Australian Knitting Mills Ltd v Grant

[1933] HCA 35

50 CLR 387

AUSTRALIAN KNITTING MILLS LIMITED

AND ANOTHER

APPELLANTS; DEFENDANTS, GRANT

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF Tort-Manufacturer of goods-Liability for damage caused by goods purchased through Sale of Goods-Reliance on seller's skill or judgment-Merchantable quality of goods-

Sale of underwear by retailer-Sale of Goods Act 1895 (No. 630) (S.A.), sec. 14*

The plaintiff purchased woollen underwear from a retail merchant whose business it was to supply goods of that description. The manufacturer, after completing his preparation of the underwear, folded each garment, wrapped them in paper parcels and then tied them in quantities of one half dozen per *The Sale of Goods Act 1895 (South

50 CLR 388

packet. To each garment there was a ticket attached upon which the manufae- turer printed its name, described the garment as "pure woollen underwear," gave directions as to washing, and concluded "We guarantee to replace this garment free of charge if it shrinks when washed in accordance with the directions printed above." The retailer purchased the goods direct from the manufacturer who manufactured the material from which the garments were made as well as the garments. After wearing the garments for a short time an irritation commenced in the plaintiff's skin which developed into an acute general dermatitis. The plaintiff alleged that the garments contained a chemical substance introduced during the course of the manufacture of the material which formed an irritant when coming into contact with the skin and which was the cause of the plaintiff's condition. The plaintiff brought an action against the manufacturer and the retailer alleging against the manufacturer negligence in the making of the garments and against the retailer breach of the implied warranties of reasonable fitness for the purpose for which they were bought and of merchantable quality.

Held, by Starke, Dixon and McTiernan JJ. (Evatt J. dissenting), that upon the evidence the plaintiff's claim failed against both defendants.

Per Starke J.: The evidence did not show that the plaintiff relied on the skill or judgment of the retailer SO as to imply a warranty of reasonable fitness under sec. 14 (1) of the Sale of Goods Act 1895 (South Australia) and assuming that the plaintiff "bought by description' from the retailer the evidence showed that the garments were of merchantable quality and, therefore, there was no breach of the implied condition in sec. 14 (2) of the Act.

Per Dixon and Evatt JJ. The goods were "bought by description so as to raise an implied condition of merchantable quality under sec. 14 (2) of the Sale of Goods Act.

Per Evatt J.: (1) The evidence established that there existed such a relationship between the defendant manufacturer and the plaintiff that the former was under a duty to the latter to take reasonable care in the preparation of the garments so as to avoid the retention in them of any chemical residuum likely to cause or set up injury or disease to the skin. (2) The plaintiff made known to the retailer the particular purpose for which the underwear was required SO as to show that he relied on the seller's skill and judgment and there was therefore an implied condition under sec. 14 (1) of the Sale of Goods Act that the underwear was reasonably fit for the purpose of wear. he be the manufacturer or not), there is

a seller who deals in goods of that an implied condition that the goods

description (whether he be the manu- shall be reasonably fit for such purpose

facturer or not), there is an implied Provided that in the case of a contract

condition that the goods shall be of for the sale of a specified article under

merchantable quality: Provided that its patent or other trade name, there

if the buyer has examined the goods, is no implied condition as to its fitness

there shall be no implied condition as for any particular purpose: (2) Where

regards defects which such examination goods are bought by description from

ought to have revealed."

50 CLR 389

(3) The finding of the Supreme Court that the plaintiff's injury was due to an irritant chemical introduced during the process of manufacture and care- lessly allowed to remain in the garment was right and this established liability to the plaintiff on the part of manufacturer and retailer alike.

Priest v. Last, (1903) 2 K.B. 148 and Donoghue v. Stevenson, (1932) A.C. 562, considered.

Decision of the Supreme Court of South Australia (Murray C.J.) reversed.

APPEAL from the Supreme Court of South Australia.

This was an action brought by Richard Thorald Grant, medical practitioner, thirty-eight years of age, claiming damages against the Australian Knitting Mills Ltd., a Victorian company, which was the manufacturer, and John Martin &Co. Ltd. of Adelaide, which was the retail vendor, of certain woollen garments which he alleged contained irritating substances, finally limited at the trial to sodium sulphite and sulphur dioxide, that caused him to suffer from a severe attack of dermatitis. The garments, which consisted of two singlets and two pairs of long underpants, were purchased by the plaintiff from John Martin &Co. on 3rd June 1931. He put one of the singlets, and one of the pairs of underpants on for the first time on Sunday morning, 28th June. About nine hours later he felt an itching on the front part of both his shins, where the ends of his underpants were covered by his socks. Next day he wore the garments again. The itching continued and patches of redness measuring about two and a half by one and a half inches appeared on both shins. He treated the inflamed parts with calamine lotion and went on wearing the same garments for the rest of the week. On Sunday, 5th July, he put on the other singlet and the other pair of underpants and wore them till the following Sunday, 12th July. Then he changed back to the first set of garments, which in the meantime had been washed. The patches of redness having grown larger and papules having developed, some of which showed a tendency to weep, and some of which on account of the irritation he had scratched and caused to bleed, he consulted Dr. Upton, a specialist in dermatology on Monday, 13th July. Dr. Upton asked him what soap he had been using and whether he had put on any new undergarments recently. The inquiry directed the plaintiff's

50 CLR 390

attention to the garments he had been wearing and he told Dr.

Upton about them. Dr. Upton advised him to leave off woollen underclothes and prescribed for his skin conditions which were diagnosed as dermatitis. The plaintiff followed Dr. Upton's advice and applied the treatment.

Two days later the plaintiff called at John Martin &Co.'s shop and in consequence of a conversation he had with the head of the department in which he had purchased the garments he delivered them at the shop towards the end of the week. The set he had taken off on Dr. Upton's advice had again been washed before they were delivered, thus one set, the first worn, had been washed twice, and the other had been washed once. The plaintiff's condition did not improve and at the end of August and the beginning of September the plaintiff's medical advisers had fears for his life. In the opinion of the plaintiff's medical advisers the disease was the form of dermatitis, commonly known as eczema, which originated from an irritant applied externally to the places where the irritation began.

The claim against John Martin &Co., the retail shop keepers, was based on contract. It alleged first, a breach of the condition of reasonable fitness for the purpose for which the undergarments were required implied in a contract of sale by sec. 14 (1) of the Sale of Goods Act 1895 (South Australia) and secondly a breach of the condition of merchantable quality implied on a sale by descrip- tion by sub-sec. (2) of the same section. The action against the Australian Knitting Mills, the manufacturers of the garments, was founded on tort. The allegation was that these defendants were guilty of negligence in the manufacture of the goods purchased by the plaintiff from John Martin &Co., and that he was injured in consequence of such negligence. Further facts appear in the several judgments of the High Court below.

The action was tried by Murray C.J. from whose judgment the above statement of facts is extracted. The learned Chief Justice found in favour of the plaintiff against both defendants and gave judgment for the plaintiff for the sum of £2,450 against the two defendants with costs to be taxed.

From this decision both the defendants appealed to the High Court.

