Montgomerie v Ceduna Sports Club & Anor No. DCCIV-01-1006

Montgomerie v Ceduna Sports Club & Anor
[2004] SADC 13
Judge Muecke
Civil

The plaintiff (by his mother as next friend) initially brought this action against the Ceduna Sports Club (‘the Sports Club’) claiming damages for personal injury arising out of an accident which occurred between 10.30am and 11am on Wednesday 28 April 1999. It was alleged that he consumed dishwashing liquid known as ‘Calzec’ which was located in a coffee cup on a trolley in the kitchen of the Sports Club’s premises. As a consequence he suffered horrendous internal injuries. The plaintiff alleged that his injuries were caused by the Sports Club’s negligence and/or by a breach of duty it owed to him.
The plaintiff alleged that the Sports Club was liable for his injuries because it allowed a dangerous substance, Calzec, to be left in a coffee cup within reach of small children like him.
The Sports Club joined two third parties to the action. It claimed from each a contribution to any damages which it might be required to pay the plaintiff. The first Third Party was George Weston Foods Ltd. That party, through its branch Jasol Australia, was the manufacturer and supplier of Calzec. This substance was described on the label attached to the container in which it was supplied as ‘heavy duty automatic dishwashing detergent’.
The second Third Party was Robert Allan Goodall (‘Mr Goodall’). Mr Goodall was the proprietor of a business known as Ceduna Food & Milk Distributors which was engaged in the wholesale supply of various food stuffs and cleaning equipment, including Calzec.
It was alleged against Mr Goodall that at the time he supplied Calzec to the Sports Club he provided no written or verbal warning regarding the toxic nature of the product, the risks associated with its use, or the proper procedures for its handling and storage. It was further alleged that Mr Goodall failed adequately to draw to the Sports Club’s attention the product data sheet and the material safety data sheet which he supplied to the club four days after he supplied the drum of Calzec on 13 November 1998. Furthermore, it was alleged that Mr Goodall failed to advise the Sports Club of the importance of the use of Jasol electronic dosing equipment for the safe use, handling and storage of Calzec and he failed to give to the club a brochure evidencing typical Jasol dispensing equipment at the time of supplying Calzec to it, or at any time thereafter.
By the time the action came on for trial the plaintiff had joined Mr Goodall as a second defendant to his action and had alleged that Mr Goodall was liable directly to him for his injuries. George Weston Foods Ltd (Jasol Australia) had had judgment entered in its favour against the Sports Club on its third party claim with no order as to costs. Accordingly, the manufacturer and supplier of Calzec was not a party to these proceedings. I was asked to consider the Sports Club’s third party claim against Mr Goodall as if it were a Contribution Notice. Mr Goodall eventually filed a Contribution Notice against the Sports Club.
At the time the plaintiff suffered his injuries he was 15 months old. He was five years old at the time of trial. The questions I was called upon to resolve at trial were whether either the Sports Club or Mr Goodall were liable for the plaintiff’s injuries and, if both were liable, to apportion responsibility between them. I do not have to resolve any questions as to the amount of the plaintiff’s damages, even on an interim basis.
Counsel for the Sports Club told me after the evidence had concluded and immediately before I heard addresses that it would not be part of the submissions on behalf of the Sports Club to convince me that the club was not liable for the plaintiff’s injuries. On the evidence and on my ultimate conclusions that was a correct and proper position for the Sports Club and its counsel to take.
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In early 1997 Jasol Australia was looking to expand the market for its cleaning products in the Ceduna area of South Australia. At that time Mr Goodall had operated a food and milk distribution business in the area. He distributed a small line of cleaning products. In May 1997 Mr Goodall applied to Jasol Australia to become its selling agent in the Ceduna area. He discussed this application with Andrew deHaan (‘Mr deHaan’), an employee of Jasol Australia in Adelaide. Mr Goodall was appointed as a reseller of Jasol Australia products. Those products included the heavy duty automatic dishwashing detergent Calzec.
On about 16 May 1997 Mr Goodall received his first shipment of Jasol Australia products. They were delivered to his business premises, which included storage facilities, at Ceduna. A variety of products were delivered on two pallets. Calzec was not a product that was delivered to Mr Goodall at that time.
Some time later, and separate from the first delivery of Jasol Australia products, Mr Goodall was supplied by Jasol Australia with volumes containing Product Data Sheets and Material Safety Data Sheets for a range of Jasol Australia products, including Calzec.
Between May 1997 and August 1997 Mr deHaan visited Mr Goodall at Ceduna. The purpose of the visit was for Mr deHaan and Mr Goodall to ‘cold call’ a number of potential buyers of Jasol Australia cleaning products through their newly appointed reseller, Mr Goodall. The two men made a number of cold calls in the Ceduna area. When he returned to Adelaide Mr deHaan sent to Mr Goodall a number of Contract Price Quotations for the potential customers they had visited (Exhibit 2D15). Calzec was on the quotations provided to Mr Goodall for the Shell Roadhouse, Mozie’s Truck Stop, and the Ceduna Hospital. There was no quotation for the Highway One Roadhouse & Motel (‘BP Highway One’).
BP Highway One was, however, using Calzec. It had been supplied to its proprietors by Jasol Australia via a source other than Mr Goodall. Mr deHaan and Mr Goodall together visited BP Highway One during the ‘cold call’ visit. I find that Mr deHaan did not at that visit instruct Mr Goodall as to the use of Calzec and, in particular, he did not inform Mr Goodall that automatic dispensing equipment for Calzec was an integral part of its use in automatic dishwashing machines. However, during that visit Mr Goodall became aware that Calzec was used in the automatic dishwasher at BP Highway One via an automatic dispensing unit. Whilst it is clear that the BP Highway One was using Calzec, the state of the evidence is such that I am not able to find that it used Calzec in conjunction with another Jasol Australia product Spot Aid, which product was designed for use during the rinse cycle in automatic dishwashing machines.
