Every first-year law student knows the story of the snail in the ginger beer and how, against all odds, a new tort of negligence was created, defining the duty of care a provider owes the end user. Little known is the Queensland connection in that landmark of British jurisprudence
On Tuesday March 17, 1931, Britain’s Lord Chancellor Lord Sankey, the 4th Duke of Wellington, two bishops, two marquesses, twenty-four earls, sixteen viscounts and eighty-eight barons took their seats in the House of Lords and voted to permit a Glasgow shop assistant to prosecute, as a pauper, her forlorn appeal for damages. “I am very poor, and am not worth in all the world the sum of five pounds, my wearing apparel and the subject of the said appeal excepted,” May Donoghue had petitioned. Without that approval, the five Law Lords would not have heard the case of Donoghue v Stevenson, and the legal path to the consumer protection laws we enjoy today would have been very different.
Every first-year law student is familiar with the story of the snail in the bottle of ginger beer; how against all odds, a new tort of negligence was created, defining the duty of care a provider owes to the end user, thus bridging the gap in conduct between the moral and the legal. Against all odds, it introduced the “Neighbour Principle” of St Luke’s Gospel into the common law.
But law schools rarely have time to probe behind the legal facts and the significance of the precedent the case created, to get to know the characters involved, or speculate on the mysteries in it, some never to be resolved. This little story may, I hope, satisfy some curiosity.
At 8.50 p.m. on Sunday August 26, 1928, Mrs May Donoghue (nee McAlister), having taken the thirty-minute tram ride from Glasgow to Paisley, met a friend in the Wellmeadow Cafe. Mrs Donoghue was at the time living with her brother, having separated from her husband, Henry. Which fact raises the first speculation, since the name or even the sex of the friend has never been revealed. May was only thirty, and possibly still attractive; was the cafe snack a lovers’ tryst at a discreet distance from home? What was to have followed had the occasion not gone—as the press would say—so terribly wrong?
The friend bought her an ice-cream, served in a glass, and ginger beer to pour over it, making the popular Scottish ice-cream “float”. After she had drunk some, the friend refilled the glass, whereupon a decomposed snail flowed out with the ginger beer, and May Donoghue very likely had a fit of the vapours. The friend, however, had the presence of mind to note the name of the manufacturer on the bottle. (Does that suggest the friend was more likely a man?)
(To interpose two historical facts: ice-cream cafes had spread like wildfire in Scotland after the First World War, as Italian migrants fled an impoverished country; ginger beer was probably the most popular drink at the time, with 3000 breweries throughout Britain. In the days before sterile filtration, it was invariably sold in brown glass or stoneware bottles to disguise the suspended sediment of the brewing process.)
It was not likely an action against the cafe owner, an Italian, Francis Minghella, would succeed, because the bottle had been delivered sealed, and he could not have been expected to spot the snail in the opaque bottle. A claim for £500 damages was therefore filed against the brewer whose name was on the bottle, David Stevenson of Glen Lane, Paisley, for shock and the gastro-enteritis which required medical consultations. He denied that he had any liability under current law, since he had no contract with Mrs Donoghue. At that time Scottish and English law provided only two grounds for liability: sale of dangerous goods or withholding knowledge of a defect in goods that could be dangerous.
The case came before Lord Alexander Moncrieff, the Lord Ordinary, in the Outer House of Scotland’s Court of Session on June 27, 1930. Mrs Donoghue faced a severe legal hurdle. Only three weeks earlier, the Second Division of the Court of Session had dismissed claims in two similar cases—of mice being found in bottles of ginger beer made by a Glasgow company, A.G. Barr Ltd. The court held that negligence could not be inferred from the facts, and even if it could be proved, no duty of care was owed to the ultimate consumer.
Nevertheless Lord Moncrieff managed to find wiggle room around this. He found for Mrs Donoghue on the grounds that there was a general duty owed by the wrongdoer to the victim, and brought food products within the scope of “dangerous goods”, requiring that “an ostensible food be not replaced by a latent and actual poison”.
Lord Moncrieff, we might agree, got it right, and would have been the hero of this tale had not Mr Stevenson appealed to the Second Division of the Court of Session. It overturned Lord Moncrieff’s decision in a three-to-one verdict. Unsurprisingly, it proved impossible for the majority of the Lords of Appeal to concede they were wrong in the Barr “mice” cases.