50 CLR 391

Wilbur Ham K.C., Thomson K.C. and Spicer, for the appellants. This is an appeal by the two defendants from a judgment against each of them for £2,450 in favour of the plaintiff. The causes of action against the two defendants are quite separate. The case against the retail defendant was that the goods were not reasonably fit for the purpose for which they were bought under the Sale of Goods Act 1895, sec. 14, and the claim against the manufacturer lies in tort for having negligently manufactured the goods. The plaintiff examined the underwear, and having regard to the fact that the Australian goods were unshrinkable and cheaper he chose the Australian articles. He brought the goods home and kept them and later put them on. He continued to wear the underpants for a week and put them to the wash and then put on the other pair which he had bought and then at the end of that week he put on the first pair after they had been washed. The outstanding factor is that the plaintiff who was a doctor himself did not suspect these goods as the cause of his complaint until such suggestion was made to him by his medical adviser. The trial Judge found that the dermatitis was caused by sulphur dioxide, in at least one pair of the underpants and that nobody knows the least amount of sulphur dioxide that will cause damage and that sulphur dioxide was a component part of the wool. The experts both say that there was no free sulphur dioxide in the wool at all, but that the only sulphur dioxide that was there was such as was obtained from the breaking down of the wool molecule. But that would not matter because the quantity so existing was infinitesimal and without significance. The question arises whether the garments contained a greater quantity of sulphur than they should have. The primary Judge has con- fused the whole evidence as to the sulphur compounds. There are three sources from which woollen garments may derive traces of sulphur-(1) from the wool molecule itself; (2) in process of manu- facture the wool molecule will be broken down, and (3) the sulphur dioxide used in process of manufacture, and in the manufacture acids are used which may break down the wool molecule and release the sulphur dioxide. It is also common to find sulphates which are harmless. In the preparation of the wool and thereafter there was a final washing. Though the Judge appreciates in some part of his

50 CLR 392

A. judgment that sulphates are harmless, in other parts he simply deals

with them as sulphur compounds and as if sulphur compounds were interchangeable with sulphites. The Judge takes Anderson's analysis as showing that there was free sulphur dioxide in the garment. Anderson says that by a process of analysis he found minute traces of sulphur dioxide. The Judge assumes that there must have been a larger quantity and Anderson found a larger amount of sulphur salts at the ends of underpants. The evidence is that sulphur compounds were more concentrated in the lower parts of the garments. There was no evidence that at the time when the garments were bought there was any sulphur dioxide, except such negligible part as might come from the wool molecule itself, There is no real evidence that there was a greater proportion of sulphur dioxide present when the garments were bought than when they were analyzed. The findings of the trial Judge come to no more than this that when the garments were analyzed they contained an infinitesimal amount of sulphur dioxide but that does not go beyond the point that there was anything deleterious in the garments. He found that the plaintiff had a normal skin and that he got dermatitis from these garments and, therefore, there must have been a deleterious amount of sulphur dioxide in them. This is a mere argument in a circle. There is no evidence to justify the finding that the plaintiff caught the complaint from these garments. He finds that as he got the complaint from them they must have contained a deleterious amount of sulphur dioxide. The complaint was not acquired from the garment and though there was sulphur dioxide present in the wool it was not there in sufficient quantities to be harmful (Donoghue v. Stevenson 1 ). To make the manufac- turer liable there must be a special relationship between him and the consumer. The special relationship between the manufacturer and the consumer was created in that instance by the intentional exclusion from examination by the manufacturer. The manufac- turer intentionally excluded the possibility of examination for his own purposes. As to the retailer, in order to make him liable under the provisions in the Sale of Goods Act, the plaintiff must show that he relied upon the vendor's skill and judgment in giving him goods

1(1932) A.C. 562. 50 CLR 393

reasonably fit for the purpose for which they were required (Wallis V. Russell 1; Benjamin on Sale (1931), 7th ed., pp. 656-658). The Sale of Goods Act does not apply where the buyer selects the goods of his own motion. The buyer here did not rely on the skill or judgment of the retailer. The buyer did not make it known to the retailer that he was relying on the retailer's skill and judgment. There was no evidence that there was a deleterious amount of sulphur dioxide in the garments. The plaintiff admits himself that he was a member of a class having a sensitive skin. It was natural that the mineral salts would gravitate to the ends of the garment, It is not sufficient to find the garments may have had more, but it is necessary to infer that they did in fact have more, chemicals in them than they should have contained and that the amount found is sufficient to be deleterious. Anderson's evidence only shows that when he broke down the wool molecule he got sulphur dioxide but it does not show that when the garment was washed only sulphur dioxide was obtained. If the sulphur dioxide was obtained from the process of breaking down the wool molecule it would always be present as long as there was any wool left at all. The sulphur which was combined with the wool molecule was not soluble at all. All the witnesses agree that there. was no free sulphur contained in the garments. It is only upon Anderson's evidence the Chief Justice bases his decision, and Anderson's analysis only represents the sulphur content of the wool itself. In this case the cause of the complaint may be both external and internal. There was no negligence in the manufacture of these garments. There was no evidence that the ankle parts were made by any other process than the other parts of the garment. The trial Judge seemed to treat the matter as one of res ipsa loquitur. The Judge finds that it is irrelevant to consider the manufacture of other garments if it is shown that there is no better process than the one adopted it cannot be found that reasonable care was not taken. The defendants had an effective process of manufacture and omitted no step in that process, and there is no evidence to the contrary. The evidence was that nothing could have been done which was not done, to eliminate the noxious chemicals. On Donoghue v. Stevenson 2, it is not

1(1902) 2 Ir. R. 585. 2(1932) A.C. 562. 50 CLR 394

sufficient to show the garments were intended to be worn in the

condition in which they were bought but it must be shown that it was impossible to make an examination of them. The basis of Donoghue v. Stevenson 1 is not that the defect is not discoverable except by examination but that the manufacturer retains control over the article and puts himself in closer connection with the consumer than anyone else. This is not a case of res ipsa loquitur, but negligence must be both alleged and proved. The Judge was wrong in disregarding the evidence as to the processes followed by the defendant. The manufacturer is not liable to the plaintiff as there is no contract between them. The conditions of liability set forth in Donoghue v. Stevenson are not here present. According to that decision the manufacturer must prevent inspection (Gordon V. M'Hardy 2 ). An implied warranty of reasonable fitness arises only in cases in which the purchaser makes known to the vendor that he relies upon the skill or judgment of the latter. The position is stated in Benjamin on Sale (1931), 7th ed., pp. 650-661. Wallis V. Russell 3 is distinguishable. The plaintiff voluntarily chose the underwear that he took away. The above reference in Benjamin, if it be correct, completely exonerates the vendor from liability. (Preist v. Last 4 H. Beecham &Co. v. Francis Howard &Co. 5; Bowden Bros. &Co. v. Little 6 Frost v. Aylesbury Dairy Co. 7; Gillespie Bros. &Co. v. Cheney, Eggar &Co. 8, where it was expressly stipulated that it was bunker coal that was required). Manchester Liners Ltd. v. Rea Ltd. 9, in which case the buyer showed that he relied upon the skill or judgment of the seller (Bristol Tramways, &., Carriage Co. v. Fiat Motors Ltd. 10; Halsbury, Laws of England (1913), 1st ed., vol. XXV., p. 157, note (d) ). Upon these authorities if the Court finds that these goods were not fit for human wear by reason of an excess of chemicals in the ankle parts there was not anything in the evidence that justified the finding that the buyer made known to the vendor that he relied on his skill or judgment in selling the article.

