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James McGhee—A Second Mrs. Donoghue?

Published online by Cambridge University Press:  24 November 2003

Lord Hope of Craighead

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I Do not imagine that there is anyone who has anything to do with personal injuries litigation who has not heard of Mrs. May Donoghue. Her encounter with a partially decomposed snail at the Wellmeadow Café: in Paisley is part of our folklore. The law of liability for negligence was revolutionised by the decision of the House of Lords in Donoghue v. Stevenson. Indeed, one might even say that the modern law of negligence was created by it. Articles which are too numerous to mention have been written about her case. Some years ago alumni of the University of British Columbia organised a pilgrimage to Paisley to celebrate the 60th anniversary of the event. It was sponsored by the Canadian Bar Association, the Law Society of Scotland and the Faculty of Advocates.

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Articles
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The Cambridge Law Journal , Volume 62 , Issue 3 , 03 November 2003, pp. 587 - 604
Copyright
Copyright © Cambridge Law Journal and Contributors 2003

Footnotes

*

The Personal Injuries Bar Association Lecture 2002.

1 Donoghue v. Stevenson [1932] A.C. 562; 1932 S.C. (H.L.) 31.

2 For a detailed account of Mrs. Donoghue's life and backgound, see Rodger, A. F., Mrs. Donoghue and Alfenus Varus (1988) 41 Current Legal Problems 110.1093/clp/41.1.1.

3 Rodger, op. cit., p. 9.

4 There was a brief report of the judgment of the Inner House in 1972 S.L.T. (Notes) 61, but none in the Session Cases until after the judgment of the House of Lords had been issued.

5 McGhee v. National Coal Board [1973] 1 W.L.R. 1; 1973 S.C. (H.L.) 37.

6 The name of Friedrich Hoffmann is closely linked to the development of continuous kilns. The first continuous kiln was built at Konstanz in 1864. His original design underwent various improvements as his method was adopted elsewhere in Europe: A History of Technology (Oxford 1958), vol. V, pp. 666-668.

7 It is also the scene of a famous battle which took place in 1745 when, after an engagement lasting only about ten minutes, Prince Charles Edward Stuart's troops defeated an army commanded by Sir John Cope who fled to England, being the first, it is said, to carry the news of his own defeat.

8 It is mentioned in a marine insurance case, Wilson & Co v. Elliot (1776) Mor 7096 in which a vessel which was to go from Carron Shore, near the modern port of Grangemouth, to Hull with liberty to call at Leith called at Morison's Haven instead which was “six miles distant”: see also Wilson, W. A., Introductory Essays on Scots Law (2nd ed., Edinburgh 1984), 78.

9 The right was introduced by Part I of the Tenants’ Rights, Etc (Scotland) Act 1980; now consolidated, with amendments, by the Housing (Scotland) Act 1987, s. 61 et seq..

10 Named after Lady Susan Grant Suttie (1878-1946), a popular philanthropist who lived at Prestongrange House and took a close interest in the welfare of the local community.

11 [1973] 1 W.L.R. 1, 3H.

12 [1973] 1 W.L.R. 1, 4H.

13 See Wardlaw v. Bonnington Castings Ltd. [1956] A.C. 613, 1956 S.C. (H.L.) 26.

14 Subsequently the Hon. Lord Davidson, a Court of Session Judge, who for eight years was also Chairman of the Scottish Law Commission.

15 Subsequently the Rt. Hon. Lord Morton of Shuna, on his appointment to the House of Lords as shadow Lord Advocate and then a Court of Session Judge.

16 I was junior counsel for the Board. My senior was James Mackay Q.C., who was later to become the Rt. Hon. the Lord Mackay of Clashfern, a Lord of Appeal in Ordinary and then Lord Chancellor.

17 [1973] 1 W.L.R. 1, 5A-B.

18 p. 7E-F.

19 Wardlaw v. Bonnington Castings [1956] A.C. 613, 1956 S.C. (H.L.) 26 and Nicholson v. Atlas Steel Foundry and Engineering Co. Ltd. [1957] 1 W.L.R. 613, 1957 S.C. (H.L.) 44.

20 [1973] 1 W.L.R. 1, 8E.

21 p. 10D.

22 p. 11H-12A.

23 p. 12H.

24 (1774) 1 Cowp 63, 65, quoted with approval by the Supreme Court of Canada in Snell v. Farrell [1990] 2 S.C.R. 311, 328 and by Lord Bingham of Cornhill in Fairchild v. Glenhaven Funeral Services Ltd. [2002] 3 W.L.R. 89, 98G-H, para. [13].

25 [1987] A.C. 750, 786.

26 [1987] Q.B. 730 (C.A.); [1988] A.C. 1074.

27 [1987] Q.B. 730, 771H-772A.

28 [1988] A.C. 1074, 1090.

29 See Reece, Helen, “Pedro Juan Cubillo v. Commonwealth of Australia: right result, wrong method”, in Law and Science (Oxford 1998), 89.

30 [1956] A.C. 613.

31 per Lord Reid at p. 623.

32 [1973] 1 W.L.R. 1, 4H.

33 p. 10C.

34 Fairchild v. Glenhavon Funeral Services Ltd. and Others [2002] 3 W.L.R. 89.

35 at p. 108H, para. [22]; pp. 162H-163A, para. [150].

36 [1973] 1 W.L.R. 1, 3D.

37 [2002] 3 W.L.R. 89, 159H, para. [144].

38 [1973] 1 W.L.R. 1, 4G-5A.

39 [2002] 3 W.L.R. 89, 108C-D, para. [21].

40 p. 159B, para. [142].

41 See Lord Nicholls at p. 123B-E, paras. [44], [45]; Lord Hoffmann at p. 128B-D, para. [65]. Lord Hutton said that he did not find a clear statement in McGhee that the House was formulating a new principle of law: p. 138E, para. [94].

42 According to the report in the Session Cases, the hearing took place on 8 and 9 October 1972: 1973 S.C. (H.L.) 37, 50. The dates in the head-note in the Weekly Law Reports are 9 and 10 October 1972: [1973] 1 W.L.R. 1. Davidson's notes confirm that the correct dates are those which are given in the Weekly Law Reports.

43 He omitted the references in his written speech to Duke of Buccleugh v. Cowan (1866) 5 M 214, (1876) 4 R (H.L.) 14, Fleming v. Gemmill & Others 1908 S.C. 340, Ellerman Lines Ltd. v. Clyde Navigation Trustees 1909 S.C. 690 and Brown v. Rolls Royce Ltd. 1958 S.C. 600.

44 Personal communication.

45 [1973] 1 W.L.R. 1, 7E.

46 Helen Reese, op. cit., 93.

47 Donoghue v. Stevenson 1932 S.C.(H.L.) 31, 44.

48 Minister of Home Affairs v. Fisher [1980] A.C. 319, 329A.

49 [1973] 1 W.L.R. 1, 5B.

50 [2002] 3 W.L.R. 89, 163C, para. [150].

51 p. 126E-F, para. [60].

52 Sarah Arnell, “Causation Reassessed”, 2002 S.L.T. (News) 265.

53 p. 126H, para. [62].