Mrs Donoghue’s solicitor, Glasgow town councillor Walter Leechman, was a political radical. He held strong views on injustice and individual rights; it was he who had launched the two “mice” cases against A.G. Barr and was now saddling up for an even more expensive attempt to sheet responsibility home to ginger-beer brewers.
It seems this was on a “speculative fee” basis similar to today’s practice of “no win, no fee” by ambulance-chasing lawyers. Shrewdly, he limited the appeal to the House of Lords to a point of law, not the facts. Later, this led to misunderstanding and the absurd claim in some high legal circles that the case was a hoax—and that there never had been a snail!
When the case finally came before the five Law Lords, sitting before a fire in a cosy committee room, dressed in ordinary suits, counsel for Mrs Donoghue argued for a new principle of responsibility—“the case of goods intended for human consumption sold to the public in a form in which investigation is impossible”.
In May 1932, the five Lords rose in turn, in order of seniority, and read their judgments as speeches to the Chamber. Twenty years later, Lord Justice Denning passed his judgment on the participants: Lords Buckmaster and Tomlin were “timorous souls who were fearful of allowing a new cause of action”, in contrast to Lords Atkin and Macmillan, “the bold spirits who were ready to allow it if justice so required”.
Lord Atkin gladly accepted the role of demolisher of precedent. He argued two propositions—the “Neighbour Principle” which he abstracted from St Luke’s Gospel and the parable of the Good Samaritan; and what he termed “sound common sense” that “a manufacturer … with the knowledge that the absence of reasonable care in the preparation and putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care”.
Nobody should have been surprised. Two years earlier, he had canvassed these ideas in his presidential speech to the Holdsworth Club, the prestigious law society of Birmingham University. He spoke of achieving convergence between morality and the law, saying, “I doubt whether the whole of the law of tort could not be comprised in the golden maxim to do unto your neighbour as you would that he should do unto you.”
After the historic decision, the case was remitted to the Scots Court of Session to try the case on the facts. This could have proved awkward for Leechman and Donoghue. Stevenson (who had died by then) had claimed the bottle was not a type from his brewery—quite possible, due to the penny-deposit system and the common practice of using other manufacturers’ bottles. May Donoghue was all for fighting on, but was persuaded to settle for £200, all of which must have gone in legal costs.
That the Scottish court did not examine the facts of the incident left a curious snail trail. In 1942, Lord Justice Mackinnon delivered his Holdsworth address, saying flippantly he detested “that snail”: “It was found that there never was a snail in the bottle at all.” Which created a small legal ruckus, with an objection from Lord Atkin. The Birmingham Law Librarian kindly sent me a copy of the Mackinnon speech. It contains a correction page in which Mackinnon acknowledged he had been corrected; he should have said the issue of fact was never decided.
Indeed he was corrected—by Lord Normand, who had been the leading counsel for Stevenson. He wrote to Lord Macmillan: “We had a very strong case on the facts. If the case had gone to proof, I think it would have been fought, and possibly on the issue whether there was a snail in the bottle.” But the story would not die. Twelve years later in the important “Himalaya” case of Adler v Dickson which invoked the Atkin principles, Lord Justice Jenkins said, quite erroneously: “When the trial was finally held there was no snail in the bottle at all.”
So much for the case that made Lord Atkin famous. What forces made him such a pivotal jurist? Photographs taken in the 1930s, at the peak of his career and reputation, show an avuncular figure, with a kindly smile that reflected a self-possessed contentment derived from his Christianity, his belief in civil liberties and sympathy for the working man. Much of this quality was no doubt due to the influence of his mother, growing up in his grandmother’s cottage, “Pantiludw”, just outside the Welsh seaside village of Aberdovey. The nineteenth-century dwelling is now a classified heritage building.
But James Richard “Dickie” Atkin had an unpromising and tragic early start to his life. He was born in Brisbane in 1867, and lost his father at the age of six. Brisbane was then a colonial village of 14,000 people. An embryonic parliament was struggling to assert Queensland’s new-found independence from New South Wales, and develop a vast hinterland dominated by squatters’ interests. The state had been bankrupted by the collapse of its London banks, and was using its only asset—land—in an imaginative financing system. To populate the country, the government had created a system of land orders promising land to migrants, and appointed an Agent-General of Immigration, Henry Jordan, to recruit throughout the British Isles.
