20 Regulation 31 provides that a person who contravenes the regulations is liable to a specified penalty. It is not disputed that Brytall is "dangerous goods" within the meaning of the regulation.
21 So far as the standard of care imposed by the Regulation is concerned, the requirement of reg 19(e) "to take all practicable precautions" is not directed at the prevention of, for example, fire but "the occurrence on the premises of accidents through fire" (emphasis added). However, I think this must involve the prevention of a fire that would cause accidents. This probably goes no further than the law of negligence so far as the standard of care is concerned although, of course, the obligation is to prevent damage to a party to whom a duty of care is owed rather than simply, to prevent the occurrence of an event. Another important point of distinction is that reg 19(e) does not depend at all upon the occurrence of an accident but is designed to ensure that practicable precautions are taken to prevent accidents.
22 Regulation 19(g), on the face of it, imposes an absolute prohibition of any act that, inter alia, may cause fire. It also prohibits all acts that are "not reasonably necessary for purposes of, or properly incidental to, the keeping... of dangerous goods"
23 The question is whether these obligations give rise to a civil cause of action in the plaintiffs in the event of breach. In O'Connor v S P Bray Limited (1937) 56 CLR 464 at 477-8, Dixon J said -
"It is a question of some difficulty whether a civil remedy is given to a person injured in consequence of the breach of that clause [of an Act]. Such a person may, of course, maintain an action of negligence and rely upon the failure to comply with the statutory regulations as evidence of negligence. But it is a different question whether the enactment itself confers a distinct cause of action. The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instruments. Sometimes it almost appears that a complexion is given to the statute upon very general considerations without either the authority of any general rule of law or the application of any definite rule of construction… perhaps in the end, a principle of law will be acknowledged as the foundation of the cases. In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is legal, because it protects an interest recognised by the general principles of the common law ...whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific proportion for the safety of others in a matter where the persons upon whom the duty is laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision of from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on."
24 In J D Bell (Caloul) Pty Limited & others v Shortland County Council (1991) Australian Torts Reports [#81-131], Cole J expressed the view that the application of this principle applies equally to the damage to property resulting from a breach of statutory duty as to personal physical injuries. The issue before his Honour was whether certain regulations requiring the electricity supply authority to trim trees to prevent contact with an aerial conductor imposed liability on the authority for property damage occasioned by a fire which was caused by a failure to comply with the regulation. Cole J construed the regulation as demonstrating that the legislative intention for requiring trees to be trimmed to avoid contact between trees and serial conductors was to prevent injury to persons or property. This being so, his Honour concluded that "the purpose of the regulation goes beyond imposing upon the electricity supply authority an obligation to the Crown sounding only in penalty" (#81-140 at 69,321). Accordingly, his Honour held that the regulation prescribed "a specific precaution for the safety of persons and their property in a matter where the council upon whom the duty laid is, under the general law of negligence, bound to exercise due care, and thus the duty gives rise to a co-relative private right to sue for breach of that duty".
25 In Proprietors -Strata Plan No 30234 v Margiz Pty Limited (unreported, NSWSC 30 June 1993) Brownie J considered the question whether s 68 of the Strata Titles Act 1973, in the circumstances imposing a duty to repair and maintain air conditioning facilities in a building, imposed a duty that was enforceable at common law. Citing, amongst other authorities, O'Connor v S P Bray Pty Limited (1937) 56 CLR 464 at 477-478, his Honour said-
"...once it is recognised that the Act imposes a duty on the plaintiffs, and that the defendant is one of the class of persons for whose benefit the duty was created (namely the proprietors of the constituent lots), there does not seem to be any reason why the ordinary rules of the common law would not give the Court jurisdiction to award the defendant damages, upon proof of breach of duty and consequential damage."
26 In Lubrano v Proprietors of Strata Plan No 4038 (unreported, NSWSC 13 September 1993) Young J was of the same opinion.
27 In John Pfeiffer Pty Limited v Canny 1981 55 ALJR 683 at 689 Mason J said, citing O'Connor v S P Bray Limited (supra)-
"Ordinarily a duty imposed by Statute to take measures for the safety of others involves a correlative private right unless from the nature of the provision or from the scope of the legislation a contrary intention appears... [No] doubt the principle was expressed in these terms so as to exclude the statutory prohibition against driving a motor vehicle without a licence, there having been a reluctance on the part of the court to accept that such a statutory prohibition creates a private right of action."
