H.C. or A. 1940. we ADELAIDE, Sept. 20, 23, 24. MELBOURNE, Dec. 19. Rich A.C.J., Starke, Dixon and MeTiernan JJ. HIGH COURT, [1940, (HIGH COURT OF AUSTRALIA.) ADELAIDE CHEMICAL AND FERTILIZER ae i COMPANY LIMITED ' PPELLANT ; DEFENDANT, AND CARLYLE. SS $ "4 ' 5 5 . Responpent. PLAINTIFF, ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA. Negligence—Dangerous fluid—Sulphuric acid—Supply in earthenware container— Breakage—Suitability of container—Injury to person taking delivery—Claim under Lord Campbell's Act—Dependants—Widow and child—Claim on behalf of widow only—Wrongs Act 1936 (S.A.) (No, 2267), Part IT. Evidence—Admissibility—Res gesta. A company which manufactured and supplied sulphuric acid was accustomed to supply the acid in earthenware jars. These jars were manufactured and supplied to the company by a reputable firm of manufacturers and were tested by the manufacturers and by the company. The jars were in general use as containers for sulphuric acid, and the company had used large numbers with few breakages. Experiments showed that the jars, if filled with fluid of approximately the same weight as sulphuric acid, when tilted and allowed to fall some nine inches, invariably broke. The corrosive nature of the contents of the jars made them highly dangerous to persons handling them, if they were broken and the acid escaped. The company was accustomed to supply sulphuric acid in these containers to C.'s employers. As C. was attempting to lift one of the jays in order to move it from the company's delivery platform to his buckboard which was standing nearby, the jar broke. 'The contents were spilled over C., who immediately hastened inside the com- pany's building and began to wash the acid from his legs, His wile, who had been sitting in the buckboard, followed him and asked what had happened. He replied :—"'I took hold of the handle of the jar, tilted it slightly towards me, to get my other hand underneath, and the top of the jar seemed OF AUSTRALIA. was treated at a hospital and was advised to report next day to a doctor. failed to do so, but his wife treated him with a preparation which a chemist d her was a proper treatment for burns, as in fact it was. Later there ¢ unexpected conditions, and a doctor was immediately called in. Strep- septicaemia developed, and C. died. His widow brought an action the company under Part II. of the Wrongs Act 1936 (S.A.) (Lord phell's Act) on her own behalf only, proceedings on behalf of the only 'of the marriage having been taken under the Workmen's Compensation ct, In the Supreme Court of South Australia it was found that the particular jar from which the damage resulted was defective and also that the jar was 'an unsafe and dangerous type; and the widow was awarded damages. Held missible, and whether or not there was evidence to support the finding the particular jar was defective, there was sufficient evidence to support finding that the jar was not reasonably safe, and this finding should not be disturbed ; accordingly, the company was properly found to have committed breach of the duty of care which it owed to C. ntion of a new and independent cause. }) That contributory negligence by C. had not been established. (4) That the widow's failure to sue on behalf of the child did not result in the action's being improperly constituted : Avery v. London and North Eastern Co, Ld., (1938) A.C, 606, followed, ion of the Supreme Court of South Australia (Cleland J.): Carlyle v. Chemical and Fertilizer Co, Ltd., (1939) S.A.S.R. 458, affirmed. e Morton Carlyle, a married man with one child, was an of a herd-testing association, an institution subsidized by ent of South Australia. Concentrated sulphuric acid, corrosive commodity, was used by Carlyle in the course of rd testing. This sulphuric acid was supplied to the associa- arrangement with the South-Australian Department of The sulphuric acid was supplied by the Adelaide /and Fertilizer Co, Ltd., a manufacturer and supplier of acid. The sulphuric acid was supplied in earthenware ch jar was cylindrical in shape with a uniform diameter ten inches until, at a point thirteen inches from its base, 'into a cone which terminated in a short neck wherein a 'inserted. Each jar had a handle of earthenware which in 'come away in my hand. It must have been faulty or cracked." Later H C. or A. 1940. ees ADELAIDE CHEMICAL AND FERTILIZER Co. Lrp. v. CARLYLE. 7" 516 HIGH COURT (1940, H.C. or A. formed an integral part of its structure and which was united to it ae at its neck and shoulder. The jar contained approximately three 'Apetawe gallons of acid, which weighed about 56 Ibs. The jar weighed Cuemcan 19 Ibs., so that the total weight of the jar and contents was peat about 75 Ibs. There was evidence that the jars were sup- Co. Lr. plied to the company by a reputable firm of manufacturers and Cancynn, Were in general use as containers of sulphuric acid. There was further evidence that the jars were tested by the manufacturers and by the company and that the company used large numbers of the jars and had few breakages. Experiments showed, however, that the jars, if filled with fluid of approximately the same weight as sulphuric acid, when tilted and allowed to fall some nine inches, invariably broke. The corrosive nature of the sulphuric acid made the contents of the jars highly dangerous to persons who handled them, should the jars break and the acid escape. On 31st March 1939 Carlyle, accompanied by his wife, drove his buckboard to the company's delivery platform for the purpose of taking delivery of two of these jars of sulphuric acid. These jars were on the delivery platform, an erection about three feet three inches from the ground, consisting of jarrah planks affixed to bricks. As Carlyle was attempting to lift one of the jars in order to move it to his buckboard, the jar broke. The contents were spilled over Carlyle, who immediately hastened inside the building, removed his trousers and began to wash the acid from his legs. His wife gave the following evidence :—"I was attracted by my husband making a noise—I heard him make a sound of some sort— a cry or something. I looked around, and he was standing half facing me, with liquid pouring over him from an earthenware jar. The biggest portion of that jar was on the platform but the top part was in two or three pieces on the pavement. The jar was lying on its side. The piece that contained the handle of the jar —the handle itseli—was on the pavement. Most of the jar remained onthe platform. . . . Isaw my husband instantly jump up on to the platform and he disappeared. I scrambled out of the car as quickly as I could and I went through the big doors of the premises that were open to the street, and when I saw my husband he was practically stripped, sitting in a sink, with water pouring over him. . . . So soon as I saw my husband sitting under the tap, as I've related, I asked him what happened. My husband said, 'I took hold of the handle of the jar, tilted it slightly towards me, to get my other hand underneath, and the top of the jar seemed to come away inmy hand. It must have been faulty, or cracked.'" Later Carlyle was treated at the Adelaide Hospital, where he was advised OF AUSTRALIA. e next day to the nearest doctor. This advice was not ed, but his wife treated him with tannemol, which, a chemist her, was a~proper treatment for burns. Subsequently cted conditions supervened, and a doctor was immediately Streptococcal septicaemia developed, and Carlyle died. His widow, on behalf of herself only, and not on behalf of herself her child, brought an action in the Supreme Court of South ralia claiming damages from the company. The