The automatic dishwashing machine and the electronic dispensing unit for Calzec at BP Highway One are seen in Exhibit P13. Although the electronic dispensing unit in some of the photographs of that exhibit is not the one that was at BP Highway One in the middle of 1997, the one that was there at that time was similar in appearance and operation to the one in the photographs. In photograph numbered 1 of Exhibit P13 there appears a drum of Calzec underneath the sinks adjacent to the dishwasher. Next to that drum may be a drum of Spot Aid. The electronic dispensing unit operates to dispense Calzec (and possibly Spot Aid during the rinse cycle) to the dishwasher during its washing cycle. The material is dispensed directly from the Calzec drum, presumably through a tube which is fitted into the lid of the drum. The drum of Calzec does not have to be handled by anyone during the operation of the dishwasher because its contents are injected electronically directly within the dishwasher during its washing cycle. The liquid Calzec in its concentrated form is, therefore, unlikely to come into contact with the operator of the dishwasher. I find that at no time did Mr deHaan inform Mr Goodall that Calzec must or should only be used in automatic dishwashing machines via electronic dispensing equipment.
There was conflicting evidence between Mr deHaan and Mr Goodall as to what Mr deHaan told Mr Goodall about the willingness of Jasol Australia to supply and/or fit electronic dispensing equipment in the premises of any new customers Mr Goodall might establish for Jasol Australia products which could utilise electronic dispensing equipment. I am satisfied and find that Mr deHaan and Mr Goodall spoke of special arrangements in that regard only in relation to the Ceduna Hospital. I find that Mr deHaan told Mr Goodall that in respect of that prospective customer Jasol Australia would supply and fit electronic dispensing equipment at the hospital at no charge. The hospital could use that equipment so long as it purchased Jasol Australia products. If it ceased to do so then Jasol Australia would retrieve the electronic dispensing equipment. I find that Mr deHaan did not indicate to Mr Goodall that similar arrangements were available for any other potential customer. For all other new customers the electronic dispensing equipment would be provided by Jasol Australia on the same terms as any other of its products. It would need to be purchased and fitted by the new customer at its cost.
Following the visit of Mr deHaan and Mr Goodall to BP Highway One Mr Goodall commenced supplying Calzec to BP Highway One. He first supplied Calzec there in August 1997. On 22 August 1997 he was invoiced by Jasol Australia for two drums of Calzec. He provided one drum to BP Highway One. He kept the other in his storage facility so that he had it in stock to supply either to a new customer or to BP Highway One when a replacement drum was requested. I find that up to November 1998 Mr Goodall supplied drums of Calzec only to BP Highway One at Ceduna. I find that he would order a further drum when he gave the drum in stock to BP Highway One when a replacement drum was required. Mr Goodall had supplied BP Highway One with six 25 litre drums of Calzec prior to 29 October 1998. I find that as at 13 November 1998 Mr Goodall had in his storage facility one 25 litre drum of Calzec. I find that he had ordered that drum on 29 October 1998 to replace a drum he had given to BP Highway One just before then.
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Jasol Australia manufactures Calzec and distributes it in 25 litre heavy plastic drums. Exhibit P6 is such a drum. A drum of Calzec is distributed by Jasol Australia with the label which appears on Exhibit P6. The label has not relevantly changed since 1997.
Exhibit P6 has a dispensing tap screwed into a thread in a recessed hole near the base and at the front of the drum (if the front is taken to be the face of the drum on which the label is affixed). I find that Jasol Australia do not distribute drums of Calzec with such a plastic tap fitted. Furthermore, I find that when distributed with Calzec in them the drums have a plastic barrier at the bottom of the round threaded recess to prevent the contents of the drum from being extracted through a plastic tap such as that which is on Exhibit P6. I find that drums of Calzec distributed by Jasol Australia are designed and made that way because that is a legal requirement for containers containing a substance such as Calzec.
I find that the drums of Calzec supplied by Jasol Australia to Mr Goodall were identical to Exhibit P6 without the plastic tap that is now fitted to Exhibit P6. If that tap is screwed out of Exhibit P6 a plastic barrier which would prevent any contents of the drum from spilling out of it can be seen. There does appear, however, to be some circular plastic moulding in the centre of the plastic barrier.
I find that the label on the drum of Calzec supplied to the Sports Club by Mr Goodall in November 1998 and the drum of Calzec that was within the kitchen of the Sports Club on the day of the plaintiff’s injuries appeared as follows:
I find that any person seeing the graphic on the left-hand side of the label would infer that the contents would burn a human hand and a metal bar.
A Product Data Sheet (Exhibit P6C) prepared and supplied by Jasol Australia for Calzec as at November 1998 and April 1999 indicated that features of Calzec included concentrated formula, suited for extreme hard water conditions, and low foaming. The areas of use indicated were hotels and motels, taverns, clubs, restaurants, licensed premises, hospitals, domestic use, and cafeterias and canteens. The Product Data Sheet described Calzec as ‘a liquid detergent formulation suitable for use in automatic dishwashing machines. CALZEC is a clear mobile liquid, pH 12.5’. Under the heading ‘RECOMMENDED USES’ the Product Data Sheet stated:
CALZEC is made specifically for use in dishwashing machines. It must not be used for washing dishes by hand.
CALZEC should be dispensed through Jasol electronic dosing equipment for maximum use cost benefits and optimum results.
CALZEC should be added to machines at a rate of 1-3 ml per litre of water used depending on soil load and water hardness. For best results CALZEC should be used in conjunction with Jasol SPOT AID.
Consult your Jasol Representative for further technical information.
Under the heading ‘SAFETY INFORMATION’ the Product Data Sheet stated:
CALZEC is a caustic alkaline substance. Avoid contact with skin and eyes. The following First Aid procedures apply:
If poisoning occurs, contact a doctor or Poisons Information Centre.
If in eyes, hold eyes open and flood with water for at least 15 minutes.
If swallowed, do not induce vomiting. Give water to drink and seek medical attention.