1(1932) A.C. 562. 2(1903) 6 Fraser (S.C.) 210. 3(1902) 2 Ir. R. 585. 4(1903) 2 K.B. 148. 5(1921) V.L.R. 428, at p. 433. 6(1907) 4 C.L.R. 1364, at pp. 1392, 7(1905) 1 K.B. 608, at pp. 612, 8(1896) 2 Q.B. 59, at pp. 60, 64. 9(1922) 2 A.C. 74, at pp. 82, 91, 10(1910) 2 K.B. 831. 50 CLR 395

Thomson K.C. The fabric that was used in these garments was dealt with by the manufacturers in the piece. No other complaint than this was ever made. An elaborate system of checks was provided. The solutions in which the web is immersed are continually checked and the web is also checked for excess of acid or alkalinity. The ankle ends are also treated in the same way as the body fabric, though there was some sulphur dioxide present. The real basis of the Judge's misconception is that he has confused sulphates with sulphites. His findings depend upon the fact that there were free soluble sulphites in the garment. Assuming there was a defect in the manufacture, that does not of itself prove negligence. There was no standard of care set up by the trial Judge. There is no evidence that the sulphur dioxide came from any free sulphite. Such as was there came from the sulphur molecule in the wool itself. The trial Judge applied an absolute standard of care. No one found free sulphites. No one has said definitely that this complaint was caused by sulphites. A distinction must be drawn between mathematical accuracy and a matter of practical utility.

Cleland K.C. (with him T. E. Cleland), for the respondent. As to the chemical evidence, the expression sulphite in the argument means sodium sulphite which was the chemical introduced into the process by the appellants. The witness, Hicks, by agitating the garment in cold water for two minutes obtained .11 per cent of sulphites, that quantity could not have come from the broken down wool molecule. He says that the wool could not possibly be in solution. Sulphite has never been found as part of the wool molecule. The evidence shows that chemical substances were introduced into the manufacture of this article which caused sulphur dioxide to adhere very closely to the wool fibre in such a way as to become very difficult to remove; and this, after the garment is used, becomes an irritant very readily capable of causing dermatitis.

[DIXON J. referred to MacPherson v. Buick Motor Co. 1.] The evidence of the experts called for the respondent shows that any appreciable quantity of sulphur dioxide or of sulphites may cause an eruption of dermatitis (Priceley's Text-book of Practice of

1(1916) 217 N.Y. 382. 50 CLR 396

A. Medicine, p. 1287). It is not known what amount of sulphur dioxide is

necessary to constitute an irritant, and it is not known what quantity of sulphur dioxide was in the garment at the time (Ajum Goolam Hossen &Co. v. Union Marine Insurance Co. 1 ). The respondent never had any trouble before from wearing woollen undergarments though he wore them all his life and the conclusion to be drawn is that the dermatitis was caused by some external irritant in the underwear. Even assuming that there was a predisposition on the part of the respondent if the irritant was applied in the manner alleged, the defendants are still liable (In re Polemis &Furness, Withy &Co. 2 ). The respondent unfortunately purchased and wore garments that were not satisfactory. The respondent was prevented from giving evidence of the fact of complaints to rebut evidence given by the appellants of the absence of complaints. There was free sulphur dioxide which was present in the garments even after they were washed. The evidence shows that there is no such thing as a normal skin. The respondent must succeed unless it is shown that his physical condition was the causa causans of the dermatitis. There was no such condition in the respondent, there- fore, the events show that there were chemicals in these garments which were sufficient to do damage to a normal person's skin. A normal skin is one which comes within a class which is within certain wide limits. The evidence is sufficient to justify the finding of the trial Judge that the dermatitis was caused or aggravated by chemicals in the garments. The onus of establishing that the respondent has not a normal skin is upon the appellants. The effect of the Judge's findings is that the most probable cause of the dermatitis was the action of the present appellants. The demeanour of the witnesses plays a large part in the elicitation of the truth in this case. The manufacturers for trade purposes added dangerous chemicals to the fabric from which the garments were made. The garments were intended to be worn in contact with the skin for about fifteen hours which subjected the chemicals in the garments to further chemical action. Having employed dangerous chemicals in the manufacture of the garments the appellants are charged with a very special duty to take care that the wearers suffered no damage. The evidence

1(1901) A.C. 362, at p. 366. 2(1921) 3 K.B. 560. 50 CLR 397

shows that these processes properly and faithfully carried out were adequate both to neutralize and remove the dangerous chemicals. Therefore, the process was not all that could be desired. It follows, AUSTRALIAN therefore, that if any dangerous chemicals were left in the fabric when the process was finished, the process itself must have been used carelessly and negligently. The conclusions of the trial Judge were not against the evidence or against the weight of evidence. The evidence shows that if anything occurred in the process that caused undue alkalinity or acidity it would be due to an oversight. The result appears to be that in the respondent's case the dangerous chemicals were not removed. The sulphur dioxide was mechanically adhering to the fabric of the garments and the sulphites were free in the sense that they were not part of the wool molecule but were obtained from solution, and both classes of chemicals were of unknown quantity. The onus is on the appellants to prove that the chemicals in the garments when the respondent wore them was negligible and the only possible inference was that the chemicals were allowed to remain in the garments by negligence. The presence of an unknown quantity of dangerous chemicals in the garments that the respondent wore prima facie establishes negligence. If some initial negligence is established it is for the appellants to prove that the dermatitis was caused by some subsequent act of conscious volition (Dominion Natural Gas Co. v. Collins and Perkins 1; Thomas v. Winchester 2 ). If these chemicals were irritants they were dangerous per se and were intended to be used in garments which were meant to be brought into contract with the human skin. As to dangerous things, short of intervention by some third party, the person who supplies them is in the position of an insurer. This case does not rest on inference but on substantive evidence. It is established that dangerous chemicals were in the garments that dermatitis super- vened after they were worn and that the respondent was a person of normal health, and that two witnesses both swore that the dermatitis was caused by the wearing of these garments. Ignorance is no excuse if it was negligent and if the person making or selling the garment ought to have known that it contained dangerous chemicals. They are liable for any damage that ensues (George V.

1(1909) A.C. 640. 2(1852) 6 N.Y. 396. 50 CLR 398

Skivington 1 ). All the evidence is consistent with the findings that the dermatitis was caused by an external irritating cause. Whether a thing is dangerous is a question of law once the facts are established (Faulkner v. Wischer &Co. and Rosenhain &Co. 2 ). The underpants containing sulphuric acid are dangerous in themselves. Compare Dominion Natural Gas Co. V. Collins and Perkins 3. The liability of the manufacturer is one of insurance, see per Lord Macmillan in Donoghue v. Stevenson 4. Cunard and Wife v. Antifyre Ltd. 5, contains a concise and accurate summary of the position. The reference in Donoghue V. Stevenson 6 to the control exercised by the manufacturers is not a happy form of expression. The manufacturer exercises no control after the goods leave his possession. What he has is rather an expectation that they will not be tampered with, that expectation exists in this case.

[STARKE J. referred to Rickards v. Lothian 7.] It is immaterial whether the manufacturer knew the chemicals were dangerous. It should have known. As to the retailer, Martin &Co., the Chief Justice found that these garments were not reason- ably fit for the purpose for which they were sold; see the Sale of Goods Act 1895 (South Australia), sec. 14. Preist v. Last 8 establishes that though where you have an article capable of being used for various purposes the buyer must indicate which purpose he has in mind, yet when the article is only of use for one purpose this is not SO. See also Manchester Liners Ltd. v. Rea Ltd. 9; Ward v. Great Atlantic &Pacific Tea Co. 10. The goods were not of merchantable quality see sec. 14.

