Burns Philp (NG) Ltd v George [1982] PGSC 3; SC259 (1 July 1982)

Unreported Supreme Court Decisions

SC259

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.A. NO. 31 OF 1981
BETWEEN: BURNS PHILP (NEW GUINEA) LIMITED
APPELLANT
AND: MAXINE GEORGE
RESPONDENT

Waigani

Andrew Bredmeyer McDermott JJ
26 April 1982
1 July 1982

NEGLIGENCE - Appeal against findings and application of Law - Soft drink bottle exploded in store injuring customer - inference of negligent conduct, - duty of care of occupier, distributor manufacturer - foreseeability - res ipsa loquitur and novus actus interveniens referred to - Findings open on evidence

Cases Referred To:

Nelson v. John Lysaght (Australia) Ltd (1975) 49 A.L.H.R. 68

Neap v. The Independent State of Papua New Guinea Unreported Supreme Court Judgment No. SC234 dated 10th October 1982

McAlister or (Donoghue) v. Stevenson (1932) A.C. 562

Grant v. Australian Knitting Mills Ltd & Ors (1936) A.C. 85

Cohen v. Coca Cola Ltd (1967) 62 D.L.R. (2nd) 285

Hart v. Dominion Stores (1968) 67 D.L.R. (2nd) 675

Martin v. Thorn Lighting Industries Pty Ltd (1978) W.A.R. 10

Godfrey’s Limited v. Ryles (1962) S.A.S.R. 33

Mummery v. Irvings Pty Ltd [1956] HCA 45; (1956) 96 C.L.R. 99

Yelland v. National Cafe (1955) 5 D.L.R. 560

Imperial Furniture Pty Ltd v. Automatic Fire Sprinklers Pty Ltd (1967) 1 N.S.W.R. 29

Chapman (or Olivier) v. Saddler and Co (1929) A.C. 584

Holloway v. McFeeters [1956] HCA 25; (1956) 94 C.L.R. 470

Dorset Yacht Co Ltd v. Home Office [1970] UKHL 2; (1970) A.C. 1004

The Council of the Shire of Wyong v. Shirt and Others [1980] HCA 12; (1980) 54 A.L.J.R. 283

Overseas Tankship (UK) Ltd v. The Miller Steamships Co Pty and Nor (The Wagon Mound No. 2) (1967) A.C. 617

Jones v. Dunkel [1959] HCA 8; (1959) 101 C.L.R. 298

Order

Appeal Dismissed. Order of Trial Judgment confirmed.

ANDREW J: I am in entire agreement with the reasons for judgment prepared by McDermott J. I would dismiss this appeal and make the orders which his Honour proposes.

BREDMEYER J: The learned trial judge found the defendant Burns Philp (New Guinea) Ltd liable to pay damages to the plaintiff on a number of bases, the first of which was that the defendant bottled the drink in a defective or damaged bottle. The trial judge made this finding largely on the evidence of the three eye witnesses the plaintiff, Peter Kirke and the checkout girl - and of Vincent Orr the manager of the defendant’s bottling company. The trial judge analysed the evidence and concluded that the bottle was defective inter alia, because (1) the noise was much louder than the breaking of a normal bottle, it was like a gun shot or explosion; and (2) the distance travelled by the glass fragments from the point of impact was much greater than from a breaking of a normal bottle. In support of those findings the trial accepted Orr’s evidence that it would take quite a blow for a bottle to fail but that it was more likely to do so if there is a chip or crack in the glass. The trial judge considered that Peter Kirke, the man who dropped a bottle which caused the bottom one to break, was not negligent.

Did the defendant’s negligence in bottling the drink cause the accident; or did Kirke’s act of dropping the bottle cause it, or were they both negligent? The authorities I have read suggest that these are the key threshold questions. For example in Cohen v. Coca-Cola Ltd (1967) 62 D.L.R. (2d) 285 the plaintiff worked in a restaurant and was transferring bottles of Coca-Cola from cases into the freezer. He said he picked up one bottle and it exploded in his hand and a fragment of glass cut his eye. He recovered damages from Coca-Cola Ltd and eventually that decision was upheld by a five man bench of the Supreme Court of Canada. The trial judge carefully examined what happened to the cases of Coca-Cola bought from the defendant. They were put initially in the cellar which was not heated. An employee then bought them up to the restaurant proper and then the plaintiff started to take the bottles one by one out of the cases and put them in the freezer. The trial judge found that there was no carelessness or mishandling by the restaurant employees or the plaintiff. He also found that the inspection process in the bottling factory was inefficient and could not possibly detect all the defects. The point I make here is that the court held that the explosion was caused by a defective bottle largely because the plaintiff had been able to show that there had been no mishandling of the bottle by him or by the restaurant that employed him. This point is made by the Supreme Court in the last sentence of the following paragraph found at p.288 of the report:

