12th September 2017

This important court case was about when you have to stick to a deal you have made (or in lawyer speak – a contract).

It is just about the first case any puppy lawyer is told about at law school. It was decided in the Court of Appeal in 1892.

The Carbolic Smoke Ball Co made a product called a “smoke ball”. This magical item – so it was claimed – could cure you of the flu and lots of other things too. This probably looked like a good thing at the time because in 1889 there was a flu pandemic which killed over a million people.

It was a rubber ball with a tube on it and worked like this: fill the ball with phenol; shove the tube up your nose; squeeze the ball thus releasing vapours up your nose from the phenol. That would make your nose run thus flushing out any viral infections.

The company put ads out which said: if you use our smoke ball and you still get the flu or a cold we shall give you £100. And to show we mean it we have put £1000 on deposit at a bank to pay people out. Large sums then as now – but much larger then of course.

Mrs Louisa Carlill bought one of these things and used it exactly as per manufacturer’s instructions and got the flu on 17 January 1892 and claimed her £100. An interesting feature of this case – some may say suspicious even – is that her husband was… a solicitor. She herself wasn’t legally qualified but perhaps that may have been because women were just not allowed to be then.

Anyway – she wrote letters which the company ignored at first. But then the company said to protect itself against fraud she would have to come to their office to use the product each day and be checked there by an officer of the company.

No dice said she and sued them for her money. The company said there was no contract. Mrs C won. The company appealed to the Court of Appeal. She won again. The judges said the advert was a serious offer by the company and by paying for the product and following the instructions for its use Mrs C had carried out her part of the bargain so there was a contract. The court said you don’t put up £1000 to pay people out if you don’t mean it so that part of the company’s defence that said the ad was just a bit of publicity nonsense would not do.

The case still matters in the protection of consumers. Its findings about what a contract is are still good law and although we have all obtained a lot more rights since to add to the protection provided by the Carlill case these are additions – not replacements.

Mrs Carlill llived to the age of 96. Maybe if she hadn’t sniffed that smoke ball she could have done the full ton….

Blog by Adrian Dalton, Partner and Head of the Personal Injury Department