28 The Act and the Regulation regulate the manufacture and storage of dangerous goods by, inter alia, imposing particular duties on persons who undertake these activities. It seems obvious that fire in a warehouse used to store dangerous goods may be catastrophically destructive by virtue of the nature of the goods so stored which may, of course, be dangerous in a number of different ways. It is unarguable that the purpose of the Act and Regulation is to avert injury to persons who and property that might be at risk by virtue of the manufacture and storage of such goods. I do not think that the purpose is any less so because, in addition to such provisions as regulation 19, the legislation creates a series of licensing requirements and the powers of inspectors. Provision is made for the taking of legal proceedings for the contravention of the Act and Regulation but these are conventional in form and do not, to my mind, suggest that civil liability for a breach of the statutory duty that resulted in injury should be excluded. The defendants, with some justice, submit that, at all events, reg 19(g) does not impose strict liability since it seems obvious that it is possible to do some act in or on the premises that might cause a fire in entirely unforseen and unforeseeable circumstances. Creating a liability in such a situation cannot further the purposes of the Act since, in respect of such acts, nothing which a person might do could avoid the risk. It was therefore submitted that, properly understood, the regulation prohibits an act which the occupier knew or ought to have known "may cause" a fire. In the circumstances of this case, it is not difficult to conclude that neither Mr McDonald or his employees had the slightest notion that soaking up the tall oil with attapulgite and accumulating the resulting mixture in containers without lids was capable of leading to ignition. The real question is what McDonald ought to have known, accepting for the present the defendant's formulation of the relevant duty. This matter, it seems to me, is prescribed by reg 18.
29 I consider that Mr McDonald's liability to the plaintiffs is (to use the language of Mason J in the passage last cited above) correlative to his duty under the Act and Regulation.
30 It is clear from his evidence that Mr McDonald assumed that, if there were any particular dangers that a layperson, such as himself, might not be aware of, it would have been brought to his attention by either the suppliers or the manufacturers of Brytall. As it happened, Mr McDonald had worked for Bryce for some years as a delivery driver and had acquired the warehouse in question from that company. He was aware that Bryce did not manufacture Brytall but was the importer and wholesaler of the product which was, in fact, as he knew, manufactured by EKA Chemicals, whose label was prominently displayed on the containers. Material safety data sheets (MSDS) are prepared by companies such as Bryce in accordance with the Worksafe Australia National Code of Practice for the purpose, inter alia, of warning persons dealing with the product of any dangers that might be associated with its use, including fire risk, accidental spillage, and procedures for clean-up. Although Mr McDonald did not consult the MSDS issued by Bryce in respect of Brytall, had he done so he would have read the following, as to spills and disposals -
"In event of a major spill, alert fire brigade and advise of nature & location of spill. Prevent spillage from entering drains or watercourses.
Stop leak if safe to do so and contain spill. Absorb onto vermiculite, sand, sawdust or other absorbent material. Sweep up and shovel or collect recoverable product into labelled containers for recycling or salvage. Recycle containers wherever possible.
After spills, wash area, preventing run-off from entering drains. If material enters drains, advise emergency services.
This material may be suitable for approved incineration or landfill. Dispose of only in compliance with local, state and federal regulations.
Launder all contaminated clothing before reuse."
31 So far as any fire or explosion hazard is concerned, the MSDS said that there was no explosion hazard from the material under normal circumstances, that there were no unusual fire and explosion hazards and that it would not polymerise. Attapulgite is similar to vermiculite for present purposes. In dealing with Mr McDonald's situation it is important to focus on the point that the damage did not arise from cleaning up the spilt tall oil with attapulgite. There was no risk of fire associated with this process. The risk of fire was created by the storage of the mixture in a condition where it was reasonably possible that it would spontaneously ignite and where fuel was available to permit the spread of fire. It seems to me that an appropriate way of looking at this problem is to ask what would have been Mr McDonald's position if he had accepted into storage an open container filled with a mixture of tall oil and attapulgite in unknown proportions and a quantity of strips of paper torn from storage bags. I think that it should have occurred to Mr McDonald that he had in his warehouse a mixture of two products, the chemical properties of which he was unaware, and about which he should make reasonable enquiries. He made no such enquiries. Had he made such enquiries in relation to attapulgite, he would no doubt have been informed that it could safely be used to soak up the tall oil. Whether he would have been informed that it was safe to store the mixture is, however, somewhat doubtful. If he had enquired of Bryce and had been supplied with its MSDS, he would have inferred that it was safe to oak up the oil with attapulgite and, in the absence of any contrary suggestion, would reasonably have inferred that storage of the mixture was not dangerous or hazardous. The recommendation to "collect recoverable product into labelled containers for recycling or salvage" appeared to suggest that it was safe to store but, though to that extent misleading, was significantly less than an assurance of safety.
