The story of the snail and the bottle of ginger beer

Once upon a time, there was a woman by the name of Mrs Donoghue. One day, Mrs Donoghue and her friend went to a cafe, where her friend purchased her an ice cream and ginger beer. Sitting down to enjoy a nice catch up, Ms Donoghue took a large gulp of the beverage contained in the dark bottle. She decided to share with her friend, who poured the remainder of the ginger beer into a clear tumbler. Along with the rest of the liquid, came a decomposed snail. Undoubtedly, both parties were shocked and horrified at what they saw, and more importantly, what they had consumed. Days later, Mrs Donoghue fell ill with gastroenteritis and shock.

Sounds like a made-up story, right? This case was in fact a landmark decision in English Tort Law which established the foundation of negligence, called Donoghue v Stevenson [1932] AC 562. The case involved the defendant, Stevenson, who was the manufacturer of the ginger beer, and Donoghue, the woman who consumed the ginger beer with the decomposed snail in it.

Mrs Donoghue commenced legal action against the defendant, but the idea of success seemed slim – there was no breach of contract as she did not purchase the drink, and there was no way to prove that Stevenson had sold the woman a faulty product. However, her solicitor argued that the defendant owed a duty of care to his consumers. This was, to take reasonable care to ensure that his products were safe for consumption.

The case was held before the House of Lords in 1932 where Lord Atkin proclaimed, “and with the knowledge that the absence of reasonable care in the preparation of putting of the products will result in an injury to the consumers life or property, owes a duty to the consumer to take that reasonable care.”

The threshold of duty of care and reasonable care is maintained in Australian common law today and is most common in the area of personal injury and public liability. If you find that you have suffered an injury due to the other party being in breach of their duty of care, you may be able to claim compensation under the law of public liability.

If you have questions, we at Everingham Solomons can assist you because, Helping You is Our Business.

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Fencing Disputes – Across the Great Divide

When it comes to fences, I often think about the great barriers built around the world throughout the course of history. For instance, The Great Wall of China was built to keep Mongolian raiders out, whilst Hadrian’s Wall in the United Kingdom, was built to keep the Picts out of Roman Britannia. Whilst in Australia, we have the Dingo Fence stretching for some 5,600 kilometres, which was built to keep the dingoes out of the better farming land.

In my work as a lawyer, however, when there is a “fencing matter” rather than involving Genghis Khan and his hordes, clans of marauding Caledonians, or a pack of howling dingoes, it usually involves a dispute between neighbours about the fence that currently exists or is to be built between their adjoining properties.

Issues that arise with boundary fences commonly are:

– that the existing fence is not on the boundary line;

– that one neighbour wants one type/style of fence whilst the other wants something   different;

– that there are trees or other vegetation that need to be cleared to construct a fence;     and/or

– that one neighbour is refusing to contribute or contribute equally to the construction    of the fence.

The key piece of legislation that regulates dividing fences in NSW is the Dividing Fences Act 1991 (NSW) (“the Act”).

Where there is an issue about the boundary line, section 18 of the Act provides that a neighbour can give written notice to the other of intention to have the boundary defined by a registered surveyor.

Where there is an issue about the type/style/standard of the fence, section 4 of the Act sets out the standard is a “sufficient dividing fence” and outlines the various factors that are to be considered in this regard.

Where there is an issue about vegetation needing to be trimmed or removed, sections 3 and 7(3) of the Act outline the requirements for the removal of vegetation for fencing work.

Where there is an issue in terms of financial contribution, sections 6 and 7 of the Act provide that neighbours are liable to contribute in equal proportions for fencing work necessary for a sufficient dividing fence.

Resolving a fencing issue via a negotiated settlement is the ideal way to manage these types of disputes, as like it or not, you have to live next door to the person on the other side of the fence. If negotiation isn’t possible, both the NCAT and the Local Court have jurisdiction to hear these matters pursuant to section 13 of the Act.

Should you require assistance with a boundary fence matter, please call the team at Everingham Solomons because Helping You is Our Business.

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