Watson v George [1953] HCA 41

High Court of Australia Williams A.C.J. Fullagar and Kitto JJ. Watson v George [1953] HCA 41

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

July 23 Williams A.C.J.

This is an appeal by the plaintiff from a judgment of the Supreme Court of South Australia (Ligertwood J.) in an action brought by the plaintiff to recover damages and a solatium under Pt. II of the Wrongs Act 1936-1944 S.A. in respect of the death of her husband in the bathroom of a boarding house kept by the defendant at 101-102 South Terrace, Adelaide, on 15th or 16th July, 1951. The action was brought by the plaintiff as the administratrix of the deceased for her own benefit as his wife and she alleges that his death was caused by the negligence of the defendant. Ligertwood J. dismissed the action with costs.

Most of the facts are not in dispute. It is common ground that the defendant was carrying on the business of a lodging house at 101-102 South Terrace, Adelaide, and that the deceased and the plaintiff were lodging there at the time of his death. They were paying for accommodation which included a double bedroom, breakfast, and the use in common with other lodgers of the bathroom in which the deceased died. His death was caused by carbon-monoxide gas which escaped from the gas bath-heater in this bathroom and overcame him. He went to the bathroom at about 10 p.m. on Sunday night, 15th July, and was found lying dead on the bathroom floor about 7 a.m. on Monday morning, 16th July. The bath-heater was alight and the water was discharging from it into the bath which was overflowing. It was obvious that it had been alight for a considerable time. The bathroom window was closed.

The bath-heater was examined by an expert from the gas company on 21st July 1951. He lit the heater and noticed that the flame of the burner was smothering. This indicated that the products of combustion were being forced downwards over the flame preventing the amount of secondary air required for complete combustion reaching the flames. This led him to believe that there must be an obstruction in the heater. He took it to pieces and examined it and also examined the flues within which the products of combustion should have passed through the wall of the building into the outer air. The heater was a "Douglas" bath-heater of an out-of-date type but one which is quite safe and efficient when in good repair and these heaters are still in regular use in a large number of bathrooms in Adelaide. It has two water jackets, outer and inner, both made of copper with a space between them in which the products of combustion circulate and pass into a primary flue also made of copper. In the heater in the lodging house these products passed thence into a galvanized iron secondary flue which had two elbows, one inside the bathroom shaped so that the pipe would be diverted slant-wise towards the ceiling and go through the wall of the building and the other just outside the wall shaped so that the pipe would become vertical and complete its length parallel to the wall ending with a cowl on the top. The whole length of the flue was about twenty feet. A draught diverter or baffle was fitted at the junction of the primary and secondary flues having openings from the bathroom into the secondary flue and fitted so that any gases which escaped from the heater into the bathroom would circulate around the heater and be drawn into the draught diverter and thence along the secondary flue into the outer air. The fitting of a cowl to the secondary flue is now out-of-date, the modern practice being to fit a "T" shaped elbow instead. But there are still about 2,000 secondary flues in use in Adelaide fitted with cowls.