“The bottler of carbonated beverages owes a duty to furnish containers of sufficient strength to withstand normal distribution and consumer handling. Little is to be gained by discussing the numerous decided cases involving the explosion of bottles containing such beverages. Each case turns upon whether the evidence in that particular case excludes any probable cause of injury except the permissible inference of the defendant’s negligence.”

The same issue-whether there had been any mishandling by the plaintiff or anyone else-was considered in another Canadian case, Hart v. Dominion Stores Ltd. et al (1968) 67 D.L.R. (2d) 675, and in a South Australian case, Godfrey’s Ltd v. Ryles (1962) S.A.S.R. 33. Hart’s case is a decision of a single judge of the High Court of Ontario and it applied Cohen’s case. The plaintiff was walking past a shelf of Coca-Cola bottles in a store. He was 12 ft from the shelf when a bottle exploded and injured his eye. He sued the storekeeper and Coca-Cola Ltd. The trial judge examined the evidence on the storekeeper’s handling of the bottles upon receipt from the bottler, Coca Cola Ltd. The storekeeper placed these 16 oz bottles of drink on the supermarket shelves in cartons of six. Occasionally a customer would buy less than six and remove a bottle from a carton and place it on the floor. The normal practice was for employees to restore any bottles left on the floor to cartons on the shelves. The trial judge found that there had been no rough handling of the soft drink cartons and that there was nothing to show that the storekeeper knew or ought to have known of any danger from its normal method of dealing with Coca-Cola. Having excluded the storekeeper from liability the trial judge found the Coca-Cola company negligent. I need hardly add that as the plaintiff had not touched the bottle which exploded he was not guilty of the negligence.

In Godfrey’s Ltd v. Ryles(supra) the plaintiff bought a secondhand kerosene refrigerator from the defendant. After installation in the house it did not function satisfactorily, and the supplier’s servants on several occasions made adjustments and repairs to it. Eventually, after the refrigerator had worked satisfactorily for a fortnight, it caught fire and caused extensive damage to the plaintiff’s house. On the day of the fire the plaintiff’s wife had lit the burner. It was the first time she had lit it; she had not received any instructions regarding the lighting and placing of the burner but had previously watched the procedure followed by her husband in lighting the burner. The issue is that case was, what was the cause of the accident? was it due to the negligence or mismanagement of the supplier or was it due to mismanagement by the plaintiff or his wife? On appeal to the Supreme Court of South Australia (In Ranco) the plaintiff failed because the evidence was insufficient to exclude the alternative explanation that the plaintiff’s wife had failed to fit the burner into the base of the flue before lighting it.

The plaintiff in this case has chosen not to sue Peter Kirke, the man who dropped the bottle onto the other at the check-out counter, and therefore to succeed against the defendant as bottler of the drink it has to exclude the possibility that it was Kirke’s negligence which caused the bottle to break. As I have said the learned trial found that this particular bottle exploded because of a latent defect in it such as a crack or chip. It did not break like an ordinary bottle would have broken. Not much turns on the credibility of witnesses and I accept the trial judge’s assessment on credibility. He accepted the plaintiff’s and Kirke’s evidence that they heard an explosion and that the spread of broken glass was greater than the caused by the breaking of a normal bottle. It seems to me that their knowledge and experience of how a normal soda water bottle breaks is suspect. Neither had ever dropped a full bottle of soda water before; neither had ever dropped such a bottle from a height of 2” to 12”, and neither had dropped such a bottle onto another full bottle of soda water reclining on its side. Soda water is under much greater pressure than other soft drinks and I imagine beer too, so that I would expect it to break more ‘explosively’. I consider the evidence of Orr carried more weight. He too had no particular experience of objects being dropped onto other soda water bottles sound or defective, but because of his great experience in bottling I would give his opinions more weight.

Orr was asked a series of questions which I reproduce. I infer that he is speaking of normal, sound bottles of the kind filled in his factory.