32 The EKA MSDS revealed that, in respect of large spillages, as much of the oil as possible should be collected in a clean container with a material such as vermiculite and, in respect of stability and reactivity, a condition to avoid was "prolonged contact with porous materials". There was no warning as to why this condition should be avoided but its sense is clear enough. Certainly, at least to a focused mind, it warned of an unspecified danger or risk with the storage of the mixture; but it did not suggest the possibility of spontaneous combustion and, indeed, suggested that there was no such risk. Nevertheless, Mr McDonald should have obtained and referred to the MSDS, not only of the distributor (Bryce) but also the manufacturer (EKA), to instruct himself appropriately of the risks associated with the storage of tall oil and its safe clean up and disposal in the event of spillage.
33 As I have said, the crucial question here was not whether it was appropriate to use attapulgite to mop up the spilled oil. This was clearly both entirely safe and reasonable. The danger was created by the storage of the mixture in the containers together with other flammable material providing fuel when the point of spontaneous ignition was reached. In light of the evidence of Professor Gray, it is clear that the Bryce MSDS significantly fell short of providing appropriate information by its failure to mention the risk of spontaneous combustion constituted by the storage of absorbent and oil. However, it did not mislead Mr McDonald since he did not consult it or, for that matter, seek any information from Bryce. EKA's MSDS, at least, warned that prolonged contact between the tall oil and the absorbent should be avoided, and thus indicated that there was more about the mixture, as it were, than met the eye, but there was no warning as to the nature of the danger. Even so, I think that it was probable, had Mr McDonald inquired about storage of a mixture of attalpulgite and tall oil from EKA, he would have been told of the risk of spontaneous combustion. On the other hand, there was nothing to indicate to Mr McDonald that he was faced with an emergency in respect of which he needed to consult with EKA except that the label itself, by reference an emergency telephone number, pointed to the possibility that a circumstance might arise in which information about the product or dealing with it might be necessary.
34 I consider that reg 18 requires a person in Mr McDonald's position to know more than whom to telephone in the event of an emergency. Such a person must at least consider that he or she cannot rely on his or her general knowledge (the equivalent in this situation of ignorance) of the dangerous product being handled or stored as indicating when a dangerous or hazardous situation has arisen. The information about the product and what should be done, say, when it is spilt and what to do with the resultant clean-up material should be acquired before the occasion for its application occurs. Here, it is obvious that spillage of tall oil was possible. It was probable (as Mr McDonald, indeed knew) that some such absorbent as attapulgite might be used to clean it up. The resultant mixture would need to be stored before disposal. To my mind, reg 18 imposed on Mr McDonald the duty to ascertain whether there were any hazards associated with that storage which involved, at least, reference to the MSDS of the distributor (his client) and the manufacturer of a dangerous product and obtaining a specific assurance that what he proposed to do was safe. Mere collection of the spilt tall oil was not, of course, all that he proposed to do. He also proposed to store the resultant mixture until it was disposed of. In short, it is the very point of the dangerous goods regime that those who store them, such as Mr McDonald, cannot take for granted that their common knowledge assumptions about safety can be relied on. Specific information about the particular mode of, say, storage, must be obtained. It matters not, in my view, that tall oil, as here, was prescribed as dangerous for reasons other than the hazard that caused the damage. This point is clear from the regulation itself.