[DIXON J. referred to Chaproniere v. Mason 11.] [Counsel referred to Ryan v. Progressive Grocery Stores 12.] Ham K.C., in reply. The Chief Justice was correct in saying that the defendant had not established a breach of warranty of merchant- able quality. In addition this is not a sale by description.

1(1869) L.R. 5 Ex. 1. 2(1918) V.L.R. 513 40 A.L.T. 94. 3(1909) A.C. 640. 4(1932) A.C., at p. 613. 5(1933) 1 K.B. 551. 6(1932) A.C. 562. 7(1913) A.C. 263. 8(1903) 2 K.B. 148. 9(1922) 2 A.C. 74. 10(1918) 231 Mass. 90. 11(1905) 21 T.L.R. 633. 12(1931) 255 N.Y. 388. 50 CLR 399

[STARKE J. Morelli v. Fitch &Gibbons 1 is against you on that.]

[Counsel referred to Benjamin on Sale (1931), 7th ed., p. 658.] [STARKE J. Do you come under the third category mentioned by Benjamin on Sale (1931), 7th ed., on p. 652 ?]

Ham. I suggest we come under the first. [Counsel also referred to Matthews on Textile Fibres (1924), 4th ed., p. 131.]

Cur. adv. vult. The following written judgments were delivered :-

STARKE J. The Australian Knitting Mills Ltd. is a manufacturer on a large scale, of woollen undergarments known as "Golden Fleece." It does not dispose of its manufactures direct to the public but through retail houses. John Martin &Co. Ltd. is one of these retail houses, and it sells woollen undergarments manufactured by the Knitting Mills to the public in the ordinary way of retail business. On 3rd June 1931 Dr. Grant purchased from John Martin &Co. Ltd. two pairs of undergarments consisting of two singlets and two drawers or underpants. On Sunday 28th June he first wore a singlet and one of the underpants. Nine hours later he felt an itching on the front part of both his shins where the underpants were covered by his socks. Next day he wore the garments again; the itching continued, and patches of redness measuring about two and a half inches by one and a half inches appeared on both shins. He treated the inflamed parts with calamine lotion, and went on wearing the same garments for the rest of the week. On Sunday 5th July, Dr. Grant put on the other singlet and the other pair of underpants, and wore them until the following Sunday, 12th July. Then he changed back to the first pair of garments, which in the meantime had been washed. The irritation increased, and on 13th July he consulted a skin specialist, on whose advice he discontinued wearing the woollen undergarments. The specialist prescribed for him. The inflammatory condition of the skin developed into an acute general dermatitis. In April of 1932 Dr. Grant brought an action against the Knitting Mills and Martin &

1(1928) 2 K.B. 636. 50 CLR 400

A. Co. Ltd. for damages. Substantially he alleged that the underwear,

particularly the underpants, purchased by him, contained a chemical or substance of an irritant nature which set up or originated the inflammatory condition of the skin or the dermatitis from which he suffered. The cause of action against the Knitting Mills was founded on negligence. The Knitting Mills, according to the plead- ings, supplied to Martin &Co. Ltd. for sale to Dr. Grant and other customers woollen underwear from which the Knitting Mills had negligently omitted to remove chemicals or substances of an irritant nature, whereby the underwear purchased by him was rendered and became inherently dangerous to him and set up or originated the dermatitis from which he suffered. Against Martin &Co. Ltd. the cause of action was founded upon contract the pleadings allege a breach of the condition implied in a contract of sale by the Sale of Goods Act 1895 of South Australia, sec. 14, sub-secs. 1 and (2). The action was tried before the learned Chief Justice of the Supreme Court of South Australia, who gave judgment in favour of Dr. Grant against both the Knitting Mills and Martin &Co. Ltd., and from that judgment an appeal is now brought to this Court.

It was a most exhaustive trial, and distinguished medical and chemical experts were called on both sides, but unfortunately they differed considerably in opinion. This Court must form its own independent conclusions on questions of fact (Coghlan v. Cumberland

1; Dearman v. Dearman 2 ). It is for the appellant, however, to convince us that the learned Chief Justice came to wrong conclu- sions, and in dubio his findings ought to stand (Colonial Securities Trust Co. v. Massey 3 ). In the present case, much depends upon the view taken of the facts. Three main questions arise. 1 First, did the woollen garments purchased by Dr. Grant contain any and what quantity of chemicals, or substances of an irritant nature ? The pleadings suggested many such irritants, but some sulphur compound is the only one now suggested as of any importance. Wool in its natural state, I gather, contains sulphur in some form, either free or combined with the wool fibre itself. Commercial scouring detaches a large proportion of the sulphur. The garments 2(1908) 7 C.L.R. 549. 3(1896) 1 Q.B. 38. 1(1898) 1 Ch. 704. 50 CLR 401

which the Knitting Mills manufactures are of wool which has been scoured before it reaches them in the form of yarn, which contains a percentage of sulphur or one of its compounds adherent to the AUSTRALIAN yarn or combined with the wool fibre itself. The evidence shows,

I think, that the sulphur adherent to or combined with the wool fibre varies in the same and in different species and cannot be reduced to any definite proportion. (See Marston's pamphlet on the Chemical Composition of Wool). But it is contended that the process used by the Knitting Mills in the manufacture of its garments introduces a sulphur compound, bisulphite of soda, into the webbing of the garments which, unless removed, liberates, in contact with the sweat of the human body, the gas known as sulphur dioxide. And this, combining with sweat and oxygen, results in the formation of the acids known as sulphurous and sulphuric acid respectively. The gas and the acids are all known irritants. The process of manufacture is set forth in the evidence. The first step in the process is to seour or wash the fabric from which the woollen garments are manufactured the next is to bleach and shrink it, and the third introduces bisulphite of soda for the purpose of getting rid of the free chlorine formed in the second step; the remaining steps are for neutralizing or washing purposes. Professor Hicks, perhaps, the most important witness called on behalf of Dr. Grant, said in relation to this process, upon examination in chief:

I have carefully considered the processes the first part of process 3, i.e., the washing in process 3 and all subsequent processes.

Q. In your opinion, if those processes are carried out strictly in accordance with instructions in Ex. D5, will all excess bisulphite of soda be removed ?

Q. Does that opinion also apply to acidified bisulphite as such ? A. Yes both those chemicals are very soluble in water. Q. Do you agree that in any stage up to and including process 3, any sulphuric acid would have been formed ?

Q. In your opinion, would any sulphuric acid which had been formed (have) been removed by any subsequent process ?

50 CLR 402

A. I think SO. Q. If any free soluble sulphites were found in underclothing which had been treated by the process in Ex. D5, would that indicate anything to you ?

A. Only that it had not been removed in the final washing or in the process 5. Bisulphite would be easily removed by washing.

Q. Is the action of an acid on a bisulphite to produce sulphur dioxide ?

Q. In your opinion, would the action of excess hydrochloric acid on the bisulphite in process 3 produce sulphur dioxide ?

Q. Can free sulphur dioxide be removed from fabric by mere washing ?

A. No-not entirely. Q. In order completely to remove free sulphur dioxide from fabric, would it be necessary to use an oxidising agent ?