“Q. The weight of the combined bottle and beverage is roughly 1 1/2 lbs?

A. Yes.

Q. Assume one bottle is lying down and the other is dropped, assuming a height I will give you and assuming that it is dropped with the base hitting the middle of the bottle, which bottle is more likely to be broken?

A. The horizontal one.

Q. Which is the weakest point of the bottle?

A. In the centre of a straight side.

Q. And the strongest point?

A. The base and the top - there is more glass on the base to strengthen it against usage.

Q. Is the force of impact important?

A. Yes.

Q. If we drop from fifty feet both bottles would break?

A. Yes.

Q. If one foot or so?

A. The bottom bottle would break, not the top one.

Q. From six inches?

A. If the top bottle struck with its base edge and the bottom bottle was flat, it might break.

Q. And two inches?

A. I don’t think so.

Q. But it might?

A. It might. (Court notes this answer reluctantly given.)

Q. I would be unwise to drop it?

A. Yes.

Q. If held at an angle that increases the likelihood?

A. ---

Q. So even more foolhardy to drop it at an angle?

A. Yes.”

Peter Kirke gave evidence that he picked up two bottles at a time with his left hand to lift out of his carry-basket onto the counter when one slipped and fell from a height of about 2" onto the bottle lying horizontal which exploded. He said the bottle slipped and that he must have had sweaty hands at the time. The check-out girl gave a slightly different version of this incident. The trial judge weighed up their evidence and found that Kirke lifted a number of bottles greater than two from the basket - the judge was unable to establish the precise number of bottles Kirke lifted. The judge was unable to say the exact distance the bottle fell before it struck the passive bottle but was satisfied that it was no more than 12". The trial judge was a little sceptical of Kirke’s evidence. He regarded him as a witness endeavouring to do his best but thought that he might well have had a natural tendency to minimize his actions which may have suggested that he was to blame at least morally for the accident. The trial judge was not convinced of Kirke’s estimate of 2"; he thought that at best an educated guess and that it “may well have been somewhat higher”. He noted that the side of the basket was at least 12" high so that it would be necessary to lift the bottles that distance to transfer them to the counter. The trial judge’s findings on the number of bottles and the length of the fall and his comments on the evidence were open to him.

The other piece of evidence which led to the trial judge’s finding of a defective bottle was Orr’s evidence on the filling and inspection procedures in the bottling factory. I accept the trial judge’s findings and comments that the checking procedure to detect defective bottles was ‘quite inadequate’. Some defective bottles would explode or fail in the filling process because they are filled under pressure and at a temperature, but others with more hidden or latent defects could easily escape the visual inspection. That evidence assists the plaintiff in a general but limited way; it shows that the bottling factory can produce a drink bottle with a latent defect in it, it is not of great weight in showing that this particular bottle which injured the plaintiff broke because of a latent defect or because Kirke was careless. The key piece of evidence on that issue comes I think from Orr who said that when a full bottle weighing 1 1/2 lb is dropped onto a normal horizontal bottle from a height of 12" the bottom bottle will break, when it is dropped from a height of 2" the bottom bottle (being a normal bottle) probably will not break. Reading that evidence with the trial judge’s findings on the height of the fall means that a 12" fall would shatter a normal bottle lying in the bottom of the basket, but a 2” fall would only shatter a defective bottle. So on the evidence the bottom bottle which shattered could have been a sound bottle or a defective one depending on the height the top bottle fell. On the trial judge’s implied finding that the height of the fall was between 2" and 12" either explanation is open. As I have previously said, I do not regard the evidence of the plaintiff and Kirke on the noise of the ‘explosion’ and scatter of the glass pieces, or the evidence of the inadequate inspection procedures, as determinative of liability. I consider that the plaintiff has not on the evidence negatived or excluded the possible explanation that this accident occurred because of Kirke’s carelessness in dropping the full bottle from a height of 12" onto a normal, sound, non-defective bottle of soda water lying in the basket.

I have spoken of Kirke’s carelessness but does that amount to negligence? I think it does. I think it is a duty of care situation. A full bottle is something which can easily break and injure someone. Kirke owed a duty not to drop a bottle carelessly on the floor of the supermarket near the shelves so that it cut the feet of a passerby, in the same way he owed a duty not to drop a bottle on the pavement outside so that a passerby is injured. Likewise at the check-out I consider he owed a duty not to drop a bottle on the counter or on the floor whereby the check-out girl or the next customer may be injured. He clearly breached that duty. He attempted to lift two or more bottles with his left hand, lifting them by the neck. He is right-handed. He failed to support them with his right hand underneath. He said his hand must have been sweaty and one bottle slipped out. I consider that the evidence of Orr and the findings of the trial judge on the height of the fall mean that the plaintiff has not excluded the alternative explanation that this accident was caused by the negligence of Kirke.

