Adelaide Chemical and Fertilizer Company Limited v Carlyle [1940] HCA 44

was treated at a hospital and was advised to report next day to a doctor. failed to do so, but his wife treated him with a preparation which a chemist d her was a proper treatment for burns, as in fact it was. Later there ¢ unexpected conditions, and a doctor was immediately called in. Strep- septicaemia developed, and C. died. His widow brought an action the company under Part II. of the Wrongs Act 1936 (S.A.) (Lord phell's Act) on her own behalf only, proceedings on behalf of the only 'of the marriage having been taken under the Workmen's Compensation ct, In the Supreme Court of South Australia it was found that the particular jar from which the damage resulted was defective and also that the jar was 'an unsafe and dangerous type; and the widow was awarded damages.

missible, and whether or not there was evidence to support the finding the particular jar was defective, there was sufficient evidence to support finding that the jar was not reasonably safe, and this finding should not be disturbed ; accordingly, the company was properly found to have committed breach of the duty of care which it owed to C.

ntion of a new and independent cause. }) That contributory negligence by C. had not been established.

(4) That the widow's failure to sue on behalf of the child did not result in the action's being improperly constituted : Avery v. London and North Eastern Co, Ld., (1938) A.C, 606, followed,

ion of the Supreme Court of South Australia (Cleland J.): Carlyle v. Chemical and Fertilizer Co, Ltd., (1939) S.A.S.R. 458, affirmed.

e Morton Carlyle, a married man with one child, was an of a herd-testing association, an institution subsidized by ent of South Australia. Concentrated sulphuric acid, corrosive commodity, was used by Carlyle in the course of rd testing. This sulphuric acid was supplied to the associa- arrangement with the South-Australian Department of The sulphuric acid was supplied by the Adelaide /and Fertilizer Co, Ltd., a manufacturer and supplier of acid. The sulphuric acid was supplied in earthenware ch jar was cylindrical in shape with a uniform diameter ten inches until, at a point thirteen inches from its base, 'into a cone which terminated in a short neck wherein a 'inserted. Each jar had a handle of earthenware which

'come away in my hand. It must have been faulty or cracked." Later H C. or A.

ees ADELAIDE CHEMICAL AND FERTILIZER Co. Lrp. v. CARLYLE.

H.C. or A. formed an integral part of its structure and which was united to it ae at its neck and shoulder. The jar contained approximately three 'Apetawe gallons of acid, which weighed about 56 Ibs. The jar weighed Cuemcan 19 Ibs., so that the total weight of the jar and contents was peat about 75 Ibs. There was evidence that the jars were sup- Co. Lr. plied to the company by a reputable firm of manufacturers and Cancynn, Were in general use as containers of sulphuric acid. There was further evidence that the jars were tested by the manufacturers and by the company and that the company used large numbers of the jars and had few breakages. Experiments showed, however, that the jars, if filled with fluid of approximately the same weight as sulphuric acid, when tilted and allowed to fall some nine inches, invariably broke. The corrosive nature of the sulphuric acid made the contents of the jars highly dangerous to persons who handled

On 31st March 1939 Carlyle, accompanied by his wife, drove his buckboard to the company's delivery platform for the purpose of taking delivery of two of these jars of sulphuric acid. These jars were on the delivery platform, an erection about three feet three inches from the ground, consisting of jarrah planks affixed to bricks. As Carlyle was attempting to lift one of the jars in order to move it to his buckboard, the jar broke. The contents were spilled over Carlyle, who immediately hastened inside the building, removed his trousers and began to wash the acid from his legs. His wife gave the following evidence : - "I was attracted by my husband making a noise - I heard him make a sound of some sort - a cry or something. I looked around, and he was standing half facing me, with liquid pouring over him from an earthenware jar. The biggest portion of that jar was on the platform but the top part was in two or three pieces on the pavement. The jar was lying on its side. The piece that contained the handle of the jar

• the handle itseli - was on the pavement. Most of the jar remained onthe platform. . . . Isaw my husband instantly jump up on to the platform and he disappeared. I scrambled out of the car as quickly as I could and I went through the big doors of the premises that were open to the street, and when I saw my husband he was practically stripped, sitting in a sink, with water pouring over him. . . . So soon as I saw my husband sitting under the tap, as I've related, I asked him what happened. My husband said, 'I took hold of the handle of the jar, tilted it slightly towards me, to get my other hand underneath, and the top of the jar seemed to come away inmy hand. It must have been faulty, or cracked.'" Later Carlyle was treated at the Adelaide Hospital, where he was advised

