|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Journal of Legal History |
MARK LUNNEY[*]
One of the leading cases[1] in the law of torts of the Commonwealth is the decision of the Privy Council in Grant v Australian Knitting Mills Pty Ltd.[2] Looking at modern tort textbooks, the importance of the case lies in the fact that it was the first higher court decision in the Commonwealth to expand the ratio of Donoghue v Stevenson[3] beyond the fact situation of that case.[4] The main question for tort lawyers was whether the manufacturer of a pair of woollen underpants owed a duty of care in the tort of negligence to an ultimate consumer (the wearer of the underpants) to ensure that care was taken in the manufacture of the underpants such that the user did not suffer injury by wearing them. Unlike Donoghue v Stevenson, the consumer in this case could inspect the goods before wear (the ginger beer bottle was opaque). The Privy Council held that the relevant point was whether the defect could be detected by an inspection of the goods. In Grant’s case the defect – an excess of sulphites on the underpants – could not be detected and, accordingly, a duty of care was owed by the manufacturer in the same manner that it was in Donoghue v Stevenson.[5]
The interest of this article is not the decision of the Privy Council. The plaintiff won at first instance in the Supreme Court of South Australia, but lost by a 3-1 majority in the High Court of Australia. The Privy Council reversed that decision. However, the High Court of Australia did not deny the existence of a duty of care (as might be thought from the way the Privy Council decision is today portrayed). Rather, two of the three judges of the majority (and McTiernan J simply concurred with Dixon) held, amongst other things, that the negligence of the defendant, if there was any, was not a cause of the injury the plaintiff suffered, whilst Starke J held there to be no breach of duty.
The argument before the High Court took place in the middle of 1933 and the decision was handed down in August. It may be noted that one of the two defendants was a woollen textile manufacturer. The early years of the depression hit the Australian wool industry particularly hard.[6] In terms of looking at broad historical influences, a plausible but circumstantial case could be made for linking the decision to the wider economic considerations of the time. However, this article will argue that this historical context played little role in the decision. Rather, at least as far as Sir Owen Dixon was concerned, the decision was based on the strict application of legal rules.[7] Although Dixon’s strict legalism is well-known in the context of constitutional interpretation[8], it is much less discussed in private law. Grant is an example of Dixon applying his strict legalism in the private law context. This argument will be supported by demonstrating Dixon’s commitment to this approach in other cases as well as his scepticism regarding the analysis given to questions of causation by the courts in general. Arguably, Dixon’s views led him to recognise problems with causation in negligence cases well in advance of his contemporaries. In particular, Dixon recognised that the growing emphasis on the use of scientific evidence created difficulties for the traditional approach courts had adopted in determining questions of causation. Although Dixon’s solution to these problems has not generally found favour with modern courts, the recognition that the use of intuitive notions of cause and effect may be unsatisfactory lies at the heart of more recent court decisions that have explicitly relaxed causal requirements to enable plaintiffs to recover. However, the categorisation and dissemination of Grant as a case on the duty of care has masked its importance as a causation case. It is only by considering the case in context – both the legal and wider historical context – that Dixon’s judgment can be accorded the importance it deserves.
In June 1931 Dr Richard Longford Thorald Grant, 37, went into John Martin & Co (‘John Martin’), a retail department store in Rundle Street, Adelaide, to purchase some woollen underwear. The shop attendant showed him two brands, one made by a British company, and the other, slightly cheaper brand manufactured by Australian Knitting Mills Pty Ltd (‘Australian Knitting Mills’). Grant chose the brand made by Australian Knitting Mills, known as ‘Golden Fleece’, and purchased two woollen singlets and two long underpants (known as ‘Long Johns’). Several weeks later he wore the clothing for the first time and within nine hours noticed an irritation where his socks were pulled over his underpants. He treated the irritation but continued wearing the underwear for a week, after which he wore the second pair for a week. He then wore the first pair of underpants (which had by now been washed) and the irritation increased. The following day he consulted a skin specialist who advised him to cease wearing the woollen underwear; however, the condition later developed into general dermatitis. The description of the case in the Commonwealth Law Reports states that ‘the plaintiff’s medical advisers feared for his life’,[9] but, even though this assessment was made by a medical practitioner friend of Grant, there is little doubt that the dermatitis was severe. From 21 July 1931 he was confined to bed for 17 weeks, and it was said that the rash at one time or another affected all of his body other than the soles of his feet and the palms of his hand.[10] In November 1931 he made a trip to New Zealand to recuperate under the care of his wife[11] and stayed until the following February. However, his recovery was only temporary and he suffered a relapse in March 1932. He returned to hospital in April and remained there until July 1932.
Apart from his physical state, it is also clear that Grant’s mental health was affected. One witness stated that he suffered from lack of sleep which was treated by hypnotics, the effect of which was ‘very much to increase the irritation’.[12] More ominously, cross-examination of one of Grant’s witnesses suggested that Grant had suffered a mental breakdown. This was rebutted but it was admitted that at one time Grant had showed what amounted to a ‘delirium’ from insomnia, and the witness admitted that Grant was under ‘great mental agitation’.[13] This is supported by a letter written by John Martin to Australian Knitting Mills where it was noted that, as Dr Grant had ceased working, he was financially embarrassed and that this worry was affecting not only his general recovery but also raised the possibility of a complete breakdown.[14]
At the time of the illness Grant was a specialist physician dealing with children[15] and he was well-known within the Adelaide medical fraternity. He was born in April 1894 in north Adelaide, his father being a writer on rural affairs for The Australasian newspaper. After winning a State bursary he enrolled in the Adelaide Medical School in 1913, graduating in 1918.[16] In his final year he was the joint recipient of the Everard Scholarship.[17] At the end of the First World War he travelled to London and he became a member of the Royal College of Physicians in 1921, one of the first two graduates of the Adelaide Medical School to achieve this.[18] He returned to Australia in 1922 and began his career as a specialist physician. He was associated with the Adelaide Children’s Hospital where he was a pathologist and bacteriologist between 1923-25, and then assistant physician from 1926. Grant was thus well-known in the medical circles.[19] Grant’s position within the Adelaide medical profession was strengthened by his marriage in February 1927 to Helen Jane Nancy Lewis.
