N324(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

W.S. 634 OF 1980

BETWEEN:

MAXINE GEORGE
PLAINTIFF

AND:

BURNS PHILP (NEW GUINEA) LIMITED
DEFENDANT

Waigani: Pratt J
30 June 1981; 1-2 July 1981; 3 November 1981

ACTION FOR NEGLIGENCE - manufacturers liability and occupiers liability - duty of care and foreseeability - invitees to self-service store - safety of system.

Cases Cited
Carmarthenshire County Council v. Lewis (1955) A.C. 549
Grant v. Australian Knitting Mills, Limited (1936) A.C. 85
Donoghue v. Stevenson (1932) A.C. 562
Glasgow Corporation v. Muir (1943) A.C. 448
Hart v. Dominion Stores Ltd. et. al. (1968) 67 D.L.R. (2d) 675
Northwestern Utilities, Limited v. London Guarantee and Accident Company, Limited (1936) A.C. 108
Read v. J. Lyons & Company, Limited (1947) A.C. 156
Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. (Wagon Mound (No. 2)) (1967) 1 A.C. 617

PRATT J: On the 19th February 1980 the plaintiff had made some purchases in the self-service store at Boroko owned and operated by the defendant company. Whilst standing behind another customer at the main checkout counter, a bottle of Rouna soda water disintegrated and several pieces of glass flew up and struck the plaintiff in the face and throat. The disintegrating bottle was one of a number in the process of being purchased by Mr Peter Kirke and thus transferred to the counter from a shopping basket provided by the defendant. Following the lacerations suffered by the plaintiff, Mr Kirke immediately went to her assistance and took her across to a doctor’s surgery nearby where she was treated and allowed to return home. The substance contained in the bottle was also manufactured by the defendant company but not so the glass containers. Originally the defendant company took over the trade names "Canada Dry", "Cottees", and "Pepsi". The use of these trade names and the bottles carrying the respective logos was for a period of seven years. This period still has some time to run. It seems that the bottles manufactured for these other trade marks were manufactured by the same company which produces and supplies bottles to the defendant company.

The plaintiff’s claim is based on negligence - first, negligence by the occupier of the store and second, manufacturer’s negligence being negligence by the defendant company, in either using defective bottles or incorrectly filling such bottles. Evidence was adduced to substantiate the particulars of injury given in the statement of claim, namely a laceration to the right cheek and a laceration to the right eyebrow and eyelid, resulting in facial scarring. In addition a piece of glass entered the plaintiff’s mouth and lodged in the throat but this was removed on the day of the accident at the doctor’s surgery and apparently the injury healed itself. For a period of about three weeks the plaintiff suffered a black eye, almost completely surrounding the eye, as well as nervous shock, pain and suffering. During a visit to Brisbane the plaintiff visited a plastic surgeon whose report has been admitted into evidence. In his opinion the scar on the right cheek, being approximately 1.5 centimetres in length, will fade satisfactorily but it would be worth considering surgical repair to the scar of a similar length on the outer angle of her right eyebrow which could result in a less conspicuous line. The estimated cost of such surgery is $A195.00.

As one would expect, the defendant concedes that the plaintiff underwent quite a terrifying experience on the day of the accident. The disintegration of the bottle was accompanied by a loud explosion and the blow to her face was sufficient to cause her to reel back to some extent. Although there is some conflict on the evidence, I am satisfied that such a blow received to the front of the face would cause an involuntary stepping back at least of one pace and certainly a throwing back of the head. The plaintiff commenced immediately to bleed profusely. What must have been very disturbing at the time, she did not know whether the right eye had been injured though Mr Kirke came to her immediate assistance and endeavoured to wipe away the blood to see what injury had been done. In all probability, his assurance that the eye appeared to be alright was at that point of time of little consolation to the plaintiff.