action was it under Part II. of the Wrongs Act 1936 (S.A.), which contains M1 ons corresponding to Lord Campbell's Act. Upon the hearing he court was informed that the plaintiff claimed damages only |in amount to what her share would have been, had she received es on behalf of the child as well, and was also informed that gs on the child's behalf had been taken under the Workmen's Compensation Act. Cleland J., who tried the action, gave judgment t the plaintiff. His Honour found that the particular jar defective and also that the jars in general use by the defendant y, although not defective in any particular sense, were in | sense unsafe and dangerous. he company appealed to the High Court. er material facts appear from the judgments hereunder. Layo K.C. (with him Astley), for the appellant. It is submitted (1) no negligence by the appellant was proved ; (2) the cause, proximate cause, of the smashing of the jar was the deceased's lure to take care; (3) this is a case of volenti non fit injuria ; ) the death was caused by another agency or the intervention of nother agency ; (5) the action is not properly constituted ; (6) the nee of the remarks made by the deceased to his wife was y admitted. Negligence involves a breach of a duty to damnified, and cases such as Donoghue v. Stevenson (1) he present case. The only breach of duty can be either the of the type of jar usually used or the selection of the par- jar. As to selection of the particular jar, see Halsbury's Laws d, 2nd ed., vol. 23, p. 573. The type of jar was in universal 'in Australia, it was the kind of jar used daily by the deceased lve years, it was the type of jar which the deceased (through Department of Agriculture) had sought to have given to him, deceased knew as much of earthenware as the appellant }much of sulphuric acid as was material. These latter con- . ons also found the defence of volenti non fit injuria. The ity to take care involves reasonable selection only. (1982) A.C. 562. (2) (1938) A.C. 85. 'LXIv. Bt H.C. of A. 1940. — ADELAIDE CHeMicaL AND Ferrer Co. Lr. v. CARLYLE. 518 HIGH COURT (1940, H.C. or A. [Drxon J. When dealing with dangerous things what is reason- Key able involves what is necessary to prevent escape. | : 'Aprtawe The word "dangerous" is relative. A commodity may be Cuewcat dangerous in some cases and not in others. The appellant has acted Fererwer reasonably. The jars in question have been used by the company Co. Lev. for fifty years and by the deceased for twelve years without adverse Cantyrn, Consequences. The deceased alone was concerned in lifting the jar, and he had done so before. Assuming the jar was not proper for the purpose for which it was designed, the deceased, with the knowledge he had, had the onus thrown upon him of taking care, There is no evidence that anything better could have been substituted for the type of jar now in use. The best test of reasonableness is what has been the result of reasonable use over a period of years (Cox Bros. (Australia) Ltd. v. Commissioner of Waterworks (1) ). There is no evidence of a breach of duty in selecting the particular jar (Fitzpatrick v. Walter E. Cooper Pty. Ltd. (2) ). Where you get persons equally knowledgable of the danger, there is no absolute liability. [Dixon J. referred to Crisfield v. Ireland (3).] In all the circumstances the appellant's selection of a container was not a breach of duty, or, if it were, the result was contributed to by the deceased. The deceased's death was due to his failure _ to take the advice given him at the Adelaide Hospital to consult a doctor. The streptococcus must have entered after he left the hospital and because of his failing to follow the directions there given him (Innes or Grant v. G. & G. Kynoch (4) ). The infant son should have been joined as a plaintiff (Wrongs Act (S.A.), secs. 20, 21, 23). Avery v. London and North Eastern Railway Co. (5) is distinguish- able, as the circumstances there were different. [Counsel also referred to Bellambi Coal Co. Ltd. v. Murray (6).] Skipper (with him Hollidge), for the respondent. The duty was on the appellant ; there was no duty on the deceased's part to offer any protection. Avery v. London and North Hastern Railway Co. (5) shows that the action is properly constituted. It is clear beyond controversy that the whole top of the jar came off in a fairly clean break at the junction between the cylindrical part and the shaped-up cone, that the cylindrical part was unbroken and that the jars broke in the circumstances to which they were exposed in the experiments made on the jars. Evidence of the deceased's (1) (1933) 50 C.L.R. 108, at p. 118. (5) (1938) A.C. 606, : (2) (1935) 54 C.L.R. 200, at p. 218. (6) (1909) 9 C.L.R. 668, at pp. 579- (3) (918) V.LB. 1054 34 AL 64 581, 604. (4) (1919) A.C. 765, at p. 770. OF AUSTRALIA. grounds on which Cleland J. could find, as he did, both that ticular jar was defective and that jars of the type used by the ypellant were insufficient for their purpose. It is not necessary for us ww any specific act of negligence. As to inference and conjecture. err or Lendrum v. Ayr Steam Shipping Co. Ltd. (1). The findings et were entirely in the respondent's favour; and there is no | for saying that they were wrong. At the least there was on the appellant to give warning of the brittle nature of the [Counsel referred to Donoghue vy. Stevenson (2); North- Utilities Ltd. v. London Guarantee and Accident Co. Ltd. (3) ; Chemical Works Ltd. v. Belvedere Fish Guano Co. Ltd. (4) ; n Engraving Co. vy. Film Laboratories Ltd. (5).| As to the of novus actus interviens, see Fife Coal Co. v. Young (6). injury were due to treatment given by the wife, the answer the defence is found in Williams v. Graigola Merthyr Co. Ltd. (7). »maxim volenti non fit injuria affords no defence (Dann v. Hamilton stley, in reply, referred to Burfitt v. A. and E. Kille (9). Cur, adv, vult. following written judgments were delivered :— un A.C.J. This appeal comes from a judgment of Cleland J. n on the trial of an action in favour of the plaintiff. ie action is brought in respect of the death of her husband by a under Part IT. of the Wrongs Act 1936 (S.A.), which is founded provisions of Lord Campbell's Act. The deceased was employed 'institution more or less of a governmental character, as a herd and for the purposes of his work he required supplies of ie acid, The appellant company provided the sulphuric acid ware jars, of which he took delivery. One of these jars oken as he was attempting to move it from a platform at the the appellant's stores to his buckboard standing nearby. 