Donoghue v Stevenson

The Paisley Snail MiniTrial

2. The Closed Record – the written pleadings

IN THE COURT OF SESSION

CLOSED RECORD
(As Amended)

1. – SUMMONS
(Personal Injuries Action)

MRS MAY McALISTER OR DONOGHUE, Junior, (Assisted Person), formerly residing care of McAlister, 49 Kent Street, off London Road, Glasgow, and now residing at 101 Maitland Street, Cowcaddens, Glasgow– ,

PURSUER

against

DAVID STEVENSON, Junior, Aerated-Water Manufacturer, 5 Glen Lane, Paisley – ,

DEFENDER

_________

Elizabeth II by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of Her Other Realms and Territories, Queen, Head of the Commonwealth, Defender of the Faith to DAVID STEVENSON :
By this summons the pursuer craves the Lords of Council and Session to pronounce a decree against you in terms of the conclusions appended to this summons. If you have any good reasons why such decree should not be pronounced, you must enter appearance at the Office of Court, Court of Session, 2 Parliament Square, Edinburgh, EH1 1RQ, within three days after the date of the calling of the commons in court. The summons shall not call in court earlier than Twenty-one days after the date of service upon you of this summons. Be warned that, if appearance is not entered on your behalf, the pursuer may obtain decree against you in your absence.

GIVEN UNDER OUR SIGNET AT EDINBURGH ON 9th APRIL

Richard A. J. Godden, Solicitor
McKay Norwell, W.S.
7 Rutland Square, Edinburgh, EH1 2AS.
Solicitor for Pursuer.


CONCLUSIONS

FIRST. For payment by the defender to the pursuer of the sum of TWENTY FIVE THOUSAND POUNDS (£25,000) STERLING together with interest thereon at the rate of 8 per cent a year from the date of decree to follow hereon until payment; and,

SECOND. For the expenses of the action.


2. – STATEMENT OF CLAIM for PURSUER,
and

ANSWERS thereto for DEFENDER

Stat. 1. The pursuer is employed as a shop assistant, and resides at 49 Kent Street, off London Road, Glasgow.

Ans. 1. Not known and not admitted.

Stat. 2. The defender is an aerated-water (soft drinks) manufacturer, and carries on business at Glen Lane, Paisley.

Ans. 2. The description of the defender is admitted.

Stat. 3. This court has jurisdiction to hear this claim because the harmful events in consequence of which the pursuer seeks reparation occurred in Scotland.

Ans 3. Admitted that this court has jurisdiction.

Stat 4. At or about 8.50 p.m. on or about 26th August, the pursuer was in the shop occupied by Francis Minchella, and known as Wellmeadow Café, at Wellmeadow Place, Paisley, with a friend. The said friend ordered for the pursuer ice-cream, and ginger-beer suitable to be used with the ice-cream as an iced drink. Her friend, acting as aforesaid, was supplied by the said Mr. Minchella with a bottle of ginger-beer manufactured by the defender for sale to members of the public. The said bottle was made of dark opaque glass, and the pursuer and her friend had no reason to suspect that the said bottle contained anything else than the aerated-water. The said Mr Minchella poured some of the said ginger-beer from the bottle into a tumbler containing the ice-cream. The pursuer then drank some of the contents of the tumbler. Her friend then lifted the said ginger-beer bottle and was pouring out the remainder of the contents into the said tumbler when a snail, which had been, unknown to the pursuer, her friend, or the said Mr Minchella, in the bottle, and was in a state of decomposition, floated out of the said bottle. In consequence of the nauseating sight of the snail in said circumstances, and of the noxious condition of the said snail-tainted ginger-beer consumed by her, the pursuer sustained the shock and illness hereinafter condescended on. The said Mr Minchella also sold to the pursuer’s friend a pear and ice. The averments in answer, so far as not coinciding herewith, are denied. The said ginger-beer bottle was fitted with a metal-cap over its mouth. On the side of the said bottle there was pasted a label containing, inter alia, the name and address of the defender, who was the manufacturer. It was from this label that the pursuer’s said friend got the name and address of the defender.

Ans. 4. Denied. Any illness which the pursuer suffered was not due to her having partaken of the contents of a bottle of ginger-beer manufactured and sent out from the defender’s factory. The defender has never issued bottles answering the description given by the pursuer. The system employed at the defender’s factory is the best known in the trade. No bottle of ginger-beer has ever passed out there-from containing a snail. The defender and his employees exercised every care in the carrying out of that system.

Stat 5. The pursuer suffered severe shock and a prolonged illness in consequence of the said fault of the defender and his employees. She suffered from sickness and nausea which persisted. Her condition became worse, and on 29th August she had to consult a doctor. She was then suffering from gastroenteritis induced by the said snail-infected ginger-beer. Even while under medical attention she still became worse, and on 16th September had to receive emergency treatment at the Glasgow Royal Infirmary. She vomited repeatedly, and suffered from acute pain in the stomach, and from mental depression. She was rendered unfit for her employment. She has lost wages and incurred expense as the result of her said illness. Her heads of claim are (1) Past Solatium (2) Future Solatium (3) Past Loss of Earnings and (4) Expenses. The sum sued for is reasonable. The averments in answer are denied. Prior to the incident condescended on, the pursuer suffered from no stomach trouble.

Ans. 5. Not known and not admitted. The alleged injuries are grossly exaggerated. Any illness suffered by the pursuer on and after 26th August was due to the bad condition of her own health at the time.

Stat 6. The pursuer contends that she has suffered loss injury and damage through the fault and negligence of the defender at common law and that she is entitled to damages from him

.

Ans. 6. The defender contends that the pursuer’s case is unfounded in fact and law and that the pursuer is not entitled to damages. In any event the sum sued for is excessive.

[This marks the end of the Closed Record]

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