35 It is obvious that Mr McDonald, whatever the duty imposed upon him by virtue of reg 19, was, in the circumstances not "adequately instructed as to the hazards involved in the handling of" tall oil within the meaning of reg 18. Adequate instruction required more than simple reference to the MSDS prepared by Bryce or, for that matter, EKA if those documents did not expressly address the problem about which information was necessary. Whether instruction is adequate is a question to be objectively determined by the hazards involved in the handling of the goods in question. It seems to me that, at least, there should have been an express advertence to the possible circumstance requiring attention, here, clean up of spilled tall oil with an absorbent material and safe storage and disposal of the resultant mixture. Knowledge of chemistry was not necessary -depending on the substances involved -but Mr McDonald was required by reg 18 to be armed with information that directly and unmistakeably dealt with the foreseeable situation. Thus, it was no compliance with reg 18 to wait until something happened that he recognized as an emergency before he instructed himself how to properly respond.
36 The point about the prescribed instruction is that it must be adequate to avoid any real or significant risk to life, limb or property, the protection of which is the fundamental purpose of the legislation. In this case, specific information about whether a mixture of tall oil and a product such as attapulgite kept in containers for days was safe has been demonstrated to be necessary in order to avoid the fire which occurred. That some substances may spontaneously combust is a notorious fact and, as I explain later, the plaintiffs have proved, through the evidence of Professor Gray, that both the fact and the risk that tall oil was capable in circumstances similar to those brought about by Mr McDonald of spontaneous combustion, was sufficiently known in industry (though perhaps not the warehousing industry) to demonstrate that the problem was no mere matter of hypothetical or theoretical interest but was a real and substantial risk which anyone in Mr McDonald's position faced with cleaning up a substantial quantity of tall oil with a product such as attapulgite should have known. It is no answer, as it seems to me, to argue that all that Mr McDonald needed to have done was to consult Bryce and that, as he would not have been usefully informed by its MSDS, his ignorance was excusable or, to put it another way, his instruction was adequate. I do not see how it is possible to be "adequately instructed" by acquiring significantly misleading information. I am far from certain that reg 19(g) does not impose strict liability on a person who does an act that "may cause fire" in premises used for the keeping of dangerous goods. However, it is unnecessary for the purposes of this case to determine this question, since doing an act that might cause fire, in this case, storing the self-combusting mixture of oil and attapulgite, would have been known to Mr McDonald to be dangerous if he had been "adequately instructed" within the meaning of reg 18(e). I note in passing that, whatever the relevance of s 36 of the Act might have in the circumstances as providing a defence to an employer who did not authorise or permit a contravention of the Act by an employee and used all due diligence to prevent such a contravention, it can have no application here where there was no attempt by Mr McDonald to obtain any information, adequate or otherwise, as to the nature and characteristics of tall oil when it has been absorbed into material such as attapulgite and stored in the containers as I have described.
37 I should deal with the situation at common law against the event that I am mistaken as to the application of the dangerous goods legislation in the present circumstances. Professor Gray's evidence is that there were a significant number of references in the literature to the propensity of tall oil to self-combust. He also discovered pertinent references in "an old textbook" on paint technology and a handbook of the National Fire Protection Association. Tall oil is comprised mainly of linoleic and oleic acids which are unsaturated fatty acids well known for its tendency to undergo spontaneous combustion when disbursed on porous material. As it happens, linoleic acid is one of the main components conferring this property on linseed oil, which is notoriously dangerous in this respect, although the major risk in respect of linseed oil is another fatty acid known as linolenic acid, which is more reactive than linoleic acid. Thus, references to the attributes of linoleic and oleic acids would be additional sources of information about the self-heating qualities of tall oil. I am satisfied that any reasonably competent industrial chemist would either be aware of or could easily ascertain information that tall oil had a propensity for spontaneous combustion when absorbed by materials such as attapulgite. This information should have been available from both Bryce's and EKA's MSDS.
38 To my mind, Mr McDonald's duty of care to persons who were foreseeably at risk as a result of fire from dangerous goods stored by him required him to take reasonable steps to inform himself of the nature of the dangerous goods which it was his business to handle and that this included modes of safe disposal in the event of spillage. Whether a reasonable person in Mr McDonald's position has failed in this duty of care, measured purely by reference to the common law, is not easy to determine but, in all the circumstances as I have outlined them, I consider that that Mr McDonald was obliged to acquaint himself with the risks of storage of a mixture of tall oil and attapulgite or similar product before he undertook to do so and that reliance upon merely suggestive and indirect assurances, such as would have been obtained from the MSDS produced by Bryce and EKA would not be sufficient. Only a positive statement in such a document that there was no risk associated with the storage of such a mixture would have sufficed to satisfy Mr McDonald's duty of care. Of course, had he referred to the EKA MSD, he would (or should) have realized that storage of the mixture as he intended was to be avoided. This should, at least, have put him on enquiry. Reference to EKA would probably have revealed the danger of spontaneous combustion and to the conclusion that the mixture should not be stored as he intended. At all events, he should not have stored the mixture unless he had a positive assurance from a person with sufficient expertise that it was safe to do so.
