ASBESTOS CEMENT PTY. LTD. V. WHELAN 3/1947

©.12880/45

4H. E, Daw, Go, Print, Met.

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IN THE HIGH COURT OF AUSTRALIA

Judgment delivered at__ Sydney... on_Friday, 14th November 19.

SBESTOS CEMENT PROP! LI . Ve WHELAN

ORDER.

Appeal dismissed with costs.

ASBESTOS CEMENT PROPRIETARY LIMITED

WHELAN.

REASONS FOR JUDGMENT. LATHAM C.J.

ASBESTOS CEMENT PROPRIETARY LIMITED

WHELAN.

REASONS FOR JUDGMENT. LATHAM C.J.

This is an appeal from a judgment of the Supreme Court of South Australia (Ligertwood J.) in an action under sec, 23 of the Wrongs Act 1936-44 (Lord Campbell's Act). The plaintiff in the action was Mavis Mary Davis Whelan, the widow of Ronald Matthew Whelan. Whelan was killed in an accident at the estab- lishment of the South Australian Salvage Company Limited on 23rd April 1946, He was assisting in the unloading of a wooden tray carrying 35 ewt. of corrugated asbestos sheets, The tray was the property of the defendant company, Asbestos Cement Pty. Ltd. The asbestos had been purchased by the Salvage Company from a merchant and arrangements had been made under which the asbestos was sent direct by the Asbestos Company to the Salvage Company. While the asbestos was being unloaded something went wrong, the tray fell, and Whelan was killed. The plaintiff sued the Asbestos Company, alleging negligence in that the tray was constructed of defective timber and was in a defective condition, and that the defective condition of the tray was the cause of the accident. The defendant, on the other hand, contended that the tray, though the wood in it had been affected by borers, was strong and efficient, and that most probably the accident was caused by the method adopted by the defendant of attaching a sling to the tray for the purpose of lifting it from the trailer by which it was conveyed to the Salvage Company's works. The learned trial judge accepted the plaintiff's case and gave judgment for the plaintiff for £1970. The learned judge held that the sole cause of the accident was a