'ie acid was spilt over his legs, and, although they were injured, septicaemia set in and he died. he appellant objects that the action was defectively con- because there was a child of the marriage on whose behalf 1915) A.C, 217, at p. 233, (5) (1936) 1 All E.R, 106, ») A.C. 562. (6) (1940) A.C. 479. A.C. 108, at pp. 118-120, (7) (1924) 17 B.W.C.C. 202, 2A. 465, at p. 471. (8) (1989) L KB. 509, (9) (1939) 2 K.B, 743, at p. 747. int to his wife was properly admitted, and there were amply - ©: oF A- 1940. Ww ADELAIDE CyeMicat. AND FErrruizer Co. Lrv. v CaRLYLe. Dec. 19 H. C. or A. 1940. <— ADELAIDE CHEMICAL AND Ferriizer Co. Lrp, " CARLYLE. Rich A.J. HIGH COURT ig the widow did not purport to sue. We are told that the reason is that independent proceedings for workers' compensation had been instituted on behalf of the infant, who had since recovered £600. Our attention was called by Mr. Skipper for the respondent to the recent.decision of the House of Lords in Avery v. London and North Eastern Railway Co. (1), and he contended that the grounds of their Lordships' decision are inconsistent with the appellant's objection. In this contention I agree. I therefore think this point fails. * 2. The appellant maintained that, as the deceased died of a strep- tococcal infection, the real cause of death was not the sulphuric acid — burn, which merely provided the opportunity for the incursion of the streptococci, but the contact which the deceased must have had with whatever object was the source of infection. In my opinion this argument is unsound. The sulphuric acid caused a physical injury to which the deceased's death is traceable as a proximate — and not remote consequence. The liability of wounds to infection isa normal and not abnormal characteristic of injury. Medical treat- ment has made what at one time was a most usual, if not invariable, result of any serious wound appear so infrequent as to bear the aspect of the result of independent carelessness in treatment. Of course, infective conditions did not always result in septicaemia. But even at the present time it is impossible for a court to treat the infection of a wound as a novus actus interveniens. This point also fails. 3. The appellant then complained that Cleland J. erroneously admitted and acted upon a hearsay statement made by the deceased to his wife within a few minutes of his injury. The statement, if made and true, would serve to show that the jar broke in the deceased's hands owing to some crack or concealed defect. And Cleland J. made a finding to this effect and based his judgment upon it as one alternative ground of negligence on the part of the appellant. Iam not prepared to hold that the evidence was admis- sible as part of the res gestae, as Cleland J. held, but I find it unneces- sary to decide the point because I think his judgment should be upheld on the other alternative upon which it was rested. 4, That ground was that jars, having regard to their brittleness and liability to fracture on overturning from the vertical to the horizontal, were unsuitable for the purpose of holding a heavy fluid of such dangerous properties as sulphuric acid. No doubt it is not easy for the appellant to provide a container fulfilling all the varying demands of durability, convenience, resistance to corrosion and cheapness. But courts of law exact a high standard of diligence in in safeguarding those required to handle dangerous chemicals in the (1) (1938) A.C. 606, OF AUSTRALIA. Manufacturers who put them out must adopt containers are not liable to break under conditions that may be expected not infrequently in the course of their subsequent life without ce on the part of those through whose hands they will _ It is not for the court to say exactly what ought to be done— chu containers should be used or earthenware less brittle Lbe made or the containers should be shaped in a different with a broader base and tapering sides or the containers | be enclosed so that they could not be used bare without tive covering or crate or whatever measures are open. But a court to say that every care should be taken to see that of the hand or failure of muscular control on the part of a n who allows a jar to fall on its side in moving it does not ssarily mean that a large body of sulphuric acid is discharged er him. Cleland J. had evidence before him that, if a jar of acid us overturned, it always broke. With this central fact and an int of information about possible containers and the number of s experienced and the course of manufacture and trade jars in use were unsuitable because they did not provide safeguards. t was suggested on behalf of the appellant that the deceased st have been guilty of contributory negligence. 1 do not think careful handling. In my opinion the appeal should be dismissed with costs. cE J. This appeal is from a judgment of the Supreme Court on the part of the appellant causing the death of her It was brought for her own benefit and is based upon Act 1936, which contains provisions corresponding to h Act known as Lord Campbell's Act. The appellant is a er and supplier of sulphuric acid, which, as is well known, corrosive. It supplies the acid to the public in containers ware jars which are obtained from the makers, in this the proprietors of the Bendigo Potteries. The deceased herd tester employed by a herd-testing association—a semi- nent institution subsidized by the Government, but paid by nt of Agriculture in South Australia. Concentrated we of their vocations from i injuries arising from their accidental H. C. or A. 1940. a ADELAIDE CHEMICAL AND Ferviumer Co. Lap. ®. CARLYLE. Rich ACJ. H. ©. oF A. 1940. Se ADELAIDE Cuemacat AND Ferner Co. Lx. Starke J. HIGH COURT (1940. sulphuric acid was used by the deceased in the course of his herd testing. It was supplied to him by the appellant by arrangement with the Department of Agriculture. Approximately, he was supplied with two jars a month. In March of 1939 the appellant supplied him with sulphuric acid in two earthenware jars, each containing approximately three gallons of acid, which with the jar (19 lbs.) weighed approximately 75 Ibs. Whilst in the course of taking delivery of the acid from the appel- lant's delivery platform in Adelaide, one of the jars was broken and the acid ran out and over the legs and feet of the deceased, who was severely injured and subsequently died from blood-poisoning or streptococcal septicaemia. It was not disputed that the appellant stood in a relationship of duty towards the deceased, to whom it had delivered sulphuric acid in earthenware jars: See Farr v. Butters & Co. (1), per Scruton L.J. It is a duty involving the exercise of care and caution. The degree or amount of care required is "in proportion to the magnitude and the apparent imminence of the risk." It was suggested that the present case fell within the rule of strict and unqualified liability propounded in Rylands v. Fletcher (2). But that rule was propounded in relation to the occupation of property. "We think," said Blackburn J., delivering the judgment of the Exchequer Chamber, " that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril" (3). The rule has been applied to the undertakings of gas and electric companies: See Northwestern Utilities Ltd. y. London Guarantee and Accident Company Ltd. (4). It was next argued that the earthenware jars containing sulphuric acid were things dangerous in themselves and that the rule of law in such cases was also one of strict and unqualified liability, as was illustrated in the cases by the use of such expressions as " consum- mate care" (Faulkner v. Wischer & Oo. Pty. Ltd. and Rosenhain & Oo. (5); Pollock on Torts, 13th ed., p. 518); "a degree of diligence so stringent as to amount practically to a guarantee of safety" ; "the high degree of care, amounting in effect to insurance against risk " (Donoghue v. Stevenson (6) ). It would appear to be a question of law, if the facts are undisputed, whether goods fall within the category of things dangerous in themselves (Blacker v. Lake & (1) (1932) 2 K.B. 606, at pp. 614-617. (3) (1866) L.R. 1 Ex., at p. 279. (2) (1868) L.R. 3 H.L. 330; (1866) (4) (1936) A.C. 108. LR. 1 Ex. 265, (5) (1918) VLR. 513, at p. 539.40 Ab " (6) (1932) A.C., at p. 612. - But still the law, in my judgment, does not impose a rule of strict (4. C.L.R.) @F AUSTRALIA. 523 Billiot Ltd. (1); Faulkner'y. Wischer & Co. Pty. Ltd. and Rosenhain 4. ©. or A. Co. (2) )—See also Wray v. Essex County Council (3). 