The legal concept of negligence

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Donoghue v Stevenson - from snails to H-bombs ... and beyond

As noted elsewhere the historical focus of English Law has been protecting the King's Peace. In practice this resulted in the law becoming the instrument for protecting the status quo and property of an elite ruling class. For lesser mortals contract law provided a basis for the regulation of trade. But victims and the oppressed had no contract with their oppressors and thus tended to be left out in the cold.

Also a provision of formal rights to British Citizens was not seen as a serious issue (after all they had the protection of a monarch who was the representative of God , what more could they hope for!) except in places such as the American Colonies who determined to go their own way in 1775.

Statute law that gradually provided some safeguards against some more serious abuses of human rights arose by virtue of forces unleashed by industrialisation and the emergence of organised labour.

Thus one has to wait until well into the 20th Century to see evidence of the law taking an interest in due care and responsibilities relating to various harms to individuals. English law of negligence had its beginning in Donoghue v. Stevenson [1932] A.C. 562. The plaintiff claimed to have suffered gastro-enteritis and nervous shock as a result of drinking bottled ginger beer contaminated by a very dead and decomposing snail. The central issue was whether the manufacturer of a defective article was liable to the ultimate consumer even though no contract existed between them. A majority of the House of Lords held that the plaintiff could recover damages from the negligent manufacturer. Thus at last the New Testament idea of neighbourly love became translated into being a legal principle - at least in theory !

However over the past 70 years, in practical terms, this new legal concept with its links to 'do-as-you-would-be-done-by' principles of natural justice, responsibility for action and due care, has been largely defeated by the delivery system used - i.e. the adversary legal system.

So the weak did not inherit much in the way of enforceable rights and it is thus so often all but impossible to get compensation from establishment professionals, multi-national corporations , or governments when negligence by the powerful has caused grave injury. And at the international level the world remained devoutly Maoist over many issues that kill and injure millions, as 'the gun' remained the major dispute resolution 'instrument' in use.

However more recently hope for real change has appeared from some quite other quarters.

Education and communication has reached a point where a large number of people are able to take part in discussions on any topic.
The development of more powerful weapons such as the H-Bomb and chemical and biological weapons, which can do much more than kill off the 'foot-soldiers' of each side to a dispute, has made the idea of 'talking-out-problems' more fashionable at all levels of human society for the first time. Fortunately for most of us no Divine Right of Kings happens to actually protect a King against radioactive fallout and the like.
The ecological impact of human enterprise on the planet is now such that it cannot be ignored and in the medium to long run now can be clearly be seen to effect every person on the planet.

Such developments have given rise to a 'politically correct space' that has allowed the birth of modern ideas on human rights and the necessity to form institutions such as the United Nations.

The pressure is thus now on legal systems, as the dinosaurs of a previous age, to throw off both their horse hair wigs and their 17th Century thinking.

The 20th Century saw the defeat of both fascism and communism. If the 21st Century can bring the defeat of capitalism and the legal establishment (its main fellow traveler) then the emergence of true democracy and the realisation of today's hopes and aspirations over human rights may be within reach.

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