Grant married into a distinguished family. His bride was the daughter of James Brook Lewis, whose father had been a partner in an early pastoral company and served in the Legislative Council for South Australia. James Brook Lewis served overseas with the Australian Army Medical Corps during the First World War and was later an eye surgeon in Adelaide.[20] Helen Lewis’s uncle was Essington Lewis, General Manager, Chairman of Directors and Deputy-Chairman respectively of BHP, and her cousin Thomas Lancelot (‘Tom’) Lewis became Premier of New South Wales for a year in the mid 1970’s. This was, without doubt, an establishment family, and the wedding was an establishment wedding. It was held mid-week in St Peter’s Cathedral, and there were over 300 guests.[21] The wedding was extensively reported in the social pages with descriptions of the outfits worn by the invited female guests.[22] It was reported that conversation in social circles in Adelaide for that week was ‘chiefly concerned with the cathedral wedding of Nancy Lewis and Dr “Dick” Grant’.[23] It is quite clear that members of the medical profession were in attendance both at the wedding and the reception.[24]
Although there are no reports in the contemporary Adelaide press referring to Grant’s plight, it is clear is that members of the medical profession, and their circle, knew of his problems.[25] The close web of connections is revealed by Grant’s wedding photograph. His best man was Ian Hayward, a member of the Hayward family that founded John Martin. The same Ian Hayward was involved in the case and later gave evidence for Grant.[26] This relationship may explain the conciliatory attitude of John Martin towards Grant’s claim.[27]
Before considering the progress of the case in the Supreme Court of South Australia, a number of preliminary points should be made. As noted above, Grant wore the undergarments for one week without washing them. To modern eyes this might well look like contributory negligence but there is no suggestion that this was ever raised as a defence.[28] This is probably explained by an obiter remark of the trial judge, Murray CJ, that in changing his underwear only once a week Grant was following the ‘ordinary custom of ordinary people’.[29] It is also evident that the plaintiff did not wash the undergarments before he wore them. Again, there is nothing in the record of the case to suggest that this was ever formally raised as some kind of defence. This is explained by the answer to a question put by Grant’s counsel, Cleland,[30] to one the defendants’ witnesses:
Mr Cleland – I will put the question generally. Is it imprudent for a man to wear new underclothing without first having them washed? The witness said he personally preferred to have them washed, as he did not like the smell of new woollen wear. That was the only reason why he had them washed. He would feel quite safe in wearing them without further washing.[31]
However, the most vexing of the preliminary questions is why Grant continued to wear the underclothing after he became aware of the irritation. Grant’s own oral evidence was that he did not connect the irritation with the woollen underwear until 13 July 1931, when he first visited the dermatologist Dr William CT Upton,[32] although his interrogatory answer is more equivocal.[33] It is difficult to know why Grant failed to make the connection.[34] A well-known test for the diagnosis of contact dermatitis at the time involved placing a patch with the suspected irritant on it over part of the forearm, the patch remaining undisturbed for twenty-four hours ‘unless discomfort from irritation justifies removal before this time’.[35] The test, specifically used to determine the effect of chemicals, characterised a positive reaction as resulting in a sharply defined square of redness corresponding in size and shape to the central test area, with pimples and small blisters usually present corresponding to the appearance of the original eruption.[36] When Grant first wore the undergarments irritation occurred within 12 hours and within a couple of days patches of redness approximately 2½ x 1½ inches were visible on both shins.[37] Perhaps he was not aware of the test, as, despite his reaction to the undergarments mirroring closely the symptoms for a positive diagnosis under the patch test, he does not seem to have thought that wearing the undergarments was linked to the dermatitis. The defendants were in fact granted leave at trial to include a plea that, because the plaintiff wore the underwear for upwards of a fortnight he accepted the risk and was guilty of contributory negligence. However, this point appears not to have been argued by the defendants, and it should be noted that none of the medical experts who gave evidence at the trial mentioned the failure of Dr Grant to self-diagnose his condition. This was so despite clear evidence that the processes associated with producing woollen garments could produce an irritant effect.[38] This allowed Murray CJ to dismiss the argument on the basis that Grant did not know or suspect the underwear was the cause of the dermatitis until he visited the dermatologist.[39]
The first instance trial began before Murray CJ on November 8, 1932 in the Supreme Court of South Australia.[40] The case was tried without a jury, a feature of civil trials in South Australia at that time.[41] Although reports of the case were initially carried with enthusiasm by Adelaide’s newspapers, the later reports of the progress of the case simply concern its length. By the time final submissions had been made the case had continued over 20 hearing days, reportedly one of the longest civil trials in South Australia.[42] The evidence filled 340 foolscap pages and contained 102 000 words.[43]
For the purposes of this article it is unnecessary to delve into all the voluminous evidence. Whilst detailed evidence was led as to the practice adopted by Australian Knitting Mills[44] in ensuring that woollen garments were free from excess sulphites[45] (what might be called the ‘breach’ enquiry) and the procedures used by analytical chemists to determine the sulphur content of the underpants,[46] what is important in this context is the medical evidence as to the cause of the dermatitis (the ‘causation’ enquiry).
The medical evidence divided into two broad questions. First, what was the factual cause of the dermatitis? Secondly, could Dr Grant’s skin be considered to be hypersensitive? Although much of the medical evidence took this form, some witnesses merged the two questions so it is not always easy to determine for what purpose the evidence was given.
With respect to the question of whether Grant’s dermatitis was caused by excess sulphites, two questions needed to be addressed. The first was whether excess sulphites were capable of causing the kind of reaction experienced by Grant. As one might expect there was a conflict of evidence. One of the plaintiff’s witnesses testified that underwear which contained sulphur, arsenic or any compound of either might be a danger to the wearer.[47] Two of the defendant’s experts dealt with this issue, and both disagreed with the plaintiff’s witness, one unequivocally.[48] Much more significant was the disagreement over whether the dermatitis was caused by an external factor – such as would be created by an excess of sulphites – or was a spontaneous outbreak caused by something personal in Grant’s physiology.[49] All of the plaintiff’s expert witnesses testified that the cause of the dermatitis was consistent with an external irritant and to greater or lesser extents ruled out other causes.[50] The evidence of the defendants’ witnesses was equally definitive. In the course of the plaintiff’s evidence it became apparent that Grant had suffered from tuberculosis at a younger age. In fact, Grant suffered from pleurisy and effusion in 1916 and suffered from pulmonary tuberculosis for about a year in or about 1924. Treatment for this tuberculosis ceased in 1927. There was evidence that a particular kind of dermatitis – dermatitis herpetiformis – was linked to patients with a history of tuberculosis. In evidence in chief Dr Upton (for Grant) stated that the dermatitis of Dr Grant was not attributable to his exposure to tuberculosis.[51] However, he was later recalled by Cleland (Grant’s counsel) where he was more circumspect. He accepted that he had observed a group of lesions which indicated the possibility of dermatitis herpetiformis and that dermatitis was not easily distinguishable from dermatitis herpetiformis, but that the two were distinguishable as the papules associated with each condition presented differently.[52] In the end, he rejected a diagnosis of herpetiformis in a ‘most emphatic opinion’.[53] One of the defendants’ witnesses was equally unequivocal: taking all the circumstances into account any diagnosis other than herpetiformis would not be accurate.[54] More generally, other witnesses for the defendants argued that the source of the dermatitis must be idiopathic. One such witness examined Grant after the commencement of the trial.[55] He noticed a considerable swelling of the hands, and conducted a ‘test’ on Grant: pressure was applied to the skin on Grant’s back. The witness found that the pressure created an immediate red blush which lasted for 40 seconds and which, in the witness’s opinion, indicated a sensitive skin.[56] This was consistent with his view that the cause of the dermatitis was not of external origin. One witness took this argument to its logical conclusion: the breaking out of the dermatitis within twelve hours of wearing the undergarments was a mere coincidence:
I think coincidence is a large thing. I think it is a fair assumption to say that Dr Grant would have had this trouble within 12 hours if he had not put on the new underpants.[57]
The final conflict of evidence, directly related to the conflict over the cause of the dermatitis, was whether Grant’s skin could be considered hyper-sensitive. As noted above, one witness for the defendant testified unequivocally that Grant had a sensitive skin[58] and it seems that some of the witnesses who thought the condition idiopathic attributed its cause to a sensitive skin.[59] The response to this evidence was not altogether convincing. Grant testified that he himself did not think he had a sensitive skin although he recognised that some of his medical advisers must have thought he had a sensitive skin independently of the garment in question.[60] Dr John Edwin M Wrigley, whilst testifying that the condition was consistent with an external irritant, thought Dr Grant would have to take special care of his skin or he might at any time have a further attack of dermatitis, and that he had to be careful in the ordinary use of soap and water.[61] Most surprising of all was the production of a witness who claimed to have also suffered a reaction after wearing ‘Golden Fleece’ underwear in mid 1931.[62] This tactic cannot be considered a success. For a start it was clear the irritation was minor compared with Grant’s; the witness admitted that he was able to cure himself by the use of boracic and iodine.[63] Under cross-examination, the witness admitted both that he connected the irritation to the wearing of the underpants and that he continued wearing them in the winter months of 1931 and 1932.[64] Proceedings took a somewhat comical turn; Grant’s counsel asked the witness to expose his leg and doctors in the court made what must have been a perfunctory examination.[65] However, the examination did reveal some patches of irritation despite the witness having stopped wearing the underwear six weeks previously. One the plaintiff’s experts stated that the patches were consistent with dermatitis.[66]