1940. In my judgment, earthenware jars containing sulphuric acid do ans fall within the category of things dangerous in themselves because Cuemicat the acid if it escaped might put life or limb in peril, particularly per ey the lives and limbs of those who handled them or used the acid. Co. Lrp. v. c and unqualified liability in the case of things dangerous in themselves. pu 'The degree of care that is required in the case of such things is that "***° 7 which is reasonable in the circumstances, that which a reasonably _ prudent man would exercise in the circumstances. A reasonably nt man would, no doubt, in the cases of such things exercise a "keener foresight" or "a degree of diligence so stringent as to amount practically to a guarantee of safety," or "a high degree of care amounting in effect to an insurance against risk," or " the greatest care" or "consummate care." The duty is "more imperious " when things dangerous in themselves are being handled (Wefferson v. Derbyshire Farmers Ltd. (4) ). That the rule as to things dangerous in themselves is as stated may be gathered from the judgment of the Judicial Committee in Dominion Natural Gas Co, Ltd. v. Collins and Perkins (5) :— The gas company Were not occupiers of the premises on which the accident happened. _ Further, there being no relation of contract between the company and the plaintiffs, the company cannot appeal to any defect in the machine supplied by the defendants which might constitute breach ofcontract. There may be, however, in the case of anyone perform- ing an operation, or setting up and installing a machine, a relation- ship of duty. What that duty is will vary according to the subject matter of the thing involved. It has, however, again and again been held that in the case of articles dangerous in themselves, such 4s loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or instal such articles when it is necessarily the case that other parties will come within their proximity. The duty being to take precaution, it is no excuse to say that the accident would not have happened unless some other agency than that of the defendant had intermeddled with the matter " (Jefferson v. Derbyshire Farmers Ltd. (6); Parry vy. Smith (7); Faulkner v.+ Wischer & Co. Pty. Ltd. and Rosenhain & Co. (8)). And whether the degree of care that a reasonably prudent man would exercise (1) (1912) 106 LT, 533, at p, 535. (5) (1909) A.C. 640, at p. 646. (2) (1918) V.L.R. 701, at p. 705shoA7.44 (6) (1921) 2 K.B., at p. 289. (8) (1936) 3 AIL E.R. 97, at p, 101. (7) (1879) 4 C.P.D. 325. (4) (1921) 2 K.B,, at p. 281. (8) (1918) VLR. 513, TOL LK DALT AY H.C. or A. 1940. Ww ADELAIDE CHEMICAL AND FERTILIZER Co. Lrp. °. CARLYLE. HIGH COURT (1940, in respect of things dangerous in themselves has been observed — becomes ultimately a question of fact. In the present case, the learned trial judge found that the par- ticular—the broken—jar was defective, and also that the jars in general use by the defendant, although not defective in any particular sense, were in a general sense unsafe and dangerous. The first finding was based in part upon a statement made by the deceased to his wife, the respondent. She was sitting in the motor vehicle belonging to the deceased and saw her husband at the appellant's platform. "I was attracted," she said, "" by my husband making a noise—I heard him make a sound of some sort—a ery or something. — I looked around, and he was standing half facing me, with liquid pouring over him from an earthenware jar. The biggest portion of that jar was on the platform but the top part was in two or three pieces on the pavement. The jar was lying on its side. The piece that contained the handle of the jar—the handle itself—was on the pavement. Most of the jar remained on the platform. . . . I saw my husband instantly jump up on to the platform and he disappeared. I scrambled out of the car as quickly as I could and I went through the big doors of the premises that were open to the street, and when I saw my husband he was practically stripped, sitting in a sink, with water pouring over him . . . So soonas I saw my husband sitting under the tap, as I've related, I asked him what happened. My husband said, 'I took hold of the handle of the jar, tilted it slightly towards me, to get my other hand under- neath, and the top of the jar seemed to come away in my hand. It must have been faulty, or cracked.'" The husband's statement was admitted as part of the res gesta, but it is objected that the statement was inadmissible. Statements forming part of a transaction are admissible as relevant facts, but statements regarding relevant facts are only admissible as a medium of proof if they comply with certain conditions. Thus, statements accompanying or explaining the fact or transaction in issue have been admitted in evidence as part of the res gesta. This doctrine is ill defined and uncertain in application. According to Taylor on Evidence, 10th ed., par. 583, "the best general idea of what is meant by res gestae, is that this expression includes everything that may be fairly considered 'an incident of 'the event under consideration.' " But this proposition is unsatis- factory, for it is clear that such statements or declarations must, in order to be admissible, be contemporaneous or substantially con- temporaneous with the fact, i.e., "" made either during, or immediately before or after, its oecurrence—but not at such an interval from it as to allow of fabrication, or to reduce them to the mere narrative of a OF AUSTRALIA. t event " (Phipson, Law of Evidence, 5th ed. (1911), p. 47). "The says Professor Thayer, Legal Essays, Bedingfield's Case, at i "calls for a declaration which is made either while the matter tion is actually going on, or immediately before or after it the nearness in time should be such that the declaration may in e be said to be part of the res gesta, i.e., a part of the transac- n of which it purports to give an account." Thus in the case of wg and Meridian Railroad Co. v. O'Brien (1) the question of the rate of speed of a train at the time of an accident. The of the train made a statement some ten to thirty minutes najority of the court, four justices dissenting, held that the tement was inadmissible. The statement, the majority said, was de "after the accident had become a completed fact. . . . It y ee ., the act from which the injuries in question arose. . . the mere narration of a past occurrence, not a part ve gestae' (2). It is difficult to reconcile this decision with of the same court in Traveller's Insurance Co. v. Mosley (3). the latter decision has been criticized and is difficult, it has been said, to support upon the facts reported (See Thayer, Legal says, Bedingfield's Case, at pp. 276, 279); but the former decision y close to the English decisions, R. v. Bedingfield (4) and ddard (5). The admissibility of the statement or declaration itter of law. But, as Field J. observed in his dissenting Lin the Vicksburg Case (6), " the admissibility of a declaration, jection with evidence of the principal fact . . . must be d by the judge according to the degree of its relation to +t, and in the exercise of a sound discretion ; it being extremely if not impossible, to bring this class of cases within the of a more particular description." The whole subject has discussed at large by Professor Thayer in the Essays already oned, by Mr. S. L. Phipson in the Law Quarterly Review, vol. 435, and by Professor Wigmore in his work on Evidence, 2nd 3), vol. 3, pars. 1745 et seq. facts of which the declarations or statements are evidence y ill defined. According to Taylor and Phipson, the or statements when admissible in evidence are no er of the facts themselves, the existence of which must aliunde. "And although receivable." says Mr. 119 U.S. 99 [30 Law. Ed. (3) eet 75 U.S. 397 [19 Law. Ed. ) 119 U.S., at p. 105 (30 Law. (4) (1879) 14 Cox C.C. 341. Jat p. 