A Material Safety Data Sheet (Exhibit P6B) prepared and supplied by Jasol Australia for Calzec as at November 1998 and April 1999 identified Calzec as automatic machine dishwashing detergent with its appearance and odour described as ‘straw coloured mobile liquid’. Under the heading ‘HEALTH HAZARD INFORMATION’ the following was stated :
EFFECTS OF OVEREXPOSURE
EYE:                 Severe irritant, may cause permanent injury.
SKIN:                 Alkaline material, may cause severe skin burns.
INHALATION                :                 Respiratory irritant, can cause irritation to mucous membranes in throat and nose.
INGESTION  :                 Harmful by ingestion. Will cause irritation and burns to throat and mouth with severe abdominal pain.
CHRONIC:                 Irritant dermatitis may result from frequent skin contact with the material. Low systemic toxicity.
FIRST AID
EYE:                 Hold eyes open and flood with running water for at least 15 minutes, bathe eyes with soothing eyedrops or sterile saline, seek medical attention.
SKIN:                 Remove all contaminated clothing and wash affected area with plenty of water.
INHALATION                :                 Remove to fresh air.
INGESTION:                  :                 Do not induce vomiting. Give water to drink. Seek immediate medical attention.
ADVICE TO DOCTOR :                 Treat symptomatically and as for strongly alkaline corrosive material.
Under the heading ‘PERSONAL PRECAUTIONS DURING USE’ the following was indicated:
GLOVES:                 PVC or rubber gloves recommended.
EYES:                 Approved goggles or faceshield.
OTHER:                 As necessary to prevent skin contact.
VENTILATION              :                 Use with adequate ventilation.
Under the heading ‘SAFE HANDLING INFORMATION’ were the following:
STORAGE AND TRANSPORT : Store away from acids, foodstuffs and organic materials. Normal good handling and storage procedures apply.
SPILLS AND DISPOSAL : Spillages are slippery. Neutralise with dilute acid and flushed to drain with copious amounts of water.
I find that each of the label, the Product Data Sheet, and the Material Safety Data Sheet I have described above were read by Mr Goodall before November 1998. I find that by reading the label and the documents referred to Mr Goodall knew that Calzec was a highly caustic and corrosive substance. He knew that it was poisonous and must be kept out of the reach of children. He knew that swallowing it would be harmful and would at least cause burns to the throat and mouth with severe abdominal pain. He knew that the product would be likely to cause severe burns to skin upon direct contact with skin. He knew that if one exposed the product such that there was a risk of it contacting eyes and skin, PVC or rubber gloves and goggles must be worn. He knew that the product should be stored separate from acids, foodstuffs and organic materials.
I find that Mr Goodall knew these things and that any person reading the label and the two documents would have been aware of them. No special expertise or experience would be required to so understand the information contained in the label and material provided by Jasol Australia.
That material, however, did not state that Calzec must not, or even should not, be used in an automatic dishwashing machine other than by it being injected or dosed electronically into the machine thereby obviating human handling of the product and the drum in which it was supplied. The Product Data Sheet refers to dispensing Calzec under ‘Recommended Uses’. It is there stated: ‘CALZEC should be dispensed through Jasol electronic dosing equipment for maximum use cost benefits and optimum results’. There is also reference to the rate at which Calzec should be added to machines and a direction to consult a Jasol Representative for further technical information.
I have earlier found that Mr deHaan did not tell Mr Goodall that Calzec must not be or should not be used other than by electronic dosing equipment and insofar as Mr deHaan’s evidence was to the effect that he did, I reject it. I accept Mr Goodall’s evidence on this issue. Moreover, I consider that Jasol Australia’s documentary material does not state that Calzec must or should only be used by utilising electronic dosing equipment. Jasol Australia’s recommendation that Calzec should be dispensed through such equipment is couched in terms that would lead a reasonable reader to infer that that recommendation is made to achieve optimum results in washing dishes and to avoid unnecessary costs which might be occasioned by using more of the product than was necessary. This recommendation, together with the inclusion of ‘domestic use’ within the areas of use on the Product Data Sheet, would suggest to the reasonable reader that, despite its dangerous properties, Calzec could be used for the automatic washing of dishes in commercial and domestic settings without using electronic dosing or dispensing equipment.
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The Sports Club was the home of the Blue’s Football Club, the Ceduna Netball Club, the Ceduna Cricket Club, and the Denial Bay Tennis Club. The Sports Club comprised club premises, an oval on which football and cricket were played, and some tennis/netball courts. The oval and courts are adjacent to the club premises. Those premises were licensed premises. Within the premises was a bar with an adjacent room in which functions were held and meals were consumed. Adjacent to the bar and the function/dining room was a food service area which was divided from the kitchen by a counter which was used to serve meals for consumption within the function/dining room. Access to the kitchen from the food service area was through a door adjacent to the counter. Through some double doors from the food service area was a covered area from which football and cricket on the oval could be viewed.
Behind the bar there was a cold room and a storage area. There was what was described in the evidence as a stainless steel door leading from the storage area, through a service yard, and then through gates into an area closer to the tennis/netball courts to the south of the club premises. Also on the southern part of the club premises was a viewing area overlooking the tennis/netball courts with double doors leading to a porch. To the north of that viewing area were change rooms and toilets for use by those participating in sports and by those visiting the Sports Club. There were other double doors leading from outside on the western side of the premises into the function/dining area adjacent to the bar.

The kitchen was a quite large area on the eastern side of the club premises adjacent to the southern end of the oval. In the eastern wall of the kitchen was a roller‑shutter of some considerable length. On match days that roller‑shutter would be opened and spectators and other visitors to the complex comprising the Sports Club would be served food and drinks over a counter exposed by the roller‑shutter.