One of the 20,000 people Jordan found and sent out to the new colony was Robert Travers Atkin, aged twenty-three, originally from Clonakilty, County Cork, Ireland, but then living in Shropshire, with a new Welsh wife, Mary. His mother Alice and sisters Grace and Kate travelled with him on the Black Ball Line ship Wansfell of 777 tons, each qualifying for a land grant of eighteen acres. Kate died in the Bay of Biscay “worn out with tossing about”—probably dehydrated from constant seasickness.
The family’s Irish estate “Fernhill” had been lost with the death of Robert’s father from consumption when he was three, but they were sufficiently well-off to pay for their passage, travelling first-class. (Fernhill’s elegant Georgian house still stands, incorporated into a wedding reception centre.) The family arrived in Moreton Bay on March 22, 1865, with letters of introduction which guaranteed them an honoured welcome by colonial society and the Governor, Sir George Bowen.
But Brisbane was staggering from the devastation of its second great fire, which had wiped out twenty-two businesses and forty houses in the centre of town. The Victoria Hotel, where they were to stay, had gone; they had to make do with the lesser Royal Hotel. Brisbane was no place to linger; on local advice the family set off to Rockhampton to take up their land grants.
Atkin was consumptive, and like many Britons after him, chose migration for his health as well as in the hope of restoring the family fortunes. As events proved, he was at heart an Irish romantic, not at all suited to frontier farming. The land he selected, ninety kilometres west of Rockhampton at Herbert’s Creek (now Edungalba) was waterless, covered with prickly pear and unsuitable for sheep or crops. The scattered settlements were still subject to attacks by bushrangers and marauding Aborigines. Atkin had hoped land values would benefit from the extension of the railway from Westwood to the Expedition Range, but he was to be disappointed. The financial crisis of 1866 and the crash of the Bank of Queensland stopped all such infrastructure schemes.
He built a house but was soon forced to abandon ideas of becoming a farmer or grazier; he had a fall from his horse, which rolled on him, injuring his chest, and Mary became ill. There is a record that in August 1865 he was issued a publican’s licence for the Herbert’s Creek Hotel. He was probably hoping to cash in on the passing foot traffic as men travelled to the great Clermont gold rush, but that venture too failed. And a gold rush at Herbert’s Creek was short-lived. Family letters reveal that he let the Herbert’s Creek property for three years and was seeking to let a second holding at Rocky Creek. Retreating to Rockhampton, he lost part of his fortune when defrauded by a bank manager who sold him a bankrupt stock-and-station agency.
The whole family moved back to Brisbane, where James Richard, the future Baron Atkin of Aberdovey, was born, a month later, in November 1867. Robert was thrilled with the little boy. “Let me tell you about your grandson,” he wrote to his mother-in-law (who was now helping finance the family): “I think he is so handsome … even-tempered and forward and intelligent for his age, but all babies are said to be more forward in this country.”
The family’s little cottage, “Ellandale” in Tank Street, just off North Quay, was “very small and very pretty”, he wrote. “We can eat our peaches from the tree out our bedroom window.” Ellandale is long gone, but it seems fitting that the Harry Gibbs Commonwealth Law Courts now stand on the site.
Robert Atkin thought he might enter the law. The Queensland Archives has his application for admission to practise as barrister and solicitor, but his studies went no further, for Robert found his métier in journalism, which took every hour of his day. Starting as a contributor to Rockhampton’s Northern Argus at one guinea a week, he was soon offered the position of editor of the struggling Queensland Daily Guardian at £300 a year. Journalism opened the door to the world of politics, kindling an ambition and providing a stepping stone to release his combative energies in the new Legislative Assembly.
The fledgling Queensland parliament had no formal parties. It was a maelstrom of private interest groups, dominated by the squatters, but with kaleidoscopic alliances of friends and enemies alike, which produced five premiers in ten years. Unpaid, inexperienced politicians struggled to cope with competing claims for development in a financial depression of collapsing banks and an empty treasury. Queensland’s first Governor, Sir George Bowen, summed up the early governments:
Ministries are upset in Australia not so much on great principles of policy, but rather on wrangles about the distribution of the general revenue among the public works.
Later, Atkin passed his own judgment on Bowen in his distinctive shrewd acerbic style:
That worthy gentleman was a curious combination of meanness and magnificence, and while keeping a huckster’s eye on the main chance, indulged an almost eastern fancy in dreams of greatness respecting Queensland.
Atkin was persuaded by the ambitious politician Arthur Macalister to go back to Central Queensland where he was best known, and stand for the new seat of Clermont in the 1868 election. Naturally drawn to the liberal forces clamouring for development—immigration, closer settlement and railways—he also took up local grievances against the squatting interests who had sequestered the water supplies the gold miners needed to crush their quartz.