It is clear, then, that there was a significant dispute between the various medical experts.[67] As might be expected, the judgment of Murray CJ reviewed the competing evidence on all aspects of the case.[68] Much of this review is formal, simply stating what the various witnesses had said. On balance Murray CJ was satisfied that it was more probable than not that the plaintiff’s illness was caused by the presence of bi-sulphite of soda in the ankle end of the underpants. His Honour made a finding that the plaintiff’s skin was not abnormally sensitive, and that the evidence of Drs Upton and de Crespigny – who attended the plaintiff throughout the illness – was that the illness was caused by an external irritant. The alternative theory that the disease was dermatitis herpetiformis had ‘nothing specific to support it.’ It has been argued above that there was considerable debate over whether the plaintiff’s condition was idiopathic so it is difficult to see how it could be said that there was ‘nothing specific’ to support a diagnosis of dermatitis herpetiformis. Whatever the reason it was clear from the outset that the case would go further as counsel for the defendant immediately requested a one-month stay of proceedings.[69] The Notice of Appeal was filed on April 3, 1933 and contained 44 grounds of appeal. Although there is much duplication, four grounds of appeal can be identified as relating to the causation issue.[70]
The appeal in the High Court was heard between 13-16 June 1933.[71] The High Court file in the Canberra registry contains no description of the oral argument. The report of counsel for the appellant’s argument in the Commonwealth Law Reports suggests that it was said that there was no evidence to support the finding that the plaintiff ‘caught the complaint from these garments’.[72] However, a contemporary newspaper report indicates that counsel’s argument was somewhat less dogmatic: ‘All the medical evidence admitted that it might have been contracted internally as well as externally.’[73] In fact, it appears very little argument was addressed to the causation issue, the main thrust of the submissions going to questions of duty and breach. This brevity is reflected in the judgment of Starke J, who devoted slightly over 50 words (apart from quotations) to the factual cause of the dermatitis, and just over 200 words to the question of whether Grant’s skin was hypersensitive. As McTiernan J concurred with Dixon J, this leaves the approaches of Evatt and Dixon JJ to the causation issue. For Evatt J, the approach of Murray CJ was unimpeachable. The Chief Justice had found that, having regard to time, place and circumstances, there was a high degree of probability that the cause of the onset of the disease was to be found in the portions of the garment that came into contact with the irritated parts of the body.[74] Evatt’s response to the scientific nature of the medical evidence was as follows:
The element of sequence in time was of the very essence of a scientific approach to the solution of the question at issue … Where there is an admitted addition of such other element by the wearing of a new kind of woollen underwear and injury follows quickly upon the use of that new kind, commonsense and science both insist that inquiry may easily discover the source of the new effect in some particular quality of the new element. This is not mere conjecture, it is a basis of reasonable inference.[75]
The reference to mere conjecture is a direct reply to the judgment of Dixon J.[76] Dixon’s approach to the medical evidence on causation was methodical. Dixon was simply not prepared to make the ‘reasonable’ inference that an external irritant was a cause of the dermatitis. He first discussed the evidence of three of the defendant’s witnesses in favour of a diagnosis of dermatitis herpetiformis, and then noted the facts that were against the positive view. Although none of the evidence was conclusive, the factors that were inconsistent with this condition being the factual cause raised a probability that such a diagnosis should not be affirmatively adopted.[77] Two points stand out in this initial analysis. First, Dixon engaged with the medical evidence in some detail, weighing the competing factors for and against the particular diagnosis. Secondly, Dixon refers to probability. For Dixon, it was clear that the plaintiff had to prove his case (and hence causation) to the standard required by law. A failure to prove causation to that standard – the civil standard of balance of probability – meant that the case must fail.
Dixon adopted this approach to all of the medical evidence in the case. The result was that there were ‘serious difficulties’ in accepting that the dermatitis was caused by a chemical irritant of sufficient strength in the garment such as to render them unfit for use. Again, Dixon engaged in detailed analysis of the evidence – the quick appearance of the disease suggested an irritant present in strength or quantity; the subsequent slow progress did not, as did the slow progress of the disease. The disease was not removed when the irritant was removed but appeared in a ‘remote member’. Thus the course of the complaint was independent of its cause, but this was not inconsistent with the source being an external irritant. For Dixon all of this went to probability. However, in a paragraph that has escaped historians of the law of tort, Dixon explained in more general terms the problems with proof of causation in this kind of case:
But a consideration of the medical evidence and an examination of a number of textbooks cited in that evidence shows that the aetiology of disorders of the skin involves many uncertainties. It would appear that most of the older views are undergoing change or modification. It is difficult to discover any generally accepted explanation of the manner in which such a condition as that of the plaintiff is derived from the existence of a chemical irritant applied at one or two points such as the shins… The special liability of a particular person to respond to some particular irritant or other substance, although the subject of much study, has not been explained upon any theory commanding general assent.[78]
This passage reveals the difficulties Dixon experienced in answering questions of causation where complicated and conflicting scientific evidence was adduced. The contrast between Dixon and Evatt is stark. Where all that was known was a relationship between an act and a result – here, putting on the undergarments and the dermatitis – it might have been possible to infer that the act was the cause of the injury. For Evatt this was a matter of both commonsense and science. Dixon’s analysis of the scientific evidence shows just how much he disagreed with this approach. In the absence of scientific evidence it might have been ‘commonsense’ to infer causation from the wearing of the underpants. However, Dixon would never have thought this scientific. But where there was scientific[79] evidence there was simply no room for commonsense notions to apply. The plaintiff had to prove his case. This required proof, in accordance with the scientific evidence, that the negligent act resulted in the damage of which the plaintiff complained. The scientific evidence could not simply be ignored because it ‘muddled’ the causation enquiry. If this was the result of the scientific evidence the result must be that the plaintiff lost the case. In light of this it is not surprising, then, that Dixon dismissed Grant’s case as depending on ‘ambiguous circumstances and speculative conjectures and at some points is opposed to arguments of probability which have weight’.[80]
Whether or not Grant was the source of Dixon’s concerns over science and causation, the case certainly seems to have galvanised him into recognising the full implications of his approach. On 30 September 1933 Dixon delivered an address to the Medico-Legal Society of Victoria in Melbourne. The address, entitled, ‘Science and Judicial Proceedings’, was concerned with possible approaches the law should take to recognise its limitations when confronted with complicated scientific questions. One suggestion, which Dixon rejected, was the use of scientific assessors in judicial proceedings. It is clear, however, that this disapproval was conditional upon a new judicial approach being adopted in the treatment of scientific evidence. He said:
In the simpler conditions of social life prevailing when causation grew into importance as a standard of legal right, perhaps the difficulties of answering the question it propounds were not great. Before the mechanical and scientific age, the sources of inquiry were either relatively simple, or else entirely outside human knowledge. But science, particularly physical science, has completely changed the practical application of the legal tests. On the one hand, it has called for their application to all the varieties of human activity to which applied science has given rise. On the other hand, it has made available an immense stock of knowledge for the solution of the very problems which arise from this application of the standards of the law. Upon the difficulties which arise from the mere complexity and variety of the subjects of judicial investigation, it is needless to enlarge. They are sufficiently obvious. But my immediate concern is to speak of the embarrassment caused by the wealth of knowledge which science has put at the disposal of those able to use it. Questions of fact, raised by the standards of legal liability, which formerly might have appeared simple, are now shown to contain ingredients calling for close and complicated examination. Where rough and ready answers of the practical man might have once sufficed, an exact and reasoned solution is now called for.[81]
The relation of this speech to the difficult issues of causation in Grant is obvious, a connection reinforced by Dixon’s later reference in the address, as an example of the problem, to the solubility of sulphur compounds in water and (in the case of sulphur dioxide), the formation of sulphurous and sulphuric acid.