In the first half of 1998 building additions and renovations were made to the Sports Club. The work included renovations to the kitchen. I find that the additions and renovations were completed in about the middle of 1998. I find that the kitchen was fitted out with new equipment. That equipment included a refrigerator with three glass doors, a new oven range, an exhaust system for the cooking area, a bain marie for the counter‑top, a grillplate and a fryer (Exhibit 1D20). The kitchen in its renovated state containing the items just referred to is seen in Exhibit P3, photographs 7, 8, 10, 12, 13, 15 (in foreground), and 23; Exhibit P4, photographs 1, 5 (in background), 7, 8, 9, 13 (in background), 17, and 18; and Exhibit P11, photographs 2, 5, and 6. Seen in a number of those photographs is a Cadbury ice cream refrigerator. I find that that item was in the kitchen from the time of the renovations until the plaintiff’s accident in April 1999. Hand‑held ice creams and other iced confectionery were stored in that refrigerator.
I find that a new Eswood dishwasher was installed in the renovated kitchen in about the middle of 1998. That was purchased by the Sports Club at a cost of $5,200 (Exhibit 1D20). That dishwasher is seen in Exhibit P3, photographs 7, 18, 19, and 20 (interior of dishwasher); and Exhibit P4, photographs 1, 7, 8, and 10. I find that this automatic dishwashing machine was installed in the position in which it is seen in photograph 1 of Exhibit P4. I find that it was installed there at or about the same time as the sinks and steel benches that are seen in that same photograph between the dishwasher and the window. I find that the steel bench that is seen in the same photograph between the dishwasher and the ceramic sink by the entrance to the kitchen was not placed in the position seen in the photograph until some unknown time after the plaintiff’s accident in April 1999. I find that from the time the dishwasher was installed until some unknown time after the plaintiff’s accident in April 1999 there was positioned between the dishwasher and the ceramic sink a bench cabinet identical to the item depicted in photograph 2 of Exhibit P4, if it was not that exact bench cabinet. I find that such a cabinet was positioned between the dishwasher and the ceramic sink such that the shorter end of the cabinet was parallel to and adjacent to the wall between the dishwasher and the ceramic sink. In such a position the bench cabinet protruded into the kitchen past the front of the dishwasher.
I consider that the witnesses who spoke of a similar bench cabinet between the dishwasher and the window at the time of the plaintiff’s accident in April 1999 were mistaken. Exhibit 1D20 refers to ‘S/STEEL BENCHES’ although no monetary sum is adjacent to that item. I consider, however, that it is more likely that the steel sink and benches underneath the window were installed at or about the time of the renovations and the installation of the dishwasher.
Mr Mark Preece (‘Mr Preece’) became the manager of the Sports Club in September 1997. He said that the Sports Club was open Monday to Friday from 5pm to 12 midnight. On Saturdays it was open between 11am and midnight except for the third Saturday of each month when it was open until 2am in the morning. On Sundays it was open between 12 noon and 9pm. Mr Preece said that Maxine Ettridge cleaned the club premises, including the kitchen. She mainly cleaned on Saturday, Sunday and Monday mornings. Mr Preece cleaned at other times. I find that Mrs Ettridge’s cleaning duties did not include washing utensils used for cooking or utensils used for meals served at the Sports Club.
The preparation and serving of meals and snacks through the roller‑shutter on match or game days was performed by volunteer labour. I gathered that most of this was done by wives and girlfriends of the footballers and cricketers and by the women who played netball and/or tennis at the Sports Club. I also infer and find that, like most sports clubs similar to the Sports Club, there were female members of the club who were willing and/or happy to volunteer their time and skills to the functioning of the Sports Club, and in particular to the operation of its kitchen and catering facilities. I find that it was quite a regular occurrence during the life of the Sports Club that such women would include those who prepared cakes and other items at their homes to be brought to the Sports Club for morning or afternoon teas to be served to spectators and other visitors during sporting functions. I find that also occurred when working bees were held a few times each year. I find that these working bees occurred mostly between the seasons of the different sports. They involved members of the club and their families attending at the Sports Club for a day or part of a day to clean up the complex comprising the Sports Club and to perform other jobs to prepare the facilities for a new sporting season. On these occasions female members of the club and others would bring food for morning and afternoon teas and for lunch.
When food was brought into the Sports Club on the occasions to which I have just referred, or was otherwise prepared in and served from the kitchen, the women bringing food and preparing or serving it had and exercised free access to the kitchen. For that purpose there were two access points to the kitchen. One was an open area between the kitchen and the storage area behind the bar. It is seen in Exhibit P4, in photographs 1, 5, 7, 8 (on the far right of photograph), 13; and Exhibit P11 in photographs 2 and 4 (on the far right of photograph). That archway could be accessed from the rear stainless steel door (Exhibit P3, photographs 3 and 4) and from a door which led into an area adjacent to the bar and the function/dining area (Exhibit P11, photograph 1). The other entrance to the kitchen was through a door from the food service area from which access could be obtained from outside near the oval. It is seen in Exhibit P3, photograph 14 (on the far right of photograph); Exhibit P4, photographs 9, 15, 16 (through outside windows) and 18; and Exhibit P11, photographs 5 and 6. There was no door adjacent to the roller shutter as drawn in Exhibit P9.
The women who had, and exercised, access to the kitchen in the way I have described included young mothers. I find that not only was there free access to the kitchen for women whom I have described that used the kitchen, but that access to the kitchen was habitually exercised by their young children and the young children of others. Those young children ranged in ages between infants in pushers upwards. I find that young children of all ages would access the kitchen from time to time either with their mothers or to look for their mothers. I find that on other occasions children would access the kitchen to help themselves to ice creams and other confectionery that were stored and known to be stored in the Cadbury ice cream refrigerator adjacent to the archway leading into the kitchen from the storage area behind the bar.
I find that all of the matters to which I have just referred were known to those responsible for managing the Sports Club between July 1997 and April 1999 inclusive. I reject Mr Preece’s evidence that he had instigated a regime (including signage) of prohibiting or discouraging children from accessing the kitchen.