301}. (5) (1882) 15 Cox C.C. 7. "6 {1s86) 119 US, at pp. 108, 109 [30 Law. Ed., at p. 302), H. C. or A. i940, ~ ADELAIDE Cuemicat AND Ferriuizer Co. Lrp. v. CaRLYLe. Starke J. H. C. or A. 1940. Ye ADELAIDE CHEMICAL AND Ferrzer Co. Lx. » Cantyne, Starke J. HIGH COURT (1940. Phipson, "to explain, identify, or corroborate, it is doubtful how far they can be used as evidence of the 'truth of any of the facts stated": See Taylor on Evidence, 10th ed., par. 586; Phipson, Law of Evidence, 5th ed. (1911), p. 49, and cases there cited ; Phipson, "The Doctrine of Res Gesta in the Law of Evidence," Law Quarterly Review, vol. 19, at p. 448. The American cases and authors view the matter somewhat differently. '" This" (Declarations are no. proof of the facts themselves) "perhaps sometimes misleads. Of course, when it is said that you must have your fact, your res gesta, it is implied that you cannot depend on the declaration for the proof of that; but it must not be supposed that the declaration is not legitimately used to prove what the declaration imports, and to. supply new and otherwise unproved, or insufficiently proved, elements in the res gesta" (Thayer, Legal Essays, Bedingfield's Case, at p. 288)—Wigmore on Evidence, 2nd ed., vol. 3, pp. 762, 764. Unless this be true, the celebrated controversy in connection with Bedingfield's Case (1) and the decisions of R. y. Foster (2), R. v. Lunny (3), R. v. Goddard (4), seem almost: meaningless. Holmes J., in delivering the judgment of the Supreme Judicial Court of Massa- chussets in Elmer v. Fessenden (5), whilst recognizing that declara- tions are not evidence of the past facts which they may recite, yet. affirms that they have been admitted to prove the cause of a wound or injury when the declarations were made at the time or immediately _ after the event and adds that, if they are not exceptions to the general rule, they at least mark the limit of admissibility. So much may also, I think, be deduced from the English cases such as Thompson v. Trevanion (6), R. v. Foster (2) and R. v. Lunny (3) and R. v. Thomson (7). In the present case, the admission in evidence of the statement of the deceased to his wife involves a conclusion by the trial judge that the statement was so near in point of time to the accident that it was substantially contemporaneous with it and might in a fair sense be said to be part of the transaction or accident of which it purported to give an account. Unless clearly wrong, this conclu- sion of fact on the part of the learned judge should be sustained. So far from being clearly wrong, the conclusion is reasonably open upon the facts. The statement, it is true, was not made at the moment when the earthenware jar was broken and the injuries to the deceased were sustained ; but it was made almost immediately afterwards and whilst the deceased was endeavouring to wash the (1) (1879) 14 Cox C.C. 341. (4) (1882) 15 Cox C.C. 7. (2) (1834) 6 C. & P. 325 [172 E.R. (5) (1890) 151 Mass. 357. 1261}. (6) (1693) Skin, 402 [90 E.R. 179}. (3) (1854) 6 Cox C.C, 477. (7) (1912) 3 K.B, 19, at p. 22. LRJ OF AUSTRALIA. acid from his body. According to the wife, she heard her cry and immediately ran to him and asked what had ypened. The conclusion of the learned judge upon the facts wed justified his admission of the statement of the deceased in dence. And in my opinion the statement might be legitimately to explain the accident and how it occurred if the learned judge satisfied that the statement had been made and were true. ut the deceased's conclusion that the jar was faulty or cracked 'no evidence of that fact. That was a matter of fact for deter- on by the learned judge himself. Upon this basis there was ce upon which the judge might reasonably conclude, as he that the particular jar—the broken jar—was defective, and hat the appellant had not discharged the duty of care, already stated, 'h it owed to the deceased. In my opinion, the further finding of the learned judge that the in general use by the appellant. although not defective in any sense, were in a general sense unsafe and dangerous, is warranted by the evidence. The appellant led evidence that were supplied by a reputable firm of manufacturers and e in general use as containers for sulphuric acid, that the manu- ers and the appellant tested the jars, that the appellant used e numbers of the jars and had few breakages. But it appears the evidence that the jars used by the appellant were " decidedly " and that earthenware jars are " fairly easily broken." eriments established that the jars, if filled with fluid, tilted and ed to fall some nine inches, invariably broke and spilled the . The jars were unprotected by wicker or other coverings, it appears that the appellant delivered the jars to its customers illed with acid, sometimes in wooden crates, holding two jars, and at other times without a crate. The deceased was accustomed to sulphuric acid in jars supplied by the appellant. On the the accident he returned two empty jars and said he would a crate which had been formerly supplied to him with jars g sulphuric acid. At the same time, he ordered two i jars of acid, which were delivered to him on the appellant's tform, and he was in the act of loading them and placing them the icrate which he had retained on his car. But delivering, ns and handling these jars, containing sulphuric acid, was n ordinary use of the jars by the appellant and. its customers. The nt could not regulate its duty on the assumption that only people would handle its jars or that no untoward event happen. It was bound to take into consideration that not careful but careless people might handle them and that sudden R27 H. C. or A. 1940. w~ ADELAIDE CHEMICAL AND Feetivizen Co. Lrp. a CARLYLE. Starke J. H, C. or A. 1940. ed ADELAIDE CHEMICAL 'AND FERriizeR Co. Lrp. v. CARLYLE. Starke J, HIGH COURT (1940. or untoward knocks might fracture or break its brittle and easily broken jars (Henwood v. Municipal Tramways Trust (S.A.) (1)). The corrosive content of the jars made them highly dangerous to persons handling them if they were broken and the acid escaped. The appel- lant was in these circumstances under a duty, as already stated, to use a high degree of care that jars which it used as containers for sulphuric acid were not unsafe and dangerous. The learned judge found that the appellant had failed in this duty, and the finding is reasonably open upon the facts proved and should accordingly be supported. The suggestion is untenable that the damages awarded to the respondent were not directly traceable to the negligence of the appellant but were due to the operation of independent causes, namely, the disobedience of medical orders and the want of proper treatment of the injuries by the deceased and his wife: See In re Polemis and Furness, Withy & Co. (2). The cause of death was streptococcal septicaemia following, according to medical opinion, — upon the infection of a wound or burn upon the body of the deceased brought about by the operation of sulphuric acid upon his skin, But the evidence does not establish any fault on the part of the deceased or his wife. After treatment at the Adelaide Hospital, the deceased did not report to the nearest doctor next day, as advised, but his wife treated him to the best of her ability with tannemol, which a chemist advised her was a proper treatment for burns, as in fact it was, and she called in a doctor so soon as unexpected conditions developed. Lastly it was contended that the action was not properly con- stituted in that it was not brought for the benefit of the wife and child of the deceased but for the benefit of the wife alone. The contention cannot be