Strange Brew: The Trail of the Paisley Snail

In the classic comedy, Strange Brew, Bob and Doug McKenzie (of SCTV fame) find themselves in crisis when their family unexpectedly runs out of beer on a Saturday night. The brothers are too terrified to tell their father they have previously given away their beer money and so a sinister plot is hatched. They place a baby mouse in a bottle and return it to the store in the hopes the clerk will give them free beer for their mental distress.

The following dialogue ensues with the less than sympathetic clerk:

Doug McKenzie: Twenty-four Elsinore beers.

Beer Store Clerk: Twenty-four Elsinore! That will be $14.70.

Doug McKenzie: I believe there will be no charge on this two-four of beer, thank you.

Beer Store Clerk: Excuse me?

Doug McKenzie: Ok, uh, we found this mouse in a bottle of Elsinore beer that we bought at your beer store, eh? And we heard that when that happens you get your beer free.

Bob McKenzie: It’s in the Canadian Criminal Code, eh. Like there’s legal precedence set in cases in law, eh?

Doug McKenzie: So, like give us our free beer.

Beer Store Clerk: You want free beer? Go to the brewery. Now get out of here before I put the two of you in a bottle!

The legal precedent referred to by the learned Bob McKenzie is the 1932 decision of the House of Lords in Donoghue (or M’Alister) v. Stevenson. This decision is often referred to (by lawyers struggling to remember their first year tort law) as the “Paisley Snail” or the “Snail in the Ginger Beer” case.

The plaintiff was a lady by the name of May Donoghue. On a Sunday evening, she travelled by tram to the town of Paisley, located about eight miles west of Glasgow. She and a friend ended up at the Wellmeadow Caf. Donaghue’s friend bought her an ice cream float with ginger beer. History is vague as to whether this friend was male or female. Some legal historians have intimated that the (married) plaintiff may have been on a date.

The caf owner poured some Stevenson’s Ginger Beer into a cup of ice cream. After Donaghue had consumed most of the float, her friend proceeded to pour the last of the ginger beer into the pitcher. At this time, a dead snail (or slug) came sliding out of the bottle, looking and smelling somewhat worse for wear.

In the weeks that followed, Donoghue complained of stomach pain. While her doctor diagnosed her as having gastroenteritis, it is likely that her complaint was largely emotional distress at the thought of having eaten a decomposing gastropod.

Donoghue sued the manufacturer, David Stevenson, for 500. Her lawyer, Walter Leechman has been described as “the only solicitor in the world who would have taken her case.” Leechman had already tried unsuccessfully to establish liability against a ginger beer manufacturer when a dead mouse was found in a bottle. (The fatal error in the McKenzie brother’s otherwise foolproof scheme was the fact that their mouse was alive and well when presented to the beer store).

A Snail is No Different

The Court of Session applied its earlier decision in the dead mouse case, reasoning that that “the only difference between Donoghue’s case and the mouse cases was the difference between a rodent and a gastropod and in Scots law that meant no difference at all.”

Donoghue (or her lawyer) chose to pursue the matter to the House of Lords. Her biggest problem was the possibility that she might be forced by the defendants to post security for costs in the event that she was unsuccessful. Donoghue petitioned the House of Lords for permission to appear as a pauper, claiming: “I am very poor and am not worth in all the world the sum of five pounds, my wearing apparel and the subject matter of the said appeal…” The minister and elders at her church confirmed her financial status and the petition to proceed as a pauper was granted.

Counsel argued that a manufacturer that markets a product intended for human consumption in a form that precludes examination before its use, is liable for any damage caused if it fails to exercise “reasonable care” to ensure it is fit for human consumption. This proposition is the backbone of all modern consumer protection legislation.

At the time of the appeal, the Scottish courts had ruled twice that there could be no claim for damages against a manufacturer where no privity of contract existed, unless, of course, the product was somehow dangerous or fraudulent.

Do Not Injure Your Neighbour

In one of the most famous statements in the history of tort law, Lord Atkins adapted a passage from the Gospel of Luke, suggesting that, in addition to loving your neighbour, you must take reasonable care to avoid injuring them.

“At the present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances…. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or 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 or omissions that are called in question.”

Lord Atkin made it clear that a manufacturer must take reasonable care to ensure that the ultimate consumer will not suffer an injury from the use of a product. This is particularly true in instances where the consumer cannot inspect the product until it is too late.

By a narrow margin, the House of Lords had provided consumers with a remedy against suppliers of defective products. This is the law in common law jurisdictions to this day.

The manufacturer of the ginger beer, David Stevenson, died shortly afterwards, and the case was eventually settled out of court for 200 (which is roughly the equivalent of $1600 Canadian today).

In Ontario, the doctrine of recovery for nervous shock was recently stretched beyond the breaking point in the startling decision of Justice Brockenshire in Mustapha v. Culligan of Canada Ltd.

