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In every first-year torts course, new law students learn about the case that reshaped modern civil liability: Donoghue v Stevenson (1932). It is known as the "snail in the ginger beer" case, and its core insight remains as relevant today as it was nearly a century ago.
Mrs. Donoghue fell ill after consuming ginger beer from an opaque bottle in which a decomposed snail was said to have been present. The House of Lords in Britain held that a manufacturer owes a duty of care to the ultimate consumer, even where there is no contract between them.
"NEIGHBOUR PRINCIPLE"
Lord Atkin's "neighbour principle" captured the point simply: we must take reasonable care to avoid acts or omissions that we can reasonably foresee would be likely to injure those closely and directly affected by what we do.
A few years later, the Privy Council applied and expanded this principle in Grant v Australian Knitting Mills (1936). Dr. Grant developed severe dermatitis after wearing woollen underwear that, unbeknownst to him, contained residual chemicals from the manufacturing process.
THE LAW OF NEGLIGENCE ADAPTS
The Court held the manufacturer liable in negligence. The lesson was clear: the Donoghue decision is not restricted to food and drink. Where a finished product is intended to reach the consumer without reasonable opportunity for intermediate inspection, the manufacturer owes a duty to take reasonable care to prevent foreseeable harm. The law of negligence is not static; it adapts as new situations arise.
This adaptive quality is the hallmark of the common law — judge-made law that develops case by case. As society changes, so too does the range of harms the law recognizes. A century ago, before the internet, there were no cases about the non-consensual dissemination of intimate images.
MODERN FORM OF INJURY
Today, courts have recognized such claims addressing this modern form of injury, awarding compensation where the facts warrant it.
And so, it should be no surprise to anyone that with the very recent development of artificial intelligence, new ways of causing harm now give rise to entirely new types of claims.
Major news outlets reported in November that OpenAI, the developer of ChatGPT, is facing seven lawsuits that claim ChatGPT drove people to harm themselves, even when they had no prior mental health issues.
EVOLVING COMMON LAW
These cases were advanced in California but could equally be brought here in Ontario because we live in a country with an evolving common law that changes with the times.
We have come a long way from snails in bottles or itchy underwear, but the foundational principles still apply and guide the development of our law.
It is the foundation for the motor vehicle lawsuits I advance or the slip and fall cases I settle, and will be the bedrock for the claims that I haven't even yet considered, but which will emerge when society finds new ways to cause harm to others.
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