A. Either an oxidising agent or very many washings, lasting over an impracticable period.

Q. Would such an oxidising agent as hydrogen peroxide be a proper one to use ?

A. It would." This evidence, I think, clearly establishes that the process used by the Knitting Mills is, in the hands of careful manufacturers, a prudent and reasonable method, and other evidence makes it clear that it is a standard if not a standardized one. But analyses of the woollen garments purchased by Dr. Grant, and of other woollen garments manufactured by the Knitting Mills, are relied upon. It is said that they establish a sulphur content in the garments manufac- tured by the Knitting Mills quite inconsistent with a strict adherence to the process used or even a reasonable and careful working of it. Let me therefore turn to the analyses.

Dr. Grant returned the woollen garments he purchased to Martin &Co. Ltd., and they handed them over to the Knitting Mills. One pair of these garments had been washed twice, and the other once.

I pass by a preliminary analysis made by Davies, a chemist in the employ of the Knitting Mills, for all parties agreed that it shed no

50 CLR 403

light on the issues involved in this action.

In November of 1931 Anderson, an analytical chemist, made an analysis of a pair of underpants that had been purchased and worn by Dr. Grant. It failed to disclose the presence of any chemical substance likely to cause irritation to the skin. In May of 1932, however, he made a more detailed and exhaustive analysis upon the woollen garments purchased and worn by Dr. Grant; and he also made analyses upon other woollen garments. I shall take first the analysis of the garments worn by Dr. Grant, SO far as it is material to the present discussion. The sulphur content of the garments-the sulphites found in them-so analyzed, expressed in terms of sulphur dioxide, was as follows :-

Sulphur Dioxide Percentage by Weight.

1. Underpants 2. 3. Singlet 4. It must be remembered that Dr. Grant had had all these garments washed-one set of underpants and singlet twice and the other set once. Anderson in examination in chief thus deposed

"Q. In your opinion, having

made these analyses, was there any irritating chemical in samples 1 to 4 ?

A. In my opinion, No. Q. In your opinion, could anything further be done than was done to eliminate noxious or irritating chemicals ?

A. Speaking as an industrial chemist, No." Professor Hicks, speaking of the same analyses, said "In the first four items of Table G of Anderson the amounts were very small -infinitesimal-and without significance I think." Later, it is true, the learned professor said, "We are not dealing with infinit- esimal quantities of sulphites. I have quantities in mind which Mr. Anderson listed in his analyses of various underclothing expressed as sulphur dioxide. I am sure I did not say the sulphur dioxide was infinitesimal." Nor did he: he referred to the first four items and not to those numbered 5, 6, 7, and 8 in Table G.

Next in order I take analyses of men's underwear manufactured by the Knitting Mills but not purchased or worn by Dr. Grant.

50 CLR 404

Anderson made one such analysis in May of 1932, on summer weight underpants selected from bulk stores and of the same description as those worn by Dr. Grant. The sulphur content of the garment expressed in terms of sulphur dioxide was, percentage by weight, .0313. In 1932 Dr. Hargreaves made several analyses. Nos. 1 and 2 were upon a singlet and a pair of underpants manufactured by the Knitting Mills and obtained from the stock of Martin &Co. Ltd. The results were as follows :-

Free Sulphur

Total Sulphite calculated as Sample Number

Sulphur Dioxide-parts per million. 1 2 Nos. 3 and 4 were upon undergarments manufactured by the Knitting Mills; they were specially prepared, and had only one washing which took place between the first and second steps of the process used by the Knitting Mills. They were actually worn, one set by Ferguson and one by Davies, the secretary and chemist respectively of the Knitting Mills. A piece of the web (Sample No. 5) from which these garments were manufactured was also analysed. The results were :-

Total Sulphite calculated as Sample Number.

Sulphur Dioxide-parts per Million. 3 4 5 No. 6 was upon a singlet manufactured by the Knitting Mills, but it was also specially prepared, and all the washing steps in the process used by the Knitting Mills were omitted. The result

Free Sulphur

Total Sulphite calculated as Sample Number.

Sulphur Dioxide-parts per Million. 6 Although the figures were calculated as sulphur dioxide, Dr. Hargreaves is emphatic that free sulphites were not present "There were no free sulphites. The sulphur was tied up in combina- tion with the wool molecule. The pure wool keratin contains 35,000

50 CLR 405

parts per million of sulphur, which is equivalent to 70,000 parts per million of sulphur dioxide. That is infinitely more than the quan- tities of sulphur compound that I found-very much more."

'Q. What that indicates is that in the various processes that had been applied to this wool a great deal of sulphur had been removed ? A. Yes. Definitely." He says at a later stage of the evidence there were no sulphites other than those which came from the wool molecule." Professor Hicks does not agree with this view; in his opinion, the manufacturing process, and not the content of the wool fibre, was the source of the sulphur content of the garments analyzed by Anderson and Dr. Hargreaves. The reason he assigns for this opinion is that he has difficulty in following or understanding how the sulphur content of the wool fibre was oxidised.

The learned Chief Justice did not solve the rival theories. But he placed considerable weight upon an analysis made by Professor Hicks. A pair of woollen undergarments of the same description as those purchased and worn by Dr. Grant were procured from the stock of Martin &Co. Ltd., and handed to Professor Hicks. He agitated portions of the garments in cold water for two or three minutes and then wrung them out. The aqueous solution SO obtained he analyzed and calculated the result, in terms of free sulphite of soda, as being approximately .11 percentage by weight.

"I extracted the singlet with cold distilled water at room tempera- ture, agitating it for two minutes.

Q. Were all those extracts designed to remove from the fabrics some of any free soluble matter in the garments ?

A. Yes: the idea was to see if I could get any readily free soluble substances. I did not think it worth while trying to get anything that was not soluble. I can definitely exclude any possibility that my results were affected by chemical content of the wool molecule itself. I found that the aqueous extract in the singlet contained free sulphite of soda. By calculation I ascertained the percentage by weight of that sulphite. It was .11 per cent approximately."

Before considering the effect of this evidence, I refer to some evidence given by Anderson of analyses of woollen garments similar to those worn by Dr. Grant but manufactured by firms other than

50 CLR 406

A. the Knitting Mills. They are useful as comparisons. I shall call

them VI., VII., and VIII. respectively. The results were

Sulphur Dioxide per cent by weight VI. (manufactured in Australia) VII. (manufactured in England) VIII. (manufactured in Australia) Also, I refer to an answer to an interrogatory made by the Knitting Mills which was much relied upon during argument. It is :-

"The garments at the time of delivery to the retailing defendant" (Martin &Co. Ltd.) by the manufacturing defendant" (the Knitting Mills) "contained the following chemicals-the small quantity of napthaline mentioned in answer 3 (i.), arsenious oxide, sulphur dioxide." It is a very careless answer, but seems to be based upon the arsenic and sulphur content of the garments expressed in terms of arsenious oxide and sulphur dioxide in Anderson's analyses, which were in the possession of the Knitting Mills. It can mean no more, unless it refers to sulphur dioxide as such actually adherent to the fabric, which would be negligible.

The method of the analyses above mentioned has not been challenged, nor have the results. The conclusions I draw from these analyses are :-

1. That the manufacturing process of the Knitting Mills was the source of some at least of the sulphur content of the garments analyzed by Anderson, Hargreaves and Hicks. Hicks, I think, by his method demonstrated this fact. And, though bisulphite of soda is exceed- ingly soluble in water, yet in an industrial process where six pounds of bisulphite are mixed with twenty-five gallons of water in a mixing tank, there is a possibility, perhaps a probability, that the whole of the bisulphite will not dissolve and that some particles may attach themselves to the fabric in the course of manufacture. Ashworth, who is employed by the Knitting Mills in their process, put the matter fairly :- We have to be very careful that there is no excess of one chemical or the other. We are always trying to be very careful. I maintain that the proportions of these chemicals are calculated SO exactly that in fact there is no excess."