In election meetings in Peak Downs, Clermont and Copperfield, there was wild applause for his policies and at his declaration that he was proud to be a working man. He was endorsed overwhelmingly. But in one rowdy meeting there was an attempt to blacken his character as a publican, and Father Lonergan interjected: “He’s a shoneen!” (an Irishman pretending to be an English gentleman).
Atkin won the election easily, but had to resign three months later because he had overlooked the need to enrol! His constituents expressed their regret: “May his shadow never be less.”
So began an enthusiastic but erratic political career, enlivened by his scarifyingly sarcastic journalism. The failing Guardian, owned by squatter interests, was sold out from under him into a merger with the Brisbane Courier, converting that journal from an independent paper into a squatters’ advocate. Atkin, with his partner William Belbridge, the former government printer, immediately launched his own newspaper, the Queensland Express.
An advertisement in Pugh’s Almanac for 1869 declared, “The Express advocates the Rights of the People without distinction of sect or creed, and opposes Class Monopolies.” The editor of the Warwick Examiner & Times commented on the first number that “it appears to be strongly opposed to the present Ministry, and the original articles are very cleverly written”. It was first published twice a week for fourpence, then three times a week and, from March 1870, daily at tuppence.
In the Express, Atkin soon declared his liberal and anti-squatter colours, and his refusal to be bought. He never held back on those who did not stay true to principle, or what he believed was right for the colony. This is how he sized up the man who had encouraged him into parliament, years before he became known as “Slippery Mac”:
It is seldom that the facilities offered to a man to prostitute himself for the sake of office, are so frequent as they have been in Mr Macalister’s case, and he has never failed to make the best of his opportunities. He has graduated in political dishonour of every shade, and has achieved every honourable distinction possible in the role of a political traitor by profession.
Two aspects characterised those early days of Queensland politics—the power of the squattocracy, and the associated gerrymander of the electorates. Both features were to cast their long shadows over the state’s affairs. The figures Atkin put to the parliament in debate on the 1871 Census Bill tell the story: six electorates in the fast-growing south-east around Brisbane with a population of 41,000 and 17,000 adult males (the only eligible voters) returned seven members to the Legislative Assembly; fifteen country electorates with a population of 58,000 and 22,000 eligible male voters returned twenty-five members.
Ipswich, which had lost the race to become the new state’s capital, used its three parliamentary seats, in conjunction with the Darling Downs squatters, to block Brisbane’s development. The first inland railway had been built from Ipswich to thirty-four kilometres west at Bigge’s Camp (Grandchester) and extended over the Dividing Range to the Downs. It cost £1.2 million—twice the estimate—and put the colony seriously into debt. Ipswich’s fight against the natural extension of the line to Brisbane became one of the consuming issues of the parliament. Likewise, Ipswich objected to a bridge across the river at Brisbane, because it would restrict shipping and threaten Ipswich’s claim to remain the principal port of the colony.
When Atkin was finally correctly elected to the Legislative Assembly, winning a by-election for the important seat of East Moreton in February 1870, he found himself in a parliament where self-interest was crippling development. As an editorial in the Brisbane Courier had put it some years earlier—before its editorials became captive to its squatter directors: “There are already too many in Parliament who have no higher view than their own breeches’ pocket.”
The liberal-led coalition administration of Charles Lilley, in which Atkin’s Express had invested much hope and support, was in its dying months. Despite his great friendship with Lilley, Atkin’s idealistic journalism spared no criticism in his disappointment with the timidity of his government:
Mr Lilley has done absolutely nothing as a legislator, he has been more subservient to the squatters than any Minister we have ever had, and the administration of the public departments has been as corrupt under his rule as during any period of our history … During the sessions of 1869 no man was more faithfully followed by his party and if his acts begot that distrust which resulted in his defeat, then he has no one to thank but himself … he wasted great opportunities of doing the country good.
As a member, Atkin immediately established his reputation as a stickler for parliamentary propriety. He was often quick with points of order and precedents from the House of Commons. His first speech in the Assembly was to support a motion to expel the member for Leichhardt, Gordon Sandeman, for the technical breach of failing to attend a complete session. Sandeman, a wealthy squatter who controlled vast tracts of land in the Burnett Valley, was a worthy scalp. He personified the “pastoral tenants of the Crown”, and was described by Atkin as “the great wire-puller, the Machiavell of Merinos”. Sandeman demanded a review by the Attorney-General, who referred the matter to London. A curt ruling by the Secretary for the Colonies, Lord Kimberley, that the expulsion was correct, silenced him.
