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Author: Abhinav Singh, II year of B.A.,LL.B.(Hons.) from Marwadi University


Donoghue v. Stevenson was one of the land mark judgment, not only in England but all over the world as it had not only safeguarded the rights of the peoples but also expanded the scope, flexibility and provided some stability to the tort law, which till date is confusing. Also known as snail in the bottle case had proved that if we will try to confine the tort only to some definitions, then it will curtail the rights of the consumers and will provide a freehand to the manufactures to escape, from almost every liability. Stevenson (Manufacturer) had won the case in lower courts, and this was the case filed under the appellant jurisdiction of the House of Lords (Division bench) UK. The case was mainly based upon the liability of the manufacturer, as the rights of the consumer got affected by the negligence on the part of the respondent (Stevenson) by consuming the article manufactured by the respondent. There were many questions in front of the bench, which will be discussed later, but one of the important question raised that there was no direct relation between the respondent and the consumer and due to this reason respondent does not have any responsibility towards appellant. This has also created a confusion regarding duty towards third person. Although at the end, the judgment was delivered in the favour of appellant by the majority of 3:2.


Breach of duty is one of the necessary requirements for a person to be held accountable for carelessness. In legal filed it means someone failure to perform or performance of any act prohibited by law. It indicates that when executing an act, everyone owes a responsibility of care to another person. Although this obligation occurs in all activities, it is legal in nature in carelessness it can’t be moral, ethical, or religious in nature. The court will compare the defendant act with the act a common reasonable prudent man would taken in the same situation and if the court find out that the defendant have acted unreasonably then the defendant will be held liable. The concept of breach of duty was much debated in Donoghue v. Stevenson. The company tried to prove that the breach of duty on their part noting the fact that the breach can only occur when there is any contract between the parties and the person who purchased the drink does not have any contract with the company. But the court held that if the commodity is of type that it is impossible for the purchaser to check the ingredients of the product then the purchaser can claim the breach of duty under negligence. It was said by Lord Atkin in Appeal that main question before the bench is to find out, that whether there was negligence on the manufacturer part and breach of duty occurred or not. Under law of tort a person has to vigilant regarding the rights of every person in the society and need to take due care towards all the persons in a society. In this case although the person consuming the drink was not in direct contract with the manufacturer but the manufacturer need to take due diligence in manufacturing the drink as the person consuming could face serious risk because of the manufacturer and it will affect the right of the consumer because of the negligence of the producers. So breach of duty means, that the negligence have caused the legal damage to the party. In order to prove breach of duty in negligence you need to prove that the party owed the duty of care towards another and the party has breached their duty and that breach has caused legal damage to the plaintiff. The main part in breach is prove that the negligence that occurred could have been avoided, if the defendant would have taken ordinary diligence, which any reasonable person would take in order to execute the work.

Explaining the view taken by the lord Esher in Heaven v. Pender, that duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that if due care was not taken damage might be done by the one to the other[1]. This does not mean that the truth of proximity is only confined to the physical proximity, but be applied to the extent that the act of one party may directly affect a person whom the alleged person is bound to take care would know would be directly affected by his careless act.[2]. It is also evident from the observation of lord Esher and A.L. Smith in Le Lievre v. Gould, 1893, 1 Q.B. 497, Lord Esher at 497 says,

"That case established that under certain circumstances one man may owe a duty to another even though there is no contract between them. If one man is near to another or is near to the property of another a duty lies upon him not to do that which may cause a personal injury to that other or may injure his property”[3]. The other important principle is the necessity of goods having to be used immediately or there is a reasonable time for the consumer to inspect it before consuming, as it give rise to the deterioration of goods by lapse of time or the intermediate person could also have at fault. And then the manufacturer may does not have the liability, but if the manufacturer puts the goods in container knowing the fact that it will be directly opened by the consumer and there can be no inspection by any purchaser and negligently by not taking due care the manufacturer allows the goods to filled with poison or any other material which should not have been in the product, and then the aggrieved party does not have any right or remedy against the negligent act of the manufacturer would cause great injustice to the aggrieved party and will be very dangerous for all the consumers and will provide a free hand to all the manufactures to escape their liability, citing the principle of no contract with the consumer. Especially In the cases of house hold products, where the manufacturer have the clear knowledge that the product will be used by the other persons that the actual purchaser and by the member of the family, it should be the liability of the manufacturer.

In the case of George v. Skivington, where the defendant was the shampoo manufacturer and the plaintiff brought the bottle of shampoo to be used by his wife, and the product was manufactured so negligently that it was totally unfit for the use and because of this the female plaintiff was injured. The justice Kelly C.B said that there was no question of warranty but whether the chemist was liable in an action on the case for unskilfulness and negligence in the manufacture of it; "Unquestionably, there was such a duty toward the purchaser and it extends in my judgment to the person for whose use the vendor knew the compound was purchased.[4]

So if the manufacturer is negligent in his/her act and does not take due care and that act leads to the breach of duty towards plaintiff and his/her right have been affected, then the defendant will be held liable.