50 CLR 407

2. That it is not possible on the evidence to determine what proportion of the sulphur content of the garments analyzed was due to the manufacturing process and what proportion was combined with or adherent to the wool fibre.

3. That the sulphur content of the garments manufactured by the Knitting Mills and analyzed by Anderson, Hargreaves and Hicks was minute. Indeed, but for Professor Hicks' result- 11-one might well adopt his own statement and say that the amounts were "very small, infinitesimal and without significance."

A comparison of the analyses of garments made by the Knitting Mills with those of garments made by two other manufacturers is favourable to the Knitting Mills. Even the result obtained by Professor Hicks is very small and may easily represent some accident in the manufacturing process in the case of the particular garment. Dr. Grant's case, therefore, appears to rest upon the analysis made by Professor Hicks upon one pair of woollen garments.

(2) Second, did the sulphur compounds contained in the garments purchased by Dr. Grant originate or set up the inflammatory condition of his skin which developed into an acute general dermatitis ?

The learned Chief Justice resolved this question in the affirmative, and the medical evidence called for Dr. Grant clearly supports that conclusion. Perhaps the strongest expression of opinion is that contained in the evidence of Dr. Wigley :-

Q. Assuming that underclothing contained known irritants, what is your opinion as to the cause of the dermatitis

A. The presence of a known irritant in the underclothing. Q. In your opinion, is underclothing which contains sulphur or any compound of it or arsenic or any compound of arsenic or both a source of danger ?

Q. In your statement where you blame the presence of known irritants-is that irrespective of the quantity of irritants ?

A. Yes. I would apply it to detectable amount of known irritant, i.e., detectable by any chemical or physical analysis.

To His Honour That is, by quantitative test of any sort. I apply that answer to any compound of sulphur or of arsenic."

50 CLR 408

Drs. Upton and de Crespigny and Professor Hicks all support this view, though not perhaps in such emphatic terms. "Speaking as a medical expert," said Professor Hicks, "I would say that the skin over the anterior surface of the shin would tend to be more vulnerable to the effect of an irritant than the skin overlying the more fleshy part of the leg. This is because the capillary circulation in the former area of skin is likely to be poorer on account of the tension in the skin, as it is pulled over the hard underlying bone. I would also expect to find an irritation at that point by reason of the tight fitting underclothes with a sock pulled over it. I think it would be reasonable to expect the irritant to appear in that way. The close fitting underpants, plus the close fitting socks, tend to keep in the sulphur dioxide which might be produced. But I don't think it is the mere keeping in of the sulphur dioxide that matters, SO much as the pressure of the two garments, the sock and the ankle of the undergarments upon the skin at that part, in SO far as it will act like a tight bandage maintaining the irritant in closer propinquity to the skin."

The appellants suggested that the dermatitis suffered by Dr. Grant was induced by the peculiar hypersensitiveness of his skin to wool. Yet all his life he had worn woollen undergarments of much the same description as those manufactured by the Knitting Mills, Again, it was suggested that the dermatitis was of a type known as herpetiformis, which, SO far as known, is not set up or originated by external irritation. But it is impossible to say that the learned Chief Justice was wrong in rejecting this theory, in the face of the definite and clear dissent of Drs. Upton and de Crespigny, who attended Dr. Grant throughout his illness and were in far and away the best position to form an opinion upon the matter. And if all the originating causes suggested by the appellants broke down upon examination, what else was left but the conclusion reached by the Chief Justice that some external irritant set up or originated the dermatitis in Dr. Grant ? Everything then points to the sulphur content of the undergarments worn by Dr. Grant as the source of the trouble. I agree that to some extent the sulphur content of the garments was a constituent of, or adherent to, the wool fibre itself, but that may have been innocuous but for the action of the

50 CLR 409

Knitting Mills in washing the fabric of which the garments were H. manufactured in a solution of bisulphite of soda. This brings me to the third question.

(3) Third, did the Knitting Mills act negligently, that is, impru- dently and without ordinary caution ? The burden is upon Dr. Grant to show that he has been injured by a breach of duty owed to him by the Knitting Mills to take reasonable care to avoid such injury. It was contended that the Knitting Mills had added a dangerous chemical to the woollen fabric and that a special duty of protection or warning therefore rested upon it. The law takes notice that some things are dangerous in themselves, in which cases the law exacts a diligence SO stringent as to amount practically to a guarantee of safety." But neither experience nor knowledge warrants the assertion that bisulphite of soda belongs to the category of dangerous things, or that the Knitting Mills knew that it was a source of danger in the garments manufactured by it. It is used to get rid of any free chlorine produced by the manufacturing process, and is then washed out because its purpose has been served. Woollen undergarments are commonly used, in Australia and elsewhere, and the analyses in the present case demonstrate the presence of sulphur compounds in minute quantities in all the specimens subjected to analysis. But experience in the use of woollen garments has not suggested any danger from the presence in them of small quantities of sulphur compounds, though such compounds are known to medical men and chemists as irritants.

The case of Donoghue v. Stevenson 1 is relied upon. The special circumstances of the present case establish, it is said, a relationship of duty between the Knitting Mills and the purchasers and wearers of its garments. Articles of underwear are manufactured which the Knitting Mills knows and intends shall be purchased by members of the public through retail houses and worn by them, without any interference or examination of the articles by any intermediate handler of the goods. The duty, it is claimed, is to use reasonable care that the garments shall be free of any defects that would be likely to make them dangerous in use. Even so, I cannot think that Dr. Grant has established any breach of this duty. The process

1(1932) A.C. 562. 50 CLR 410

adopted by the Knitting Mills is, as before observed, prudent and

reasonable. It is, according to the evidence, the subject of continuous checks. But untoward results or accidents cannot, with the greatest of care, be wholly eliminated, in any industrial process. Theoretical calculations of the proportions necessary for the complete solution of any given substance may be perfect. But particles of the substance may not dissolve, and may then be caught up in the fabric of a garment during manufacture. All there is to rely upon in the present case is that Professor Hicks determined that a particular garment, which was never worn by Dr. Grant, contained an amount of free sulphite of soda calculated as .11 per cent, approximately, by weight. It is not suggested that the sulphite SO calculated was evenly distributed over the whole garment, or that any other garment would necessarily produce the same result. It is a very small quantity, and, uninstructed by the expert evidence, I should have thought it negligible, having regard to the large trade in woollen garments and the general absence of any ill-effects from their wear. The burden of proof is upon the person who alleges negligence, and the evidence wholly fails to satisfy me that there has been any breach of duty on the part of the Knitting Mills, or in other words that the injury to Dr. Grant was occasioned by any carelessness on the part of the Knitting Mills.

The liability of Martin &Co. Ltd., founded upon the provisions of the South Australian Sale of Goods Act 1895, sec. 14, sub-secs. 1 and (2), remains for consideration. The provisions of sec. 14 (1) are:

" Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required,

SO as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose."

"The buyer has to make known, expressly or by implication, the particular purpose for which the goods are required, He has to do this, SO as to show that he trusts the seller's skill and judgment to supply something reasonably fit for the purpose (Manchester Liners Ltd. v. Rea Ltd. (1) ).