Unfortunately it is not quite clear what took place at the checkout counter. The plaintiff says that she was standing some six feet from a customer in front of her (Mr Peter Kirke) waiting to go through the checkout. Between her and the customer was her trolley loaded with items she wished to purchase. Mr Kirke had his basket resting on the checkout counter and was removing contents from the basket. The next thing the plaintiff knew was that there was an explosion and she was struck in the face. Mr Kirke was called on behalf of the plaintiff and he says that he had a number of purchases which he had placed into a hand basket which was about half full. Included in that basket he says were a number of bottles of Rouna soda water (approximately 4 to 6 in number) but no Coca-Cola. That he had purchased soda water and not some other beverage, I am quite certain. He says that he did not shake the bottle in any way and that the temperature inside the store appeared to be normal for a Port Moresby afternoon. He had the basket on the counter and was removing the contents with his left hand. He puts the distance of the plaintiff behind him at approximately the same as the distance stated by the plaintiff. The bottles were in the bottom of the basket and on his evidence he picked up two bottles at a time with his left hand but one of the bottles slipped and fell, he assumes, onto a bottle of soda water that was still lying in the basket. He says that his hands must have been sweaty and that the height he lifted the bottle above the bottle lying in the basket would have been no more than approximately two inches at the time the bottle slipped - that is two inches from the bottom of the bottle he was removing to the side of the bottle still lying horizontal in the basket. He thinks that only one bottle broke, that is the bottle lying in the basket, but he was not able to say where that bottle may have been struck by the bottle which fell. He heard a loud bang and saw the plaintiff clutching her face and eye. He went across and apologised to the plaintiff for what had taken place. I do not think any great significance stems from this apology. In such a situation one is not concerned with who is legally to blame for what has occurred. The witness was obviously aware that as a direct result of some action on his part, another person had been injured and the normal thing to do in such circumstances would be to express one’s sorrow at such injury having been sustained. In my view it goes no further than that. It certainly does not carry with it a legal admission of liability.

As part of the defendant’s case, they called the particular checkout attendant who was attending to Mr Kirke’s purchase. She is a married lady from Hula by the name of Pala Karona and gave her evidence in English. Unfortunately her knowledge of English is somewhat limited and this presented difficulties for counsel and for the court, and of course the witness herself. I am not exactly sure what activity Mrs Karona was engaged in at the time of the accident but it seems she was physically counting the items in the basket with one hand and ringing up the amounts on the till with the other hand. She says that Mr Kirke used two hands and that he took out two large bottles of Coke and then commenced to remove some smaller bottles. He took two of these smaller bottles in his right hand and two in his left and in the process of lifting the bottles apparently uplifted a fifth bottle which was in the middle. It was this fifth bottle which slipped back down into the basket from a height of about the top of the basket, namely some twelve inches less of course the width of the bottle which was subsequently broken (and I am satisfied that the bottle which was broken was the one lying in the basket). She says that the plaintiff was some three feet or so away, although this would depend upon whether one was taking the measurement to the side of her body or to the centre of her body and that she did not have her shopping basket between her and Mr Kirke but had it running at right angles and alongside the edge of the checkout counter. In my view her recollection is defective here. I believe the basket was partly inside the entry to the checkout section, and this position was deposed to by both the plaintiff and the witness Kirke.

There is thus a direct conflict between the plaintiff’s witness and the defendant’s witness as to the distance which this bottle fell and the number of bottles being lifted out of the basket. Counsel for the plaintiff has pointed to a number of inconsistencies in the evidence of Mrs Karona but I am not prepared to draw the same adverse inferences as counsel. I believe that this witness, indeed both witnesses, have endeavoured to do their best. Mr Kirke might well have a natural tendency to minimize any action on his part which may suggest that he was to blame morally, if not legally, but because of this, the sequence of events would be more clearly etched in his mind and memory than that of the checkout attendant. There seems to be a certain oddness about both accounts. One would think that a right-handed person who is assisting the checkout operator by removing items from the basket would hold the basket with the left hand slightly to the left of the body and remove the contents towards the checkout assistant with the right hand. The version given by the checkout assistant seems to be more consistent with what might have taken place, namely an attempt to remove a number of bottles together but at the same time I cannot believe that someone would attempt to remove five bottles without at least endeavouring to have some purchase on the fifth bottle. Mrs Karona seemed to be of the view that Mr Kirke unconsciously uplifted the fifth bottle. There is no evidence by her that he was attempting to hold any part of that bottle with his fingers.