Dixon returned to the issue of science and the law ten months later in an address given to a general meeting of the Victorian Branch of the Australian Chemical Institute. In this speech Dixon suggested ways in which the scientific expert might be prepared, both personally and by counsel, for the task of giving scientific evidence in a court of law. But Dixon was acutely aware that the task itself was in many ways unsatisfactory. Thus it might be permissible for the expert to present unfamiliar ideas as ‘clear cut and logical conceptions’ before considering exceptions, reservations and ‘all the consequences of the intrusion of competing and countervailing principles’.[82] Indeed, it may be that, if both sides agreed, it would not be necessary to refer to these factors in other than very general terms as they would not assist in the judge’s ‘understanding of the matter nor contribute to the soundness of his judgment’.[83] It was regrettable that so unscientific an impression was produced by this approach but the object of the exercise was not the spread of correct knowledge. It was to obtain a sound answer to a specific question.[84]
Dixon may have been satisfied with this compromise in 1934 (or at least told his audience that he was) but it is no surprise that other, less enthusiastic, writings of Dixon on the subject can be found. The Philip Ayres biography of Dixon describes a speech, ‘Causation and the Law’, given to the Law Student’s Society of Melbourne University in March 1937. The lecture was not published. Ayres suggests that the reason for this is that the scepticism which underpinned the lecture may have been too controversial for a current member of the High Court. Records of the lecture exist in an attendee’s notes and Dixon’s draft, and by and large the two are consistent.[85] In many ways the lecture is a tour de force, demonstrating expertise in philosophy, science and law. Its immediate target is the unsatisfactory notion of ‘proximate cause’ (or remoteness of damage). For Dixon, philosophy’s main concerns as regards causation were metaphysical and epistemological, through an examination of appearance and reality. But another, sub-ordinate consideration was directly relevant: the examination of the grounds and validity of inductive reasoning. However, lawyers were completely uninterested in such philosophical musings, with the result that the ‘fog which has fallen upon the principles of causation in the law of torts is the result of an attempt to dispense with logic and rely upon unsophisticated and intuitive notions’.[86] Even if one was to adopt an intuitive concept of cause, it was necessary to consider all existing conditions before one could attribute a causal consequence to any one. Many participating elements must exist for a consequence to occur, yet the law decreed that one could be singled out by a particular person and called a proximate cause.[87] Philip Ayres summarises the effect of the speech as follows:
Lawyers, Dixon told his impressionable young audience, are sublimely ignorant of the epistemological abysses they skirt. Each and every kind of causation – and he listed ‘Immediate’, ‘Direct’, ‘Proximate’ – ‘are illusory in point of logic’, he insisted, ‘broken links’ or worse.[88]
Ayres notes that Dixon’s scepticism surfaced in a number of cases but, understandably, there is no reference to Australian Knitting Mills v Grant. It is the contention of this article that the case should be seen as one of the earliest – perhaps the earliest – manifestation of Dixon’s scepticism as to the use of simple intuition to satisfy what was required by legal principle. Although most of the cases referred to in the 1937 speech relate to proximate cause, the comments are applicable to causation generally. Given his judgment in Grant, it is not far-fetched to suggest that the case provided fertile ground for the development of Dixon’s scepticism.
Does Dixon exhibit the same approach to questions of causation later in his judicial career? A broad survey of decisions of the High Court on the law of tort between 1933 and Dixon’s retirement in 1964 reveals that no subsequent case raised the issue of causation in the way that it was raised in Grant. The closest cases are Chapman v Hearse,[89] a well-known case involving the duty of care owed to a rescuer, and Fitzgerald v Penn.[90] The latter is the more interesting as the issue was the sufficiency of an instruction to a jury as to whether negligence was a cause of the plaintiff’s complaint. Here, Dixon appears to have recognised that simple intuition was the only workable causal reasoning for a jury. It was a mistake to attempt to explain ‘causation’ as a general conception to the jury: ‘If one is once to enter on a philosophical examination of the meaning of “cause and effect”, there is no telling where one ought to stop’.[91] Dixon’s scepticism is again evident at the conclusion of the discussion: it was not appropriate for a jury to enter into theoretical analysis and exposition, and ‘[i]n truth the conception in question is not susceptible of reduction to a satisfactory formula’.[92] As is evident from the discussion below, however, the jury did not have an unrestrained discretion and an appellate court could review the evidence upon which the verdict was founded.
This point is demonstrated in another category of case where Dixon does exhibit a distrust of intuition as a means of answering disputed questions of fact. These are cases that reached the High Court because there was a dispute over whether evidence of breach of duty could be inferred from the circumstances of the accident. It is true that Dixon can be found supporting inferences of negligence in some cases of this kind.[93] However, it is submitted that, after considering these cases, a pattern does emerge. Dixon is not prepared to draw inferences as to fault in the absence of evidence excluding other possible causes. Although a number of examples could be cited,[94] two well-known cases illustrate the point. Both involve appeals from questions of fact decided by a jury. The first is Mummery v Irvings Pty Ltd.[95] In this case the plaintiff, who had entered the defendant’s building on business, was hit by a piece of wood which had flown from a power-driven circular saw being operated by an employee of the defendant. One issue for the High Court was whether the plaintiff could rely on the maxim res ipsa loquitur to establish negligence against the foreman. On one view the case the maxim was clearly applicable – if the saw had been operated carefully a piece of wood would not have flown out and hit the defendant. However, a majority of the High Court (one member being Dixon CJ) held the maxim inapplicable:
We are told nothing of the characteristics of circular saws and we are not told that such an occurrence is usual or unusual or indeed highly improbable. Moreover we are told nothing concerning the size of the piece of wood in question and it is difficult, if not impossible, in these circumstances to attribute the accident to some act of negligence on the part of the operator. If the question is posed ‘Was the accident such as in the ordinary course of things does not happen if those who have the management use proper care?’ the answer, on the evidence in the case, must be ‘We simply do not know.’ One may conjecture but cannot as a matter of inference attribute negligence to the respondent’s foreman.[96]
The second case is Jones v Dunkel.[97] One issue for the High Court in this case was whether an inference of negligence in the driving of the defendant’s truck could be drawn from the surrounding circumstances (ie, the condition of the road, the accident scene) because the defendant gave no evidence. Dixon, in dissent, refused to hold that the circumstances gave rise to an inference. He argued:
It is possible of course to say that if you have an empty diesel truck coming down a winding road on the outside at thirty-five miles per hour and an International truck going up the road on the inside at twenty-five miles per hour, the former is more likely than the latter to be over the centre line of the road on its wrong side. But that is only to say that of two guesses one is more probable than another. It may be remarked that these are not the only two guesses open as to the cause of the accident.[98]
No more can be made of this point than to note that in this closely-related area of the law Dixon expressed similar types of concern as in Grant. It is also interesting that in these cases, as in Grant, Dixon’s ultimate recourse was to the burden of proof. This is no surprise, as Dixon, first and foremost the lawyer, could only express these doubts through the failure of the plaintiff to meet the standard required by law. However, the rejection of the claims in this way masks Dixon’s deep concerns over the use of intuition to satisfy legal standards in a scientific age, and, more generally, the relationship between intuition, causation and science in the law of negligence. As Ayres notes, Dixon was extremely sceptical about discovering the truth,[99] and in the absence of the necessary evidence, be it scientific or circumstantial, Dixon could see no reason to prefer one version of events than another. As he said in a speech in 1957:
[I]t is not the fault of the courts of law that difficult and uncertain inquiries must be undertaken. The nature of the inquiry, more often than not, is made inevitable because the law, guided by supposed considerations of justice, has provided some test of the rights and liabilities of the parties which throws open a wide and uncertain field, a field a survey of which may not necessarily produce any clear or certain answer.[100]
In light of the above, it is suggested that Australian Knitting Mills v Grant is a leading case. It may well be a leading case for the reasons that are conventionally cited. However, it is the thrust of this article that its significance also lies in the approach of Dixon J to questions of causation in the law of tort. It is worth asking just how radical Dixon’s approach in Grant really was. Conflicting medical evidence in civil trials was not new but, as the resolution of the dispute was most likely a matter for the jury in determining the overall question of liability,[101] there was little attempt to theorise, as opposed to complaining,[102] about the problems such conflicts created. Tort textbooks around the time say little on factual causation.[103] The best discussion of the issue comes from cases involving applications for quia timet injunctions to prevent the operation of smallpox sanatoriums, the most detailed of which is the decision of Farwell J in Attorney-General v Corporation of Nottingham.[104] Here a distinction was drawn between ‘purely scientific questions’ (on which ‘it would be most dangerous to form an independent opinion’[105]) and the ‘empirical opinions of experts’. As regards the latter, he said:
This is, of course, a legitimate and usual mode of proof; and the Court in the case of a conflict of experts may either say that the onus is on the plaintiff and has not been discharged, or it may examine the facts and the reasoning given by the experts as the ground of their opinion; and, if and so far as that reasoning can be tested by ordinary rules independent of special scientific knowledge, I feel bound to test it and not to state simply that the conflict is such that the plaintiff’s have not discharged the burden cast upon them.