e next day to the nearest doctor. This advice was not ed, but his wife treated him with tannemol, which, a chemist her, was a~proper treatment for burns. Subsequently cted conditions supervened, and a doctor was immediately Streptococcal septicaemia developed, and Carlyle died. His widow, on behalf of herself only, and not on behalf of herself her child, brought an action in the Supreme Court of South ralia claiming damages from the company. The action was it under Part II. of the Wrongs Act 1936 (S.A.), which contains M1 ons corresponding to Lord Campbell's Act. Upon the hearing he court was informed that the plaintiff claimed damages only |in amount to what her share would have been, had she received es on behalf of the child as well, and was also informed that gs on the child's behalf had been taken under the Workmen's Compensation Act. Cleland J., who tried the action, gave judgment t the plaintiff. His Honour found that the particular jar defective and also that the jars in general use by the defendant y, although not defective in any particular sense, were in | sense unsafe and dangerous. he company appealed to the High Court. er material facts appear from the judgments hereunder.

Layo K.C. (with him Astley), for the appellant. It is submitted (1) no negligence by the appellant was proved ; (2) the cause, proximate cause, of the smashing of the jar was the deceased's

lure to take care; (3) this is a case of volenti non fit injuria ;

) the death was caused by another agency or the intervention of

nother agency ; (5) the action is not properly constituted ; (6) the

nee of the remarks made by the deceased to his wife was

y admitted. Negligence involves a breach of a duty to

damnified, and cases such as Donoghue v. Stevenson (1)

he present case. The only breach of duty can be either the of the type of jar usually used or the selection of the par- jar. As to selection of the particular jar, see Halsbury's Laws d, 2nd ed., vol. 23, p. 573. The type of jar was in universal 'in Australia, it was the kind of jar used daily by the deceased lve years, it was the type of jar which the deceased (through Department of Agriculture) had sought to have given to him, deceased knew as much of earthenware as the appellant }much of sulphuric acid as was material. These latter con- . ons also found the defence of volenti non fit injuria. The ity to take care involves reasonable selection only. (1982) A.C. 562. (2) (1938) A.C. 85. 'LXIv. Bt

H.C. or A. [Drxon J. When dealing with dangerous things what is reason- Key able involves what is necessary to prevent escape. | : 'Aprtawe The word "dangerous" is relative. A commodity may be Cuewcat dangerous in some cases and not in others. The appellant has acted Fererwer reasonably. The jars in question have been used by the company Co. Lev. for fifty years and by the deceased for twelve years without adverse Cantyrn, Consequences. The deceased alone was concerned in lifting the jar, and he had done so before. Assuming the jar was not proper for the purpose for which it was designed, the deceased, with the knowledge he had, had the onus thrown upon him of taking care, There is no evidence that anything better could have been substituted for the type of jar now in use. The best test of reasonableness is what has been the result of reasonable use over a period of years (Cox Bros. (Australia) Ltd. v. Commissioner of Waterworks (1) ). There is no evidence of a breach of duty in selecting the particular jar (Fitzpatrick v. Walter E. Cooper Pty. Ltd. (2) ). Where you get persons equally knowledgable of the danger, there is no absolute liability.

In all the circumstances the appellant's selection of a container was not a breach of duty, or, if it were, the result was contributed to by the deceased. The deceased's death was due to his failure _ to take the advice given him at the Adelaide Hospital to consult a doctor. The streptococcus must have entered after he left the hospital and because of his failing to follow the directions there given him (Innes or Grant v. G. & G. Kynoch (4) ). The infant son should have been joined as a plaintiff (Wrongs Act (S.A.), secs. 20, 21, 23). Avery v. London and North Eastern Railway Co. (5) is distinguish- able, as the circumstances there were different. [Counsel also referred to Bellambi Coal Co. Ltd. v. Murray (6).]

Skipper (with him Hollidge), for the respondent. The duty was on the appellant ; there was no duty on the deceased's part to offer any protection. Avery v. London and North Hastern Railway Co. (5) shows that the action is properly constituted. It is clear beyond controversy that the whole top of the jar came off in a fairly clean break at the junction between the cylindrical part and the shaped-up cone, that the cylindrical part was unbroken and that the jars broke in the circumstances to which they were exposed in the experiments made on the jars. Evidence of the deceased's

(1) (1933) 50 C.L.R. 108, at p. 118. (5) (1938) A.C. 606, : (2) (1935) 54 C.L.R. 200, at p. 218. (6) (1909) 9 C.L.R. 668, at pp. 579- (3) (918) V.LB. 1054 34 AL 64 581, 604.