sustained in view of the reasons given in the House of Lords in the case of Avery v. London and North Eastern Railway Co. (3), and those reasons also make it clear that the appellant is pro- tected from a further claim by the child under the Act corresponding to Lord Campbell's Act. The learned judge was satisfied that a claim on behalf of the child was being pursued under the Workmen's Compensation Act and did not think it necessary to require that the action should be brought for the benefit of the child as well as for the benefit of the wife. And I gathered from statements at the Bar that the claim was brought to a successful result. The appeal should be dismissed. (1) (1938) 60 C-L.R. 439, at p. 453. (2) (1921) 3 K.B. 560, at p. 97. (3) (1938) A.C. 606. OF AUSTRALIA. ¢ and the sulphuric acid appears to have been sold or ed, under arrangements with the South-Australian Depart- it of Agriculture, to the association as the purchaser and not to 'The deceased took delivery of the sulphuric acid as the servant t ser, and not as a principal whose rights in relation to condition of the chattel sold would be governed primarily by terms of the contract of sale: See per Brett M.R. in Heaven v. er (1). The existence of a duty towards a person in such a tion in reference to unusual dangers was established long ago v. Barnes (2), though that case dealt with the necessity him a warning of the danger and did not describe the ral nature of the duty or define its measure. But it would not be denied that, if a chattel involves unusual danger to those who ndle it, a vendor delivering it to a servant or agent of a purchaser bound to exercise reasonable care for the safety of the person so iving it, and the degree of care and the sufficiency, as a fulfilment ie duty, of a warning or of any other measure that may be adopted | depend upon the nature of the danger and the other circum- of the case: Cf. Donoghue v. Stevenson (3). n the present case, notwithstanding that the deceased was fully ulive to the harm which might be done by sulphuric acid and there- re to the necessity of handling the jars so as not to break them or ill their contents, the injurious properties of the chemical are such 8 to place upon the defendant a high obligation of care to guard its accidental escape from the containers. It was incumbent the defendant to exercise at least all reasonable care to provide el as durable and free from liability to break in the ordinary of handling as is compatible with the conditions and exigencies e and trade. The substantial question in the case is upon the evidence the finding that the defendant did not rform that duty ought to stand. so far as the finding depends upon the inference that the jar in the deceased's hands owing to a latent defect which the should have discovered, I do not think that it can be ed. A necessary part of the foundation for that inference rs to me to be a statement attributed to the deceased to the that, as he tilted the jar, holding its handle, the top of the jar ed to come away in his hand. He made the statement to his (I) 11 QBD. t pp. 510, (2) (1862) 11 C.B.N.S. 553 [142 E.R. A ig Q.B.D. 503, at pp. ) ae) re ra (8) (1932) A.C,, at pp. 596, 597. J. The deceased was an employee of a herd-testing 4. ©. or A. 1940. Ww ADELAIDE CuemicaL AND Fertiumer Co. Lap. v. CaRLyLe. AND FERTILIZER Co. Lrp. v CARLYLE, Dixon J. HIGH COURT (1940. ~ the sulphuric acid. The breaking of the jar occurred on a platform adjoining the street. The deceased at once hastened into the build- ing, took off his trousers and began to wash the acid from his legs, His wife, who was sitting in a truck in the street, followed him inside. A very short time, therefore, must have elapsed from the breaking of the jar until the deceased, in answer to his wife's question, gave his account of the accident. His statement was received in evidence on the ground that it formed part of the transaction. In my opinion it was not admissible. The statement was a mere narrative explaining an event that had occurred, although only a minute or two before, an event that was complete when the jar broke and the acid spilt over the deceased's legs. It was what it purported to be, an explanation of something that had occurred and was over. What the deceased said could not be made admissible unless it could be brought within the category of declarations or statements forming a portion of or an incident in the transaction which in all its parts and details constitutes one of the matters in issue. } Unfortunately the scope and application of the doctrine and its basis in theory have been a source of endless discussion and difference of opinion. The sharp distinction drawn, according to the accepted English theory of the law of evidence, between relevant facts and the media of proof of their occurrence or existence makes it necessary to refer oral declarations or statements receivable in evidence to one head or the other. Such a declaration is admitted either because it is itself a relevant fact or because, the facts declared being relevant, the declaration is a lawful medium of proof of those facts. Under the first head what is relevant is the fact that some state- ment was made, independently of its content. Thus, the directions and comments of a policeman on point duty at a corner where two cars collide given during the course of their approach and collision clearly form "part of the transaction" in a question of liability between the drivers, and, to whatever they may amount, they may be given in evidence as a constituent portion of the complete oceur- Tence. Under the second head the declaration is a narrative of a past event and is recounted to the court as the equivalent of or a substitute for direct testimony of the event it narrates. Of this nature are dying declarations, declarations of deceased persons in the course of duty or against interest, and declarations as to the state of the declarant's health or bodily feelings. If, in the example given, the policeman goes to the help of the colliding motorists, his instruc- tions and statements while he is disentangling the passengers and OF AUSTRALIA. ing the cars might be considered still to form part of the transaction, because such a casualty cannot be treated as over and complete at the instant of impact. But, when he begins to make notes, he is clearly taking up the task of recording facts that have occurred, and what he writes is narrative and cannot be received as evidence, that is, unless he dies and it is tendered as a declaration in the course of duty. _ Now, it is clear that the purpose of admitting a statement under the one head is entirely different from that of admitting it under 'the other. Under the first head, what the people say during the of the event is regarded as part of what they do. If what 'is said happens to include a reference to a fact or past occurrence, the circumstance that it is admissible under the first head makes it 'no proof of that fact or occurrence. To return to the same example, if, as the cars drew near, the iceman shouted an imputation upon the past conduct of one of drivers, what he said could not be treated as proof of the latter's revious misdoings. On the other hand, if it came about that his notes or subsequent re became admissible as a declaration in the course of duty, it would afford proof of every relevant fact it stated. In the treatment of statements made as or after the commission 'acrime of violence or the occurrence of some accident or casualty ~ comes to an end, this distinction marks a divergence in the views held upon the question when and why they should be admissible. cing generally, the view