However, a month later, Atkin went a step too far in a public speech, attacking Sandeman’s character:
He had always been a thorough partisan of the squatters. He had been known as a run-shark, a man who had taken up the whole of the Peak Downs, and large quantities of land in other parts of the country purely in the interests of the Sydney money-lenders. (Cheers and laughter.) When a certain station on the Burnett … was lately seized by the mortgagees, the nominal owners absconded without paying any of the hands, not even their washerwoman. (Laughter.)
It was typical of Atkin’s exuberance to forget that his rousing speeches in Brisbane’s Victoria Hall did not enjoy parliamentary privilege. The result was a libel writ for £1000 from Sandeman, and an abject published apology from Atkin three months later. It seems that settled the matter, but the Express was struggling, both financially and because its campaigns for reform were scarcely denting the Palmer government—despite editorials like this in May 1870:
Mr Palmer, we all know, believes the country is designed for two classes only—“gentlemen” of which class he is himself the standard of excellence, and South Sea Islanders to do the stock-riding and shepherding.
Atkin became disillusioned with the weathervane attitude of his liberal colleagues. Early in 1871 he unexpectedly closed the Express with one of the most savagely ironic editorials the colony had seen, bitter at political friend and foe alike:
We have reached a point of political perfection which has greatly contracted the field for an independent news paper. It would appear that the political millennium had arrived, and therefore all must feel that the necessity for party and political advocacy no longer exists.
The leader of the Great Liberal Party, Mr Macalister, sits in the Speaker’s chair. Mr Lilley’s judgeship is looming in the distance and in the meanwhile he takes a hundred-guinea brief from the Crown. Mr Pring, as a thousand-pound Commissioner [into the goldfields], has discovered, wonderful to relate, that an Opposition member should not attempt to disturb his opponents by seeking after office, yet no keener office-seeker than Mr Pring ever held a seat in Parliament. Mr Bell, the great Protectionist, has taken office as Treasurer with the Free Traders. Mr Stephens, although not so lucratively provided for, has really had the most important office conferred upon him. He is reinstated in his old post of managing director of the Brisbane Courier, and will have the moulding of the public mind all to himself.
But two months after closing the Express in frustration, Atkin bounced back into print with a new paper, the Colonist, this time in partnership with the experienced journalist William O’Carroll who could share the heavy workload as Atkin’s health declined. It was Brisbane’s first evening paper, published on Wednesdays and Saturdays, “Advocating Popular Interests”. It was offered first only on subscription, five shillings per quarter, in advance, suggesting some financial stringency, but then sold at a cover price of threepence.
The sessions of early 1871 saw Atkin in his most active parliamentary role. He railed against the electoral fraud of “personation”—men who had no votes were brought down from Ipswich to East Moreton in a state of drunknenness to vote, he said; he supported the Legal Practitioners Bill as a means of cheapening the cost of law in the colony; he objected to a squatter member describing reporters of the Courier as “jackanapes”; he supported travelling allowances for country members (parliamentarians were unpaid); and he tried, unsuccessfully, to tighten the Legislative Assembly Act to ensure that a member could not hold a seat if employed permanently or temporarily by the Crown where “an annual salary or any fee allowance or emolument or profit of any kind or amount whatever from the Crown is attached”. Finally he strongly supported an opposition move to repeal the clause in the Constitution Act requiring a two-thirds majority to pass certain measures—essential if the squatters’ blocking power over electoral reform was to be eliminated.
At the same time, Atkin’s forceful journalism cast a critical eye over the political players of the era. George Raff, banker, Member for Brisbane, heavily involved in the 1866 bank crash:
The great fact is that this eminent bank director, patron of Polynesian labour, is a friend of the [Darling] Downs squatters. He paid the debt he owed to his country in the base coin of violated trust and broken faith, and in services rendered to the people’s enemies.
Ratcliff Pring, lawyer, Attorney General, Member for Ipswich:
Mr Pring has made a gallant fight and achieved wonders with a carefully-cooked electoral roll and all the influence of the government and of a clique who have long reigned paramount in Ipswich.
James Taylor, Darling Downs squatter, former Treasurer:
Considering his wealth and long standing in the community, [he] has probably less weight as a legislator than any man in it. He is known politically as a grasping, selfish individual whose sole object is the advancement of his personal interests.