"The buyer's reliance is a question of fact

1(1922) 2 A.C., at pp. 89, 90. 50 CLR 411

to be answered by examining all that was said or done with regard H. C. to the proposed transaction on either side from its first inception to the conclusion of the agreement to purchase" (Medway Oil and Storage Co. v. Silica Gel Corporation 1; Cammell Laird &Co. V. Manganese Bronze and Brass Co. 2 ). The only evidence is that Dr. Grant asked to be shown some light weight woollen underclothing for his own use. He told the shopman that he had been in the habit of wearing "Gibsonia" brand, and had had some trouble with shrinking. The shopman said Martin &Co. Ltd. did not stock "Gibsonia," and showed him two other varieties, an English make, and an Australian make going by the name of "Golden Fleece." Dr. Grant inquired which were the better garments, and was informed that the English garments were better, but that the "Golden Fleece" garments were a very good article he chose the "Golden Fleece garments because they were cheaper. The Knitting Mills were, as already stated, the manufacturers of the "Golden Fleece" garments. It is plain enough that Dr. Grant knew that Martin &Co. Ltd. was only a retailer and not the manufacturer of the garments. It would have been wholly unreasonable on Dr. Grant's part to expect from Martin &Co. Ltd. an exact knowledge, not only of the sort of article he wanted but also of the processes by which it was manufactured and the defects or possible defects depending upon the modes of treatment employed by the manufacturer in the making of the garment. Martin &Co. Ltd. had no means of discovering the defects suggested in the garments in the present case, and even chemical analysis would have been ineffective, for, as already appears, the sulphur compounds are not evenly distributed over the garments. As a matter of fact, I do not believe that Dr. Grant trusted Martin &Co. Ltd.'s skill, or its judgment that the goods were reasonably fit for wearing and free from irritant chemicals or other noxious substances. He saw the goods himself, and was satisfied with their appearance and price. The provision in sec. 14 (2) is "Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufac- turer or not) there is an implied condition that the goods shall be of

1(1928) 33 Com. Cas. 195, at p. 196. 2(1933) 2 K.B. 141, at p. 162; 38 Com. Cas. 175, at p. 180. 50 CLR 412

merchantable quality." Assuming that Dr. Grant " bought by 1933.

description' from Martin &Co. Ltd. the undergarments in question, the evidence shows clearly, to my mind, that they were of merchant- able quality. Articles of the same character, containing sulphur compounds in more or less the same proportions, were being bought and sold in the market in large quantities,

In my opinion, the appeal should be allowed, the judgment below reversed, and judgment entered in favour of the Australian Knitting Mills Ltd. and John Martin &Co. Ltd.

DIXON J. The respondent has recovered damages for personal injuries against the manufacturer and the retailer of undergarments which have been found to be the cause of a serious disorder of his skin. The judgment against them was joint and both appeal against it. The manufacturer was sued in tort; the retailer, in contract. The retailer is a shopkeeper which in the ordinary way sold to the plaintiff two pairs of underpants and two singlets of the other defendant's manufacture. The plaintiff has obtained a finding by the learned Chief Justice of South Australia that the underpants were in an improper condition because the webbing at the ends of the legs contained sodium sulphite SO as to be unfit for the purpose of wearing. This finding of fact was attacked on behalf of the appellants. But on their behalf it was also contended that, even if the finding stood, neither of them was liable for the damages suffered by the plaintiff. The manufacturer was held liable upon the ground that in undertaking the manufacture of underclothes, which it sold to retailers put up in a form in which they were expected to sell them to their customers, the manufacturer incurred a duty to exercise reasonable care that they should contain nothing likely to harm the wearer, a duty which it was inferred had not been fulfilled. The manufacturer, besides denying any want of care in fact, main- tained that in point of law no such duty existed towards the plaintiff. In this Court, the question whether the contention is well founded must depend upon the interpretation of the decision of the House of Lords in Donoghue v. Stevenson 1. On the one side it is said that, in the case of a thing not of its own nature dangerous and not

1(1932) A.C. 562. 50 CLR 413

known to be dangerous because of some special property, the manu- facturer's duty of care to users of the article who have not acquired it immediately from him was, by that decision, held to exist only when he establishes a "special relation" with them by putting up the article in such a form that until the consumer or user is about to consume or use it all reasonable opportunity of examining, testing or judging of its condition is excluded and all likelihood of alteration of or interference with it by intermediaries is removed. On the other side it is said that it is at least enough if the manufacturer shows, by labelling, tying or otherwise, that he contemplates the consumer's or user's receiving the article exactly as it left the manu- facturer. But for reasons which will appear I find it unnecessary to decide whether the manufacturer incurred a duty of care to the plaintiff.

The plaintiff based his case against the retailer upon each of two conditions said to be implied under sec. 14 of the Sale of Goods Act 1895 (South Australia) which transcribes sec. 14 of the English Act. The learned Chief Justice considered that in the sale of the under- clothes, a condition was implied under this provision that they should be reasonably fit for the purpose of wearing. He held that, in requesting to be supplied with underclothes for himself, the plaintiff had made known to the seller the particular purpose for which the goods are required SO as to show that the buyer relied on the seller's skill or judgment. It is settled that the purpose for which goods are supplied may be 'particular " within the meaning of this provision although it is the sole use for which goods of that kind are adapted. The purpose need not be some special use or requirement (Preist v. Last 1 C.A. and (2) per Walton J.; Wallis V. Russell 3 ). Thus in the case of food where the supplier is commonly considered responsible for seeing to the quality, state or freshness of the article little difficulty seems to have been felt in implying a condition upon a sale by a shopkeeper or retailer that it is reasonably fit for eating or drinking (compare Frost v. Aylesbury Dairy Co. 4 Jackson v. Watson &Sons 5, per Farwell L.J.; Chaproniere V.

1(1903) 2 K.B. 148. 3(1902) 2 I.R. 585. 4(1905) 1 K.B. 608. 5(1909) 2 K.B. 193, at p. 202. 50 CLR 414

Mason 1; and Rex v. Manchester Profiteering Committee; Ex parte

Lancashire and Yorkshire Railway Co. 2, per Bankes L.J.).

50 CLR 446

the use of that new kind, commonsense and science both insist that

inquiry may easily discover the source of the new effect in some particular quality of the new element. This is not mere conjecture, it is a basis of reasonable inference.

In my judgment, therefore, the plaintiff's case is enormously strengthened by the fact that the ankle ends of the undergarments which Dr. Grant wore, still contained, after one washing in one instance, and after two washings in the other, a quantity of sodium sulphite. That quantity was, in itself, probably insufficient to prove injurious or deleterious. But the question is, what quantity of readily soluble sodium sulphite was contained in the ankle ends of the unwashed underpants when Dr. Grant wore them for the first time. Sodium sulphite, if existing "free" in the ankle ends of underpants and thereby almost bandaged to the skin and covering the shin bones, will, when there is perspiration, gradually release sulphur dioxide and the result will be that sulphurous acid, and finally sulphuric acid will be produced. All these are skin irritants.