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Mr Preece was the manager of the Sports Club when the Eswood dishwasher was purchased and installed in the kitchen at the club. Mr Preece said that he was the principal user of the dishwasher after its installation. He first said that whomever worked in the kitchen would use the dishwasher. His evidence later was that there was only one other person to his knowledge who used it and that was Paula Vorstenbosch (‘Ms Vorstenbosch’). Mr Preece could not recall whether he ever read any brochures or literature or anything regarding the proper operation of the dishwasher before he started to operate it. He described how he would operate it and he said that he initially used ordinary dishwashing detergent. By that I took him to mean that he used what might be described as household dishwashing liquid detergent one would use in a kitchen sink when washing up dishes after a meal at home.
Mr Preece said that he found that the dishwasher created an enormous amount of suds that caused a mess. He also described difficulties he had with the machine breaking down from time to time.
Mr Preece said that he telephoned Mr Goodall to see if he could supply some sudless detergent for their relatively new automatic dishwashing machine. Mr Preece’s and Mr Goodall’s evidence differed as to precisely what was said between the two men and the context in which the phone call was made by Mr Preece to Mr Goodall. I prefer the evidence of Mr Goodall. I consider that his evidence is more reliable than that of Mr Preece. Mr Goodall was a far more impressive witness than Mr Preece. I considered that much of the latter’s evidence as to detail was not given from a recall of the events. His evidence on many important topics was often inconsistent and unconvincing.
I find that Mr Preece telephoned Mr Goodall at Mr Goodall’s home at about 7pm on the evening of Friday 13 November 1998. Mr Preece explained to Mr Goodall that there was a social function being held at the Sports Club, there was a pile of dishes ready to be washed and that he needed some dishwashing machine detergent. He asked Mr Goodall if he had any. Mr Goodall informed Mr Preece that he did not have any powder or tablets for dishwashing machines but that he did have some liquid detergent used for manual dishwashing and some detergent in liquid form for use through a dishwashing machine dispenser. He told Mr Preece that that was Calzec and that he supplied that to BP Highway One which business used it through an automatic dispenser. Mr Preece told Mr Goodall that he did not want the dishwashing liquid for manual dishwashing but he would buy the Calzec which he would pour into the tray of the club’s dishwashing machine.
I find that the two men made arrangements to and did meet at Mr Goodall’s depot so that Mr Preece could collect the Calzec. I find that Mr Preece collected a 25 litre drum of Calzec from Mr Goodall and that the drum was identical to Exhibit P6. In particular I find that it bore the label that Exhibit P6 bears but that it did not have the tap which is fitted near the base of Exhibit P6. I find that Mr Goodall did not ever supply such a tap to Mr Preece.
I am satisfied that Mr Goodall was not particularly happy about having to leave his home in the evening after a week at work to supply Mr Preece with the drum of Calzec. I am satisfied that it was Mr Goodall’s normal practice to provide such Product Data Sheets and Material Safety Data Sheets as he had for each product he supplied to customers at the time of the supply. That did not happen on the evening that he gave Mr Preece the drum of Calzec. I find that was because Mr Goodall simply overlooked doing so. I do not consider that the fact that he overlooked it had anything to do with his irritation at having to come out at night to supply Mr Preece with the drum. Insofar as it may be relevant I reject Mr Preece’s evidence about the dirty condition of the drum given to him by Mr Goodall. I find that the drum Mr Goodall gave to Mr Preece had been at his depot for no more than two weeks.
I find that on Monday 16 November 1998 Mr Goodall asked his wife, who looked after the administrative side of the business, to invoice the Sports Club for the drum of Calzec. At that time he recalled that he had not given product information to Mr Preece and he asked that a copy of the Product Data Sheet and Material Safety Data Sheet in respect of Calzec be sent to the Sports Club with the invoice for the drum. I find that that occurred on the next day, Tuesday 17 November 1998. I find that an invoice for the drum of Calzec was sent to the Sports Club together with a copy of the Product Data Sheet (Exhibit P6C) and the Material Safety Data Sheet (Exhibit P6B).
I am satisfied and find that the invoice and product information was received by the Sports Club within the next day or two and, in particular, that Mr Preece opened the envelope containing those documents and that he saw what was within the envelope. Mr Preece’s evidence was that all correspondence addressed to the Sports Club was opened by him and that he arranged for appropriate responses from appropriate people to all correspondence received by the club. I find that he arranged for the invoice to be paid and that it was paid. I find that Mr Preece knew that the other documents contained information regarding the product Calzec he had obtained from Mr Goodall the week before. I am unable to find what Mr Preece did with these documents.
Mr Preece gave evidence that after he obtained the Calzec he used it in the automatic dishwashing machine in the kitchen of the Sports Club. He said that there was a tap on the drum when he received it. He said that the drum was kept in the kitchen underneath a stainless steel draining area by the kitchen sinks under the window in photograph 1 of Exhibit P4. He said that the drum was kept upright where a blue and green plastic tray is seen in that photograph. It was kept there with the tap on the drum facing away from the wall. He said that where he anticipated the dishwasher would be required for use later on any particular day he would ‘prime’ the machine with Calzec. He would use a green coffee cup which was kept next to the drum of Calzec. He would put some detergent in that cup using the tap at the bottom of the Calzec drum. He would then pour the Calzec from the coffee cup into the water that he had already put in the interior tray area which can been seen in photograph 10 of Exhibit P4 and in photograph 20 of Exhibit P3. He would then put the upturned coffee cup in the machine by itself. He would then turn the machine on so that it went through two cycles. (At one point of his evidence he said he did this to thoroughly clean the coffee cup. He was not asked why he needed to do this if it contained residue of what he thought was ordinary dishwashing detergent.) Thereafter the machine might be used once or many times through a cycle each time to wash the dishes that required washing that day. He said he would not add further detergent after the priming manoeuvre to which I have referred. Ms Vorstenbosch said that she used a similar operation although her practice differed slightly from Mr Preece’s as to when it was that she added the detergent. She described the coffee cup as a white coffee cup and she said it was washed with the first load of dishes. I find it was a white coffee cup similar to the one seen in Exhibit photograph 3 of Exhibit P4. I reject Mr Preece’s evidence that it was green.
