Grant v Australian Knitting Mills Ltd

1935. July 1, 2, 4, 5, 8, 9, 11, 12, and 15. G. P. Glanfield and P. J. H. Heycock for the appellant. The question is whether the appellant suffered from dermatitis caused by a chemical agent in the garment. It was irrelevant whether his skin was normal or not. The degree of care owed by the manufacturer involved the special duty of rendering the garment safe and innocuous, or of protecting by warning or otherwise. Reliance was placed on In re Polemis and Furness, Withy & Co.^F1 and on Belhaven and Stenton Peerage^F2 where Lord Cairns, dealing with circumstantial evidence, said: “We have to consider the weight which is to be given to the united force of all the circumstances put together.” On the question whether the appellant suffered from dermatitis caused by external cause it was necessary to consider the purely medical evidence and the whole history of the case. The general principles involved were dealt with in Donoghue v. Stevenson^F3, in Ballard v. North British Ry. Co.^F4, and in Cammell Laird & Co. v. Manganese Bronze and Brass Co.^F5 The liability of the manufacturers in tort was founded on Donoghue's case^F3 as expressed in the judgment of Lord Atkin.^F6 Liability in respect of breach of implied condition depended on the decision in Cammell Laird & Co. v. Manganese Bronze and Brass Co.^F5, where Lord Wright said: “The condition of fitness may in proper cases be implied where it was only in some respects that the buyer relied on the seller's skill and judgment.” The sale of the underclothes was a sale by description, and a condition that they were of merchantable quality was to be implied. They were not of merchantable quality. On the question of fact that the Chief Justice had an opportunity of seeing and hearing the witnesses, and of forming his opinion as to reliability, see Powell v. Streatham Manor Nursing Home.^F7

Wilfrid Greene K.C., Wilbur Ham K.C. (of the Australian Bar), and Ian C. Baillieu for the respondents. Heaven v. Pender^F8 dealt with a special class of person, while in Donoghue v. Stevenson^F9 the manufacturer had so conducted himself that he was in effect handing the subject-matter direct to the ultimate consumer. The essence of that decision was that the relationship must be absolutely direct. There is no duty if there is no immediate relationship. The appellant, to succeed, must get right into that category of immediate relationship. It was the conduct of the manufacturer in treating the article in such a way that it went direct to the consumer without intermediate intervention that imposed on him the duty of taking care that the consumer was not injured. That was the real decision in Donoghue's case.^F9 The manufacturers in the present case owed no duty to the appellant. [Counsel read a number of extracts from the judgments in Donoghue's case.] Lord Atkin^F9 founded that duty on the fact that the consumer was so closely and directly affected by an act that the manufacturer ought reasonably to have had him in contemplation as being affected. Lord Thankerton^F10 laid down that to establish the existence of the duty the method of dealing by the manufacturer must be such as intentionally to exclude interference with or examination of the article by any intermediate person. Lord Macmillan^F10 said that responsibility ceases when control ceases. The principle laid down by Lord Atkin in Donoghue's case^F10 was that where a manufacturer so dealt with goods as to establish a direct proximity between himself and the ultimate consumer, and there was no reasonable opportunity of inspection intervening between delivery by the manufacturer and the taking into effective consumption, then the manufacturer has a duty to take care that the consumer is not injured. That involved a very far-reaching proposition which might be extended to a variety of things. What was true of the facts in Donoghue's case^F11 was not true of the facts in the present case, where the garments might be handled and inspected by others before reaching the appellant. The finding of negligence by Murray C.J. was against the weight of evidence. There was no warranty or condition of fitness for any particular purpose on the part of the retailers. [Reference was also made to Dominion Natural Gas Co., Ld. v. Collins & Perkins^F12 and to Farr v. Butters Bros. & Co.^F13, in which Donoghue's case^F14 was discussed in the Court of Appeal.]

Glanfield replied.