Norton Australia Pty Ltd v Streets Ice Cream Pty Ltd [1968] HCA 61;

Norton Australia Pty Ltd v Streets Ice Cream Pty Ltd [1968] HCA 61; - HCA 1968 case summary — Zoe

[8]

4. At the same time foil was being prepared for application to the, as yet, uncovered parts of the ceiling. A quantity of the adhesive had been poured out of a five-gallon drum which was on the scaffold into a shallow tray which was also upon the scaffold. This five-gallon drum was one in which the adhesive had been delivered by the appellant to the contractor and bore the warning and directions for use to which I later refer. To prepare the foil which had been cut into suitable lengths, workmen dipped paint rollers into the shallow tray and spread the adhesive thinly on the surface of the foil, each piece of which represented about one hundred and forty square feet of surface. After application of the adhesive, a period of two or three minutes was allowed to elapse before placing the foil in position on the ceiling in order that the adhesive should become "gummy" or "tacky", a condition obviously brought about by the evaporation of the solvent in the adhesive. According to the finding of the learned trial judge a distance of some twenty feet separated this operation with the adhesive from the lighted burner under the tray of bitumen. On the day of the accident giving rise to this claim, these procedures had been in progress for some time. The cool room had only two relatively small apertures and "there was virtually no movement of air" passing through it. In consequence, the atmosphere within the room, again to quote the trial judge, had "become hot, oppressive and fume laden". The scaffold, which necessarily had been moved as the work progressed, was at the relevant time at one end of the room. At this stage the walls had been treated and only one sheet of foil remained to be placed in position on the ceiling. About ten a.m. as the sheet of foil to which the adhesive had been applied was about to be raised to the ceiling, it burst into flames, or, as it is said, "exploded in flames" whereupon fire spread throughout the whole area above the scaffold and great damage was caused to the respondent's premises. "There is no doubt that the fire was caused by vapour from the BM 226 coming into contact with the flame of the Portagas burner": so found the trial judge. It is also clear that it was the volatile quality of the adhesive which gave rise to the vapour or fumes, and its inflammable quality to their ignition by the naked flame. (at p638)

[18]

"Having regard to the inherently dangerous qualities of this

adhesive, particularly to its extremely low flashpoint, to its

capacity for very rapid vaporization and dissipation and to the

enhanced dangers of using it where there is no real circulation of

air, I have come to the conclusion that the notification on the drum

label and the information contained on the data sheet did not amount

to a fulfilment of the third defendant's duty of care and were not

an adequate warning or notice. It is not for me to say what further

information or warning or advice should have been given and I

appreciate that problems might arise in determining what would be

the most suitable language to use. However, I think that some

information should have been conveyed to the purchaser as to the

rapid vaporizing features of the adhesive, as to the desirability of

maintaining an adequate draft of air current and possibly as to the

danger of using it in close proximity to flames, sparks or lamps. I

am of opinion that the failure to give adequate warning or notice of

the inherent dangers in the adhesive materially contributed to the

fire which broke out and to the loss which the plaintiff company

suffered. The statement that the adhesive was highly inflammable

was seen by Townsend and other employees mentioned in the evidence

but a more informative warning might well, as a matter of

probability, have been seen by them or other representatives of the

first-named defendant and have deterred them from using the adhesive

in the manner and under the conditions obtaining on the morning of

12th April 1962. As it is agreed between the parties that the

damage suffered by the plaintiff company amounts to the sum of

$162,518 there will be a verdict and judgment for it in that sum.