obtaining among English lawyers is that the reception of such statements in evidence can be justified ly under the first head, so that they are admissible only as one of the parts or details of a transaction not complete when the state- _ ments were uttered and as supplying no proof of antecedent facts. In America, on the other hand, the view is widely held that they are 'Teceivable as declarations of facts already past, or, at all events, Passing, and admitted in evidence as an exception to the rule 'excluding hearsay, on the ground that a guarantee of their truth is to be found in their spontaneity, in the lack of " time to devise or _ contrive " and in the instinctive character of utterances made under - the influence of excitement, Of this latter view Professor Wigmore _ is the most notable exponent (Cf. pars. 1745 et seq. of vol. m1. of his E | Mr. Phipson (Evidence, Book II., ch. vr. 6th ed., pp. 58, 59, and Law Quarterly Review, vol. 19, pp. 435-448). _ But, though the general tendency in England is to restrict the e to the reception of statements forming an integral part of H.C. or A. 1940. we ADELAIDE CueMicat AND Ferritizer Co. Lrp. v. CARLYLE. Dixon J. - treatise on Hvidence); while the former view receives the support — H. C. or A. 1940. Se ADELAIDE Cuemicat AND FERTILIZER Co. Lp. . CARLYLE. Dixon J. HIGH COURT ist the transaction considered as a whole and to reject the doctrine that spontaneous declarations are admissible as an exceptional medium of proof, yet English decisions do show some reliance on the greater trustworthiness of statements made at once and without reflection in support of their admissibility. In the early case of Thompson v. Trevanion (1) Holt C.J., at nisi prius, in an action for wounding the wife of the plaintiff, "allowed that what the wife said immediate upon the hurt received, and before she had time to devise or contrive anything for her own advantage, might be given — in evidence." Ina late case Bailhache J., in reference to a statement made after a motor-car collision, stated as conditions of admissibility _ that the words should be spoken at the time and be the natural consequence of the collision, " words which spring out of the fact of collision, so to speak, inevitably and almost without the exercise of — the will of the speaker and are at any rate spontaneous " (Tustin vy. W. Arnold & Sons (2)). But these observations seem meant rather to emphasize the closeness of the connection with the essential part of the transaction than to formulate an independent ground of admis- sibility. Among the English cases some differences in the application of the doctrine may be seen, as might be expected in a question depending so much on matters of degree. In R. v. Foster (3) its application was liberal; but a rigid or restricted application was given to the rule in R. v. Bedingfield (4), which became the subject of a controversy and afterwards was made the text of a full discussion of the subject by Professor James Bradley Thayer (Legal Essays, p. 207), whose chief purpose was to dispel the confusion which the failure to distinguish other subjects had brought upon the question. — Examples on either side of the line, but less open to question, will be found in Agassiz v. London Tramway Co. (5) and The Schwalbe — (6). In the former case evidence was rejected of what passed between a passenger and the conductor of an omnibus about the driver's conduct immediately after a concussion which threw a — woman from her seat; in the latter, as two colliding vessels drew apart the pilot of one exclaimed that the helm was still a-starboard, — and this was admitted : See, further, R. v. Christie (7). In this court, in Brown v. The King (8), evidence of what was said by a wounded man to another mortally wounded at the same time was rejected. — They had both just been shot, and enough time only had elapsed to (1) (1693) Skin, 402 [90 E.R. 179}. (5) (1872) 27 L.T. 492. i (2) (1915) 113 LP. 95, at p. 96; 31 (6) (1859) Sw. Ad, 521 (166 ER T.L.R. 368, at p. 369. 1244), (3) (1834) 6 ©. & P. 325 [172 E.R. (7) (1914) A.C. 545, at pp. 556, 566, 1261). 567, (4) (1879) 14 Cox ©.C, 341. (8) (1913) 17 C.LR. 570. OF AUSTRALIA. fatally injured man to walk twenty-five yards and the walk from the front to the back of a cottage. The judgment and Powers JJ. (1) refers to many of the decided cases out and adopts the formulation of principle which Cockburn made in the course of the controversy arising out of Beding- ¢ (2). The ground for rejecting the evidence was that the had left the house where the shooting took place; they end a continuation of the attack and were seeking for their wounds, not escaping. "Not only the main but also every subsidiary incident, so far as related to complained of, was at an end. The incident offered in was unconnected in causality with the shooting: if it so connected—as by flight to escape its continuance—the- pse of time and the mere fact of twenty-five-yards' distance 'not have, been sufficient in themselves to have destroyed the nexus. But when there is no natural connection by con- which may have a liberal connotation—and there is a and appreciable break of time and place, it would in our he going beyond the limit of authority to admit evidence, ch is in substance and reality a mere narration respecting a event, a narration not naturally or spontaneously emanat- or growing out of the main transaction, but arising as an nt and additional transaction " (3). In my opinion these tions are equally applicable to the present case. or the statement said to have been made by the deceased, ot think a finding would or could have been made that the without falling. The defendant's case was that the allowed it to slip so that it fell from a tilted position to the ital floor, which, though of wood, was rigid. Upon that case, the question arises whether the defendant should be d from failure in that degree of care which the injurious ter of the fluid demanded. It appears that sulphuric acid 'specific gravity, and the top of a jar not quite full would > much stress on falling to a horizontal position upon a hard eriments have shown that almost invariably the force break such a jar. They are of earthenware and are said brittle." A metal jar would be unsuitable for sulphuric nd glass jars would be costly. Expedients for encasing the re said to be open to objection because acid would epill as ed out and the casing would be destroyed or corroded. J., who tried the action, found that the jars were not ) 17 CLLR, at p.598. (2) (1879) 14 Cox C.C. 341. (3) (1913) 17 C.LR., at p. 597. 