39 However, this matter does not fall to be determined by the common law standard considered in isolation. I have already referred to the provisions of reg 18. I consider that Mr McDonald was required by virtue of that enactment, at the least, to obtain from some suitably qualified person (and Bryce or EKA would fall into this class) reasonable assurance as to the absence of risk of storing the mixture. I do not consider that any person such as Mr McDonald, considering whether it was safe to store the mixture in question, could have reasonably inferred from either the Bryce or the EKA MSDS that there was no risk involved since, on a fair reading, these documents do not suggest any advertence by their authors to the actual situation which Mr McDonald should have assessed. I have said that, so far as Mr McDonald's statutory duty was concerned, the test of adequate information is objective and could not be satisfied by wrong information, even if that came from an apparently appropriately qualified source. But, even if I am mistaken about that, it seems to me that, at least, information about the nature of the hazard must be unambiguous and relate directly to the character of the hazard being considered. Mr Finch SC argued that the implication of the Bryce MSDS, had Mr McDonald sought it, was that there was no risk involved in the storage of the mixture. Whilst the document is open to this interpretation, I think it should be more correctly read by someone in Mr McDonald's situation as not dealing with that situation at all. Assuming that Mr McDonald's next step was to consult the EKA MSDS, that certainly indicated there was some kind of unspecified risk associated with the long term contact between tall oil and porous materials but it, also, did not directly address the problem about which Mr McDonald required information. Further enquiry, was to my mind, necessary and there was a telephone number on the container label which was an obvious source of further information. Having regard to the warning, albeit limited, expressed in the EKA MSDS I think it more likely than not (as has already been mentioned) that Mr McDonald, on such an enquiry, would have been informed of the risk of spontaneous combustion providing he insisted, as I think it was his duty, on obtaining an unambiguous answer to the question of the safety of storage of the mixture. Accordingly, whether the duty to be informed of the risk is directly imposed by reg 18 or by virtue of that regulation informing the common law duty (see Sutherland Shire Council v Heyman (1984) 157 CLR 424 per Mason J at 459.5) does not, in the end, matter very much. Either way, I am satisfied that the appropriate standard of skill and competence to be possessed by a person in Mr McDonald's position, undertaking the storage of dangerous goods, required that he or she be informed of the dangers of storing products such as tall oil soaked into attapulgite and the risk that such a mixture will spontaneously ignite and cause a fire.
40 Mr McDonald called a Mr Ross Underwood to give expert evidence as to the appropriateness of Mr McDonald's mode of cleaning up the spilt tall oil and the quality and accuracy of the information contained in the MSDS produced by Bryce and EKA. Mr Underwood had many years of experience as a professional engineer, initially in the petrochemical industry, and for the last ten years has been a consultant advising on appropriate warehouse practices, including spill procedures, and including the handling and storage of dangerous goods. Mr Underwood considered that it was reasonable to use clay as a medium for containing and absorbing the tall oil spill. As I have said, this could scarcely be controverted. The question, however, was not whether attapulgite should have been used for cleaning but whether the mixture should have been stored.
41 Mr Underwood said that Mr McDonald could legitimately have relied on the fact that the Standards Australia handbook providing immediate general information and advice for the handling of dangerous goods in emergency situations suggests that an emergency response for a spill or a leak is to absorb it with earth, sand or other non-combustible material. However, as Mr Underwood himself said, the handbook was principally written for trained emergency responders such as the fire brigade and other persons "first on the scene of an accident". It follows that it is not directed to the storage of a mixture of a product such as tall oil with a substance such as attapulgite.
