Essay: Interpreting and applying the law

As it is well known, human beings cannot be perfect, because if they were, they would always know what is the best to do and what to avoid. Many people criticise other people on the way they think or act. Some people are thinking and acting with deontological mind and some other in contrast with it, with consequentialist minds. Both of them have advantages and disadvantages. Which one is right or better? Only God knows.
Consequentialism was criticised and discussed by great philosophers of law, members of the Parliament, court Judges, academics, the public itself, in all over the word. There have been some particular cases where some judges mentioned with indirect or direct way that theory of consequentialism. Such judgements could be found in the great case of Donoghue v Stevenson .
The case of Donoghue v Stevenson , otherwise known as ‘snail in the bottle’ case, is one of the most extremely significant cases in delict and tort law. This case decision changed the law on the basis that previously, negligence was part of delict but it did not exist as a delict in its own. It was appealed from Inner House of Court of Session to the House of Lords. Defender, who is Stevenson, was a manufacturer of ginger beer and Mrs Donoghue sued him in delict arguing that he was in breach of duty of care. This argument of Mrs Donoghue rattled the concept breach of contract law and arose numerous reflections upon judges of whether allowing this appeal or dismissing it.
Looking at the facts, Mrs Donoghue and one friend of her visit a café in Paisley owned by Mr Minchella in August 1928. Her friend bought her an ice cream with ginger beer, which was poured over the top of the ice cream by Mrs Donoghue. This ginger beer bottle was really dark, thus the contents could not been seen. After eating some of the ice cream, her friend poured the remaining contents of the bottle of the ginger beer over the ice cream and then decomposing remains of a snail emerged from it. By the sight of the snail appearing from the dark-bottle and the fact that she earlier drunk it, Mrs Donoghue suffered personal injury by shock and severe gastro-enteritis.
The fact that she did not have any contractual obligation with the owner of the café it was one of the considerations of the 5 trial judges and the main question was whether there is actually a breach of duty of care in this particular situation. Because the decision by the majority of the court argued that Stevenson did owe a duty of care, Mrs Donoghue won in her action. Lord Atkin’s judgement made a new principle in regard of this case, and it is called ‘neighbour principle’ meaning that a person owes a duty of care to those who it can be reasonably foreseen that his acts or omissions will cause harm. Lords Atkin, Thankerton, and Macmillan had the same point of view in contrast with Lord Buckmaster and Lord Tomlin. However, Lord Atkins principle has been criticised by many.
Lord Tomlin expressed his opinion as being in consort with the Lord Buckmaster’s opinion. This opinion had several parts. The first one was that under contract law a 3rd party, who had no contractual obligations, had no rights under it. There were expressed 2 exceptions to that. This could be if it was dangerous in itself (but the bottled ginger-beer was not at all) or if it had some defect, which was actually known by the person sued (manufacturer could not have that knowledge).
Also, the fact that a wider principle was applied to this case, making any manufacturer owing duty to anyone who consumes what the manufacturer produce, it was expressed as being a misapplication of the tort doctrine which was applicable to sale and purchase. ‘The consequence of such a misconception were serious indeed for trade and commerce, and the potential for mischief almost limitless, once the line of safety were crossed’’ . Moreover, there was an affirmation of orthodoxy in that opinion in regard of the words ‘I believe such a right did exist according to the laws of Babylon’. Those words were said in respect that if the case goes wider it is right then to cover the carelessness action by a builder in construction of a house; but this was well established in England, that such an action against the builder could not succeed. ‘If one step, why not fifty?’ It was also said that there could not be any special duty fastening to the manufacturer of food apart from that obliged by contract or imposed by statute. In simple words, making that principle and allowing such an appeal to be approved it makes the duty of care going too far, giving birth to the compensation culture.
It was also said that there should be no discrimination between ‘food’ manufacturers and any other manufacturers. If that principle is about to be applied and Mrs Donoghue was about to succeed then the fair is that anyone else should use that principle in any such a case, and this could be impossible to stop, as they will have a right to sue and apply the ‘principle’. Taking in regard the cases stated, it was unable for Lord Tomlin to explain ‘how the cases of dangerous articles can have been treated as exceptions if the appellant’s contention is well founded’, asking for that principle to be deduced.
Lord Tomlin opinion of the point made by Lord Atkin, that the duty of care is owed by manufacturers to its consumers was the same regardless of the product they produce, was agreed but he held that generally there was no duty of care existed in that case. The Versailles train crash in 1842 was mentioned to contrast Lord Atkins principle as of being the law, that every injured in that unfortunate train crash, would be permitted to sue the axle manufacturer who was responsible for it. Those judgements mentioned above, were enormously dismissive of the claimants arguments. The main concern of why this principle was argued that much, was because Lord Tomlin and Buckmaster were nervous of the consequences it might have. What consequences might occur if anyone is able to apply that new principle? Are those consequences for the benefit of the society? Is it for the best or is it going to create chaos by suing every manufacturer for negligence?
In all over the world it will always be that one case where it can be regarded as unregulated, because of the lack of precedence or the law which can certainly govern that particular case is indeterminate or incomplete. In such circumstances where a decision need to be made, court can exercise the judicial discretion and make a new law to regulate the case instead of just apply the pre-existing settled law. Judicial discretion can be defined as the power that a court has to make some decisions in a particular case unbound by precedent or by existing statute.