John William Suthern v Unilever Australia Ltd

JOHN WILLIAM SUTHERN v UNILEVER AUSTRALIA LTD [2007]
ACTSC 81 (28 September 2007)

NEGLIGENCE – personal injury claim – plaintiff allegedly suffered poisoning due to ingestion of mercury in ice cream – whether mercury introduced into the ice cream during manufacturing process – evidence of mercury levels in subsequent urine samples suggestive of further ingestions – whether continuing symptoms attributable to initial ingestion – no issue of principle.

Trade Practices Act 1974 (Cth), ss 53(a), 74B

Anchor Products Ltd v Hedges 26 (1966) 115 CLR 493
Schellenberg v Tunnell Holdings Pty Ltd (2000) 200 CLR 121
Jones v Dunkel (1958) 101 CLR 298

Wyong Shire Council v Shirt (1980) 146 CLR 40

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254.

Cooper & Ors v Westpac General Insurance Limited [2007] ACTCA 20 (14 September 2007)

Martindale – The Extra Pharamacopoeia, 26^th Edition (pg 1053) published in 1972

No SC 178 of 1999

Judge:  Crispin J  
Supreme Court of the ACT
Date:  28 September 2007

IN THE SUPREME COURT OF THE  )
  )  No SC 178 of 1999
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:JOHN WILLIAM SUTHERN

Plaintiff

AND:UNILEVER AUSTRALIA LIMITED

Defendant

ORDER

Judge:  Crispin J
Date:  28 September 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $10,000. 

1. The plaintiff claims damages for personal injuries allegedly sustained as a result of the ingestion of mercury contained in ice cream that he ate on 13 and 14 June 1996.

1. He gave evidence that his former wife, Mrs Pilar Gee, had bought a tub of Streets Blue Ribbon ice cream from the Cannon’s Superbarn store at Erindale in the ACT on 12 June 1996.  He opened it on the following evening and served some onto plates for himself and his two children but did not at that time notice anything unusual about the ice cream.  On the evening of 14 June, the plaintiff again served ice cream for himself and his children.  In the course of doing so, he ate two spoonfuls of ice cream taken directly from the tub.  He then noticed a silver ball in the bottom of the tub and, when he attempted to remove it, noticed it break into two smaller balls.  He then examined the ice cream and saw that there were grey streaks in the side from which he had been taking the scoops.  He also noticed tiny dots of what appeared to be mercury.

1. He spoke to his wife about what he had seen, telephoned the Poisons Information Service and then had a further conversation with a friend who was a police officer and whom he knew had undertaken a course in occupational health and safety.  In response to his advice, the plaintiff and his wife went to the Canberra Hospital where the ice cream was taken from him and x-rayed.  The police were called and the attending officers also inspected the ice cream.

1. Subsequent tests confirmed that it contained mercury.  The…