Some ‘What if?’ Thoughts: Notes on Donoghue v. Stevenson

Abstract

This article looks at the seminal case of Donoghue v Stevenson and poses a series of “what if?” question as to the importance of Donoghue. What if the events that led to that case had not unfolded in the same way or its cast of characters had been different? The author finds that the players in Donoghue left a continuing impact on the fine texture and local development of the law. But the impact of particular individuals must be measured and assessed in light of the pervasive social and historical forces in play in 1932 and soon after. To prioritize individual personalities over social forces (and vice-versa) as a general matter of historiographical principle is mistaken; each interacts with and on the other. On another day and in another case, their involvement might well have been decisive. Accordingly, the article tentatively concludes that the precise interaction of the general social forces in play, the particular situational dynamics in law, and the characters involved can unfold very differently from one context to another. Donoghue is simply one chapter, albeit a significant one, in the further evolution of the common law.

Keywords: legal history, Donoghue v Stevenson, torts, duty of care, common law, negligence

JEL Classification: K11, K12, K13, K39, K40, K41, K42, K49