Relation between Breach of Duty and Misfeasance and Nonfeasance

Misfeasance in tort law- It means “performance of some lawful Acts in an improper way”. The Act is legal but has been performed in an improper way. It can be infer that there was negligence on the part of the person in performing the lawful Act.

Nonfeasance on the contrary means an intentional failure to perform a required duty, so if the person negligently omits or Act in a way he/she should not have been acted then that Act of the person will come under Nonfeasance. So for example in a case where a builder got a contract to build a factory and he also obtained the clearance for the same by the inspectors, now later as the base of the factory was not strong, that structure collapsed. Now in this example the inspectors who cleared the documents without checking it will be termed as Misfeasance and the builders who have build the factory will come under Nonfeasance as they were directly negligent in their act on the contrary the inspectors were negligent in performing the lawful task.

The breath and the extent of the neighbour principle in Donoghue v. Stevenson have made it difficult to identify the difference between Misfeasance and Nonfeasance. A s the neighbour principle which came out of the judgment setup a very broader benchmark to decide the liability of a person towards others so it became too difference that whether the breach will come as negligent act performing an lawful act or an negligent act in itself.

It was also a contention that the amount of liability attached with the Misfeasance is difficult to decipher as the person is not legally bind to perform that act. Suppose an individual is witnessing a crime in front of him and there are other people present then the person can informs the police but if he chooses to not to inform then why blame this person by bringing the claim of negligence as there can be various reasons for which he do not want to perform the police so we can say that it was not really the duty of the person attached with him, but as the neighbour principle suggested it was the duty of the person to inform the police as it is in the ambit of the definition of neighbour.

To identify the scope of the legal duty the Lord Atkin have quoted a passage from the Book of Luke is a parable of the good Samaritan who stopped to assist a wounded man after a priest and a Levite had walked past but crossed to the other side. The consensus is that Lord Atkin meant to explain is that despite the immorality of the priest and the Levite those men would not be legally liable.


The judgment provided in the Donoghue v. Stevenson had taken into consideration the fact that if the product of the manufacturer is directly affecting the rights of the consumer and the consumer do not have any mechanism to check that fact then the principle of Neighbour will be active and the manufacturer will be held liable. However the judgment have reduced the differentiation between the concept of Misfeasance and Nonfeasance and it had made it very difficult for the courts to decide the amount of negligence and breach an individual had done and it would lie in which category.

As a result, Donoghue v. Stevenson effectively establishes a criterion for duty of care. However, as legal turbulence grew, the stated criterion became overly simplistic. In Caparo Industries Plc v. Dickman, a three-step neighbour test was created (1990) to reduce that misconceptions and confusions. The exam, on the other hand, was founded on Lord Atkin's original idea. This approach has been further refined in other circumstances.

Many academics, however, reject the ongoing hype around this case, claiming that the concepts presented are too simple. However, it is for this reason that the author considers that a thorough examination of the case law is required. As instances get more complicated, it is acceptable to say that a significant need to return to the basics and study all those that are now taken for granted.

There have been some judgments which have tried to explain the principle of Donoghue v. Stevenson in a more elaborative way, considering the current circumstances of the society. They have also tried to be less confusing, but the significance of the snail case has not reduced as its significance can be seen as it have been cited by the Hon’ble supreme court of India in its recent judgment of The Managing Director, Kerala Tourism Development Corporation Ltd. v. Deepti Singh and Ors. (2019), which clearly proves that the principle of that case are still prevalent and are still acting as a guiding force for various Courts to come to a conclusion.

From the time of the judgment the society has developed and as per the changes, the law has also broadened the scope of the duty owned towards others. The section 2(7) of the Consumer protection Act, 2019 has expanded the definition of the consumers as the person, who does not necessarily purchase the goods and services, but also who consume the goods and services will also be termed as consumer and will have all the right to sue the manufacturer. As, according to the previous definition of the consumer, person who had purchased the goods can only file a suit against respondent for any damage, which curtailed the rights of lot of consumers as they were the once directly affected by the negligence of the manufacturer. Section 2(5)(f)(g) of the Act also giver the right to legal heirsor legal representative to file a suit in consumer protection and allows a guardian to file on the behalf of his/her child. These definition have been in consonance with the judgment that whosoever, purchases the goods or avail any service for the end use and whoever take benefit or consumes it have the right to claim compensation. This have created a proper check and balances upon the supplier of goods and services to make sure that every due diligence have been taken care off. The Act itself was based upon the various landmark judgments, which have been very important for the rights of the consumers.

[1]Donoghue v. Stevenson,UKHL 100, SC (HL) 31, AC 562, 1932. [2]Ibid. [3] Ibid. [4] Ibid.


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