From the evidence I think it is really quite impossible for me to come to a sure conclusion as to the length this bottle fell before it caused the damage. Even on Mr Kirke’s version, I am not satisfied that he can be as certain as he has deposed, that the bottom of the falling bottle was only two inches from the side of the passive bottle at the time the first bottle commenced to slip. At very best, this would be an educated guess and it may well have been some distance higher. He certainly would not have been looking at the base of the bottle and what he has given to the Court is clearly a reconstruction of what he believed to be the situation at the time. As the side of the basket is at least twelve inches high on the evidence, it would certainly be necessary to lift the bottles that distance before removing them over the side of the basket onto the counter. On the balance of probabilities I find that Mr Kirke was lifting a number of bottles greater than two from the basket but I am unable to establish the precise number of bottles or the minimum distance which the falling bottle dropped before it struck the passive bottle. I am satisfied it was no more than twelve inches. I cannot be satisfied that the witness Kirke was guilty of any negligence which contributed to the eventual mishap.

The degree of noise heard at the time of the disintegration of the bottle is also of some significance. The plaintiff said it sounded somewhat like a gunshot. She has dropped bottles before, including bottles of aerated beverages and the sound she heard on those occasions was nowhere near as loud as the one which took place on the day of the accident. Mr Kirke has also dropped bottles of carbonated beverage and described the sound usually accompanying such incident as a "fphut", "a dampened bang", a sound definitely lower in volume and intensity than that which he heard in the defendant’s store that afternoon. In the vicinity of the plaintiff Mr Kirke noticed blood mixed with a clear liquid and a number of pieces of glass. Some of these had travelled as far as 10 to 12 feet and were 1 to 1½ inches long. He can recall that the neck of the bottle was left in the basket and probably the base. On the evidence of the checkout assistant however, most of the bottle was still in the basket when she organized staff to clean up the debris. One would expect of course, if there had been an explosion, that a considerable amount of glass would be scattered around although certainly the heavier parts would remain in the basket. The distribution of the glass therefore is not without some significance.

During the plaintiff’s case the manager of the defendant’s cordial factory, Mr Orr, was called in evidence. He described the process by which the glass bottles are inspected and filled with aerated beverage. He explained how a bottle is subjected to "thermal shock" during the filling process. He also told us that the bottles are subject to two visual inspections prior to the filling process and that if in the event of a flaw, crack or significant chip in the bottle not being picked up during such inspection, then during the filling process such bottles will collapse with quite an explosive sound. He agrees that the glass from such bottles would travel over some considerable distance - from some three to four yards - although this in fact does not occur because of protective equipment on the machinery. There was perhaps an inference during examination of this witness that some person may have interfered with the filling process by altering the pressures but I am quite satisfied that whatever the explanation for the present incident, it did not arise out of tampering with the equipment at the Rouna cordial factory. Mr Orr says that there is no further checking of the bottles once they come out of the filling system. He says that it would take quite a blow for a bottle to fail although it is more likely so to do if there is a chip or crack in the glass. The higher the pressure inside the bottle the higher the likelihood of failure and he has said that soda water has the highest pressure of all the beverages, namely a pressure of 66lbs which is increased inside the bottle due to temperature increase. This is the standard pressure in Papua New Guinea, Australia and the United States of America. He says that the bottom of the bottle is the strongest portion because of the increased amount of glass and if one bottle were dropped onto another whereby the base of the falling bottle struck the middle of the bottle lying down, the latter would be the one which would break. He says that the bottles used in the cordial factory are from the Toyo Glass Company and are much superior to those obtained from other sources, for example Australia. He then gave evidence as to the thickness of the glass, the effect of thermal shock, and indicated that an internal pressure of 256lbs per square inch minimum would be needed to make the bottle explode. He had no reason to believe that any of the bottles they were using did not meet the specifications required of the Toyo Glass Company. Their specifications exceeded the minimum specifications set out by the National Soft Drink Association of the United States of America.