Mr Preece said that at some time (before the plaintiff’s accident) the tap became difficult to turn and when that happened, rather than using the tap to put detergent in the cup, he then took the black lid off the top of the drum and poured detergent into the cup directly from the top of the drum of Calzec. He must have put detergent into the cup in this way when the drum was nearly full as he said that very little of the drum of Calzec had been used by the time of the plaintiff’s accident. Otherwise the procedure was the same as before the tap became difficult to turn.
Mr Preece said that he still experienced difficulty with the operation of the dishwasher after he commenced using Calzec. He said a member of the Sports Club who was a plumber had looked at the machine from time to time to try and resolve the difficulties they were experiencing with the operation of the machine.
It appears that the machine broke down again just before the plaintiff’s accident on Wednesday 28 April 1999.
Ms Vorstenbosch said in evidence that when she attempted to use the machine on the last occasion before the plaintiff’s accident she was not aware that it was not operating. She became aware of that after she had put some Calzec into a white coffee cup and after she had poured the Calzec from the coffee cup into the well of the machine. When she then realised that the machine was not operating she put the unwashed coffee cup back to where it was normally stored adjacent to the drum of Calzec underneath the sink or on a shelf above or adjacent to the dishwasher.
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A short time before Wednesday 28 April 1999 Mrs Ettridge was asked by the Sports Club to clean the windows of the club’s premises. The cricket season had just finished and the football season was about to commence. To assist her with that job Mrs Ettridge sought help from her daughter Paula and from the plaintiff’s mother Mrs Montgomerie. Mrs Ettridge asked Mrs Montgomerie on the morning of the plaintiff’s accident. Mrs Montgomerie was not expecting or planning to do cleaning duties at the Sports Club that morning, but she agreed to do so when asked by Mrs Ettridge. She had the plaintiff with her. I am satisfied and find that the management of the Sports Club knew that Mrs Ettridge had in the past, and may in the future, co‑opt others to assist her in her cleaning duties at the Sports Club.
I find that on the morning of Wednesday 28 April 1999 the plaintiff was left asleep in Mrs Montgomerie’s car adjacent to where Mrs Montgomerie was cleaning windows of the club’s premises. Mrs Ettridge and her daughter were performing similar duties in other areas of the premises. The three women finished cleaning the windows at about 11 o’clock that morning. They had been there for about an hour. At the time they finished the plaintiff woke up. As the three women were finishing up and putting their cleaning equipment away the plaintiff followed his mother into the club’s premises.
Moments later the three women heard the plaintiff screaming. I find that they went into the kitchen and saw the plaintiff standing near the bench cabinet next to the dishwashing machine. The plaintiff was frothing at the mouth and was highly distressed. I find that each of the three women saw a white coffee cup on some part of the bench cabinet. They each saw a drum which appeared similar to Exhibit P6 in some place on the same bench cabinet.
It was fortunate that the Ceduna Hospital was across the road from the Sports Club. I find that Mrs Montgomerie immediately took the plaintiff across the road to the hospital. I find that Mrs Ettridge telephoned the hospital at that time and read parts of the label on the drum that was in the kitchen in the area of the dishwasher. The plaintiff was treated at the Ceduna Hospital and then shortly after flown by air ambulance to the Women’s and Children’s Hospital in Adelaide.
Mrs Ettridge said that she read from the label which appeared to be the same as the label on Exhibit P6. Mrs Ettridge also said that at some time shortly after the initial screams were heard she put two fingers into the coffee cup and into the liquid she said was within it. She put those two fingers to her mouth and nose and touched her nose and upper lip. Shortly afterwards she experienced a burning sensation on her nose, upper lip and fingers. Those areas blistered soon after and she experienced pain in each area. Those effects took some weeks to resolve. I accept Mrs Ettridge’s evidence as to all of these matters and find that all of these events occurred. Mrs Ettridge was an impressive witness whose evidence was honest and reliable.

Not long after the events of that day Mrs Ettridge was asked by the Women’s and Children’s Hospital if she could inform them in detail of what she had seen and read on the drum of Calzec. Mrs Ettridge intended to return to the Sports Club so that she could remind herself of these matters and inform the hospital of them, but in the meantime she spoke to Mr Goodall’s wife and Mr Goodall’s wife arranged to send directly to the Women’s and Children’s Hospital the Product Data Sheet and the Material Data Safety Sheet for Calzec. I find that that occurred, at least in part.
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In his Statement of Claim the plaintiff alleged that between 10.30am and 11am on Wednesday 28 April 1999 he consumed dishwashing liquid known as Calzec which was located on a trolley in a coffee cup. He alleged that the trolley was located in the kitchen of the Sports Club.
No-one saw the plaintiff drink anything. What was described in the evidence was that a white coffee cup was seen on the bench trolley by the three women that were cleaning the windows on the day of the plaintiff’s accident. Each described a drum of Calzec in the vicinity, although each gave slightly different evidence as to precisely where it was when they saw it. That is understandable in the circumstances that confronted them. There is no doubt in my mind that the drum of Calzec was normally stored in the area adjacent to the dishwasher. There is direct evidence from one witness who used the dishwasher that she had, at about the time immediately prior to the plaintiff’s accident, left an unwashed coffee cup into which and from which she had poured Calzec in the area of and adjacent to the drum of Calzec. Whether there was some Calzec left in the bottom of the coffee cup on that occasion is not something upon which I need to make a positive finding. It may be unfair to Ms Vorstenbosch to do so. But she having done what she described it is reasonable to postulate that someone who intended to use the dishwasher without realising that it was inoperable did the same as Ms Vorstenbosch but did not empty the coffee cup of Calzec when that person discovered the dishwasher would not work, and left it on the trolley.
