RICHARD THOROLD GRANT Vs. AUSTRALIAN KNITTING MILLS, LTD

JUDGEMENT

(1.) The appellant is a fully qualified medical man practising at Adelaide in South Australia. He brought his action against the respondents, claiming damages on the ground that he had contracted dermatitis by reason of the improper condition of underwear purchased by him from the respondents, John Martin & Co., Ltd., and manufactured by the respondents, the Australian Knitting Mills, Limited; the case was tried by Sir George Murray, Chief Justice of South Australia, who after a trial lasting for 20 days gave judgment against both respondents for the appellant for ?2,450 and costs. On appeal the High Court of Australia set aside that judgment by a majority. Evatt, J., dissented, and agreed with the Chief Justice. Of the majority, the reasoning of Dixon, J., with whom McTiernan, J., concurred, was in effect that the evidence was not sufficient to make it safe to find for the appellant. Starke, J., who accepted substantially all the detailed findings of the Chief Justice, differed from him on his general conclusions of liability based on these findings. The appellant's claim was that the disease was caused by the presence in the cuffs or ankle ends of the underpants which he purchased and wore, of an irritating chemical, viz., free sulphite, the presence or which was due to negligence in manufacture, and also involved on the part of the respondents, John Martin & Co., Ltd., a breach of the relevant implied conditions under the Sale of Goods Act.

(2.) The underwear, consisting of two pairs of underpants and two singlets, was bought by the appellant at the shop of the respondents, John Martin & Co., Ltd., who dealt in such goods and who will be hereafter referred to as the retailers, on 3 June 1931; the retailers had in ordinary course at some previous date purchased them with other stock from the respondents, the Australian Knitting Mills, Ltd., who will be referred to as the manufacturers; the garments were of that class of the manufacturers' make known as Golden Fleece. The appellant put on one suit on the morning of Sunday, 28 June 1931; by the evening of that day he felt itching on the ankles but no objective symptoms appeared until the next day, when a redness appeared on each ankle in front over an area of about 2? inches by 1? inches. The appellant treated himself with calomine lotion, but the irritation was such that he scratched the places till he bled. On Sunday, the 5 July, he changed his underwear and put on the other set which he had purchased from the retailers; the first set was washed and when the appellant changed his garments again on the following Sunday he put on the washed set and sent the others to the wash; he changed again on 12 July. Though his skin trouble was getting worse he did not attribute it to the underwear, but on the 13 July he consulted a dermatologist, Dr. Upton, who advised him to discard the underwear, which he did, returning the garments to the retailers with the intimation that they had given him dermatitis; by that time one set had been washed twice and the other set once. The appellant's condition got worse and worse; he was confined to bed from 21 July for 17 weeks; the rash became generalised and very acute. In November he became convalescent and went to New Zealand to recuperate. He returned in the following February and felt sufficiently recovered to resume his practice, but soon had a relapse and by March his condition was so serious that he went in April into hospital where he remained until July. Meantime in April 1932, he commenced this action, which was tried in and after November of that year. Dr. Upton was his medical attendant throughout and explained in detail at the trial the course of the illness and the treatment he adopted. Dr. de Crespigny also attended the appellant from and after 22 July, 1931, and gave evidence at the trial. The illness was most severe, involving acute suffering and at times Dr. Upton feared that his patient might die.

(3.) It is impossible here to examine in detail the minute and conflicting evidence of fact and of expert opinion given at the trial : all that evidence was meticulously discussed at the hearing of the appeal before the Board. It is only possible to state briefly the conclusions at which their Lordships after careful consideration have arrived. In the first place their Lordships are of opinion that the disease was of external origin. Much of the medical evidence was directed to supporting or refuting the contention strenuously advanced on behalf of the respondents that the dermatitis was internally produced and was of the type described as herpetiformis, which is generally regarded as of internal origin. That contention may now be taken to have failed: it has been rejected by the Chief Justice at the trial and in the High Court, by Starke and Evatt, JJ., and, in effect also, by Dixon and McTiernan, JJ. The evidence as to the symptoms and course of the disease given by the two doctors who attended the appellant is decisive: dermatitis harpetiformis is an uncommon disease, of a type generally not so severe as that suffered by the appellant, and presenting in general certain characteristic features, in particular, bullae or blisters and symmetrical grouping of the inflammatory features, which were never present in the appellant. Dr. Wigley, a very eminent dermatologist, who examined the appellant, and as an expert gave evidence in support of the doctors who actually attended him, expressed his opinion that all dermatitis had an external origin, but whether he was right in this or not, he was confident that in the appellant's case the origin of the disease was external, and on all the evidence their Lordships accept this view. But then it was said that the disease may have been contracted by the appellant from some external irritant the presence of which argued no imperfection in the garments but which only did harm because of the appellant's peculiar susceptibility. Thus the disease might have been initiated by the mechanical irritation of the wool itself or if it was due to some chemical ingredient in the garments, that might have been something in itself harmless, either because of its character or because of the actual quantity in which it was present, so that the mischief was attributable to the appellant's own physical defect and not to any defect in the garments; the respondents, it was said, could not be held responsible for anything in the garments which would not be harmful in normal use. Two issues were thus involved: one, was the appellant's skin normal, and the other, was there in the garments or any part of them a detrimental quantity of any mischievous chemical? The Chief Justice held that the appellant's skin was normal. He had habitually up to the material time worn woollen undergarments without inconvenience; that he was not sensitive to the mechanical effects of wool seemed to be proved by an experiment of his doctors who placed a piece of scoured wool on a clear area on his skin and found after a sufficient interval no trace of irritation being produced. It was said that he had suffered from tuberculosis some years before and that the disease had merely been arrested, not eliminated, and it was then said that tuberculosis made the patient more susceptible to skin disease, because it weakens the resistance of the skin and lowers the patient's vitality. But this contention did not appear to be established. It was admitted that the appellant's skin had by reason of his illness become what is denominated "allergic," that is, unduly sensitised to the particular irritant from which he had suffered; but that could throw no light on the original skin condition. A point was made that a skin ordinarily normal might transiently and unexpectedly show a peculiar sensitivity, but that remained a mere possibility which was not developed and may be ignored. In the result there does not seem any reason to differ from the Chief Justice's finding that the appellant's skin was normal.