The learned trial judge also found the defendant liable to the plaintiff as storekeeper and occupier of premises. He considered that the defendant was at fault in displaying bottles of lolly water loose on open shelves and expecting the customer to select them, place them in a basket or trolley, transfer them out at the check-out, etc. It is clear that the defendant owes a duty of care as storekeeper/occupier and I know that customers might accidentally knock a bottle off a shelf, but there was no evidence of that in this case. And although the plaintiff suffered a nasty injury at the check-out there was no evidence of a loose bottle having been broken at the check-out counter before. I agree with McDermoth, J in the later part of his judgment that the defendant did not breach his duty of care as storekeeper and occupier.

I would allow the appeal.

MCDERMOTT J: The appellant company appeals an award of K2,734.00 as damages for personal injuries suffered by the respondent. The award follows a claim against the company for negligence - as the occupier of a store and as a soft drink manufacturer. The sum itself has not been disputed.

It was claimed that on the 19th February 1980, Maxine George entered a store occupied by Burns Philp (New Guinea) Limited at Boroko, and whilst awaiting her turn at the check out counter ‘... was struck in the face by pieces of flying glass from an exploding Rouna soft drink bottle ...’.

The following findings of the learned trial judge are disputed:

(1) The bottle was defective or damaged prior to breaking;

(2) If the bottle was damaged, there is nothing to show this was so when it was in the hands of the manufacturer or in hands of the occupier of the store;

(3) The act or omission of the defendant caused the plaintiff’s injury.

In the main, these matters come back to one thing - the soda water bottle lying in the wire shopping basket used to convey a fellow purchaser’s goods to the check out. His Honour concluded:

“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”.

Evidence at trial came from the plaintiff, Peter Kirke (who was proceeding her through the store check out) and Vincent Orr (Manager of Rouna Cordial Factory - the manufacturer). The defence called Pala Karona (check out attendant) and Geoffrey Sowden (store manager).

It tells of where the parties were standing in the vicinity of the check out, the dropping of soda water bottle by Mr Kirke, of it striking another lying in a wire shopping basket and the consequent injury to the plaintiff by pieces of flying glass. The process of the bottle cleaning, inspection and filling at the factory was explained. Five witnesses spoke of their experience of bottles breaking - Mr Orr spoke from long experience (since 1958) in the soft drink trade.

In reaching his conclusion, the following matters were in the trial judge’s mind.

(1) ‘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 that it was no more than twelve inches.’

(2) The cordial factory system, including the type of bottle used, its specifications, the higher pressure used for soda water, the ‘thermal shock’, visual inspections during and after bottle filling and the safety device guarding employees from flying glass caused by bottle breakage.

(3) The bottle failure (and here I use this apparent trade term spoken by witness Orr).

‘... He (Orr) 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 ...’SC259.html#_edn225" title="">[ccxxv]¹

(4) The bottle ‘explosion’.

“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 that 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”.

It is now contended the breaking of the bottle, the noise and the distribution of the glass were not abnormal or alternatively that these matters are still not consistent with a bottle defect but rather evidence consistent only with one bottle striking another and breaking.

A bottle slipped out of Kirke’s hand and struck another lying in a basket. At the most, the bottle fell 12 inches. The result is described by the plaintiff in these words;

“I then heard a big explosion - it sounded like a gun shot ... Something struck me very hard in the vicinity of the face, in the vicinity of the corner of my right eye. It was hard enough to make me stagger back a few steps from my trolly ... I said, ‘What happened?’ He (Kirke) said, ‘A bottle has exploded and hit you in the face’ ”.

And by Kirke:

“I picked up two bottles at a time with my left hand and I had to no sooner lifted than one slipped and I assume fell on the other bottle and there was a bang... When I say there was a bang, I mean I was startled. I looked around to see what happened. It was a loud bang... I looked around and saw Maxine clutching her face and eye. I went over. I realised a bottle had broken, and she said ‘what happened?’. I said ‘A bottle exploded’. I am pretty sure I said ‘exploded’. I was flabbergasted myself and did not know what to say so I said ‘exploded’. I never had a bottle explode before ...”