At one level, this approach can be seen as a precursor of Dixon’s view but closer analysis suggests that the analysis conducted was of a different order. For a start the distinction drawn between types of expert evidence is not one Dixon would necessarily have drawn. The ‘testing’ of the empirical evidence also draws on a supposed distinction between conclusions based on ‘logic’ or ‘medical science’, the former apparently being prescribed a lower probative value.[106] Nonetheless, the judgment does represent an attempt, albeit erratic, to recognise and deal with the problem of competing scientific evidence in the context of judicial decision-making.
In Grant, Dixon, too, was confronted with a vast amount of conflicting and complicated medical evidence. Dixon was prepared to ‘test’ the scientific evidence in a forensic manner[107] but he did so against a background of his own recognition of the pivotal role of science in twentieth-century society. Speaking in 1954, Dixon noted, in relation to university education:
But nothing can be of greater importance … than the imperative demands of science. The demands are made imperative by what are now commonplace facts; the great advances in scientific knowledge ... the enormous part played by applied science in the life of a modern community …[and] the importance of a wider appreciation among people, if not an understanding, of scientific principles and procedures.[108]
Viewed from this perspective, the use of simple intuition as a solution to conflicting scientific evidence that created difficulties in establishing a legal right was objectionable. It was simply not possible to infer from the close proximity in time and space between the wearing of the undergarments and the appearance of the dermatitis that the underpants were the cause. To have allowed a commonsense inference in this way was to do precisely what the medical/scientific evidence said could not be done. As a result the plaintiff had to lose as he had not established his case to the standard required by law. Arguably this was a harsh result for the plaintiff. However, the evidence exposed considerable uncertainty in the aetiology of the dermatitis. But the judgment recognised that there were objections to proving cause and effect in a way that had been accepted as the norm, at least where an appellate court had to consider the matter.[109]
Nearly forty years later the House of Lords was confronted with a pursuer who suffered from dermatitis in McGhee v National Coal Board.[110] In that case, the expert medical evidence could not determine the precise mechanism by which the dermatitis was caused. Of course, Australian Knitting Mills v Grant was not cited as, by now, Dixon’s judgment had passed into history and the case was ‘leading’ because of the Privy Council’s recognition of the Donoghue v Stevenson[111] duty. Despite the uncertainty in the medical evidence, the House of Lords found for the pursuer. The legal basis for overcoming the deficiencies of the medical evidence was obscure and a later House of Lords was able to explain the finding of causation as a ‘robust and pragmatic inference’ from the facts.[112] It was not until very recently – 2002 – that the House of Lords recognised that the result in McGhee was a departure from the ordinary rules of causation and needed to be both justified and limited.[113] Dixon did not reach this result seventy years previous – the ordinary rules of causation applied – but he framed precisely the legal problem that had to be faced. It is a measure of Dixon’s abilities that he was able to conceptualise this problem years before other members of the judiciary. Indeed, if Dixon’s judgment had received the attention it deserved it is hard to believe that arguments regarding aetiological uncertainty would have taken so long to come to prominence.
As has been foreshadowed, Grant appealed against the decision of the High Court of Australia to the Privy Council. It appears the decision to appeal was taken almost immediately after the decision of the High Court was handed down,[114] although, as the High Court did not grant leave, the special leave hearing before the Privy Council was not heard until November 1933. Despite Grant’s status he attempted to launch the appeal in forma pauperis. The Judicial Committee rules of the time required the petitioner to state that he was not worth £25 in the world excepting his wearing apparel and his interest in the subject matter of the appeal. Grant did this, also stating that he could not provide sureties.[115] However, the respondents, by affidavit, produced evidence that Grant’s cash receipts for the year ending June 30, 1933 were £445, and from that date until November 17, 1933 were £269.[116] The affidavit apparently set out the source of this information and it was said to satisfy their Lordships, although no record of it survives in the records of the Privy Council.
The Privy Council heard argument in July 1935 and delivered judgment the following October.[117] There was discussion of causation, mostly along the lines of Evatt’s judgment in the High Court.[118] The appeal was allowed, and the original judgment of £2 450 was restored.[119] The decision of the Privy Council received extensive academic and professional comment but none of it was addressed to the causation difficulties that had concerned Dixon.[120]
Despite the concerns that had been expressed about Grant’s susceptibility it appears he never again suffered a major outbreak of dermatitis. He retained his association with Adelaide Children’s Hospital, becoming a physician there in 1937, a position which he held until 1956. During the Second World War he was a consultant physician to the RAAF with the rank of Wing Commander.[121] He remained a man of some altruism, becoming a visiting medical officer to the Home for the Incurables and a visiting physician to Estcourt House, a convalescent home for children with rheumatic heart damage.[122] He died on 29 March 1979 at the healthy age of 84. Australian Knitting Mills also survived the case and the company continues to make ‘long johns’ to this day, albeit by a different process that does not involve the use of bleach or chlorine.[123]
Perhaps the most surprising result of the Privy Council’s decision was that the case was taken up by at least one edition of the tabloid Truth. After an initial report of the decision, the following week’s issue contains a large article on the case. The general tenor of the article can be gleaned from its sub-heading: ‘Mr Justice Evatt’s Law is Upheld.’[124] In a manner that was unparalleled, at least in the author’s experience of reviewing the newspaper, the article contains a simple but nonetheless distinctly legal analysis of the case. Moreover, the article reads like a press release from Evatt. It was said that Evatt must have been gratified that ‘the ultimate Court of Appeal for all the Dominions’ should have seen eye to eye with him on every point raised in the case.[125] The paper was moved to comment:
‘Truth’ congratulates Mr Justice Evatt, who is probably the youngest Judge in a Supreme Court of Appeal in the British Empire, on the fact that the law, as stated by him, has been approved of by the highest Court of Appeal as being the law of the British Empire.[126]
It is difficult to believe that Evatt was not associated with this piece of publicity in some way, and it might even be that the article was an attempt to maintain Evatt’s public and political profile.[127] Certainly Dixon would not have thought this beyond him.[128] It is yet another chapter in the untold story of the itchy underpants.
