Analogical Reasoning and Legal Institutions

Abstract

I start by looking at what is involved in moving from a snail in a ginger beer bottle, through sulphites in underpants and antimony sulphide in manganese, to a lift in a shaft. Lawyers from the Anglo-Saxon jurisdictions will recognise these facts as coming from cases in the law of delict or tort and they will recognise that I am starting with the famous case of Donoghue v Stevenson. Here it was held that Mrs. Donoghue, who was made ill by starting to drink, in a cafe, a bottle of ginger beer in which she claimed there had been a decomposing snail, had a remedy in negligence against the manufacturer with whom she had no contractual relation. Lord Atkin said:

A manufacturer of products, which he sells in such a form as to show that he intends 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 of putting up the products will result in an injury to the consumer’s life or property, owes a duty of care to the consumer to take reasonable care. ([1932] A. C. at 599)