health, appeal, manufacture of food, discovery by inspection, duty
of reasonable care, liability, carelessness
Status of court- House of Lords, 5 Judges
Facts- Appellant bought a bottle of Ginger-Beer from a cafe occupied by Minchella. The respondent
was the manufacturer of the drink. After drinking part of the Ginger-Beer the decomposed remains of
a snail were found. the appellant suffered from shock and gastro-enteritis as a result of consumption.
The bottle is dark and opaque, sealed with a metal cap.
Legal issue(s)- Did Stevenson have a duty of care towards Donoghue so should’ve ensured that the
bottles were cleaned effectively. Were the injury’s suffered by the appellant caused by drinking the
beer or his own health at the time. Does negligence/liability arise in the absence of a contract?
Outcome- Appeal allowed 3:2
Reasoning- Lord Atkin; the issue was important because of its bearing on public health and the
practical test applied (the neighbour principle). He said you must take reasonable care to ensure you
take reasonable care to avoid acts which have to ability to injure your neighbour. A neighbour being
people “so closely and directly affected by my act” that they should be considered of being effected
when performing the act. “People must take reasonable care not to injure others who could
foreseeably be affected by their action or inaction”. Heaven V Pender (duty of care owed, "whenever
one person is by circumstances placed in … a position with regard to another that … of ordinary sense
... recognise that if he did not use ordinary care and skill in his own conduct ... he would cause danger
of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid
such danger"). Rejected other cases involving poisoned food. Claims there should be a duty of care
owed by manufacturers of products such as medicine, soap and cleaning products as denying a legal
remedy would be “so obviously a social wrong”. MacPherson V Buick Motor Co (“if he is negligent,
where danger is to be foreseen, a liability will follow”). By accepting the cause of action, it affirms
that in (English and Scottish) law a manufacturer of products who intends for his products to reach the
consumer in the same state as leaving them with no intermediate examination owes a duty of
reasonable care to that consumer.
Task 2-
Legal Formalism; applying principles to the facts
1) Rational, logical approach (deductive (major and minor premise, top-down reasoning) and
inductive (infer principle from decisions) reasoning)
2) Consistency and uniform
3) Mechanical application of laws (legal and procedural certainty)
4) External factors (moral/political judgement and social morality) are irrelevant
Schauer and MacCormick
Legal Realism; a more naturalistic approach
1) Rule scepticism and fact scepticism
2) Challenges that the law is a set of rules
3) Law is experience rather than logic (Holmes) also social context decides decision making
4) Law in action vs law in books (Pound)
