Dr Francine Rochford
First published in The Age on 12 January, 2012.
Recent media reports about a mouse in a drink would have caused the eyes of many lawyers to mist over nostalgically as they recalled their halcyon days at university, and the case that founded the modern law of negligence, Britain's Donoghue v Stevenson.
A man has taken legal action after he found a mouse in his can of Mountain Dew; the manufacturer says that isn't possible, because the mouse would have dissolved first.
This US case is so similar to the original ''snail-in-the-ginger-beer-bottle'' case it could be timed to coincide with its 80th anniversary. Donoghue v Stevenson was resolved in the House of Lords in 1932 in one of the most frequently quoted judgments in common law.
The majority held that manufacturers were liable to consumers for contaminated products - and in this case poor May Donoghue was able to be compensated by the manufacturer for injury caused by the disintegrating snail in her ginger beer spider.
Lord Atkin in the House of Lords stated the famous ''neighbour principle'' to articulate the boundaries of the ''duty of care'': ''The rule that you are to love your neighbour becomes in law, you must not injure your neighbour.''
This ''duty of care'', a breach of that duty and consequent damage together form the modern action in negligence.
The precedent was obtained through pro bono work for the pauper Donoghue, demonstrating the long-term benefits of goodwill.
What of our modern drowned mouse? It was allegedly discovered in 2009, after Illinois resident Ronald Ball reportedly purchased and partially consumed a can of Mountain Dew. He says he tasted something ''foul'' and spat it out, to discover the remains of a mouse. He is suing the maker of Mountain Dew, Pepsi.
In a spectacular own goal, Pepsi has cited expert testimony that the mouse would have dissolved in the can before it reached the consumer. This claim gives rise to all sorts of speculation about the effects of the beverage on consumers themselves, and presumably the case will have its own segment on The Gruen Transfer and Mythbusters; and maybe, in due course, it will seal its place in folklore through an episode of The Simpsons. Other parts of the testimony - that the mouse had, in fact, not been born at the time the can was sealed - have tended to be overlooked in the wave of public revulsion at the mental picture of a mouse transformed into a ''jelly-like substance''.
Strong mental imagery grounds the negligence jurisdiction. In manufacturer liability cases such as the snail-in-the-bottle and the mouse-in-the-can, the unfortunate plaintiff could just as easily be one of us. Traditionally, injuries caused by another's lack of care could be framed as negligence - the carelessly thrown metal spike entering the child's eye, the improperly fenced quarry site or railway yard attracting neighbourhood urchins. These cases have a visceral attraction, which conceals the fact that whole realms of what traditionally would be part of the negligence jurisdiction are now covered by statutory protections.
Few Australians would bother with a negligence claim in a snail or mouse situation when Australian consumer law provides such definite answers. Transport and workplace accidents are covered by no-fault insurance schemes, effectively removing from the jurisdiction some of the most common causes of physical injury.
But in a strong rearguard action insurers have requested, and been granted, reform of the law of negligence on the grounds that it is ''out of control'', particularly in negligent professional advice and medical malpractice claims. High-profile cases have fuelled a perception that instead of requiring your ''neighbour'' to exercise reasonable care, the modern law of negligence requires your neighbour to act as your insurer, and that the standard of care is set too high.
This is unlikely to be an issue in the case of the dissolved mouse. If a mouse were to get into a soft-drink can Donoghue v Stevenson tells us that a duty is definitely owed, and that duty was definitely breached.
Meanwhile, it may be some time before we know the outcome of our modern mouse tale. The Madison County Court judge presiding has given Ball leave to file an amended claim, and Pepsi has until later this month to answer it.
Dr Francine Rochford is a senior lecturer in law at La Trobe University's Bendigo campus.