Australian Knitting Mills Limited v Grant [1933] HCA 35

Australian Knitting Mills Limited v Grant [1933] HCA 35 - HCA 1933 case summary — Zoe

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

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

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Medicine, p. 1287). It is not known what amount of sulphur dioxideis necessary to constitute an irritant, and it is not known what quantity of sulphur dioxide was in the garment at the time (Ajwm Goolam Hossen & Co. v. Union Marine Insurance Oo. (1) ). The respondent never had any trouble before from wearing woollen undergarments though he wore them all his life and the conclusion to be drawn is that the dermatitis was caused by some external irritant in the underwear. Hven assuming that there was a predisposition on the part of the respondent if the irritant was applied in the manner alleged, the defendants are still liable (In re Polemis & Furness, Withy & Co. (2)). The respondent unfortunately purchased and wore garments that were not satisfactory. The respondent was prevented from giving evidence of the fact of complaints to rebut evidence given by the appellants of the absence of complaints. There was free sulphur dioxide which was present in the garments even after they were washed. The evidence shows that there is no such thing as a normal skin. The respondent must succeed unless it is shown that his physical condition was the causa causans of the dermatitis. There was no such condition in the respondent, there- fore, the events show that there were chemicals in these garments which were sufficient to do damage to a normal person's skin. A normal skin is one which comes within a class which is within certain wide limits. The evidence is sufficient to justify the finding of the trial Judge that the dermatitis was caused or aggravated by chemicals _ in the garments. The onus of establishing that the respondent has not a normal skin is upon the appellants. The effect of the Judge's findings is that the most probable cause of the dermatitis was the action of the present appellants. The demeanour of the witnesses plays a large part in the elicitation of the truth in this case. The manufacturers for trade purposes added dangerous chemicals to the fabric from which the garments were made. The garments were intended to be worn in contact with the skin for about fifteen hours which subjected the chemicals in the garments to further chemical action. Having employed dangerous chemicals in the manufacture of the garments the appellants are charged with a very special duty to take care that the wearers suffered no damage. The evidence

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

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

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Mason (1) ; and Rex v. Manchester Profiteering Committee; Ex parte Lancashire and Yorkshire Railway Co. (2), per Bankes L.J.). When an article is sold for immediate consumption or use and the purpose to which it is to be put enters in to the very description under which it is sold, to imply a condition that it is fit to be so consumed or used is or, apart from the statute, would be an ordinary application of the general principles of contract. But the basis of the implication would be found in the nature of the transaction rather than in the buyer's reliance or appearance of reliance upon the seller's skill or his judgment. Thus, in 1829, in Jones v. Bright (3), Best C.J. considered it to be "a broad principle : - If a man sells an article, he thereby warrants that it is merchantable - that it is fit for some purpose. . . . If he sells it for a particular purpose, he thereby warrants it fit for that purpose" (compare Brown v. Edgington (4); Black v. Elliot (5); Harman vy, Bennett (6); Beer v. Walker (7); Burrows v. Smith (8); and Davis v. Miller (9) ). It has been authoritatively declared that sub-sec. 1 of sec. 14 made no change in the common law (Manchester Liners Ltd. v. Rea Ltd, (10) ). But it does not follow that the form in which the provision is expressed may now be disregarded or given an application which its natural meaning would not suggest. It is true that in Rea's Case (11) Lord Atkinson formulated propositions or presumptions which may tend to produce a result less easily reached if affirmative proof were exacted that the buyer did in fact so make known the purpose as actually to show that he relied on the seller's skill or his judgment. But Lord Sumner (12) said : - "The buyer has to make known, expressly or by implication, the particular purpose for which the goods are required. He has to do this, so as to show that he trusts the seller's skill and judgment to supply something reasonably fit for the purpose. . . . The words of sec. 14 (i) are ' so as to show,' not ' and also shows.' They

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himself, Lord Atkinson and Lord Warrington, made a pronouncement upon sec. 14 (1) which apparently was intended as an authoritative exposition. He said : - '* On a scrutiny of section 14 (1) of the Sale of Goods Act, I think these propositions may be stated upon it : (a) The buyer's reliance is a question of fact to be answered by examining all that was said or done with regard to the proposed transaction on either side from its first inception to the conclusion of the agreement to purchase. (b) The section does not say that the reliance on the seller's skill or judgment is to be exclusive of all reliance on anything else, on the advice, for example, of the buyer's own experts or the use of his own knowledge or common sense. Indeed it would never be possible to be sure that the element of reliance on the seller entered into the matter at all unless the buyer made some statement to that effect. It follows that the reliance in question must be such as to constitute a substantial and effective inducement which leads the buyer to agree to purchase the commodity. (c) This warranty, though no doubt an implied one, is still contractual; and, just as a seller may refuse to contract except upon the terms of an express exclusion of it, so he cannot be supposed to consent to the liability which it involves unless the buyer's reliance on him, on which the liability rests, is shown, and shown tohim. The Tribunal must decide whether the circumstances brought to his knowledge showed this to him as a reasonable man or not; but there must be evidence to bring it home to his mind before the case for the warranty can be launched against him. "My Lords, I would like to add a few commonplace observations. One naturally asks, why should any buyer ever be supposed not to rely on the seller's skill or judgment ? It can do him no harm to do so, and may do him some good. Till the seller refuses to deal at all unless any such reliance is renounced surely a man of sense must be deemed to want to get for himself all that the law allows. . . . In this case I rather think that this may have been the view present to