The whole process of washing the bottles takes about twelve minutes and the bottles are inspected mainly for chips and cracks and nicks and sometimes foreign bodies are found. If a chip or crack is found the bottle should be placed in the rubbish tin. The bottles are visually inspected at approximately 170 per minute although the standard is over 200. Not surprisingly they rotate the staff doing this visual inspection. They do something like one hour on and one hour off. The inspections occur at the beginning and end of the washing cycle. A third inspection is sometimes used after the bottling process but his job is mainly to look for bad seals, low fill and foreign bodies. In fact they are not instructed to inspect for cracks and chips. This should not be necessary after the second inspection point it is said.

Where two bottles are dropped one on the other, it certainly is the position that one would be more likely to break if there was a chip or crack in the bottle. With pressure inside the bottle they are more susceptible to failure and Mr Orr does point out that they have a higher failure rate of bottles when filling with soda water because of the increased pressure.

The next witness was Mr Geoffrey Sowden, the manager of the BP’s supermarket store in Boroko where the incident occurred. In the store one person is allocated the task of checking the bottles as to quality and condition of the containers, as well as the substance, on receipt from the supplier. In this instance of course the defendant company is also the distributor. Mr Sowden has never experienced a spontaneous explosion of bottles of beverage and has had no cause to anticipate it. He spends approximately ninety percent of his time on the sale floor and he checks the products on sale including the carbonated beverages daily. In his twenty-one years of experience in the grocery trade he has never heard of an exploding softdrink bottle. He has however experienced bottles exploding in the store when coming into contact with another object and when one bottle comes into contact with another. He was asked the following question:

Q.On the 19th February you were aware that Rouna softdrink bottles would explode when they came into contact with another object?

to which his reply was:

A. Yes, any bottle will break.

The inspection of the bottles takes place when they are being placed on the shelves. There is no checking between the arrival at the store and this action. In a week the store sells the contents of some 350 cases of beverage, each containing 24 bottles - that is over 7,000 bottles of soft drink a week.

The plaintiff pleads occupier’s liability and manufacturer’s liability. By s.35 of the Law Reform (Miscellaneous Provisions) Act 1962, the principles applicable in cases of occupier’s liability are set out in statutory form. On the evidence it is difficult not to conclude that there must have been some latent defect in the bottle itself. I accept the evidence that the sound and the trajectory of the broken glass from the site of the breakage is not consistent with what people ordinarily experience in such cases. The report was loud, much louder than experience normally has it, and was somewhat similar to that which apparently occurs when bottles explode under pressure during filling in the defendant’s factory. The distribution of the glass after breakage is also consistent with some explosive force - that is a force which has been released of a sudden, sufficient to send pieces over a distance of ten to twelve feet. It is perhaps of some interest to note that Mr Orr said that when defective bottles exploded during filling the glass would travel some three to four yards were it not for the fact that protective devices prevent this from happening.

Whether the bottle was in a damaged state during refill but not sufficiently damaged to cause a collapse of such bottle, or whether it was damaged in transit to the store, or while at the store, I do not know. But it seems clear to me that its performance when struck by the other bottle is consistent only with a damaged state and no other.

The defendant company is both manufacturer of the product and distributor (though not a manufacturer of the container). As such it carries a duty of care not only to persons who purchase the item but to other invitees in the store who are legitimately going about their business of selecting and waiting to pay for such goods as the store displays. It seems to me there can be no dispute as to the duty of the defendant to those who enter its store. The very nature of a self service store is an invitation to enger, examine the goods for sale and, hopefully, make a purchase. It would be well known to such a storekeeper that on many occasions customers are accompanied by quite small children who are not only susceptible to injury from articles disintegrating on the floor because of their height but by their very nature are prone to mischief. Even the most protective parent cannot always hope to keep one eye on the child and one on the goods displayed. As the judges in Carmarthenshire County Council v. Lewis point out, a housewife with young children cannot be in two places at once.