Sir George Bowen, Governor:
It is notorious that merit and fitness have had very little to do with many of the appointments made to the Civil Service of Queensland and this is true more particularly of those made during the Bowen regime. Governor Bowen’s favour was more frequently secured by “influence” than by merit.
George Clark, Member for Warwick:
From the naive confession of the notable Mr George Clark at Toowoomba, it would seem to be the common and natural purpose of gentlemen of his class to enter public life to see what they can get. The public lands are fair game. “I told them [his constituents] I would not go to Brisbane for nothing. I meant to have the land. I have not yet got all I want.” It is the difficulty of seeing how a man can be landlord and tenant of the same land, buyer and seller in one, which makes many simple people object to squatters having seats in the Legislature at all.
The most senseless, ungrammatical, uncalled-for harangues are delivered in the Assembly, and their number seem to be ever on the increase. Speeches that, for the bad taste and ignorance they display, would compare unfavourably with the worst specimens of parish vestry oratory, are dished up by the shorthand writers into a creditable form, and we believe serve to delude the unfortunate speakers themselves, who when they read their productions next day in the newspapers, or in the proof sheets of Hansard, come to the conclusion that sound sense and flowing periods are the normal conditions under which their thoughts are produced for the enlightenment of their audience.
Atkin enthusiastically favoured support for the new agricultural industries of cotton and sugar growing, and urged protection for them. Undeterred by his failure in Central Queensland, he had bought up five “premium cotton” land orders and used them to pay £50 for Selection 139—640 acres on the Darling Downs, seventy kilometres from Toowoomba. This was land fronting the Condamine River resumed from the Gore’s Yandilla pastoral run of 220,000 acres under the Alienation of Crown Lands Act 1868.
The “premium cotton” land orders entitled a cotton grower to a bonus of £5 per bale, but they yielded Atkin not a penny. A bailiff’s inspection of the land in 1874, after his death, reported it had never been occupied, none of the boundary fencing was left, and the sixty-four acres once ploughed had grass growing over it “as high as ever”.
(I traced the selection from the plans in the Queensland Archives, matched them to the satellite imagery of Google Earth, and visited the block, just up the Gore Highway from Milmerran. Atkin’s square mile had not long been harvested of a sorghum crop, and a huge dam, impounding a veritable lake, pumped from the Condamine, stood at the end. His land is now part of a vast agricultural holding in the richest cropping acreage on the Darling Downs.)
What Atkin did get, for his paper and his parliamentary attacks, was first-hand evidence of the “dummying” and other trickery by which Downs squatters fended off selectors and managed to keep the half of their runs surveyed under the 1868 Act for closer settlement.
The Express had exposed a major scandal over the Cecil Plains run, adjoining Yandilla. The 173,000 acres had been taken up by James Taylor; in 1869 he was appointed Lands Minister. Atkin claimed he used ministerial pressure to have the land classified as second-class pastoral land so that he could buy it back more cheaply. Taylor then thrust it on the market in such large blocks there was no demand for it, and bought it back under his pre-emptive rights, paying mostly in land orders, a system he had previously denounced. The land reports in the Darling Downs Gazette show Taylor ended up with 2560 acres of prime land, occupying the whole of the Condamine River frontage on Cecil Plains, land ostensibly for closer settlement.
When the Land Orders Bill to end the jobbery in the system came before the Assembly, Atkin cuttingly advised the government to look to its own benches for evidence. “Probably the honourable members for Western Downs would favour the House with their experience as to how land had been taken up in large quantities by them,” he suggested. Those members were Edward Wienholt and James Taylor.
Atkin furiously attacked the government for trying to restrict entry to parliament’s public gallery. He delighted in confounding the ministry with linguistic adroitness. When called to order for saying its majority in the House had been obtained by members perjuring themselves, he explained that he hadn’t used the word perjure in the legal sense, merely that men had pledged to their constituents to pursue one course of action but had followed another.
Atkin was appointed a Justice of Peace and sat as a magistrate on police court cases in Brisbane and Warwick. He joined the Queensland Volunteer Corps, the defence force formed to fill the vacuum left by the withdrawal of the last British troops (the 99th Regiment of Foot) in 1856. Atkin, who had served as a lieutenant in the Shropshire Volunteers, probably, like others, wore his old uniform, because there was little funding for the units.