grounds on which Cleland J. could find, as he did, both that ticular jar was defective and that jars of the type used by the ypellant were insufficient for their purpose. It is not necessary for us ww any specific act of negligence. As to inference and conjecture. err or Lendrum v. Ayr Steam Shipping Co. Ltd. (1). The findings et were entirely in the respondent's favour; and there is no | for saying that they were wrong. At the least there was on the appellant to give warning of the brittle nature of the [Counsel referred to Donoghue vy. Stevenson (2); North- Utilities Ltd. v. London Guarantee and Accident Co. Ltd. (3) ; Chemical Works Ltd. v. Belvedere Fish Guano Co. Ltd. (4) ; n Engraving Co. vy. Film Laboratories Ltd. (5).| As to the of novus actus interviens, see Fife Coal Co. v. Young (6). injury were due to treatment given by the wife, the answer the defence is found in Williams v. Graigola Merthyr Co. Ltd. (7). »maxim volenti non fit injuria affords no defence (Dann v. Hamilton

stley, in reply, referred to Burfitt v. A. and E. Kille (9). Cur, adv, vult.

un A.C.J. This appeal comes from a judgment of Cleland J. n on the trial of an action in favour of the plaintiff.

ie action is brought in respect of the death of her husband by a under Part IT. of the Wrongs Act 1936 (S.A.), which is founded provisions of Lord Campbell's Act. The deceased was employed 'institution more or less of a governmental character, as a herd and for the purposes of his work he required supplies of ie acid, The appellant company provided the sulphuric acid ware jars, of which he took delivery. One of these jars oken as he was attempting to move it from a platform at the the appellant's stores to his buckboard standing nearby. 'ie acid was spilt over his legs, and, although they were injured, septicaemia set in and he died.

he appellant objects that the action was defectively con- because there was a child of the marriage on whose behalf

1915. A.C, 217, at p. 233, (5) (1936) 1 All E.R, 106, ») A.C. 562. (6) (1940) A.C. 479. A.C. 108, at pp. 118-120, (7) (1924) 17 B.W.C.C. 202, 2A. 465, at p. 471. (8) (1989) L KB. 509, (9) (1939) 2 K.B, 743, at p. 747.

int to his wife was properly admitted, and there were amply - ©: oF A-

Ww ADELAIDE CyeMicat. AND FErrruizer Co. Lrv. v CaRLYLe.

much stress on falling to a horizontal position upon a hard eriments have shown that almost invariably the force break such a jar. They are of earthenware and are said brittle." A metal jar would be unsuitable for sulphuric nd glass jars would be costly. Expedients for encasing the re said to be open to objection because acid would epill as ed out and the casing would be destroyed or corroded. J., who tried the action, found that the jars were not

) 17 CLLR, at p.598. (2) (1879) 14 Cox C.C. 341. (3) (1913) 17 C.LR., at p. 597.

ADELAIDE CHEMICAL AND FERTILIZER Co. Lrp. e CARLYLE.

ADELAIDE CHEMICAL AND Ferriuizer Co. Lrp. v CARLYLE.

suitable vessels for the supply of sulphuric acid to consumers. had before him some statistical figures of the number of br The proportion to vessels handled was by no means great, but instances were not inconsiderable in number and illustrated a soun of potential danger. The jars necessarily went into use by p who lifted them, tilted them and carried them. They were extre1 heavy, and the prospect of jars being allowed without negli occasionally to slip to a hard floor upon their sides was by no remote. Whenever this happened a jar of the kind in use might be expected to break. It was not shown to be unreasonable o impracticable to provide jars less liable to break.

In these circumstances I am unable to say that the conclus was not fairly open to the learned judge that the container insufficient as a safeguard against the danger of injury from escape of sulphuric acid. It is true that courts should be slow say that the ordinary practice of a trade involves a want of due ¢ But it must be remembered that the reasonable care required by the law means a standard of diligence growing in strictness as danger increases, and a very high degree of precaution is nec: in the case of an injurious chemical like sulphuric acid. By jars, insufficiently strong to withstand overturning, a manufacturer' may impose on those handling the jars a practical necessity of exercising on their part extreme care for their own safety, and this may reduce the likelihood of accidents. But the manufacturer has the primary duty of care and cannot transfer it in such a manner, I think that the learned judge's finding on this head of negligence should stand. "

That the deceased was guilty of contributory negligence was not established. f

An argument was advanced that the death of the deceased was not the consequence of the burns he sustained from the acid because it was due to septicaemia arising from a streptococcal infection entering through the tissue broken down by the burns. Such an infection, whoever and whatever was to blame for it, cannot be considered a new and independent cause. It is a recognized danger to which traumatic injury exposes the sufferer and is regarded as part of the possible consequences of the infliction of a wound.

The contention that the action was not properly constituted under Lord Campbell's Act because the child who has claimed and received workmen's compensation is not included in the particulars: of persons represented appears to be answered by Avery v. London and North Eastern Railway Co. (1).

For these reasons the appeal should be dismissed with costs.