42 In dealing with the MSDS of Bryce and EKA, Mr Underwood's report points to the national standard for describing the requirements for information on spills, which are confined to the cleanup itself and do not refer to the storage of a resultant mixture of substances. Mr Underwood concludes that the method adopted for cleaning up the tall oil spill was appropriate, however, and that there was no reason for Mr McDonald, "on the basis of ...[the information available to him] to foresee that there would be a risk of any adverse interaction between the Brytall and the attapulgite (clay) either immediately, or over time, should the mixed substances be kept in storage". It will be obvious from what I have already said that this approach conflates the issues of clean up and storage. As Mr Underwood himself said, the MSDS do not discuss storage. Accordingly, they are not a source of information about the risks involved in storage and I do not consider the absence of reference to problems that might be associated with storage of the mixture to be a basis for any sufficiently firm conclusion that such storage would be safe. In the end, Mr Finch SC seemed to rely on Mr Underwood's evidence that he was himself unaware of the risks of spontaneous combustion arising from the storage of the mixture and hence there was no reason for inferring that Mr McDonald should have been aware of those risks. But Mr Underwood was not in Mr McDonald's situation. The question is not whether Mr McDonald should have had the information so much as whether he should have made enquiries as to the risk of the storage of the mixture in question.
43 It follows that I am satisfied on the balance of probability that the plaintiffs have proved that Mr McDonald is liable to them for the losses attributable to the fire under the Dangerous Goods Act 1978 and Dangerous Goods Regulation 1978 and in respect of negligence. It is therefore necessary to consider the various cross-actions.
44 Mr McDonald has cross-claimed against Bryce (the first cross-claim) and SLE (the second cross-claim) in both contract and tort, claiming damages for loss and damage caused to him including, pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 (LRMPA), a contribution and indemnity in respect of any judgment in favour of the plaintiffs. Mr McDonald submitted that Bryce had a duty, as bailor, to inform him of the propensity of Brytall to spontaneously combust when mixed with a substance such as attapulgite, a probable and foreseeable occurrence if it were spilled in any quantity. The damages for breach of contract would, of course, not be susceptible to reduction for contributory negligence: Astley v Austrust Limited (1999) 197 CLR 1 (the Law Reform (Miscellaneous Provisions) Amendment Act 2000 not applying since the present proceedings had been commenced and not completed when that Act commenced: see Sched 1, cl 4). They would comprehend the whole of the damage flowing directly from the breach, which, in this event, would amount to so much of the judgment in favour of the plaintiffs as Mr McDonald was liable to pay. The submissions do not deal with Bryce's liability to the plaintiffs in tort in terms, a prerequisite of their liability to make a contribution under the LMPA, except to submit that, if the fire was caused by spontaneous combustion of the mixture, the failure of Bryce to inform Mr McDonald of Brytall's propensity in this regard, rendered it liable to contribute to the loss. Bryce took no point as to this matter. I think I should deal with the question on the basis that the parties are agreed that Bryce's liability to contribute to the judgment against Mr McDonald in favour of the plaintiffs will arise if it is proved that Bryce should have informed Mr McDonald of the danger of storing the mixture.
45 Although Bryce did not manufacture Brytall, Bryce was its importer and distributor and its product had the propensity to spontaneously combust when in the presence of an absorbent like attapulgite, which would be the most likely material to be used to clean up any substantial spill. None of these matters are really in dispute. The real question is whether Bryce had a duty to inform Mr McDonald of the risk of spontaneous combustion following clean up. I have already mentioned the recommendation of Bryce as contained in its MSDS concerning the mode of cleaning up any spill. Had Mr McDonald consulted this MSDS, it is likely that he would have been (though he should not have been) lulled into a false sense of security about the risks associated, not only with clean up but also with storage of the mixture. In that event, Bryce could scarcely contest its liability. However, it is Mr McDonald's evidence that he simply assumed that there was no risk associated with storage of the mixture and did not consult Bryce's MSDS in this or, indeed, any other respect. The failure of Bryce to set out in its MSDS the risks associated with storage following clean up is therefore immaterial. However, the question arises whether notification of such a risk as that of spontaneous combustion in the MSDS would have been adequate to satisfy Bryce's obligations under the contract of bailment or its duty of care and, in particular, whether the danger of spontaneous combustion should have been displayed on the container's label.
46 It is clear law that a bailor of dangerous goods has a duty to inform the bailee of the danger in question. In Hoey v Hardies & Anor (1912) 12 SRNSW 268 at 271 the Chief Justice said -
"Now the principle upon which actions for negligence of this nature rest has been well-settled for a long time. In Farrant v Barnes (11 CBNS 553) Willis J said-