Precedents, Snail Soda & Duty of Care

By Bailey Compton 20 Oct 2023

Want a bizarre precedent? Woman drinks dead snail.

Precedents come from weird origins.

Lawyers live for precedents! Australia’s common law system operates on the back of precedent. It is the higher courts’ interpretation of a statute that gives us guidance. These precedents interpret the legislation for us, and should create consistency. For lawyers, it saves us from thinking.

What is unknown and not used today is the power of the Supreme Court to create new law. The common law is designed to allow the court to create courses of action to protect the innocent. The most memorable is ‘duty of care’.

Interestingly enough, some of these precedents emerge from the strangest of cases. ‘Duty of care’ is one of these situations.

In 1932, the House of Lords in England brought down their decision in Donoghue v Stevenson [1932] AC 562. Lord Atkin became the grandfather of ‘duty of care’. This was where negligence was created, and professional negligence finds its roots.

The case included a poor innocent snail. Mrs Donoghue had gone into a store on an extremely hot day. Mrs Donoghue bought a bottle of ginger beer and sculled half of it before leaving the shop. She poured the rest of it into a glass when she got outside, only to discover the remains of a decomposed snail. This caused some form of reaction culminating in Mrs Donoghue suffering brain damage.

The courts created the neighbour principle that stated that all of us must take reasonable steps to avoid harm that we can reasonably foresee that we can cause to another. A logical test! If we can anticipate a harm, we must do something about it.

As noted above, this has been the basis of the majority of litigation cases over the past 90 years. Yes, it has been bastardized by subsequent cases. But it set a new standard.

I understand that, Coca Cola pins a summary of this case on the wall of their factory in Darwin. Lax bottling standards have led to small snakes and lizards being found in the Coca Cola bottle. I really don’t understand why they are concerned. I would have thought that Coca Cola would disintegrate them so no one would even know if they swallowed them!