The distributor has a duty to ensure not only that his product is safe but that the container itself is fit for the purpose (see Salmond’s 15th Edition, p.316 and cases referred to therein - also Charlesworth on "Negligence" 5th Edition, paragraph 633). In the present case whether one treats the defendant as manufacturer of a product which was despatched in a faulty container or as occupier of premises who was responsible for a container being on display for sale through the checkout counter, does not make any real difference. The incident was certainly not a common one but that of itself does not detract from the need to take reasonable care (see Salmond’s 15th Edition, p.229). Nor does it require the plaintiff to pinpoint exactly where the defect occurred or should have been detected (Grant v. Australian Knitting Mills, Limited). In the present case the plaintiff’s task has been rendered somewhat easier because of the dual role played by the defendant company.

I would also say at this stage that in my view the method of inspection employed by the defendant company in order to detect defective bottles is quite inadequate. Indeed I think it is being somewhat fanciful to call it an inspection at all. We are told that one man who is undoubtedly an unskilled labourer and who is probably unaware of many of the reasons why his inspection is required, examines for an hour at a time 170 bottles per minute or 10,200 bottles in the hour. It must indeed be a most cursory inspection (despite the 2.83 seconds per bottle), and I do not think that it is in any way improved by the fact that another gentleman at the other end of the washing machine complex carries out the same task for the same hour at the same speed. Probably such inspection will pick up any large foreign bodies or major flaws but I am quite sure that because of the sheer monotony of the task, a lot must be missed. Part of this is borne out by the fact that explosions do occur as a result of defective bottles being used during the filling process.

Even if I am wrong in finding that there must have been some defect in the bottle and therefore some fault in the defendant which contributed sufficiently to the accident under the rules of Donoghue v. Stevenson, I am still of the view that the defendant is liable. Carbonated beverages, and we are told especially soda water, are contained under pressure. Mr Challinger for the defendant submits that in the instant case it was the negligence of an intervening party which brought about the plaintiff’s injury and not that of the company. Another customer, he says, simply tried to lift too many bottles at one time with sweaty hands, and the result was almost inevitable - one bottle fell and broke the remaining bottle lying at the bottom of the basket. The plaintiff’s misfortune he said stems directly from the negligent act of a third party and no other. It is claimed there is a break in the chain of causation and the likelihood of injury in this case was anyhow too remote, at least too remote from the defendant’s point of view. These submissions may also be taken in conjunction with the standard of care and concept of risk involved in negligence actions dealt with by Salmond at p.226 ff. (15th ed.). The process of purchase and payment in such stores as those operated by the defendant is generally as follows: The goods are on display for all and sundry to touch, select, knock over, drop onto the floor and return to the shelves. The customer selects an item and places it generally in a trolley basket or a hand basket - both made of open mesh wire. The witness in this case placed his bottles in a hand basket and went to the checkout counter. In order to remove the items for the purpose of payment, he must lift them some ten to twelve inches from the bottom of the basket and onto the counter. In the meanwhile another customer will more often than not take up a position at the entrance to the counter to await his or her turn, more than likely facing towards the cashier and in a direct line of the basket being unloaded. In the process of taking out the bottles one of them drops, either by pure accident or negligence of the other customer. In the ordinary way of things this must happen not frequently but with a certain degree of regularity. No evidence of course was adduced of such frequency or indeed of such regularity, but as a judge of fact I am clearly entitled to bring common sense and general knowledge to account when deciding issues of fact and the background of those facts. It certainly could not be regarded as unforeseeable that such breakages would occur in such circumstances, particularly where beverages under pressure are concerned. Nor is it unforeseeable in my view that such breakage would be likely to cause serious injury, especially in a place where is it not uncommon to find young children whose very height would make them susceptible to facial injury, whether the bottle be dropped onto the counter or onto the floor.