These circumstances lead inevitably to my finding that the plaintiff drank some Calzec from a white coffee cup which was left on or within the counter trolley next to the dishwasher. The cup would have been at a level that was easily reached by a child of the plaintiff’s then age. I was impressed by a remark made by Mrs Ettridge in her evidence that it may have attracted a young boy who had just awoken and was thirsty. I find that the plaintiff drank some Calzec from the white coffee cup in the circumstances I have described. The effects on him were those that Calzec would, on the evidence, be expected to cause. There was evidence that some other chemicals that might cause such symptoms were within the premises of the Sports Club. One example was a substance called Bracton which was used to clean the club’s beer lines in the area of the bar. There is no evidence, however, that that chemical was ever in the vicinity of the dishwasher in the kitchen. Moreover, it was the coffee cup which the evidence established was used by those who used the dishwasher to transfer Calzec from its container to the dishwasher that was seen by three witnesses near where the plaintiff was found screaming. Accordingly, I find that the plaintiff drank Calzec that morning and suffered the horrendous consequences that followed.
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I now refer to some evidence of Mr Preece which is particularly important in respect of liability of the Sports Club to the plaintiff, the liability of Mr Goodall to the plaintiff, and any apportionment of responsibility as between the Sports Club and Mr Goodall.
Mr Preece said that he never read the label on the drum of Calzec prior to the plaintiff’s accident on 28 April 1999 although his evidence was that he remembered there being a label on the Calzec drum. He said he paid no particular attention to the label at all and he took no safety precautions in relation to the dishwashing liquid prior to the plaintiff’s accident. Mr Preece also said that he did not see the Product Data Sheet (Exhibit P6C) or the Material Safety Data Sheet (Exhibit P6B) before the trial. I reject that evidence. I find that he had seen that product information at the time it was sent to him by Mrs Goodall a few days after he had obtained the drum of Calzec from Mr Goodall. I find, however, that Mr Preece did not read either of those documents prior or subsequent to the plaintiff’s accident.
Mr Preece said in evidence that he could not recall reading the label on the drum of Calzec after the plaintiff’s accident. He gave evidence about obtaining the two charts (Exhibits P7 and P8) which were attached to the steel cabinets in which all cleaning equipment was stored after the plaintiff’s accident. He initially said that those two charts were obtained by the Sports Club and affixed to those steel cabinets. Later in his evidence he suggested that a chart similar to Exhibit P8 was obtained after the plaintiff’s accident but that it did not refer to Calzec or Bracton DP1 in a box to the left of that chart. I reject that evidence. I consider that Mr Preece made up that evidence at the time that he gave it. I find that the two charts, Exhibits P7 and P8, were received by the Sports Club after the plaintiff’s accident and were attached to the steel cabinets. I find that Mr Preece did not read either of the two charts.
Both Mr Preece and Ms Vorstenbosch gave evidence that after the plaintiff’s accident they continued to use Calzec and they used it in precisely the same way as they had previously. The only exception was that subsequent to the accident the drum was stored in a steel cabinet outside the kitchen. Mr Preece agreed that that necessitated his decanting the liquid into a coffee cup outside the kitchen and transporting it in the coffee cup to the dishwasher within the kitchen so that it could be poured into the well of the machine. Ms Vorstenbosch said she also did this. No protective equipment was obtained or used. It is significant that not only did the Sports Club continue to use Calzec after the accident but they continued to use it in the same manner in which they had used it prior to the plaintiff’s accident.
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The act which was the immediate cause of the plaintiff’s injuries was the leaving of a coffee cup containing Calzec in an area of the Sports Club’s premises where it was known or should have been known that very young children might be. I have no doubt that that act was a negligent act for which the Sports Club is liable for any injuries suffered by the plaintiff who drank the Calzec from the coffee cup. The Sports Club owed a duty to anyone who may be in the kitchen of its premises, including the plaintiff, to guard against foreseeable risks of injury to them. The drum of Calzec and the coffee cup were stored adjacent to the dishwasher and were accessible to anyone in the kitchen. The manager of the Sports Club and at least one other person used the coffee cup to transfer Calzec from the drum to the dishwasher. It was foreseeable that someone might leave Calzec in such a cup where the cup and its contents were easily accessible to others in the kitchen, or to those who had access to the kitchen.
I find that Mr Preece, as manager of the Sports Club, knew or should have known that Calzec was a dangerous chemical which had to be kept out of the reach of children, and that it would cause serious damage to anyone swallowing it and handling it manually without PVC gloves and goggles. Warnings to this effect were abundantly clear on both the label and the Product Data Sheet and the Material Safety Data Sheet.
I have no doubt that the Sports Club is liable to the plaintiff for the injuries that I find were caused to him when he drank some Calzec from the coffee cup in the kitchen of the Sports Club’s premises.
Distributors (and manufacturers) of inherently dangerous products owe a duty to give an adequate warning to people into whose hands the product may come of the dangerous qualities of the product. Mr Goodall was therefore under a duty to the plaintiff to give such a warning. It was not necessary that he give that warning directly to the plaintiff. I find that he could not have done so. The nature and extent of the warning which is required to be given by Mr Goodall in this case in order to discharge his duty to the plaintiff will depend upon the degree of risk involved in the use of the product and the circumstances of its distribution (see generally, Anderson v City of Enfield (1983) 34 SASR 472).
There is no doubt that Mr Goodall can give warnings by means of a label on the products of Jasol Australia he distributed. In this case he could give a warning by the label on the drum of Calzec. He can also give warnings by supplying to those to whom he sells the product documentation which gives safety information about the product. In this case the reader of the label on the drum of Calzec is referred to ‘M.S.D.S. for further information’. M.S.D.S. is Material Safety Data Sheet. It was submitted in this case that Mr Goodall breached his duty of care to the plaintiff by failing to provide the Material Safety Data Sheet and the Product Data Sheet to Mr Preece at the time he supplied the drum of Calzec to him. Furthermore, it was submitted that Mr Goodall breached his duty to the plaintiff by failing to advise Mr Preece that Calzec should (or must) not be used except via an electronic dispensing unit. It was submitted that Mr Goodall should have advised Mr Preece that he should (must) not use Calzec in the way Mr Preece indicated that he proposed to. Further, it was submitted that Mr Goodall’s duty of care to the plaintiff required Mr Goodall to refuse to sell Calzec to Mr Preece where he thought that Mr Preece would attempt to use it or would use it other than through an automatic dispensing unit. Finally, it was submitted that Mr Goodall’s duty to the plaintiff included a requirement on Mr Goodall to direct (or implore) Mr Preece to read the label on the drum and the product information documents that were later sent to him. Furthermore, he should have gone through the documents with Mr Preece and highlighted the various warnings and cautions contained in them and thus satisfy himself that Mr Preece understood them and would comply with them.
