Donoghue v Stevenson

The Paisley Snail MiniTrial

11. The Charge

THE JUDGE’S CHARGE TO THE JURY – a possible outline

LADIES and GENTLEMEN OF THE JURY, it is now my duty to give you directions as to the law in this case.

You and I have DIFFERENT FUNCTIONS.

It’s MY FUNCTION to deal with questions of law and you must accept and apply my directions on THE LAW.

But YOU are the judges of THE FACTS.

It’s YOUR FUNCTION to assess the evidence. It’s for you to decide: – what evidence you believe and what you disbelieve; what evidence you find reliable and what unreliable. Please consider the evidence with care. It is your recollection and your assessment of the evidence that counts – and not mine.

There are TWO LEGAL PRINCIPLES which I wish to draw to your attention at the outset.

1. THE ONUS OF PROOF. The burden of proving the case lies on THE PURSUER. It is up to May Donoghue to prove her case to your satisfaction.
2.      THE STANDARD OF PROOF – is “THE BALANCE OF PROBABILITIES”. It is for May Donoghue to satisfy you of the essential features of her case – and that means that she has to satisfy you that those essential features are “more probable than not”.

The evidence is very fresh in you minds – including the evidence which was agreed by Joint Minute – and I propose to say nothing further about it.

However, I would like to say a few words about the LAW.

The main legal principles are to found in a famous case called Donoghue v Stevenson 1932 S.C. (H.L.) 31. In that case, which bears a number of similarities to the present one, The House of Lords held (decided) as follows:–

Where the manufacturer of a product intended for human consumption sends it out in a form which shows that he means it to reach the ultimate consumer in the form in which it left his factory, with no reasonable possibility of intermediate examination by the retailer or consumer, and with the knowledge that want of reasonable care on his part in the preparation of the product may result in injury to the consumer, the manufacturer owes a duty to the consumer to take such care, and will be liable to the latter, in damages if he suffers injury through the failure to take such care.

In his speech Lord Atkin said:

“You must take reasonable care to avoid acts and 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 and omissions which are called in question.”

The principle on which his judgment rested was as follows:

“[A] manufacturer of products, which he sells in such a from 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 consumer’s life or property, owes a duty to the consumer to take that reasonable care.”

The main questions for you are (Firstly) has May Donoghue proved that the incident happened as she alleges, (Secondly) has she proved a breach of duty – that is fault – on the part of David Stevenson and (Thirdly) has that breach of duty caused May Donoghue loss injury or damage?

As you have already heard, the main question for you is set out in the Issue. Would you please look at that document again with me?

First of all, you have to decide how to answer the Issue (the main question) – either “Yes” (as the pursuer suggests) or “No” (as the defender suggests).

You have heard two excellent closing speeches – summarising the contentions for the partied. I don’t propose to rehearse the various arguments which have been advanced by counsel.

In light of those submissions you require to ask yourself the following three questions:

1. Are you satisfied that, as a matter of fact, the incident happened as May Donoghue alleges – and in particular that she consumed ginger-beer which was manufactured by the defender and which was contaminated by a snail?
2. Was that incident caused by the fault of the Defender – and in particular are you satisfied that Mr Stevenson or his employees failed to take reasonable care?
3.      Did May Donoghue sustain injury caused by the fault of the defender?

If you answer all those questions “Yes” then you should find in favour of the pursuer – by answering the Issue “Yes”.

If you answer any of those questions “No” then you should find in favour of the defender – by answering the Issue “No”.

You also require to assess damages – and to insert the appropriate figures against each of the 4 heads of claim which are all set out in the Issue.

Head (1) is for past solatium – that is the pain and suffering and distress experienced by May Donoghue from the time of the incident to date.

Head (2) is for future solatium – that is the pain suffering and distress that May Donoghue will experience as a result of the incident in future – from today onwards.

Head (3) “past wage Loss” has been agreed between the parties – so I direct you to insert the agreed figure of £200.

Head (4) “expenses” has also been agreed – so I direct you to insert the agreed figure of £50.

The assessment of damages under Heads (1) and (2) for past and future solatium is entirely a matter for you. Your award should properly reflect the evidence and provide fair compensation. The amount of damages should be moderate and reasonable but adequate to put May Donoghue back into the position she would have been in if there had been no incident. You should reach a figure for solatium as a whole before apportioning it between the past and the future.

Finally, the figure of £25,000 which is mentioned in the Issue is simply a maximum figure. You cannot award more that £25,000.

In short, you require to answer the Issue either “Yes” or “No” and then make a reasonable assessment of damages totalling up to but no more than £25,000.

The verdict is however entirely a matter for you.

Your verdict can be unanimous or by majority. Since there are twelve of you, if you are going to return a majority verdict there must be at least 7 of you in favour of that verdict.

When you have reached a verdict please tell the Clerk of Court. Please also appoint a spokesperson to speak for you when you return to give your verdict.

WOULD YOU NOW PLEASE RETIRE AND CONSIDER YOUR VERDICT.

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