Looking at all the circumstances, the most satisfactory evidence as to the probable extent of sodium sulphite present in the ankle ends of the undergarments, is that of Professor Hicks. He conducted an experiment upon another singlet and a pair of underpants made by the manufacturer. He placed the singlet in cold distilled water at room temperature and agitated it for two minutes only. His object was to ascertain whether any readily soluble substance was contained in the garment. He found that the aqueous extract in the singlet contained free sodium sulphite. In his opinion he definitely excluded any possibility that his results were affected by the chemical content of the wool molecule itself. It is not disputed that, if a quantity at all commensurable with the sodium sulphite he thus removed from the garment into solution, had been present in Dr. Grant's underpants, it would have been likely to cause skin irritation. Professor Hicks thought that a closely-fitting under- garment would be as effective as a bandage over the ankles and explained how the secretion of sweat would liberate the sulphur dioxide from the soluble sulphite, the sulphur dioxide would combine with the sweat to form sulphurous acid, oxygen would be extracted from the cells of the skin, and the extraction would then cause the

50 CLR 447

formation of sulphuric acid. He said that sulphur dioxide, sulphurous acid, and sulphuric acid all well known irritants, would be produced very slowly and steadily, and their noxious effect would be cumula- tive.

Professor Hicks was closely questioned about an experiment which a witness for the manufacturer, Dr. Hargreaves, had conducted, and his final opinion was that the source of the sulphur dioxide he (Hicks) obtained from the aqueous extract was free soluble sodium sulphites present in the garment, and was neither the sulphur combined in the wool molecule itself nor minute quantities of gas said by the defendant to be adherent to the wool fibre though free of the wool molecule. Professor Hicks' opinion is supported by the fact that scoured wool, treated in the same manner as he had treated the manufacturer's garment, produced no sulphur dioxide at all, although he applied the same test to both. Dr. Hargreaves' experiment was conducted upon portions of the garments. But the wool was retained in the water for a period of twelve hours and at a temperature of 125 to 130 degrees.

It was Mr. Anderson, an industrial chemist, who, at the instance of the manufacturer, analyzed portions of the plaintiff's garments. He extracted substances soluble in distilled water at blood tempera- ture. Table G represented the amount of sulphites he found, expressed in terms of sulphur dioxide. A dispute exists as to whether Anderson's evidence was intended by him to affirm the absence, or merely to suggest the possible absence, of free soluble sulphite from Dr. Grant's garments. I am satisfied that Anderson thought that the source of the sulphur dioxide he extracted from the solution was free soluble sodium sulphite and was not the wool molecule nor sulphur dioxide gas in close attachment to the wool fibre. He analyzed four samples of Dr. Grant's underwear. Sample 3 produced no sulphur dioxide at all, although samples 1, 2, and 4 did give rise to it. Mr. Cleland forcibly contended, and I agree with him, that Mr. Anderson did not mean to imply that the sulphur dioxide given off during his analysis had its source in anything but free sodium sulphite in the garment. It is impossible to suppose that a nil result would have been obtained from sample 3 if the sulphur dioxide came from the wool molecule or was present in gaseous form

50 CLR 448

in the garments. Of course Mr. Anderson considered that sulphur

dioxide might in certain circumstances derive from the wool molecule. On this point Professor Hicks is in strong disagreement with Anderson. But the question is, not whether, under special conditions such as continuous heating, the wool molecule may not be successfully broken down and the sulphur content oxidised, but whether Anderson's experiment demonstrated the presence in three of the four specimens of free sulphites. Upon this point Professor Hicks was definite and convincing. He said that the presence of sulphur dioxide as explained in Anderson's evidence, indicated the presence in the garment of free sodium sulphite, which was derived not from the wool as such but, as clearly appears otherwise, from the introduc- tion of sodium sulphite during the manufacturing process.

Until the plaintiff had concluded his case in chief, the only informa- tion which had been furnished to him by the manufacturer in reference to chemicals in the garments, was the admission joined in by the retail defendant that " the garment at the time of delivery to the retailing defendant by the manufacturing defendant contained the following chemicals-a small quantity of napthaline mentioned in answer 3, arsenious oxide, sulphur dioxide." In the course of the hearing it became evident that the only relevant irritant in the circumstances was sulphur dioxide. This was the sulphur dioxide extracted from Dr. Grant's garments by Anderson's analysis. The admission took an ambiguous form but there can be little doubt that Anderson was merely expressing in terms of sulphur dioxide the free sodium sulphite which he dissolved in water.

When the defendant's case was entered upon, their industrial chemist, Mr. Davies, described the process of manufacture. The detailed description need not be set out. But the course of manufac- ture includes, in process 3, an application of the woollen web to a mixture containing six pounds of bisulphite of soda with twenty-five gallons of water, the web being intended to run in this solution for fifteen minutes. This bisulphite of soda is thus described by Mr. Davies :-

" Process 3 calls for the use of sodium bisulphite. Here again we use more than the amount actually required, approximately twice as much. That is done deliberately to neutralize the chlorine. The excess is washed out in washings under processes 3, 4, and 5. It is very soluble with water-dissolves

50 CLR 449

It appears from the learned Chief Justice's judgment that he reached the same conclusion as to the existence of the implied condition under sec. 14 2. He rejected the claim based upon the breach of this condition, but only because he did not feel at liberty to find that the garments were not of merchantable quality. He said :-

'My difficulty is in finding on the evidence that if a reasonable man had discovered the precise quantity of sodium bisulphite in the ankle ends of the underpants he would have refused to accept them. The quantity that would irritate a normal skin is unknown, and a reasonable man might reasonably think that there could be no risk in wearing the garments because they contained a certain quantity. For these reasons I think this part of the claim It seems to me that because of his Honor's findings of fact, which

I think were correct, a different finding is required as to the existence of "merchantable quality." As his Honor found the plaintiff's skin was normal in character, the quantity of sodium bisulphite contained in the underpants at the time of sale was sufficient to irritate the normal skin. Underpants containing SO great a quantity of irritant chemical as to be likely to cause injury to the skin of a normal wearer, are not merchantable, as I think his Honor should not have hesitated to find, having in view his very definite findings as to the condition of the plaintiff and the cause of his illness and suffering.

It is also clear that the proviso to sec. 14 (2) does not apply because the defect in the garments could not have been revealed by examina- tion or inspection at the time of sale.

The damages for breach of the condition implied by sec. 14 (2) are those actually sustained and proved by the plaintiff. An illustration is the case of Morelli v. Fitch &Gibbons 1, where a verdict for £21 was recovered in respect of a bottle of wine costing only two shillings and ninepence. The matter of damages is fully discussed by Cardozo C.J. in Ryan v. Progressive Grocery Stores (2).

In the result, therefore, I agree with Murray C.J. that the facts of the case establish a case of liability in both manufacturer and retailer, and the appeal should be dismissed.

McTIERNAN J. Upon the evidence I do not think that the inference should be drawn that the dermatitis from which the plaintiff suffered was caused by a chemical irritant in the ankle ends of the

2(1931) 255 N.Y. 388. 1(1928) 2 K.B. 636. 50 CLR 450

garments which he bought from the defendant retailer; or that a

chemical irritant derived from the processes of the defendant manu- facturer was present in those garments in sufficient quantities and concentration to cause the dermatitis from which the plaintiff suffered.

I concur in the reasons given by my brother Dixon for declining to draw these inferences and I have nothing to add to them. It follows that the essential basis of fact to support the plaintiff's causes of action is lacking.

In my opinion, the appeal should be allowed.

Appeal allowed. Judgment of the Supreme Court

of South Australia dated 13th March 1933 reversed. Judgment for the defendants in the action with costs. Respondent to this appeal to pay costs of appeal. Solicitors for the appellants, Varley, Evan, Thomson &Buttrose. Solicitors for the respondent, Cleland &Teesdale Smith.