I do not consider that in the circumstances of this case Mr Goodall owed the plaintiff a duty to do anything other than that which he did. Mr Goodall’s duty to the plaintiff included a requirement that he supply to Mr Preece the product with the manufacturer’s label on it. It included a requirement that he provide to Mr Preece such product information that he had or could obtain regarding the drum of Calzec and its contents. Mr Goodall had the only such information that was then available from the manufacturer and he supplied copies of that information to the Sports Club. Whilst he did not do so at the time of supply of the product, I find that he provided that material in circumstances in which he could reasonably expect them to come to the attention of those in authority at the Sports Club. I find that they did in fact come to the attention of those in authority at the Sports Club, being the then manager Mr Preece.
I am not satisfied that Mr Goodall owed a duty to the plaintiff to warn or implore Mr Preece not to use the product other than through an automatic dispensing unit. Whether the manufacturer of Calzec owed a duty to people into whose hands its product may come to warn that the product should not or must not be used other than through automatic dispensing equipment is not something which I have to determine here as the manufacturer is not a party to these proceedings. The manufacturer’s information did not, however, warn any potential user of its product of this. I find that the manufacturer did not give a warning to Mr Goodall to that effect. I find that the material provided to Mr Goodall was reasonably interpreted by him, and would have been interpreted by any reasonable reader, that Calzec could be used other than through automatic dispensing equipment. I find that Mr deHaan did not suggest otherwise to Mr Goodall.
It is true that a Product Application Chart provided to the Sports Club by Jasol Australia indicated under the heading ‘APPLICATION/USE RATE’ that Calzec is ‘Dispensed via Automatic Dosing Equipment’. However, that was after the plaintiff’s accident and even that does not say that it cannot or must not be applied or used in any other way.
I conclude that Mr Goodall told Mr Preece all that he knew about the product Calzec through the label and through the documents sent to him a few days after he supplied the drum of Calzec. As to the use of automatic dispensing equipment I find that Mr Goodall told Mr Preece during the telephone conversation prior to the supply of the drum of Calzec that he had seen Calzec used through a dishwashing machine dispenser. I find that Mr Goodall told Mr Preece all that he knew about the dispensing of Calzec into dishwashing machines.
I do not consider that in the circumstances Mr Goodall had a duty to the plaintiff to make further enquiries of the manufacturer about the properties of Calzec and its use and application. Even if he had I conclude on the evidence that he would have been given no further information than that which he had at the time he supplied the drum of Calzec to Mr Preece. All the information he had he gave to Mr Preece either on the phone, via the label on the drum, and in the documents that followed a few days later.
I reject the submissions that Mr Goodall’s duty to the plaintiff went further and required him to direct Mr Preece to read the documents, or to direct him not to use the product other than through automatic dispensing equipment. I do not consider that Mr Goodall’s duty to the plaintiff required him to do either of those things.
Even if I am wrong about some of those matters then I would not find Mr Goodall liable to the plaintiff for his injuries in any event, and accordingly Mr Goodall would not be liable to contribute to the Sports Club’s liability to the plaintiff. Before I could so find it would be necessary for it to be proved that some breach of Mr Goodall’s duty of care to the plaintiff caused or contributed to the plaintiff’s injuries. I have referred in some detail to Mr Preece’s evidence. In his evidence Mr Preece said that he did not read the label or the Product Data Sheet or the Material Safety Data Sheet. I find that he did not do so and I further find that he probably did not read carefully the two large labels that were obtained by the Sports Club from Jasol Australia after the plaintiff’s injuries and which were affixed to the locked cabinets in a storage area behind the bar. I find that Mr Preece did not read any of those items even after the plaintiff’s accident. Furthermore, I find that Mr Preece did not read the operating instructions which were affixed to the front of the dishwashing machine either before or after the plaintiff’s accident.
What Mr Preece did or didn’t do after the plaintiff’s accident is relevant to my consideration of what he would have done had he been told certain things or told or implored to read documentation with which he was supplied at or about he time that he purchased the drum of Calzec. I find that Mr Preece would have done nothing different than that which he did as to the way he stored and used Calzec in the months prior to the plaintiff’s accident. I find he would have done nothing different even if Mr Goodall had told him to read the label and the product information and had pointed out to him certain features of those documents. I find he would have done nothing different even if Mr Goodall told him that he should not use the product other than through automatic dispensing equipment. I reject Mr Preece’s evidence as to what he would have done had he been told certain things about Calzec. I reject his evidence that he would not have purchased the product had he been told certain things. He continued to use it, and in exactly the same way, after the plaintiff’s accident as before. The only circumstance that might have made a difference to what eventually happened was if Mr Goodall had refused to sell Mr Preece the drum of Calzec. I do not consider that Mr Goodall’s duty to the plaintiff in this case went that far.
My conclusion is that Mr Goodall did not breach his duty of care to the plaintiff. However, if I am wrong as to that, I would have concluded that it has not been established that any breach caused or contributed to the plaintiff’s injuries. Accordingly, I would dismiss the plaintiff’s claim against Mr Goodall and for the same reasons would dismiss the Sports Club’s claim for contribution from Mr Goodall.
I would hold the Sports Club solely liable for all of the plaintiff’s damages.

[2004] SADC 13

30 January 2004