"The general principle is that before negligence can be established it must be shown not only that the event was foreseeable but also that there is a reasonable likelihood of injury." (Salmond 15th Ed., p.227)

The storekeeper must guard against probabilities reasonable and not probabilities fantastic. Now if this bottle was broken not because of any defect and because one was dropped on the other from a height of say twelve inches during the ordinary passage of clearing the basket for the purpose of payment, and in the process glass is projected some ten to twelve feet, leaving the scene of the accident with such degree of force sufficient to cause facial scarring with a potential to cause permanent eye injury of any adult or child nearby, and if the likelihood of such an incident (leaving aside for the moment the distance of travel) is one which any reasonable distributor should foresee, why can it be said that he avoids liability merely because the customer who dropped the bottle may not have been as careful as he should. The distributor has chosen to bring bottles of substance under pressure onto his premises, to display them, to utilize a system whereby the customer must remove the bottle form the open wire basket and deliver them to the cashier, and other customers must wait their turn directly behind the customer offering to treat. In the event of injury to any of the customers in the area, and in the absence of proved negligence on the part of one of the customers amounting to a "novus actus", I cannot see on what basis the distributor can deny liability. It may well be that with the economic advantages of self-service stores, a certain element of risk is run and the storekeeper calculates the cost of running such risk against the cost of overcoming it. I do not see however how he can legitimately complain when something goes wrong as a result of a system which he has instituted in order to complete a contractual arrangement between himself and members of the public. I do not think he is in the position of the tea lady in Glasgow Corporation v. Muir. As Fleming says at p.508 (Torts 5th Ed.):

"It might also be recalled that a manufacturer or other supplier of chattels bears responsibility only for dangers they pose in thier contemplated use. If rendered dangerous only because handled in an improper or otherwise unforeseeable manner, they are simply not ‘defective’ in any relevant sense. A ladder, e.g., does not have to be capable of supporting the weight of two men using it as a horizontal platform between uprights. But the usual stress in this context on ‘contemplated’ or ‘intended’ use is only a synonym for, and not meant to abridge, responsibility for dangers arising from any ‘reasonably foreseeable use’. Ordinarily, no doubt a manufacturer need not anticipate injury from any abnormal use, but if the environment in which the product will probably be used involves a substantial risk of misuse, as e.g. infants tampering with poisonous furniture polish, reasonable care may well call for a warning label or other special precaution."

In my view, bottles containing beverages under pressure are bound to be subject to accidental droppage in a super-market, and although it is not usual for glass to fly up with considerable force, the result can hardly be said to be a surprise. Some special precautions are warranted to prevent injury to customers.

In Hart v. Dominion Stores Ltd. et. al. the plaintiff was successful because of inadequate inspection by the defendant. In the process of giving judgment the learned judge quoted an earlier Canadian decision in the following terms (p.680):

"The bottler of carbonated beverages owes a duty to furnish containers of sufficient strength to withstand normal distribution and consumer handling."

I would add that a distributor of such beverages must also take into account not only normal handling but normal mishandling on the part of its customers, and if as a result of either of them the bottle falls a short distance and then explodes like a miniature bomb, creating potential injury to anyone within a radius of ten to twelve feet, it can hardly be postulated that the distributor has carried out his duty of care.

The distance and speed of travel by the glass may be said to have been outside the experience of the manager of this store and therefore, he being a reasonable and experienced man, of the defendant company. However I do not think the defendant can have it both ways. Either the glass travelled at speed because the container was defective, under pressure, and broke with comparatively little application of force or it was not defective and the glass travelled as it did because of the pressure contained in an ordinary bottle of beverage which might have been used over and over again by many members of the public. Whichever way one looks at the issue, I do not believe that the risk is so small "that a reasonable man would feel justified in disregarding it" (Salmond, 15th ed., p.228).

As the learned author points out, the "difficulty, expense and advantages of eliminating the risk must also be considered". In the case of carbonated beverages the thinnest of cardboard containers would be sufficient to prevent or certainly inhibit the projection of glass from a bottle falling to the floor or back into the customer’s basket. I note that "packs" have been around for some years although the "packs" one normally sees suffer from the defect of being left open at both ends. Unfortunately this area was not explored during the trial so I am unable to say one way or the other. But I would be surprised if any great problems were involved when balanced against the ever present likelihood of injury. Clearly a requirement to put such beverages into unbreakable stainless steel containers would be an unbearable imposition on everyone. Although the onus is on the plaintiff to prove a breach of standard of care, I do not think that carries with it the task of positively proving by evidence called before the Court that other measures of protection are economically feasible. If a method is obvious to anyone using their common sense and general powers of observation, and such method carries with it no inherent problems of pricing and performance, then it seems to me that a plaintiff may rely on such common sense and observation. The mere fact that the procedure will add to cost is not of itself a death knell to the plaintiff’s cause. The principle involved is a proportional relationship between the duty of care and the degree of risk (see Northwestern Utilities, Limited v. London Guarantee and Accident Company, Limited, Glasgow Corporation v. Muir, and Read v. J. Lyons & Company, Limited).