"I may say that my mind has fluctuated to some extent on the

question of what the proper outcome of this litigation should be. I

am not unmindful of the fact that the intimation that the substance

was highly inflammable is in itself a warning of some significance,

and I am not unmindful that the sale to the first-named defendant

was not to a housewife for the use of the substance in her home but

to a commercial undertaking which might be expected to have more

knowledge of such substances than many ordinary citizens. However,

having regard to the high degree of inherent danger in the product

and to the enhanced danger when the substance is used as it would be

contemplated that it would be used, by spreading thinly, and to the

circumstance that it should have been contemplated that it would be

used not in open air but in a room or building, I have come to the

conclusion that the lack of care alleged against the third-named

defendant has been established" (1967) 1 NSWR 50, at pp 52, 53

[29]

22. It was proved that the adhesive had an extremely low flash point with a capacity for very rapid vaporization and dissipation. The significance of the low flash point was first that it would only be at any extremely low temperature - lower than atmospheric temperature in Antarctica - that the adhesive would fail to vaporize, at least to the point where its vapour would ignite, or flash: second, that its rate of vaporization was faster than substances with higher flash points. This latter consequence is not categorically stated in the evidence but I think may fairly be inferred from it. But as I mentioned earlier, the evidence does not relate the rate of vaporization of this adhesive to the rate of vaporization of any similar or other adhesive. Further, as I have said, I find nothing in the evidence to suggest that it was the particular rate of vaporization of the adhesive which caused the conflagration. Not one of the witnesses even suggested that, if standard petrol had been allowed to vaporize in the enclosed space of the cool-room in the presence of the naked Portagas flame and the heated bitumen for the same length of time a different result would have ensued. Consequently, it seems to me that the flash point of the solvent, once it is known that the solvent will vaporize at atmospheric temperature in Australia, has, in my opinion, little, if any, bearing on the case. Its introduction with much elaboration in the evidence did no more, in my opinion, than intrude a seemingly scientific air into what was in truth a commonplace of human experience, namely, that the use of a highly inflammable substance in an enclosed, warm and airless space for a considerable period of time in the presence of a powerful naked flame is, to put the matter mildly, a highly dangerous operation. When it is known that there was no reason connected with the operation of insulating the cool-room which required the two operations of spreading the adhesive on the foil and heating the bitumen for the insulation of the cool-room to be carried on simultaneously in the enclosed space, doing so can only be regarded as foolhardy in the extreme. It was, I suppose, interesting to know that the adhesive would vaporize in Antarctica: it was important to know that it would vaporize in Sydney temperatures, a fact not made any more significant, it seems to me, by the other interesting information. (at p645)

[33]

26. Also, was the use in fact made of the adhesive by the purchaser one which could fairly be said to be a use which ought to have been in the contemplation of the appellant, so that it ought to have given special directions as to safeguards to be taken when so used. The trial judge, as I have said, seemed to think it was. But, as I have already intimated, in my opinion, no one in the circumstances could have or ought to have contemplated that such a reckless use could be made of the adhesive as was involved in the contemporaneous operations carried on in this case by a purchaser who had been informed of the highly inflammable quality of the adhesive. It must be remembered that there was no danger in using this adhesive in a closed room, even in a warm and airless room. The danger arose by the introduction of a large naked flame. It is going too far, in my opinion, to require a manufacturer of such a substance as this adhesive, even if it really be the most dangerous substance a demonstrator and lecturer in a university has come upon, not only to contemplate that an industrial user aware of the liquid's inflammable quality would introduce a naked flame into a cool-room in the condition this one was but to give positive directions as to what steps should be taken when it is so introduced. But in any case I cannot think myself that the warning "Highly Inflammable" did not clearly and unambiguously inform the contractor that a naked flame should not be introduced into a closed and airless atmosphere in which the adhesive was being used in such quantities as would be involved in keeping the adhesive in the shallow tray and in spreading it on pieces of foil one hundred and forty square feet in area. To say that it does not is, in my opinion, to deny the significance of simple but dramatic words of the English language. It is nothing to the point that the employee Townsend did not comprehend the full import of such words, if indeed that is the right conclusion to draw from his evidence. I am unable to accept the view that it was incomprehension such as Townsend claimed to have and not that of a reasonably well equipped person in industry as its purchaser which the appellant ought to have had in mind when selling its adhesive to the contractor. (at p647)

At a glance

Court

Decision date

Source

Judgment (52 paragraphs)

Norton Australia Pty Ltd v Streets Ice Cream Pty Ltd [1968] HCA 61; (1968) 120 CLR 635 (11 October 1968)

Parties

Cases Cited (1)