The shop attendant Pala Karona said:

“When the bottle fell it broke. It made quite a noise like ordinary glass. There was no bang. It did not make a gas like noise. It was loud but not really loud... I saw the piece (of glass) hit her. She went like (witness demonstrates with her head jerking back)’.

Whilst giving a description of the factory system and in describing the bottling line, Orr said:

“If the bottle is cracked or chipped, the bottle would fail under thermal shock. The glass is at 85°F - the water is 34°F and of course it is also getting 55lbs pressure at the same time - the bottle would break. We have workmen near the machines - there are safety devices, guards, all around the machines and around each bottle. There is a water jet for blowing broken glass away - the guards are there because that is when a bottle will fail - if no guards then the glass, depending on pressure, would scatter quite a distance - I have heard them fail but not seen them - sounds like an explosion. By ‘quite a distance of travel’ I mean three or four yards, when a bottle has been dropped”.

The bottle inspection system and the opinion evidence of Orr covered:

(a) the reputable nature of the glass bottles used,

(b) a bottle’s weakest section is the centre of a straight side,

(c) The nature of the inspection:

‘... visual the speed of our line of sighting is below the speed of normal or maximum - we do 170 bottles per minute - the standard is over 200 - we rotate the staff, something like an hour on and an hour off. There are always two inspections’.

(d) On failure:

“Q. What happens to one bottle if another falls two inches?

A. Can’t say - need a test.

Q. Could one or both bottles fail?

A. I can’t answer that - but in my experience it takes quite a blow for a bottle to fail. It is more likely to fail if there is a chip or crack in the glass - higher the pressure more likely it is to fail at the weak point, be it a crack or chip. If there was a flaw in the glass, the vibration which it receives in transit together with the sunlight during the trip (from the factory to the store) is the time I would expect the bottle to fail. I have not seen this happen under normal handling, but if the truck hits a big bump, you do find breakages on the truck - that is, the bottle would explode”.

(e) And on bottle pressure:

‘With pressure inside the bottle, they are more susceptible to failure. We have a higher failure rate when filling with soda water’.

(f) By pleadings, it was admitted the Company was the occupier of the store and the manufacturer of soft drinks under the brand name Rouna Cordials. As Orr said:

“The whole period, from the unpacking of the bottle to the holding of same by the customer, is in the control of Burns Philp”.

The distance the bottle fell, in view of all the evidence, is not of great significance. Indeed, a smaller distance would indicate a greater, defect in the bottle struck.

On this evidence, it appears to me quite open to make the findings as at the trial. Whilst the experience of bottle breakage by the witnesses is limited, this in my opinion does not lessen the impact of their evidence. They thought the bottle ‘exploded’ and other evidence indicates as much.

The learned trial judge’s findings were open on the evidence see Nelson v. John Lysaght (Australia) Ltd [1975] HCA 9; (1975) 49 A.L.J.R. 68 and considering the principles set out in Neap v. The Independent State of Papua New Guinea (Unreported Supreme Court Judgment No. SC234 dated 1st October 1982), I see no reason to differ.

Of the elements of the cause of action, the duty of care owed to the respondent by the appellant as manufacturer, retailer and occupier is conceded. However, the company’s negligence is denied because there was no evidence of negligence or breach of the common duty of care owed by the occupier or of the product or container being unusually dangerous. It is further argued that the learned trial judge misdirected himself, considered irrelevancies or ignored relevant circumstances as to the standard of care required by the defendant company as a manufacturer and occupier.

The appellant argues that it has to be shown there was a defect in the bottle before looking to see if the manufacturer meets the standard of reasonableness. The starting point of course is the bottle case, M’Alister or (Donoghue) v. Stevenson (1932) A.C. 562 at p.599 where Lord Atkin said;

“A manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care and preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care”.

As said in Grant v. Australian Knitting Mills Ltd and others (1936) A.C. 85 at p. 106;

“The decision in Donoghue’s case did not depend on the bottle being stoppered and sealed; the essential point in this regard was that the article should reach the consumer or user subject to the same defect as it had when it left the manufacturer”.

It was held that the garment which gave Grant dermatitis was defective from the time it left the manufacturer. In this present case it is argued real difficulties were faced by the plaintiff proving the fact of a defect in the bottle.