The Irish “problem” bedevilled life and politics in early Brisbane. The attempted assassination of Prince Alfred, Duke of Edinburgh, at Clontarf, not long after making a triumphal visit to Queensland, sent fears of a Fenian Brotherhood uprising through the community. Robert had tried to explain the complexity of Irish politics in his newspaper; the result was a threat to blow up the office. Mary wrote to her mother:
Unfortunately there are a great number of Fenians in Brisbane, they have sent a threatening letter to Robert … People think nothing of saying in the most public places that they would have done the same as O’Farrell [the assassin] had they been in his place. We are worse off than you are in London, for we have no protection, excepting one company of the 50th.
When his friend Dr Kevin O’Doherty founded the Queensland Hibernian Society, Atkin as a non-Catholic supported his effort to launch it as a non-sectarian body that would help to allay suspicions of Irish Catholic conspiracies. Atkin’s support was honoured by appointment as vice-president. (O’Doherty had been transported to Tasmania as a leader of the Irish rebellion of 1848. He later served as a Member of the Legislative Assembly for Brisbane for fifteen years.)
By late 1871 Queensland’s Hansard was recording fewer and fewer Atkin contributions to debate as his health deteriorated and he devoted his energies to his journalism. He was absent from the House for all nine sitting days in November. His wife Mary had returned to Wales with Richard and his two younger brothers for their health the previous year, and to Atkin’s dismay came back without the boys. He had known his eldest son for only three years.
But in January 1872, Atkin’s old fire returned in supporting a “wise and statesmanlike” a bill to amend the Savings Bank Act. Speaking despite a severe cold, he said the bulk of deposits in the Savings Bank were not from the working classes but from people who had been subdividing large amounts among members of their families and thus obtained interest on the whole. All the people were taxed to pay that interest for the benefit of a few. The bill he endorsed cut interest on deposits over £500 from 5 per cent to zero.
Before the House went into its summer recess, the Opposition succeeded in having a Royal Commission appointed to examine the extension of the railway system, with Atkin as one of its members. In what proved to be his last speech to the Assembly, he demonstrated an improved political subtlety by stressing that the inquiry would provide facts, not commit the government to action. But he could not resist a jab at the Member for Ipswich, Benjamin Cribb, who had opposed setting up the Commission, as Hansard recorded: “He [Atkin] noticed that whenever the subject of railway extension was mentioned, it was like holding up a red rag to a bull.”
The Brisbane Courier in February 1872 summed up the flavour of the Commission:
Mr Cribb may be said to represent the most virulent opponents of any railway extension which would place the capital in communication with the interior; Mr Wienholt the Darling Downs squatters, who have as much railway accommodation as they require; Mr Scott who is only in favour of the northern line being extended; and Messrs Lilley and Atkin who do not object to the northern line extension provided a line to connect Brisbane with the southern and western line was carried out at the same time.
Nothing could have summarised more succinctly the irreconcilable differences on Queensland development.
In March, Atkin’s deteriorating health forced him to resign his seat. When the Royal Commission reported the following month, it set out the most comprehensive information for rail planning. Victorian 5’3” gauge tracks cost £34,000 a mile; New South Wales 4’8½” gauge cost £15,000 a mile; Queensland’s narrower gauge had cost £9000 a mile. But popular talk of horse-drawn tramways instead of railways was quite properly dismissed.
The report recommended that both the Brisbane and northern lines should be constructed without delay; the Brisbane–Ipswich line on the 3’6” gauge, but the northern extension inexpensively on a reduced 2’9” gauge. Edward Wienholt opposed the recommendations, then tried (spitefully but unsuccessfully) to have Atkin’s name removed from the report, on the grounds he was no longer a member of parliament.
One of Atkin’s last acts on resigning his Assembly seat had been to endorse, as his successor in East Moreton, Samuel Griffith, who went on to become a notable premier and later Chief Justice of Queensland.
Robert Atkin died of consumption on May 25 at Sandgate, where he had been resting for the last few weeks of his life, on a hilltop looking over Moreton Bay. He was just thirty years of age. Atkin was buried there by his parliamentary colleagues, laid to rest in his Volunteer’s uniform, with his sword by his side. The Volunteer corps marched twenty kilometres through the bush to attend. Later, the Hibernians paid £15,000 to erect a splendid memorial over his tomb, topped with a broken classical column to signify a great life cut short. (Today it is in sad disrepair, hidden between a vicarage and toolsheds.)