[*] Associate Professor of Law, University of New England. I received valuable assistance from the staff of the National Library in Canberra, the State Library of South Australia, and the Privy Council Record Office, and the registries of the Supreme Court of South Australia and the High Court of the Australia. I would also like to thank Professor Wilf Prest, Professor Donald Simpson, Mr John Bagot, Mr Richard Grant, and Mr Rob Parker for their help. Versions of this article were presented to the Australia and New Zealand Law and History Society Conference in July 2004, and to the London Legal History Seminar in January 2005. The author acknowledges gratefully the comments of the participants in those events.
[1] For the purposes of this article I gratefully adopt AWB Simpsons’s description of ‘leading cases’ as cases which are said to provide the best illustration of a legal principle or cases in which a principle was expounded (AWB Simpson, Leading Cases in the Common Law (1995) 4). As Simpson recognises, the notion of a leading case is something of a construct but this does not detract from the fact that certain cases are regarded as being more significant than others. Viewed in this way, I have set out below why I think Australian Knitting Mills v Grant is a leading case.
[2] [1935] UKPCHCA 1; (1935) 54 CLR 49; [1936] AC 85.
[3] [1932] AC 562.
[4] See, for example, Trindade and Cane, The Law of Torts in Australia (3rd ed, 1999) 614-15; Fleming, The Law of Torts (9th ed, 1998) 531-542; Rogers, Winfield & Jolowicz on Tort (16th ed, 2002) 10.7.
[5] It is interesting to note that the pleadings make no reference at all to an action in negligence based on a generalized duty of care. Rather, the pleadings allege that Australian Knitting Mills Ltd entered into a contract with the plaintiff, or that the item was inherently dangerous (Statement of Claim, 25 April 1932, Supreme Court of South Australia, Civil Registry, No 200/1932). This is not surprising as Donoghue v Stevenson [1932] AC 562 had not then been decided; at some point the implications of this decision were taken on board and the negligence point was raised as it is dealt with by the trial judge in his judgment (Adelaide Advertiser, 14 March 1933, 9-10).
[6] See, for example, the Report by the Commonwealth Wool Inquiry Committee (Commonwealth, Report by the Commonwealth Wool Inquiry Committee, Parliamentary Papers, General, Session 1932-34, vol 4, 769.
[7] I am conscious that the notion of ‘strict legalism’ is contested. For the purposes of this article it is assumed that ‘legalism’ bears the meaning ascribed to it by Dixon himself: that there are certain permissible ways in which existing legal rules may be expanded to meet new circumstances, but that a judge is constrained by the nature of ‘legal reasoning’ from making decisions in accordance with perceived notions of necessity or social convenience (see Dixon, ‘Concerning Judicial Method’ in Wionarski (ed), Jesting Pilate And Other Papers and Addresses by the Right Honourable Sir Owen Dixon (1965) 158-59). The article does not claim that Dixon’s approach was always uniform or that it should be adopted as the preferred form of judicial reasoning, matters on which there is considerable current debate (see, for example, Frank Carrigan, ‘A Blast from the Past: The Resurgence of Legal Formalism’ [2003] MelbULawRw 6; (2003) 27 MULR 163; John Gava, ‘Another Blast from the Past or Why the Left should Embrace Strict Legalism: A Reply to Frank Carrigan’ [2003] MelbULawRw 7; (2003) 27 MULR 186; Allan C Hutchinson, ‘“Heydon” Seek: Looking for Law in the Wrong Places’ [2003] MonashULawRw 5; (2003) 29 Mon LR 85; The Honourable Michael Kirby, ‘Judicial Activism? A riposte to the counter-reformation’ (2004) 24 Aust Bar Rev 1.
[8] The oft-cited is example is Dixon’s speech upon taking the oath of Office as Chief Justice: ‘Such a function has led us all I think to believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’ (Address upon taking the oath of office in Sydney as Chief Justice of the High Court of Australia, 21 April 1952, in Wionarski (ed), above n 7, 249).
[9] This is taken from the evidence of Dr C C T de Crespigny, one of Grant’s witnesses and a personal friend – Adelaide Advertiser, 16 November 1932, 5.
[10] Adelaide Advertiser, 16 December 1932, 20 (evidence of Dr Upton).
[11] Adelaide Advertiser, 9 December 1932, 11.
[12] Evidence of Dr C T C de Crespigny, Adelaide Advertiser, 16 November 1932, 5.
[13] Ibid. The witness was anxious to point out that the delirium did not arise from a neurosis.
[14] Letter John Martin & Co to Australian Knitting Mills Ltd, 8 September 1931, Appendix A to Affidavit of Dr R L Grant and Thomas Erskine Cleland, 4 October 1932, Supreme Court of South Australia, Civil Registry, No 200/1932.
[15] Roll of the Royal Australasian College of Physicians [1994] vol 2 127. His condition may have made it especially difficult to practice given its nature. This is hinted at the judgment of Murray CJ; the plaintiff was entitled to general damages for the possible damage to his practice from the notion which might be conceived that he was affected by a contagious or infectious complaint. In fact, ‘there was no ground for this notion, for eczema was neither contagious nor infectious but many people might not be convinced, and might think it safer not to consult him, or to call him in’. (Adelaide Advertiser, 14 March 1933, 10).
[16] Roll of the Royal Australasian College of Physicians, above n 15.
[17] Adelaide University: Jubilee of the Medical School 1885-1935 (1935) 60. The joint recipient was R W Cilento, who later became Director-General of Health and Medical Services in Queensland (1934-5) and later Professor of Social and Tropical Medicine at the University of Queensland.
[18] Adelaide University: Jubilee of the Medical School 1885-1935, above n 17.
[19] For example, Dr C T C de Crespigny, who gave evidence on Grant’s behalf, described himself as having known Grant for a long time, and being on friendly terms with him and on intimate professional relations (Adelaide Advertiser, 16 November 1932, 5). De Crespigny had been an honourary physician at Adelaide Hospital since 1918 (Adelaide University: Jubilee of the Medical School 1885-1935, above 17, 45).
[20] South Australian State Library, Archival Database, Entry for James Brook Lewis.
[21] The Register, 24 February 1927, 12.
[22] Adelaide Advertiser, 24 February 1927, 11.
[23] Adelaide News, 25 February 1927, 6.
[24] Ibid. In his speech Grant is reported to have said, ‘In my profession we tell people very little’, which ‘caused appreciative chuckles from the numbers of his fellow-physicians present’. Also, one of Helen Lewis’s bridesmaids was Alison Verco, undoubtedly a member of the Verco’s, a leading medical family in Adelaide. However, I have found no reference to Alison Verco in the family history although she may have well have been referred to in the newspaper by the name by which she was commonly known. For a history of the family see Verco, Masons, Millers and Medicine: James Crabb Verco and His Sons (1976).
[25] In addition to his own illness, Grant’s wife had to enter the workforce and his children were placed in the care of his grandparents until he recovered - Roll of the Royal Australasian College of Physicians, above n 15.
[26] In his evidence he stated that Grant had been a friend for years although he did not admit to being his best man (Privy Council Office, Printed Papers in Appeals 1935, Vol 20, Judgments Nos 61-63, 56).
[27] See Letter John Martin & Co to Australian Knitting Mills Ltd, 20 July 1931; Letter John Martin & Co to Australian Knitting Mills Ltd, 4 August 1931; Letter John Martin & Co to Australian Knitting Mills Ltd, 8 September 1931, all in Appendix A to Affidavit of Dr RL Grant and Thomas Erskine Cleland, 4 October 1932, Supreme Court of South Australia, Civil Registry, No. 200/1932.
