One Sunday evening in 1928, a lady called May Donoghue and her friend went to a café in Scotland.

Donoghue's friend ordered and paid for a pear and ice and an ice-cream-drink with ginger beer, a non-alcoholic carbonated drink flavoured with ginger and lemon.

The drinks were brought by the café owner who poured some of the ginger beer into a tumbler containing ice cream. The ginger beer was contained in an opaque bottle that prevented the contents from being viewed clearly.

Donoghue drank some of the contents and her friend lifted the opaque bottle to pour the remainder of the ginger beer into the tumbler upon which action the remains of a snail in a state of decomposition dropped out of the bottle and into the tumbler.

Donoghue later complained of stomach pain. Her doctor diagnosed her as having gastroenteritis and being in a state of severe shock.

Donoghue sued the café owner and the drink manufacturer.

The ruling on the case laid the foundation upon which consumers of products can bring actions against product manufacturers.

It is particularly important in Kenya where questions of product quality and assurance abound and there are numerous claims that the market is flooded with cheap imports and sub-standard products that have not been necessarily checked for safety and quality.

It has always been a long-established principle under common law that a person can claim damages from another person where it can be shown that the person owed him a "duty of care" and caused him harm through the person's negligent action or breach of that duty.

However, on the face of it, the law did not seem to provide any remedy for Donoghue. This is because there was no contractual relationship between Donoghue and the drinks manufacturer or the café owner since she had not ordered or paid for the drink herself.

Ginger beer was also not, in and of itself, a dangerous product. The case therefore fell outside the scope of the established principles on product liability.

Nevertheless, the lawyer acting for Donoghue argued that the café owner and the manufacturer, "owed her a duty to take reasonable care that the ginger beer he manufactured, bottled, labelled and sealed, and invited her to buy, did not contain any substances likely to cause her injury."

He argued that a manufacturer who puts a product intended for human consumption into the market in a form that precludes examination before it is used is liable for any damage caused if he fails to exercise reasonable care to ensure it is fit for human consumption.

Donoghue through her counsel further averred that it was the manufacture's duty to provide a system of doing business which would not allow snails to get into his ginger-beer bottles, and that it was also his duty to provide an efficient system of inspection of the bottles before the ginger-beer was filled into them.

Counsel acting for the manufacturer denied that any such duty was owed.

However, the judge ruled that there was a case to answer. Several appeals and cross-appeals from both parties followed.

Legal principle

Lord Atkin finally delivered a leading judgement establishing the legal principle which has now come to be known as the "neighbour principle".

The principle is derived from the Christian principle, "love your neighbour". Lord Atkin stated that "There must be, and is, some general conception of relations giving rise to a duty of care," going on to say that "the rule that you are to love your neighbour becomes in law you must not injure your neighbour."

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?

According to Lord Atkin, "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."

In this regard "a manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care".

The case established an important principle of law which puts manufacturers and suppliers of products in particular on notice. Even where a recognised duty of care does not already exist, a person will be deemed to owe a duty of care not to injure those whom it can be reasonably foreseen would be affected by ones acts or omissions.

Consumers of products are therefore in a position to bring negligence claims against producers and suppliers of the products. For instance, a restaurant customer would be in a position to sue the establishment's owner if he consumes rotten food or food handled in an unhygienic way and subsequently suffers from food-poisoning or other related ailments.

Likewise, the importers and distributors of the maize into Kenya a few weeks ago which was allegedly unfit for human consumption could face court action on grounds of negligence and breach of duty of care.

It is likely, albeit more onerous, that similar lawsuits could succeed against persons in authority who are responsible for vetting and approving products before they are imported and released into the market for failing to take due care.

It is unfortunate that many Kenyan consumers remain largely ignorant of their legal rights and the remedies available to them in the event that these rights are breached.

Consumers must remain undeterred in their quest for justice, if only to daunt other persons who may be tempted to encroach on their rights in future from doing so.

Product manufacturers and suppliers must therefore beware of the legal risks they face in putting sub-standard goods in the market.

Kiunuhe is a Nairobi Advocate.