The Plaintiff Waddah (Martin) Mustapha immigrated to Canada from in 1976. After training as a hair stylist, Mustapha opened a hair salon before expanding the business to two locations in the Windsor area.

Mustapha noted he bought bottled water for his home and business after being told of its beneficial qualities and that it was better than city water. He began using only Culligan water in both his home and places of employment. On the day of the alleged incident, he was replacing the water bottle in the home dispenser and, as was usual practice, his wife carefully washed the neck of the new bottle to ensure there were no harmful germs on the outside of it before the bottle was placed in the dispenser.

This Time a Fly

As she was doing so, Mustapha observed “something dark” in the bottle. When Mustapha and his wife looked closer, the pair realized there was a dead housefly in the bottle of water. The pregnant Mrs. Mustapha vomited immediately, while Mr. Mustapha felt nauseous, noting that he did vomit later, in addition to having abdominal pain.

Neither of the Plaintiffs ever drank from the bottle. Since most Canadians will encounter a few dead flies here and there during the course of an average year–some of them floating in a glass of one kind or another–the Mustapha’s subsequent reaction can only be considered extraordinary. One can only imagine what their reactions might have been if they had been confronted with Donaghue’s snail.

An Objectively Bizarre Reaction

Mustapha could not get the image of the fly in the Culligan bottle out
of his mind. He had nightmares and could only sleep for a few hours each night; he couldn’t drink water; he lost his sense of humour and became argumentative and edgy; he was constipated, bothered by revolting mental images of flies on feces; he could no longer take long and enjoyable showers. In time, he was able to take showers with his head down so the water did not strike his face. It took lengthy treatment before he could drink coffee made with water and he was forced to take a variety of medications, which left him feeling out of control. He could not get up and off to work in the mornings and he lost clients because of the changes in his personality.

Not only did Mustapha’s hairstyling skills suffer, but so did his sexual performance. He had constant, unexplained abdominal pain or discomfort and the memory of the housefly floating dead in the water pursued him night and day, making his life a living hell.

Justice Brockenshire accepted Mustapha’s evidence. He found that the plaintiff had developed a psychiatric/psychological illness or “nervous shock.” Acknowledging that this reaction was “objectively bizarre,” the judge found that his background in the Middle East, “where the devotion to and concern for the family is at a higher level than is found in North America,” predisposed Mustapha to react as he did. He awarded the plaintiff $341,775, plus costs and pre-judgment interest, for his psychiatric injuries.

As might be expected, media around the world carried details of the award in Mustapha v. Culligan of Canada Ltd. Much of the coverage was satirical in nature and some of it questioned the sanity of the Canadian legal system.

Some years before, the Ontario Court of Appeal set down guidelines for the recovery for nervous shock in a case called Vanek v. Great Atlantic & Pacific Co. of Canada Ltd. The Court held that foreseeable consequences are consequences that the “event and its aftermath might engender in the reasonable person.” The Court of Appeal adopted the rationale of the House of Lords, who had noted, “the law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.”

A Successful Appeal

Culligan appealed the trial verdict and was successful. Hillel David of McCague Peacock Borlack McInnis & Lloyd argued the appeal on behalf of the manufacturer.

The Court of Appeal in Mustapha ruled that the law should not distinguish between primary and secondary victims of nervous shock. The test for recovery is whether it was reasonably foreseeable that a person of normal fortitude or sensibility was likely to suffer some sort of psychiatric harm as a consequence of the defendant’s negligence. They held that Mustapha had not satisfied this test.

While the case was not originally argued on this basis, the Court held that the Plaintiff could not recover in contract either. Psychiatric harm in these circumstances would not have reasonably been in the contemplation of the parties at the time they made the contract.

Justice Brockenshire’s ruling was overturned, the case was dismissed and the matter was sent back to the trial judge for a hearing on costs. The Plaintiffs have filed for leave to appeal to the Supreme Court of Canada.

In cases such as these, it is tempting to see the courts reacting like a pendulum to the needs of society. The House of Lords considered it reasonable that a consumer confronted with a rotting slug in a half consumed bottle of ginger beer might suffer damages. The unforeseeable reaction of Mustapha failed to meet the standard of the reasonable consumer.

In Strange Brew, the McKenzie brothers end up as quality control officers at the local brewery. As long as they keep their jobs, products liability lawyers are not likely to be out of work any time soon!

Note–There has been some suspicion over the years that Donoghue v Stevenson had been invented by the lawyers to obtain a ruling on an essential question of law. For a definitive and entertaining review of the case, we recommend “Mrs. Donoghue’s Journey” by Martin R. Taylor, Q.C. on the Scottish Law Reports website. William Blakeney has been legal counsel on many of Canada’s high profile property, institutional sexual abuse and environmental cases. He specializes in complex insurance litigation, representing insurers in property & casualty claims, manufacturer’s liability and fire losses.