. In my opinion the appeal should be dismissed. consideration of the case begins with the proposition that uric acid is in the view of the law a dangerous thing - that is, erous in itself ; it will inevitably injure any person upon whom The risk that it may cause injury if it escapes from the siner i ich it is being supplied subjects the supplier to a responsibility. It is his duty, at all events, to supply it in er that will not be broken by any of the ordinary hazards ntal to the lifting and handling of the container by the person delivery of it. The respondent founds her action on this of duty. She alleges that her husband suffered fatal burns e result of the breach of this duty by the defendant, and she 'on her own behalf for damages proportionate to the loss she sustained by the death of her husband, the action being brought Part Il. of the Wrongs Act of South Australia. defendant supplied three gallons of sulphuric acid to the in a jar which broke when he was in the course of taking livery of it. He was lifting it from a platform on the defendant's es into his vehicle. The platform was about three feet above where the respondent's husband stood when he was pting to take delivery of the jar. It was left at a distance than a foot from the edge of the platform. The result of the was that the sulphuric acid poured over the deceased, g severe burns from which he died several weeks afterwards. jar was made of glazed earthenware. Tt had a cylindrical conic shoulders, bearing a glazed earthenware handle for ng it, and a short neck with a stopper. The jar with its con- of sulphuric acid weighed 75 Ibs. Its base was ten inches meter, and the height from base to shoulders was thirteen ies. The learned judge found that the deceased attempted to from the platform in a natural and proper manner. Tt was because of its weight for him to use both hands. He ught the handle with his right hand, and, after tilting the jar, his left hand under it to lift it, but before the base of the jar antirely clear of the platform the jar broke. It fell on its side, he sulphuric acid poured over the deceased. The top part of and the handle came apart from the rest of the jar. When d applied the necessary force in order to lift it from the the jar proved unequal to this lateral or horizontal strain top broke away at the shoulder. The learned judge found rs of the description now in question are usually and commonly for the purpose of supplying acid to consumers, but he was by the evidence of tests to which jars of the same size,

aed ADELAIDE CHEMICAL AND Ferrier Co, Lrp. v. CARLYLE.

ADELAIDE CHEMICAL AND FErriuizER Co. Lrp. v CARLYLE.

shape, weight and material were subjected that they are exces brittle and unsuitable vessels in which to supply sulphuric acid t consumers and that the jars were unsafe and dangerous to be for that purpose. There is ample evidence to support this find His Honour also found that this mishap occurred because there' a hidden defect, probably a crack, in this particular jar. Howey in reaching this last conclusion some reliance appears to have placed on evidence of what the deceased himself said after the j iv broke. But it is not necessary to consider the question of the admissibility of this evidence, because, apart from it, there is, in my opinion, clear evidence to justify the conclusion that the defendant was guilty of a default which caused the accident resulting in the death of the respondent's husband. It was negligence on the part of the defendant to use a container which would break and permit the acid to escape, as this one did, when subjected to the ordinary usage incidental to lifting the jar from the platform into the deceased's vehicle. The defendant seeks to exculpate itself on the ground that it was,

• as the trial judge found - the practice in the trade to use unpro- tected jars similar to that which broke for supplying sulphuric acid in three-gallon lots. The evidence of the practice was relevant to the issue, but it was not conclusive in the defendant's favour. In - Blenkiron v. Great Central Gas Consumers Oo. (1) Cockburn C.J. said : - ' And those who carry on operations dangerous to the - public are bound to use all reasonable precautions - all the precau- tions which ordinary reason and experience might suggest to prevent - the danger. It is not enough that they do what is usual if the course ordinarily pursued is imprudent and careless; for no one can claim to be excused for want of care because others are as careless as himself; on the other hand, in considering what is reasonable, it is important to consider what is usually done by persons acting in a similar business." The nature of the consequences to be apprehended if the acid escaped while the plaintiff's husband was taking delivery of it was the chief consideration governing the precautions which the defendant was bound to take to prevent its escape. As the jar used by the defendant was brittle and unsafe for delivering three gallons of sulphuric acid, it is no answer to the charge that reasonable precautions to prevent injury to the deceased were not taken for the defendant to say that it was the practice in the trade to use that kind of jar for that purpose. The plaintiff claimed damages on her own behalf but not on behalf of her child, of whom the deceased was the father. A claim

(1) (1860) 2 F. & F, 437, at p. 440 [175 E.R. 1131, at pp. 1132, 1133},

behalf of the child under the Workmen's Compensation H- ©. or A. intiff's damages were assessed upon the basis of what tea

e would have been had she claimed and recovered apprarpe behalf of the child as well. The assessment on that Cuemrca, the circumstances right (Avery v. London and North poserien ay Co. (1) ). Co. Lap.

the appellant, R. N. Finlayson. for the respondent, Scammell, Hardy & Skipper.