The Canadian approach to exploding bottles is seen in Cohen v. Coca Cola Ltd (1967) 62 D.L.R. (2nd) 285 at p. 288;

“The bottler of carbonated beverages owes a duty to furnish containers of sufficient strength to withstand normal distribution and consumer handling. Little is to be granted by discussing the numerous decided cases involving the explosion of bottles containing such beverages. Each case turns upon on whether the evidence in that particular case excludes any probable cause of injury except the permissible inference of the defendant’s negligence”.

This was followed in Hart v. Dominion Stores Ltd (1968) 67 D.L.R. (2d) 675. Both cases concerned apparent spontaneous explosions. The major difference with the Canadian litigation and the present was the quality of the expert evidence called concerning the types of bottles used, and the filling and inspection processes.

In Martin v. Thorn Lighting Industries Pty Ltd (1978) W.A.R. 10, damage was caused when an incorrectly labelled light bulb exploded when placed in contact with greater power than its capacity could take. The court considered there were two lines of inquiry relevant to the issue of the manufacturer’s duty. On the one hand, if the court accepted that the system of the manufacturer was in fact foolproof, then the manufacturer must have answered the case against him for it would be impossible for the relevant article to be defective and thus harm the plaintiff. The plaintiff would then have to show that the defect was caused by some factor outside the manufacturing process. On the other hand, if the system was not foolproof but was only the most ‘up-to-date possible’ - (Salmond on Torts 16th ed. p.317) or ‘as near perfect as human inginuity can make it’ (Clerk and Lindsell on Torts 12th ed. par. 769), then the manufacturers may be guilty of negligence. The court concluded at p.12:

“If the evidence establishes that the system employed by the defendant was so efficient that it was highly unlikely or at least not likely that the defective article could or would emerge from the defendant’s factory, once the evidence of the plaintiff regarding the defect is accepted, then the manufacturer will be liable unless he can show that he was not negligent - a task which call into question not only his care in devising a safe system of manufacture but also, and more importantly, his employees’ care in operating that system”.

Relying on Grant’s case (supra) and Chaproniere v. Mason (1905) 21 T.L.R. 633 then:

“... once the plaintiff’s evidence as to the likely cause of the defect and his own injury is accepted, the responsibility of proving that the defendant’s employees were not negligent was the responsibility of the defendant himself. The authorities are in agreement that although the task of avoiding this quasi vicarious liability may be virtually impossible yet it is a responsibility which the manufacturer must accept”.

It is further argued that the plaintiff cannot reply upon the res ipsa loquitur doctrine in support of her claim, even though as Professor Fleming says in ‘The Law of Torts 5th ed. p.303:

“Concomitant with the rise in safety standards and expanding knowledge of the mechanical devices of our age, less hesitation is felt in concluding that the miscarriage of a familiar activity is so unusual that it is most probably the result of some fault on the part of whoever is responsibilities for its safe performance”.

Nevertheless the accident must bespeak the defendant’s negligence and be such as to raise two inferences: (1) that the accident was caused by a breach by somebody of a duty of care to the plaintiff, and (2) that the defendant was that somebody. Godfrey’s Limited v. Ryles (1962) S.A.S.R. 33, is a case concerning a kerosine refrigerator catching fire sometime after it was repaired, causing serious damage. The following is said at p.50:

“The defendant company’s obligations arose from the law of torts. In supplying the article it was obliged to abstain from putting into the plaintiff’s hands something with a dangerous defect which it should have discovered on reasonable examination. In effecting repairs it was obliged to exercise proper care and skill. But these obligations fall short of an indemnity to the plaintiff against any damages he might suffer by reason of the article’s condition. The fact that it caught fire and exploded may indicate that it was defective without indicating that the defect was attributable to negligence on the part of the defendant”.

From Mummery v. Irvings Pty Ltd [1956] HCA 45; (1956) 96 C.L.R. 99 at p.177 the question to be posed is:

“Was the accident such as in the ordinary course of things does not happen if those who had the management use proper care?”

In Yelland v. National Cafe (1955) 5 D.L.R. 560 - a case concerning injuries caused by a bottle exploding when it was picked up, the following was said at p. 566:

“I cannot see that the rule (as I prefer to call it) res ipsa loquitur could possibly have any application where the cause of the injury could have resulted from acts or omissions of any of a series of agencies through which the article in question passed”.

