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TMI Blog1935 (10) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... it safe to find for the appellant. Starke, J., who accepted substantially all the detailed findings of the Chief Justice, differed from him on his general conclusions of liability based on these findings. 2. The appellant's claim was that the disease was caused by the presence in the cuffs or ankle end of the underpants which he purchased and wore, of an irritating chemical, viz., free sulphite, the presence of which was due to negligence in manufacture, and also involved on the part of the respondents, John Martin Co., Ltd., a breach of the relevant implied conditions under the Sale of Goods Act. 3. The underwear, consisting to two pairs of underpants and two singlets, was bought by the appellant at the shop of the respondents, John Martin Co., Ltd., who dealt in such goods and who will be hereafter referred to as the retailers, on June 3, 1931; the retailers had in ordinary course at some previous date purchased them with other stock from the respondents, the Australian Knitting Mills, Ltd., who will be referred to as the manufacturers; the garments were of that class of the manufacturers' make known as Golden Fleece. The appellant put on one suit on the mornin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was directed to supporting or refuting the contention strenuously advanced on behalf of the respondents that the dermatitis was internally produced and was of the type described as herpetiformis, which is generally regarded as of internal origin. That contention may now be taken to have failed: it has been rejected by the Chief Justice at the trial and in the High Court by Starke and Evatt, JJ., and, in effect also, by Dixon and McTiernan, JJ. The evidence as to the symptoms and course of the disease given by the two doctors who attended the appellant is decisive: dermatitis herpetiformis is an uncommon disease, of a type generally not so severe as that suffered by the appellant, and presenting in general certain characteristic features, in particular, bullae or blisteres and symmetrical grouping of the inflammatory features, which were never present in the appellant. Dr. Wigley, a very eminent dermatologist, who examined the appellant, and as an expert gave evidence in support of the doctors who actually attended him, expressed his opinion that all dermatitis, had an external origin, but whether he was right in this or not, he was confident that in the appellant's case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant's skin was normal. 8. What then caused this terrible outbreak of dermatitis? The place and time of the original infection would seem to point to the cause being something in the garments, and in particular to something in the ankle ends of the underpants, because the inflammation began at the front of the shins where the skin is drawn tight over the bone, and where the cuff of the pants presses tightly under the socks against the skin, and began about nine or ten hours after the pants were first put on: the subsequent-virulence and extension of the disease may be explained by the toxins produced by the inflammation getting into the blood stream. But the coincidence, it was pointed out, was not sufficient proof in itself that the pants were the cause. The appellant then relied on the fact that it was admitted in the respondents' Answers to Interrogatories that the garments when delivered to the retailer by the manufacturers contained sulphur dioxide, and on the fact that the presence of sulphur dioxide indicated the presence of free sulphites in the garment. If there were in a garment worn continuously all day next the skin free sulphites in sufficient qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n each leg. It is clear that no further light could be thrown by fresh analysis of the actual garments. 10. Evidence was given on behalf of the manufacturers as to the processes used in the manufacture of these garments. The webs of wool were put through six different processes: of these the second, third and fourth were the most significant for the case. The second was for shrinking and involved treatment of the web with a solution of calcium hypochloride and hydrochloric acid. The third process was to remove these chemicals by a solution of bisulphite of soda, and the fourth process was to neutralise the bisulphite by means of bicarbonate of soda; the fifth process was for washing and the sixth was a drying and finishing process. If the fourth process did not neutralise the added bisulphite, free sulphites would remain, which the subsequent washing might not entirely remove. The manufacturers' evidence was that the process was properly applied to the wool from which these garments were made, and if properly applied, was bound to be effective. The foreman scourer Smith was not called at the trial, where his absence was made matter of comment, but Ashworth, one of the scoure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive evidence that in fact the garments which the appellant wore, contained an excess of free sulphites. He contended that the appellant's case involved arguing in a circle; his argument, he said, was that the garments must have caused the dermatitis because they contained excess sulphites, and must have contained' excess sulphites because they caused the disease: but nought, he said, added to nought still is no more than nought. This, however, does not do justice either to the process of reasoning by way of probable inference which has to do so much in human affairs or to the nature of circumstantial evidence in law Courts. Mathematical, or strict logical, demonstration is generally impossible: juries are in practice told that they must act on such reasonable balance of probabilities as would suffice to determine a reasonable man to take a decision in the grave affairs of life. Pieces of evidence, each by itself insufficient, may together constitute a significant whole, and justify by their combined effect a conclusion. Dixon, J. in the judgment in which he dissented from that of the Chief Justice, does not seem to suggest that there was no evidence for a decision in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows- I. Where the buyer, expressly or by the 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 Provided that the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fintness for any particular purpose: II. Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality; Provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed: III. An implied warranty or condition as to quality or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no need to specify in terms the particular purpose for which the buyer requires the goods; which is none the less the particular purpose within the meaning of the section because it is the only purpose for which anyone would ordinarily want the goods. In this case the garments were naturally intended and only intended to be worn next the skin. The proviso does not apply to a case like the sale of Golden Fleece make such as is here in question, because Golden Fleece is rather a patent or trade name within the meaning of the proviso to exception (i). With great deference to Dixon, J. their Lordships think that the requirements of exception (i) were complied with. The conversation at the shop in which the appellant discussed questions of price and of the different makes did not affect the fact that he was substantially relying on the retailers to supply him with a correct article. 15. The second exception in a case like this in truth overlaps in its application the first exception; whatever else merchantable may mean, it does mean that the article sold, if only meant for one particular use in ordinary course, is fit for that use; merchantable does not mean that the thing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... negligence in manufacture. According to the evidence, the method of manufacture was correct; the danger of excess sulphites being left was recognised and was guarded against: the process was intended to be fool proof. If excess sulphites were left in the garment, that could only be because someone was at fault. The appellant is not required to lay his finger on the exact person in all the chain who was responsible or to specify what he did wrong. Negligence is found as a matter of inference from the existence of the defects taken in connection with all the known circumstances: even if the manufacturers could by apt evidence have rebutted that inference, they have not done so. 17. On this basis, the damage suffered by the appellant was caused in fact (because the interposition of the retailers may for this purpose in the circumstances of the case be disregarded) by the negligent or improper way in which the manufacturers made the garments. But this mere sequence of cause and effect is not enough in law to constitute a cause of action in negligence which is a complex concept, involving a duty as between the parties to take care, as well as a breach of that duty and resulting dama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k. The House of Lords held these facts established in law a duty to take care as between the defenders and the pursuer. 19. Their Lordships think that the principle of the decision is summed up in the words of Lord Atkin at p. 599 Page of (1932) A.C.--[Ed.] A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care, 20. This statement is in accord with the opinions expressed by Lord Thankerton and Lord Macmillan, who in principle agreed with Lord Atkin. 21. In order to ascertain whether the principle applies to the present case, it is necessary to define what the decision involves and consider the points of distinction relied upon before their Lordships. 22. It is clear that the decision treats negligence, where there is a duty to take care, as a specific tort in itself, and not simply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead by intro-during alien ideas. Equally also may the word control embarrass, though it is conveniently used in the opinions in Bonoghue's case (1932) A.C. 562 : 101 L.J.P.C. 119 : 147 L.T. 281 : 37 Com. Cas. 350 : 76 S.J. 396 : 48 T.L.R. 494 to emphasise the essential factor that the consumer must use the article exactly as it left the maker, that is in all material features, and use it as it was intended to be used. In that sense the maker may be said to control the thing until it is used. But that again is an artificial use, because in the natural sense of the word, the makers parted with all control when they sold the article and divested themselves of possession and property. An argument used in the present case based on the word control will be noticed later. 23. It is obvious that the principles thus laid down involve a duty based on the simple facts detailed above, a duty quite unaffected by any contracts dealing with the thing, for instance, of sale by maker to retailer, and again by retailer to consumer or to the consumer's friend. 24. It may be said that the duty is difficult to define, because when the act of negligence in manufacture occurs, there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly be made. Nothing happened between the making of the garments and their being worn to change their condition. The garments were made by the manufacturers for the purpose of being worn exactly as they were worn in fact by the appellant; it was not contemplated that they should be first washed. It is immaterial that the appellant has a claim in contract against the retailers, because that is a quite independent cause of action, based on different considerations, even though the damage may be the same. Equally irrelevant is any question of liability between the retailers and the manufacturers on the contract of sale between them. The tort liability is independent of any question of contract. 27. It was argued, but not perhaps very strongly, that Donoghue's case (1932) A.C. 562 : 101 L.J.P.C. 119 : 147 L.T. 281 : 37 Com. Cas. 350 : 76 S.J. 396 : 48 T.L.R. 494, was a case of food or drink to be consumed internally, whereas the pants here were to be worn externally. No distinction, however, can be logically drawn for this purpose between a noxious thing taken internally and a noxious thing applied externally: the garments were made to be worn next the skin: indeed Lord Atkin (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He put as an illustration the case of a foundry which had cast a rudder to be fitted on a liner: he assumed that it was fitted and the steamer sailed the seas for some years: but the rudder had a latent defect due to faulty and negligent casting and one day it broke, with the result that the vessel was wrecked, with great loss of life and damage to property. He argued that if Dongohue's case (1932) A.C. 562 : 101 L.J.P.C. 119 : 147 L.T. 281 : 37 Com. Cas. 350 : 76 S.J. 396 : 48 T.L.R. 494, were extended beyond its precise facts, the maker of the rudder would be held liable for damages of an indefinite amount, after an indefinite time and to claimants indeterminate until the event. But it is clear that such a state of things would involve many considerations far removed from the simple facts of this case. So many contingencies must have intervened between the lack of care on the part of the makers and the casualty that it may be that the law would apply, as it does in proper cases not always according to strict logic the rule that cause and effect must not be too remote: in any case the element of directness would obviously be lacking. Lord Atkin deals with that sort of questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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