The Courier, his competitor and often his political enemy, which had described him on entering parliament as “a man of some ability but a thoroughly unscrupulous politician”, gave him due credit:
Mr Atkin, during his literary and political career in Queensland, displayed considerable talent and was exceedingly active as a politician. Those qualities, coupled with a genial manner and a social disposition, made him popular with most of those with whom he had intercourse. His death will be sincerely regretted, and the place which he held in popular esteem was testified by the large number of persons who attended his funeral, notwithstanding the distance from Brisbane.
Atkin was a working journalist to the end. The issue of the Colonist that carried the notice of his death also had his last article. Typically, it was a sturdy principled defence of Richard Daintree, former government geologist (who discovered the Bowen Basin coal field) and photographer, just appointed Agent-General in London. The Queenslander had described him as a squatter who knew nothing about the state, interested only in organising exhibits of fossils and minerals.
In his time as a parliamentarian and newspaper owner, Robert Atkin fought for many principled causes: electoral reform, as the first to introduce an Additional Members Bill; enfranchisement of gold miners, whose discoveries had saved the economy; the independence of the public service under a UK-style commission; a Rivers Trust for the Brisbane River; an end to “blackbirding”, describing the Polynesian Labourers Act as a legalised system of kidnapping; and more migration from the British Isles and Germany to develop the colony.
Robert Atkin passed through Brisbane life like a comet, brilliantly illuminating but without leaving a lasting influence. For a few brief years his oratory and his energetic journalism captivated the town, but his ideas that politics should be principled and consistent in the interests of the common man remained alien and ignored.
What then, was his influence, if any, on his celebrated son? Obviously none, directly, since he never saw him again after the boy sailed for Britain with his mother on the Chartyce at the age of three. But Mary had been an intimate part of Robert’s journalism, contributing women’s articles and doing much of the proofreading of his papers. She undoubtedly would have transmitted to her boys his values, principles and sense of outrage against the oppression of vested interests. Her letters home, many written cross-hatched in the economical fashion of the nineteenth century, reveal her powerful determination to succeed in difficult times.
Mary’s love for Robert, and her strong sense of family, were reflected in the poignant letter she wrote home to them, waiting at Pantiludw, on Robert’s death:
Dear Papa has been very ill, he was so weak that he could not walk about or fish, and had to sit in a chair all day, and cough and be in pain, so God took him away to heaven because he was fond of him … Everyone was so fond of Papa because he was kind to everyone and they will be fond of you too. Perhaps someday when you are big men, we shall come out to Brisbane, and you shall finish the work that Papa had only time to begin.
Richard Atkin never did return to Queensland, but many years later, when his father’s tomb had fallen into disrepair, he sent funds to restore it. That column, and a series of carved timber panels by the celebrated Queensland sculptress Daphne Mayo in the little Anglican church at Sandgate, were the only reminders of the life of a pioneer in Australian politics and journalism. Then Gerard Carney, Dean of Law in the University of Queensland, researched the family history for a monograph for the Queensland Supreme Court’s history program. This led to a visit to Queensland of the grandson and grand-daughter of Lord Atkin, who were present for the unveiling of a memorial plaque in the courtyard of the Commonwealth Courts, the site of Ellandale cottage, commemorating the birthplace of Lord Atkin of Aberdovey: “Erected 2012 on the 145th anniversary of his birth and the 80th anniversary of his most celebrated judgement in Donoghue v Stevenson.”
Lord Atkin may never have returned, but through his membership of the Judicial Committee of the Privy Council, his influence on the law and politics of British Commonwealth countries was considerable. In 1932 he was a member of the Judicial Committee which defeated the attempt by the Lang government to abolish the New South Wales upper house. The Privy Council held that the Legislative Assembly had no power to abolish the Legislative Council or alter the constitution without first taking a referendum of electors on the matter.
When the Colonist closed, four months after Atkin’s death, sold off to become the Brisbane Telegraph, his partner William O’Carroll wrote the paper’s epitaph. In articulating what Robert Atkin had stood for, he might well have been expressing what Robert’s son was to achieve, in a different way:
The Colonist was therefore established to give expression to the public sentiment of the day, and thanks mainly to the ability of the late Robert Travers Atkin, it did so with eloquence and with fidelity. It was established to urge the rights of the whole people, against the pretensions and usurpations of a class, and to insist that the welfare of the colony demand that its affairs should be administered with due regard to its various interests, and not as previously, for the advantage of one interest only. It would be mere affectation were we to hesitate now to say that it persistently, strenuously and honestly did this work without fear or favour.
Geoffrey Luck, a retired journalist, is a frequent contributor to Quadrant