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Donoghue's case doesn't overcome the standard of proof in civil cases, the balance of probabilities. As Canada and English law Prof. Hutchinson explained below, Donoghue never proved the facts of her case. Doubtless, Donoghue's alleged gastroenteritis could've been caused by other gastrointestinal conditions, like stomach flu or lactose intolerance! I'm assuming her ice cream contained lactose.

Thus why might've Stevenson's estate settled with Donoghue for £200 in 1933, or £14638 in 2020 according to the Bank of England's inflation calculator? This is A LOT of compensation for some people!

Any competent barrister can spot the floodgate argument. Since Stevenson's estate settled with Donoghue, other consumers can counterfeit the facts, and spur the manufacturer to settle for damages. Fraudster buys an opaque container of food or beverage. Then allege a dead animal. Or open the container, and put the dead animal in the container! Then they fake gastroenteritis, and get a doctor's note for gastroenteritis. Then they can sue manufacturers, and settle for at least hundreds or thousands of £, even if they fail to prove their facts!

      Exactly what happened next is unclear. According to May, who was generally of a strong constitution, she began to feel ill. The sight of the snail triggered her delayed reaction to consuming the contaminated ginger beer. Things went from bad to worse. Wretching and vomiting, she returned home with the help of her friend. She became so ill that she was unable to go to work the next day. At the time, people like May had no regular doctor or health care. However, as the symptoms persisted, she was forced to take the unusual step three days later of visiting a doctor who diagnosed her with gastroenteritis. Try as she might, she could not shake off her ailments. So debilitated and desperate was she that three weeks later in September, she received emergency treatment at the Glasgow Royal Infirmary. Fortunately, this seemed to work, and she began to recover sufficiently that she was able to resume her job as a shop assistant and much of her normal life. Her night out had turned into almost a month’s illness.

Page 120.

      Stevenson was not new to the business of being sued. Nor was he surprised that Walter Leechman was behind the litigation. But he was enraged that his family’s good name had been challenged and brought into disrepute by these scurrilous claims. Hiring a prominent firm of Glasgow lawyers, he resolved to fight the case with all means at his disposal. He asserted strenuously in his defense that the bottle in issue was not his and that, even if it were, there was no snail in the bottle; this was a plot by the unscrupulous Leechman to stir up trouble and feather his own nest.
      But the initial and ingenious defense of Stevenson was that, even if all the allegations about May’s experience and illness were true, they did not reveal a compelling or valid cause of action. Although he denied that they were true, his opening salvo was to seek an order that the pleadings were legally inadequate and to have the case thrown out. He relied on then-recent decisions by the Scottish courts that exonerated food manufacturers generally and ginger-beer makers particularly from such claims. Indeed, with a neat symmetry, Stevenson argued that these precedents were in fact established in cases brought by Leechman himself. Accordingly, the case wended its way through the courts on the basis of a procedural irregularity. It was only once when this preliminary issue was resolved that there would need to be any engagement, if at all, over the facts themselves.

Page 124.

There were so many evidential barriers to be hurdled before she would be home safe and dry. It was now for May to demonstrate to the court’s satisfaction that there indeed had been a decomposed snail in her ginger beer, that the gingerbeer bottle was manufactured by Stevenson, and that this was the cause of her severe bout of gastroenteritis.

Page 132.

Was there a snail in the bottle? Or was it all a giant hoax? As history would have it, there never was a trial, and there was no official determination as to whether the snail made himself an unwelcome guest at the Wellmeadow Cafe on that August evening in 1928. Although the trial was set for January 1933, David Stevenson died from appendicitis a few months earlier in November 1932. Whether this was happenstance or divine judgment is unknown. Because his manufacturing business was not yet incorporated as a company, Stevenson was personally liable for any liabilities or debts incurred. A short while later, his estate settled with May Donoghue for the amount of £200, which exceeded by a considerable margin her lost earnings. Although this was a very substantial amount for May (and would have been the equivalent to about the salary of the average professional), it represented only a very small part of Stevenson’s net estate of more than £12,500.

Hutchinson, Is Eating People Wrong? 2011. Pages 137-8. All emboldenings are mine.

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Pragmatism

Litigation is expensive in both time and money, a negotiated settlement brings matters to a close.

When the case went back for trial Mr Stevenson was no longer the defendant - the Estate of Mr Stevenson was because Mr Stevenson was dead. The executor and beneficiaries of that estate may not have been as personally invested in "the family’s good name" and may not have wanted to tie up the estate in months or years of litigation before it could be distributed.

Even if Mr Stevenson had still been with us ("us" in a rhetorical sense since I know I and I suspect you were not alive at the time), he may have assessed the chances of Donoghue succeeding as slight but, if she did, he would not only be up for compensation but costs of the appeals that had already happened and the trial yet to come. A small chance multiplied by the £500 claimed plus costs might give an expected value of around £200.

When a client comes to a lawyer and says "it's not the money, it's the principle", $ signs start to spin in the lawyer's eyes - such clients are a gold mine. Sensible litigants know it's always about the money.

The facts

We will never know for sure if there was a snail in the bottle because the case never went to trial. However, based on what is known, I'm pretty sure it wasn't there. That doesn't mean that if Mrs Stevenson and her companion on the day were willing to perjure themselves that a court wouldn't come to the opposite conclusion.

Mr Leechman had just lost several cases regarding mice in ginger beer bottles (one wonders about the standards of food hygiene in soft drink factories in 1930s Scotland). The author of the linked article says:

Was it just lucky for May Donoghue that she consulted perhaps the only solicitor in the world who would not only have taken her case, but have taken it to the highest court in the land? No one knows.

Except ... Ms Donoghue was, in the language of the time, a pauper. This meant that if she appealed, even up to the House of Lords, she would not be required to put up security for costs. Perhaps Ms Donoghue didn't find Mr Leechman: perhaps he found her? A client where he could take a matter of principle to the highest court in the land at no financial risk for his client.

Worked out awfully well for them, didn't it? First-year law students all over the Anglosphere still learn their names almost 100 years after the events.

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  • I thought I saw some comments after this post? Were they removed? or did i get the wrong post?
    – user41441
    Nov 4 '21 at 6:42

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