Finally it might be contended that any customer coming onto the defendant’s premises accepts the risk of pieces of glass travelling considerable distances from breaking bottles of carbonated beverage, and because they are fully aware of the system under which the goods are displayed and sold, they cannot be heard to complain if injury is sustained. In short, such customers are "volens". There are two answers to such a contention. The first is that the defendant must show a knowledge of the danger in the mind of the plaintiff. Secondly there must also be shown a consent by the plaintiff to run the risk and knowledge is not consent. As Salmond points out on p.513, "consent involves an express or implied agreement that the act may be rightfully done or the danger rightfully caused". The evidence in this trial just does not support the defence and indeed in such circumstances as the present, I do not think that any argument which could have been put forward could have succeeded.

In my view therefore the plaintiff has succeeded on two grounds - under the rule established and enlarged from Donoghue v. Stevenson, and that both as manufacturer and distributor, and under the ordinary principles of negligence as now expounded in Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. (Wagon Mound (No.2)) as a result of a failure by the defendant to exercise a proper standard of care.

It remains now to examine the matter of quantum. The plaintiff undoubtedly suffered considerable shock and distress at the time of the explosion. Fortunately she was able to get medical attention quite quickly and was reassured that the eye had suffered no injury. She sustained a black eye for about three weeks and had the disfigurement and discomfort not only of the lacerations to her face but also the stitches. Understandably there was also discomfort in the throat for several days. The scars remaining are quite slight although the one to the outer corner of the right eye is more prominent and could be successfully treated by surgery. The plaintiff intends to have this done when she eventually takes up permanent residence in Brisbane.

Appearance is regarded by most women as something of importance and it is particularly so in the case of the plaintiff who is a hairdresser by occupation and has her own beauty parlour in Port Moresby. She will continue in this occupation in the future but she is very conscious of the scarring because of her clients. As she says, "It is my job to make other people look nice." Yet I do not think the scarring is such as to cause any loss of custom or attract any adverse attention, though it might make matters more difficult for her if she applies for employment in someone else’s business.

Running her own business, she could not afford the luxury of any sick leave during her period of recovery. Despite the embarrassment, her feeling of obligation to the customers already booked with her for the days immediately following the incident demanded that she continue to attend the appointments even on the day following. I accept that with adequate notice it is possible for the plaintiff to arrange a stand-in, but such was not the case immediately following the accident. Such an occasion did however arise during this trial and the loss to the plaintiff of being absent from her work is claimed at K150.00 per day. I accept that there was also considerable curtailment in the plaintiff’s social activities for some months after the accident because of her appearance and in the earlier stages from pure physical discomfort caused by pain to the scar area of the face when she was tired. On the evidence before me I find it is impossible to decide what loss, if any, the plaintiff will suffer when surgery is carried out to reduce the scarring.

The special damages are:

1. Medical expenses at time of accident (Dr Chong Wah and medication)	K59.00	
2. Loss of income as a result of attending at trial (3 days)	K450.00	
3. Fees for examination and report by plastic surgeon ($A93.00)	K72.66	
4. Cost of plastic surgery ($A195.00)	K152.34	
(Both items 3 & 4 are converted at the rate of 1.28)	 	
 	K734.00	
General damages	K2,000.00	
Total:	K2,734.00	

I therefore order the defendant to pay to the plaintiff the sum of K2,734.00 together with the plaintiff’s legal costs.

Solicitor for the Plaintiff: Craig Kirke & Wright
Councel: C. Coady
Solicitor for the Defendant: Young & Williams
Councel: M. Challinger