533, H. C. or A. 1940. —) ADELAIDE CHEMICAL AND FERTILIZER Co. Lrp. e CARLYLE. Dixon J. H. C. or A. 1940. Ww ADELAIDE CHEMICAL AND Ferriuizer Co. Lrp. v CARLYLE. Dixon J. HIGH COURT Ul suitable vessels for the supply of sulphuric acid to consumers. had before him some statistical figures of the number of br The proportion to vessels handled was by no means great, but instances were not inconsiderable in number and illustrated a soun of potential danger. The jars necessarily went into use by p who lifted them, tilted them and carried them. They were extre1 heavy, and the prospect of jars being allowed without negli occasionally to slip to a hard floor upon their sides was by no remote. Whenever this happened a jar of the kind in use might be expected to break. It was not shown to be unreasonable o impracticable to provide jars less liable to break. In these circumstances I am unable to say that the conclus was not fairly open to the learned judge that the container insufficient as a safeguard against the danger of injury from escape of sulphuric acid. It is true that courts should be slow say that the ordinary practice of a trade involves a want of due ¢ But it must be remembered that the reasonable care required by the law means a standard of diligence growing in strictness as danger increases, and a very high degree of precaution is nec: in the case of an injurious chemical like sulphuric acid. By jars, insufficiently strong to withstand overturning, a manufacturer' may impose on those handling the jars a practical necessity of exercising on their part extreme care for their own safety, and this may reduce the likelihood of accidents. But the manufacturer has the primary duty of care and cannot transfer it in such a manner, I think that the learned judge's finding on this head of negligence should stand. " That the deceased was guilty of contributory negligence was not established. f An argument was advanced that the death of the deceased was not the consequence of the burns he sustained from the acid because it was due to septicaemia arising from a streptococcal infection entering through the tissue broken down by the burns. Such an infection, whoever and whatever was to blame for it, cannot be considered a new and independent cause. It is a recognized danger to which traumatic injury exposes the sufferer and is regarded as part of the possible consequences of the infliction of a wound. The contention that the action was not properly constituted under Lord Campbell's Act because the child who has claimed and received workmen's compensation is not included in the particulars: of persons represented appears to be answered by Avery v. London and North Eastern Railway Co. (1). For these reasons the appeal should be dismissed with costs. (1) (1938) A.C. 606. OF AUSTRALIA. . In my opinion the appeal should be dismissed. consideration of the case begins with the proposition that uric acid is in the view of the law a dangerous thing—that is, erous in itself ; it will inevitably injure any person upon whom The risk that it may cause injury if it escapes from the siner i ich it is being supplied subjects the supplier to a responsibility. It is his duty, at all events, to supply it in er that will not be broken by any of the ordinary hazards ntal to the lifting and handling of the container by the person delivery of it. The respondent founds her action on this of duty. She alleges that her husband suffered fatal burns e result of the breach of this duty by the defendant, and she 'on her own behalf for damages proportionate to the loss she sustained by the death of her husband, the action being brought Part Il. of the Wrongs Act of South Australia. defendant supplied three gallons of sulphuric acid to the in a jar which broke when he was in the course of taking livery of it. He was lifting it from a platform on the defendant's es into his vehicle. The platform was about three feet above where the respondent's husband stood when he was pting to take delivery of the jar. It was left at a distance than a foot from the edge of the platform. The result of the was that the sulphuric acid poured over the deceased, g severe burns from which he died several weeks afterwards. jar was made of glazed earthenware. Tt had a cylindrical conic shoulders, bearing a glazed earthenware handle for ng it, and a short neck with a stopper. The jar with its con- of sulphuric acid weighed 75 Ibs. Its base was ten inches meter, and the height from base to shoulders was thirteen ies. The learned judge found that the deceased attempted to from the platform in a natural and proper manner. Tt was because of its weight for him to use both hands. He ught the handle with his right hand, and, after tilting the jar, his left hand under it to lift it, but before the base of the jar antirely clear of the platform the jar broke. It fell on its side, he sulphuric acid poured over the deceased. The top part of and the handle came apart from the rest of the jar. When d applied the necessary force in order to lift it from the the jar proved unequal to this lateral or horizontal strain top broke away at the shoulder. The learned judge found rs of the description now in question are usually and commonly for the purpose of supplying acid to consumers, but he was by the evidence of tests to which jars of the same size, H. ©. oF A. 1940. aed ADELAIDE CHEMICAL AND Ferrier Co, Lrp. v. CARLYLE. H.C. or A. 1940. we ADELAIDE CHEMICAL AND FErriuizER Co. Lrp. v CARLYLE. McTiernan J. HIGH COURT [1940 shape, weight and material were subjected that they are exces brittle and unsuitable vessels in which to supply sulphuric acid t consumers and that the jars were unsafe and dangerous to be for that purpose. There is ample evidence to support this find His Honour also found that this mishap occurred because there' a hidden defect, probably a crack, in this particular jar. Howey in reaching this last conclusion some reliance appears to have placed on evidence of what the deceased himself said after the j iv broke. But it is not necessary to consider the question of the admissibility of this evidence, because, apart from it, there is, in my opinion, clear evidence to justify the conclusion that the defendant was guilty of a default which caused the accident resulting in the death of the respondent's husband. It was negligence on the part of the defendant to use a container which would break and permit the acid to escape, as this one did, when subjected to the ordinary usage incidental to lifting the jar from the platform into the deceased's vehicle. The defendant seeks to exculpate itself on the ground that it was, —as the trial judge found—the practice in the trade to use unpro- tected jars similar to that which broke for supplying sulphuric acid in three-gallon lots. The evidence of the practice was relevant to the issue, but it was not conclusive in the defendant's favour. In— Blenkiron v. Great Central Gas Consumers Oo. (1) Cockburn C.J. said :—' And those who carry on operations dangerous to the — public are bound to use all reasonable precautions—all the precau- tions which ordinary reason and experience might suggest to prevent — the danger. It is not enough that they do what is usual if the course ordinarily pursued is imprudent and careless; for no one can claim to be excused for want of care because others are as careless as himself; on the other hand, in considering what is reasonable, it is important to consider what is usually done by persons acting in a similar business." The nature of the consequences to be apprehended if the acid escaped while the plaintiff's husband was taking delivery of it was the chief consideration governing the precautions which the defendant was bound to take to prevent its escape. As the jar used by the defendant was brittle and unsafe for delivering three gallons of sulphuric acid, it is no answer to the charge that reasonable precautions to prevent injury to the deceased were not taken for the defendant to say that it was the practice in the trade to use that kind of jar for that purpose. The plaintiff claimed damages on her own behalf but not on behalf of her child, of whom the deceased was the father. A claim (1) (1860) 2 F. & F, 437, at p. 440 [175 E.R. 1131, at pp. 1132, 1133}, OF AUSTRALIA. 537 behalf of the child under the Workmen's Compensation H- ©. or A. intiff's damages were assessed upon the basis of what tea e would have been had she claimed and recovered apprarpe behalf of the child as well. The assessment on that Cuemrca, the circumstances right (Avery v. London and North poserien ay Co. (1) ). Co. Lap. v Appeal dismissed with costs. CantyLE. the appellant, R. N. Finlayson. for the respondent, Scammell, Hardy & Skipper. C.C. B. (1) (1938) A.C. 606,