The American case where a bottle exploded in the plaintiff’s hand, Licari v. Markotos (1920) 180 N.Y. Supp. 278 at p.280 was quoted with approval.

“The plaintiff in failing to affirmatively show the existence of some defect in the preparation, construction or condition of this article which the defendant knew or should, in the exercise of reasonable care, have known, would render the bottle ‘not merely possibly, but would probably, dangerous’ ... has failed in her proof”.

A further argument of the appellant was that there was no dangerous situation at the store. No breach of the duty of care arises just because it is foreseeable that a bottle might explode; rather, the selling of soft drinks in glass bottles is the ordinary usual situation and to change it there has to be evidence of a defect. As Asprey J.A. said in Imperial Furniture Pty Ltd v. Automatic Fire Sprinklers Pty Ltd (1967) 1 N.S.W.R. 29 at 44:

“An infinite variety of products which are dangerous in the ordinary course of their use are supplied daily either to persons who are known to be well aware of their dangerous properties or who are adequately warned of them by the supplier. If in either of these circumstances, harm results to the person supplied in the course of their use then in the absence of a defect in the manufacture or repair of the article supplied or in the absence of a contract between the parties regulating the conditions of sale, lease or otherwise of the article, no cause of action would lie against the supplier because he failed to take ‘precautions’ to prevent or to remove the danger to be encountered in the use of the article”.

This echoes Lord Dunedin’s remarks in Chapman (or Oliver) v. Sddler and Co (1929) A.C. 584 at p.599:

“There is so to speak an element of danger in every chattle; it may break, it may be defective in such a way to allow of misuse, and the result may be injury; but I think there must always be found somewhere the element of negligence on his part to make the owner of a chattel liable for that injury”.

It follows that the whole of the relevant circumstances including the qualities of the article in question dictate the conduct required to be observed on the part of the manufacturer if he seeks to avoid liability for a breach of the duty which lies upon him. The appellant fears the introduction of strict liability if anything other than the reasonableness of the company’s conduct is the criteria for finding a breach of the duty of care, as considerable evidentary weight attaches to whether or not the company’s conduct conformed to what others in the same ‘business considered sufficient’.

“All the same, even a common practice may itself be condemned as negligent if fraught with obvious risks. ‘Neglect of duty’ does not cease by repetition to be neglect of duty, for in the last analysis, the standard of reasonable care is measured by what ought ordinarily to be done rather than what is ordinarily done”.

Fleming The Law of Torts, 5th ed. p.118. The trial evidence resolves this issue if the proper inferences of negligent conduct can be drawn in accordance with the accepted authorities. The High Court in the hit and run case of Holloway v. McFeeters [1956] HCA 25; (1956) 94 C.L.R. 470 at p.480-481 quoted with approval the following from Bradshaw v. McEwans Pty Ltd an unreported High Court case:

“All that is necessary is that according to the course of common experience, the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probability such an inference might reasonably be considered to have some greater degree of likelihood”.

And Dixon C.J. quoted from it in Jones v. Dunkel [1959] HCA 8; (1959) 101 C.L.R. 298 - a case concerning a collision between two trucks in which the plaintiff, a driver of one, was killed and the driver of the other was not called, - when he said at p.304:

“In an action of negligence for death or personal injury, the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true ‘that you need only circumstances raising a more probable inference in favour of what is alleged’. But ‘they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture’.

In argument, much was said about foreseeability. In The Council of the Shire of Wyong v. Shirt and others [1980] HCA 12; (1980) 54 A.L.J.R. 283, Mason J., with whom the majority agreed commented upon ‘The Wagon Mound’ No. 2 [1966] UKPC 1; (1967) 1 A.C. 617 in the following terms at p. 285:

“In deciding whether there has been a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence along with the expense and difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced, out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position ...”.

His Honour further stated:

“A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of foreseeable risk of injury does not in itself dispose of the question of breach of duty”.

I cannot state the concept better than that.

There is one further matter for comment - the possibility that the negligence of Kirke provided the defendant with a novus actus interveniens by which liability could be avoided. I find helpful the remarks of Lord Reid in Dorset Yacht Co Ltd v. Home Office [1970] UKHL 2; (1970) A.C. 1004 where after reviewing ‘The Oropesa’ (1943) p.32 & 37, Haynes v. Harwood (1935) 1 K.B. 146 at 156 and Scott’s Trustees v. Moss (1889) 17 R (Ct of Sess) 32, his Lordship concluded at p.1030:

“These cases show that where human action forms one of the links between the original wrong doing of the defendant and the loss suffered by the plaintiff, the action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than a consequence of the original wrong-doing. But if the intervening action is likely to happen, I do not think that it can matter whether that action was innocent or tortious or criminal”.