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there were no blisters, (3) the attack was severe in extent and intensity. None of these symptoms appears to be of itself absolutely inconsistent with the diagnosis, but together they may be taken to raise a probability of its incorrectness which, coupled with the comparative infrequency of the occurrence of the disease, lent support for the view that the skin specialist who actually attended the patient throughout the disease was right in rejecting, as he ultimately did, a diagnosis of dermatitis herpetiformis. At any rate, the conclusion that this was the nature of the disease is one which the Court ought not, on the evidence, affirmatively to adopt. On the other hand, there are serious difficulties in adopting the positive conclusion that the disease was caused by a chemical in the garments in such quantity or strength as to render them unfit for indiscriminate use. The quickness of the appearance of symptoms of irritation upon the shins, if shown to be due to an irritant, would in itself indicate that the irritant existed in strength or quantity, But this quick appearance was followed by a slow progress which scarcely suggests strength or quantity. Further, it was not arrested by the removal of the supposed cause, but was followed by the appearance of the disorder in a remote member. The simultaneous appearance of the eruption in similar places in two limbs is character- istic of dermatitis which is not caused by irritation at those places. The course of the complaint was obviously independent of the supposed cause. It is true that none of these matters is inconsistent with the cause being an external chemical irritant upon the legs. They too go only to probability. But a consideration of the medical evidence and an examination of a number of the text books cited in that evidence shows that the aetiology of disorders of the skin involves many uncertainties. It would appear that most of the older views are undergoing change or modification. It is difficult to discover any generally accepted explanation of the manner in which such a condition as that of the plaintiff is derived from the existence of a chemical irritant applied at one or two points such as the shins. No doubt, whatever may be the explanation, a general condition of dermatitis might develop as the result of the application of such an irritant at such a place or places. But, on the other hand, it seems probable that it would not do so unless the sufferer possessed

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diagnosis and aetiology of the plaintifi's disorder, a view which I am unable to share; but it also depended to a very great extent upon inferences drawn from the results of chemical analyses in respect of the garments in question and other garments, from the character of the processes to which the web of the ankle ends was subjected in the course of the manufacture, and from other cireum- stances. It appeared that, in November 1931, the defendant, the manufacturer, submitted to an analytical chemist for report one of the pairs of underpants which the plaintiff had returned to the retailer. He reported that his examination disclosed the presence of no chemical substance likely to cause irritation of the skin, but he also reported that the mineral portion of the water soluble extract which he had made consisted mainly of neutral sulphates. The percentage of such matter was small, but was larger in the ankle and crutch of the garment than in the waist and knee. In May 1932, the same chemist made another examination, this time of all four garments and of a fifth which was taken as a sample from stock. From each garment he made up a given weight of material taken from various parts of the garment. From each sample he extracted a solution using distilled water at blood temperature. He reported that he obtained a percentage by weight of sulphur dioxide as follows : in one pair of the plaintiff's underpants, 0.0082 per cent, in the other, 0.0201 per cent, in one of the plaintifi's singlets none, in the other 0.0070 per cent, in the sample from stock, 0.0313 per cent. This statement was not intended to mean that the fabric contained sulphur dioxide, which is a gas, but that it was represented or obtainable. In fact he considered that the sulphur dioxide represented a sulphite, With these reports before them, the defendants answered an inter- rogatory that the garments at the time of delivery to the retailer by the manufacturer contained, among other things, sulphur dioxide. The evidence given by the defendants of the process of manufacture disclosed that the woven material, after going through a shrinking process in which calcium hypochlorite and some hydrochlorie acid are used, is put through a bath, containing bisulphite of soda, to get rid of chlorine. The compounds formed are soluble, and in that process and in three succeeding washing processes, they would be completely taken out. The percentages of sulphur dioxide disclosed

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formation of sulphuric acid. He said that sulphur dioxide, sulphurous acid, and sulphuric acid all well known irritants, would be produced yery slowly and steadily, and their noxious effect would be cumula- tive. Professor Hicks was closely questioned about an experiment which a witness for the manufacturer, Dr. Hargreaves, had conducted, and his final opinion was that the source of the sulphur dioxide he (Hicks) obtained from the aqueous extract was free soluble sodium sulphites present in the garment, and was neither the sulphur combined in the wool molecule itself nor minute quantities of gas "said by the defendant to be adherent to the wool fibre though free : of the wool molecule. Professor Hicks' opinion is supported by the

fact that scoured wool, treated in the same manner as he had treated the manufacturer's garment, produced no sulphur dioxide at all, although he applied the same test to both. Dr. Hargreaves' experiment was conducted upon portions of the garments. But the Peal was retained in the water for a period of twelve hours and at a temperature of 125 to 130 degrees. It was Mr. Anderson, an industrial chemist, who, at the instance of the manufacturer, analyzed portions of the plaintifi's garments. ; He extracted substances soluble in distilled water at blood tempera- ture. Table G represented the amount of sulphites he found, _ expressed i in terms of sulphur dioxide. A dispute exists as to whether ; Anderson' 's evidence was intended by him to affirm the absence, or _ merely to suggest the possible absence, of free soluble sulphite from Dr. Grant's garments. I am satisfied that Anderson thought that
the source of the sulphur dioxide he extracted from the solution was free soluble sodium sulphite ; and was not the wool molecule nor sulphur dioxide gas in close attachment to the wool fibre. He analyzed four samples of Dr. Grant's underwear. Sample 3 produced _ no sulphur dioxide at all, although samples 1, 2, and 4 did give rise "to it. Mr. Cleland forcibly contended, and I agree with him, that Mr. Anderson did not mean to imply that the sulphur dioxide given
off during his analysis had its source in anything but free sodium 'sulphite in the garment. It is impossible to suppose that a nil result would have been obtained from sample 3 if the sulphur ; dioxide came from the wool molecule or was present in gaseous form

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Judgment (355 paragraphs)