[28] There were 44 grounds of appeal, none of which referred to any possible contributory negligence of the plaintiff – see High Court File 4/1933, High Court Registry, Canberra.
[29] Privy Council Office, above n 26, 295.
[30] Grant was represented by the firm of Cleland and Teesdale Smith, the senior partner of which was Edward Cleland KC (South Australia having a fused profession). By the time of the case Edward Cleland was a leading barrister having appeared before both the High Court of Australia and the Privy Council. It was said that he appeared in practically every ‘heavy’ case. In March 1936 he was appointed a judge of the Supreme Court of South Australia. His junior in Grant’s case was his son, Thomas Erskine Cleland, who was also a partner in the firm. A cousin of this branch of the Cleland family was a distinguished medical researcher (whose son later became a house-surgeon at the Adelaide Children’s Hospital, an institution with which Grant had a long association) so it is possible that this explains why Cleland took the case. For a general history of the family see E R Simpson, The Clelands of Beaumont (1986).
[31] Adelaide Advertiser, 18 November 1932, 11.
[32] Dr Upton testified that, upon asking Grant whether he had any new woollen underwear, Grant replied, ‘By Jove! I began wearing some underwear about a fortnight ago.’ – Adelaide Advertiser, 10 November 1932, 19.
[33] Grant suggests that, on the afternoon or evening of the day after he first wore the underwear, the symptom was an erythemato-papular rash (redness of skin and pimples) indicative of and consistent with dermatitis. The next sentence, without explanation, simply says he first sought medical advice on his skin condition on 13 July. The reason for the delay is not explained (Plaintiff’s Answers to Interrogatories, Supreme Court, Civil Registry, No. 200/1932).
[34] In cross examination Grant admitted that when he went to Dr Upton he knew it was dermatitis: ‘When Dr Upton told me I had dermatitis was to tell me nothing I did not myself know’ (Privy Council Office, above n 26, 25).
[35] ‘The Patch Test in Contact Dermatitis’ (1933) 1 Medical Journal of Australia 748. The text is taken from S Ayres and N P Anderson, Annals of Internal Medicine, March 1932.
[36] Ibid. The medical terms ‘papules’ and ‘vesicles’ were used in the text; I have translated the terms into the lay ‘pimples’ and ‘blisters’.
[37] Adelaide Advertiser, 14 March 1933, 9 (summary of decision of Murray CJ in favour of Grant).
[38] See the evidence of Dr John Edwin M Wigley, of Harley Street, London, who testified that he had known instances of dermatitis having been caused by wool (Adelaide Advertiser, 12 November 1932, 23) and Dr William C T Upton, a specialist in dermatology, who stated that in his general practice he would not recommend wool to patients because of the risk that arsenic might be present (Adelaide Advertiser, 11 November 1932, 17). There was, however, conflicting evidence on this point – Adelaide Advertiser, 10 December 1932, 17 (Evidence of Dr William Ray).
[39] Privy Council Office, above n 26, 298.
[40] Sir George John Robert Murray (1863-1942). The author of his entry in the Australian Dictionary of Biography opined that Murray tended in appellate and other decisions ‘to eschew detailed reasoning in his judgments’ – Nairn and Serle (eds), Australian Dictionary of Biography (1986) vo1 10, 641 (entry written by Alex Castles).
[41] Sir Owen Dixon, ‘Science and Judicial Proceedings’ (speech given on 30 September 1933 to Medico-Legal Society of Victoria) in Wionarski (ed), above n 7, 16; Balkin and Davis, Law of Torts, (3rd ed, 2004) 755.
[42] The News, 14 December 1932, 5. The paper noted that the longest civil trial was the well-known ‘corset’ case between Weingartner and Wills in 1902 which took 52 days!
[43] The News, 14 March 1933, 6. A full record can be found in Privy Council Office, above n 26.
[44] See Adelaide Advertiser, 7 December 1932, 14; 8 December 1932, 5. The Associate to Chief Justice Murray, Mr. John Bagot, advised the author that the Chief Justice requested Australian Knitting Mills to produce a witness who was actually present in the place where the underwear was produced. This witness appears to have been Alfred Stanley Ashworth, who gave evidence on this point.
[45] A sulphur compound, bisulphite of soda, was used by Australian Knitting Mills in the production of the underwear. If not removed by washing, these sulphites could produce sulphur dioxide after contact with the sweat of the human body. The combination of sulphur dioxide with sweat and oxygen results in the formation of sulphurous and sulphuric acid. The gas and the acids were all known irritants..
[46] Adelaide Advertiser, 17 November 1932, 10; 9 December 1932, 29; 14 December 1932, 23; 16 December 1932, 20; 17 December 1932, 17.
[47] Adelaide Advertiser, 12 November 1932, 23 (Evidence of Dr John Edwin M Wrigley).
[48] ‘He did not agree with the view of a previous witness that any quantity of arsenous oxide or sulphur dioxide which could be revealed by the minutest test would be injurious to the wearer of the garment containing it’, Adelaide Advertiser, 8 December 1932, 5 (Evidence of Dr Robert Charles Brodie). Dr William Ray testified that in his opinion injections of gold improved dermatitis, and if this was so it was against the view that the dermatitis was produced by a heavy metal (Adelaide Advertiser, 10 December 1932, 17).
[49] The medical term used in the evidence was ‘idiopathic’.
[50] Adelaide Advertiser, 10 November 1932, 19; 11 November 1932, 17 (Evidence of Dr William CT Upton); 12 November 1932, 23 (Evidence of Dr John Edwin M Wrigley); 16 November 1932, 5 (Dr CCT de Crespigny).
[51] Adelaide Advertiser, 10 November 1932, 19.
[52] Adelaide Advertiser, 15 December 1932, 19.
[53] Privy Council Office, above n 26, 234.
[54] Adelaide Advertiser, 19 November 1932, 13 (Evidence of Dr Roland R Wettenhall).
[55] This witness (nor any other expert called on behalf of the defendants) was not allowed to question Grant – Adelaide Advertiser, 8 December 1932, 5 (Evidence of Dr Robert Charles Brodie).
[56] Ibid.
[57] Adelaide Advertiser, 10 December 1932, 17 (Evidence of Dr Esmond Shirley Joske).
[58] Adelaide Advertiser, 8 December 1932, 5 (Evidence of Dr Robert Charles Brodie).
[59] Dr Esmond Shirley Joske, the medical officer of Australian Knitting Mills, tesitifed that in 5 ½ years he had seen five cases of dermatitis, none of which arose out of handling wool. Australian Knitting Mills employed between 600-800 people about half of whom worked in the wool department (The News, 9 December 1932, 1).
[60] Adelaide Advertiser, 10 November 1932, 19 (Evidence of Dr Richard Thorold Grant).
[61] Adelaide Advertiser, 12 November 1932, 23 (Evidence of Dr John Edwin M Wrigley).
[62] It is not clear how this witness was discovered. In the Plaintiff’s Interrogatories the defendants were asked whether a Mrs Pearson had complained that ‘Golden Fleece’ underwear had caused her skin irritation. The defendants refused to comment on the ground that the Interrogatory was ‘irrelevant, vexatious, embarrassing, oppressive, and is fishing’ (Plaintiff’s Interrogatories; Defendant’s Answers to Interrogatories, Supreme Court of South Australia, Civil Registry, No. 200/1932).
[63] The News, 16 November 1932, 5.
[64] Adelaide Advertiser, 17 November 1932, 10
[65] The article headings reflect the levity of the witness’ appearance: ‘Evidence of Witness Who Said He Cured Himself’ Adelaide Advertiser, 17 November 1932, 10; ‘Man Shows His Legs in Court’, The News, 16 November 1932, 5.