However, there are many cases where although one of the connecting human links is some deliberate human action, the law has no difficulty in holding that the defendant’s conduct was the cause of the plaintiff’s loss.

Against this attempted distillation of the authorities then, have the elements necessary to establish the tortious liability of the appellant company been made against it? The duty of care to the respondent is conceded. The breach of that duty was the failure to take those steps which a reasonable manufacturer would have taken to insure the safety of his product prior to its leaving his control. It is clear the method of inspection was not foolproof and the extraordinary behaviour of the bottle when struck in the circumstances in which it was, left it open for the trial judge to conclude it was defective. This defect affects the company’s liability as an occupier - the distributor of the defective product. I do not consider this a res ipsa situation and in any event that would only assist the plaintiff in her task of affirmatively proving negligence. The question of causation is objective and proved by adducing evidence either direct or circumstantial. Would the injury have occurred but for the manufacturer’s negligence? The product of course must be shown to have been defective at the time if left the manufacturer’s control. In my view, this conclusion was open on the evidence. Negligence is not avoided by a novus actus interveniens (Kirke’s action) as the circumstances of this case seem to me to be outside the category of activities absolving a defendant. And finally, was damage foreseeable? It is a cardinal principle of tort liability that persons ought only be held liable for the foreseeable consequences of their conduct and that the damage caused must be proximate to the breach of the duty of care. Foreseeability is a matter of common sense and judicial discretion; it cannot be reduced to a formula. Ultimately, the resolution of whether or not a consequence of conduct is foreseeable, is a question of fact. Orr’s evidence shows the propensity for bottle failure and the factory precautions to safeguard employees. A latent defect is a danger to those persons within Lord Atkin’s principle of proximity. The doctrine of strict liability has not been developed in the field of product liability at Common Law and despite the fears of the appellant an adverse finding in this case should not be seen to introduce such liability.

In my view, the present case is decided on its own facts and the application of the principles of tort liability set out in the cases quoted to these particular facts. One of the reasons the plaintiff succeeded was because, on the balance of probability, it was found that the bottle was defective, exploded and caused her damage which was foreseeable. I can see no reason to interfere.

Whilst it is not necessary to consider the further reasons given by the learned trial judge, nevertheless, the matters raised could be seen as requiring a store keeper to go to unnecessary and unusual lengths to escape liability for injuries caused by stocking carbonated soft drinks. As his Honour said:

“... bottles containing beverages under pressure are bound to be subject to accidental droppage in a supermarket, 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”.

And further:

“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”.

I consider his Honour may have misdirected himself in applying Overseas Tankship (UK) Ltd v. The Miller Steamships Co Pty and Anor (The Wagon Mound No. 2) [1966] UKPC 1; (1967) A.C. 617, to sheet home to the defendant, as occupier, liability through foreseeability of the dangerous propensities of carbonated beverages. I consider the correct approach is seen in the following statements at p.642:

“In their Lordships’ judgment Bolton v. Stone [1951] UKHL 2; (1951) A.C. 850, did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it”.

And at pp.643 and 644:

“If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what the reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense”.

As Mason J., (Stephen and Aicken JJ agreeing) said of this decision in the Wyong case (supra) at p.285:

“In essence its correctness depends upon a recognition of the general proposition that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connection with the existence of the duty of care involving a more generalized enquiry.

A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone (supra), ante, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable”.

Unfortunately, as it now transpires for the respondent, there was really no evidence of an ordinary or normal soda water bottle’s behaviour on being broken. Rather, it was the defect, as found, which was the first link in the chain of events - it was not a normal bottle of soda water. Because his Honour’s findings of the foreseeable risk do not in my opinion dispose of the breach of duty question, the subsequent paucity of facts relating to a normal bottle makes it unsafe to find a breach of the duty by the occupier/distributor in this way.

I consider therefore the appeal fails and would make the following orders:- Application for leave to Appeal allowed; Appeal dismissed with costs; Order of trial judge confirmed.

Lawyer for the Appellant: Young & Williams

Counsel: I. Molloy

Lawyer for the Respondent: Kirkes

Counsel: C. Cody

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