Australian Competition & Consumer Commission v Glendale Chemical Products Pty Ltd Barnes , Michael John v Glendale Chemical Products Pty Ltd [1998] FCA 180

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 934 of 1996

BETWEEN: Australian Competition & consumer commission

Applicant

AND: glendale chemical products pty limited

Respondent

NG 121 of 1998

BETWEEN: Michael john barnes

applicant

and: glendale chemical products pty limited

Respondent

JUDGE: EMMETT J

DATE: 27 February 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: Two proceedings have been heard together on the basis that evidence in one is evidence in the other. In the proceedings first commenced, the Australian Competition and Consumer Commission ("the Commission") seeks orders under section 80 of the Trade Practices Act 1974 (Cth) ("the Act") restraining the respondent, Glendale Chemical Products Pty Limited ("Glendale"), from engaging in conduct said to be contrary to sections 52 and 53(c) of the Act and orders under section 80A of the Act requiring Glendale to undertake remedial advertising and relabelling of a product distributed by Glendale, which is referred to as "Glendale Caustic Soda" ("the Product"). The proceedings were commenced as a consequence of loss and damage suffered by Mr Michael John Barnes ("Mr Barnes") when using the Product. In addition, the Commission seeks orders under sections 87(1B), 75AD and 75AF of the Act on behalf of Mr Barnes that Glendale pay compensation to Mr Barnes in respect of loss and damage suffered by him. The second proceedings were originally commenced in the District Court of New South Wales. I ordered that they be transferred to this Court. In those proceedings, Mr Barnes himself seeks damages from Glendale for negligence and under the Act. Mr Barnes' claim relates to the same loss and damage which is the subject of the proceedings brought by the Commission. FACTS GIVING RISE TO THE CLAIMS Mr Barnes and his family live in Tamworth. In May 1995, a drain in the shower recess of the bathroom in the house where they live was partially blocked. On 13 May 1995, Mr Barnes went to the Woolworths supermarket located in the "Shopping World" complex in Tamworth. Whilst doing his shopping at Woolworths, Mr Barnes ran into Mr Reg Phillips with whom he was acquainted. Mr Phillips had for many years owned his own hardware store in Tamworth. Mr Barnes apparently told Mr Phillips the problem he had with his drain and Mr Phillips directed him to a range of cleaning products on a shelf. In particular, he showed Mr Barnes a range which included the Product and a product known as "Drano". Mr Phillips told Mr Barnes that caustic soda had been used to clean drains for as long as he could remember and told him what to do. Mr Phillips told Mr Barnes that you pour hot water down the drain hole first and then tip the whole of the contents of the Product down. Based on what Mr Phillips told him, Mr Barnes believed that that was the appropriate way of proceeding to use the Product. Mr Barnes, having read the instructions on the label on the container of the Product, decided to buy 500 grams of the Product. He paid $4. Mr Barnes took the container home and, some time later, while in his kitchen, re-read the label. A copy of the label is set out in Appendix 1 to these reasons. At that time Mr Barnes believed that the blockage in the drain was a combination of hair and soap. On the same afternoon, Mr Barnes tipped approximately 1.8 litres of boiling water through a chrome cover over the shower recess waste pipe. He then went to the shed in his backyard to obtain a screwdriver to remove the chrome cover. After returning he knelt in the shower recess and proceeded to remove the cover from the top of the waste pipe. He noticed a brown scum lining the pipe. Mr Barnes then poured a further quantity of approximately 1.8 litres of boiling water down the drain pipe. He was unable to see any of the water which he had poured down. A short time later, Mr Barnes sprinkled some of the Product down the drainpipe. In an affidavit he said that he did that 5 minutes after he poured the second quantity of water down the drainpipe. That affidavit was sworn on 27 January 1996. However, on 8 July 1995 he had written a letter to the New South Wales Consumer Affairs Department in Tamworth saying that he put the Product down the drain about 20 minutes after putting the water down the drain. That difference may have some significance as to the circumstances in which the occurrence described below occurred. Mr Barnes sprinkled the Product down the drain while he was kneeling in the shower recess. He said that he sprinkled about one-third of the contents of the container down the drain. Immediately on sprinkling the Product down the drainpipe, Mr Barnes heard a whirring noise. Immediately after he heard that noise, he saw a light brown column of water rushing out of the pipe. The column of water struck him in the top half of the face which was approximately 600 millimetres above the floor of the shower recess. In cross-examination, Mr Barnes agreed that, in pouring boiling water down the drain, and tipping a third of the contents of the container of the Product down the drain, he relied on what Mr Phillips had said to him and on the Drano label which he had read in the store. He relied on nothing that was on, or was not on, the label of the container of the Product. Thus, in sprinkling the Product down his drainpipe, he relied not on any of the contents of the label on the container holding the Product but on what Mr Phillips had said and on what he had read on other containers in the Woolworths store. Mr Barnes had read the label on the container twice and understood that the label said to dissolve the Product in water before pouring it down the drain. Nevertheless, he thought that the method he adopted was appropriate and effective. He agreed that even if the label had something along the lines of "use cold water" he would still have gone ahead in the way in which he did because he thought it was effective. However, he said that if the label had said something along the lines of "Do not use hot water" he would not have used hot water, simply because the label said "Do not use hot water". He subsequently repeated that if it had said "Do not use hot water" he would not have used hot water, but would have questioned it with Mr Phillips. Mr Barnes said that if Mr Phillips had said "Do not worry, that is a generic brand. You can use it any way. Rely on me, I am the man who has had the hardware store for all those years", Mr Barnes might possibly still have relied on Mr Phillips. He would not agree that it was probable that he would have relied on Mr Phillips. As a consequence of the incident, Mr Barnes suffered injury comprising burns to his face and both eyes. Mr Barnes continues to suffer permanent disability in respect of that injury. It is common ground that the amount of Mr Barnes's loss is $106,000 made up as follows: General Damages, including interest: $55,000.00 Past Economic Loss, including interest: $11,000.00 Costs and Loss of Wages related to prospect $8,000.00 of future operation and medical care: Out-of-Pocket Expenses: $3,500.00 Future Economic Loss: $28,500.00 $106,000.00