[66] Adelaide Advertiser, 17 November 1932, 10; The News, 16 November 1932, 5.
[67] Although the experts for the plaintiff were from Adelaide and the experts for the defendants from Melbourne (where Australian Knitting Mills Ltd was based) there is no evidence to suggest that regional affinity played any part in the dispute. Nor, it is suggested, can anything much be read of itself into the fact that the Chief Justice and Grant were both members of the Adelaide Club.
[68] Murray CJ’s judgment may only be found in the records of the Privy Council (Privy Council Office, above n 26, 275-298). There is no copy in the records of the Registries of the Supreme Court of South Australia or the High Court of Australia. The judgment is reported in the Adelaide Advertiser, 14 March 1933, 9-10.
[69] Ibid.
[70] Ground No 4 (no or no sufficient evidence to support finding that the plaintiff was a person with normally sensitive skin), No 6 (no or no sufficient evidence to support the finding that the dermatitis of the plaintiff was caused by the use of the underpants or by the presence of bi-sulphite of soda in the ankle ends of at least one pair of underpants), No 21 (trial judge wrong when, for purposes of drawing inference that Australian Knitting Mills was guilty of negligence, he assumed as an established fact that the dermatitis was caused by an irritant – the chemicals in the underpants – a conclusion itself depending on inference), No 33 (no or no sufficient evidence to support the finding that in consequence of the failure of Australian Knitting Mills Ltd to take care the plaintiff suffered the damage complained of). See High Court File No 4/1933, High Court Registry, Canberra.
[71] Counsel for the appellants assured Starke J that the proceedings would not last as long as the 20 days of the trial – Melbourne Herald, 14 June 1933, 10.
[72] Australian Knitting Mills Pty Ltd v Grant [1933] HCA 35; (1933) 50 CLR 387, 392.
[73] Adelaide Chronicle, 22 June 1933, 47.
[74] Australian Knitting Mills Pty Ltd v Grant [1933] HCA 35; (1933) 50 CLR 387, 431 (Evatt J).
[75] Australian Knitting Mills Pty Ltd v Grant [1933] HCA 35; (1933) 50 CLR 387, 431-2.
[76] Australian Knitting Mills Pty Ltd v Grant [1933] HCA 35; (1933) 50 CLR 387, 421-428.
[77] Australian Knitting Mills Pty Ltd v Grant [1933] HCA 35; (1933) 50 CLR 387, 422.
[78] Australian Knitting Mills Pty Ltd v Grant [1933] HCA 35; (1933) 50 CLR 387, 422-23. Sixteen textbooks were supplied to the courts in connection with the case.
[79] I have used medical evidence as an example of scientific evidence in this context.
[80] Ibid 427.
[81] Dixon, above n 41, 14.
[82] Dixon, above n 41, 29.
[83] Dixon, above n 41, 14.
[84] Dixon, above n 41, 30.
[85] I am very grateful to Philip Ayres who kindly sent copies of the documentation relating to this speech to me. The originals are contained in the private papers of Sir Owen Dixon which are held by surviving family members. A relatively full account of the lecture can also be found in Ayres, ‘Owen Dixon’s Causation Lecture: Radical Scepticism’ (2003) 77 ALJ 692.
[86] Sir Owen Dixon, ‘Causation and the Law’ (speech given to the Law Student’s Society of Melbourne University, March 1937). This quote is taken from Dixon’s draft notes for the lecture, and appears in similar language in the notes of the lecture made by John Kinnear, a student.
[87] Ibid.
[88] Philip Ayres, Owen Dixon (2003) 88.
[89] [1961] HCA 46; (1961) 106 CLR 112. This is the case mentioned by Ayres as demonstrating Dixon’s scepticism.
[90] [1954] HCA 74; (1954) 91 CLR 268.
[91] (1954) 91 CLR 277.
[93] See Griffith District Hospital v Hayes [1962] HCA 18; (1962) 108 CLR 50.
[94] See, for example, Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, Franklin v Victorian Railways Commissioners [1959] HCA 48; (1959) 101 CLR 197, The Commonwealth v Ockenden [1958] HCA 37; (1958) 99 CLR 215 (causation in the context of workers’ compensation legislation).
[95] [1956] HCA 45; (1956) 96 CLR 99.
[96] Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99, 117.
[97] [1959] HCA 8; (1959) 101 CLR 298.
[98] (1959) 101 CLR 304.
[99] Ayres, above n 85.
[100] Sir Owen Dixon, ‘Jesting Pilate’ (twentieth George Adlington Syme Oration delivered in Melbourne on 20 August 1957 at the invitation of the Royal Australasian College of Surgeons, in Wionarski (ed), above n 7, 5.
[101] See the comments of the Lord Chancellor (Cranworth) in Broadbent v The Imperial Gas Company (1857) 7 De G M & G 436, an injunction case decided by an arbitrator involving much conflicting evidence. The Lord Chancellor agreed that the conflict needed settling by someone: but no new trial was granted as the arbitrator's decision was equivalent to that of a jury. (This was affirmed in the House of Lords: [1859] EngR 915; 7 HLC 600). I am grateful to Professor Michael Lobban for drawing my attention to this case.
[102] See the following comments of the Lord Chief Justice at the end of a case in the 1820’s, ‘[T]hese two days, thus employed, are not days of triumph, but days of humiliation for science; for when I find that their science ends up in this degree of uncertainty and doubt, and when I observe that they are drawn up in martial and hostile array to each other, how is it possible for me to form … an opinion upon such contradictory evidence?’, Crawford, ‘The Emergence of English Forensic Medicine: Medical Evidence in the Common Law Courts, 1730-1830’ (PhD dissertation, Oxford University, 1987) cited in Stephen Landsman, ‘One Hundred Years of Rectitude: Medical Witnesses at the Old Bailey, 1717-1817’ (1998) 16 Law and History Review 445, 492.
[103] The discussion is of proximate cause or remoteness, and cause in contributory negligence. See, for example, Clerk & Lindsell on Torts (7th ed, 1921) 146-154, 498-510; Winfield, Textbook on the Law of Tort (1937) 71-88, 438-443. Although said in the specific context of contributory negligence, Winfield (441) reflects the general contemporary view that the questions of causation could be explained adequately by observing that, scientifically, the approach of the law was wrong but that law was not an exact science.
[104] [1904] UKLawRpCh 37; [1904] 1 Ch 673.
[105] [1904] UKLawRpCh 37; [1904] 1 Ch 673, quoting from Bowen LJ in Fleet v Metropolitan Asylum District (1886) 2 Tim LR 361, 363.
[106] Farwell J explains the logical conclusion as being an example of Bacon’s inductio per enumerationem simplicem, ubi non reperitur instantia contradictoria because the sample on which the conclusion was based was too small to make the generalisation. However, it is not clear what was meant by a conclusion based on ‘medical science’, especially if it was to exclude all conclusions based on all forms of inductive reasoning.
[107] Explained, perhaps, by Dixon’s view that the law’s contribution to civilization was not the result of applying scientific method – see Sir Owen Dixon, ‘University Education in a Scientific Civilization’, in Wionarski (ed), above n 7, 148.
[108] Ibid 149.
[109] Dixon’s judgment in Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 suggests that he may have been more willing to accept ‘commonsense’ causation in jury trials.
[110] [1972] UKHL 7; [1973] 1 WLR 1.
[111] [1932] AC 562.
[112] Wilsher v Essex Area Health Authority [1987] UKHL 11; [1988] AC 1074.
[113] Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32
[114] Adelaide Advertiser, 19 August 1933, 15.
[115] (1934) 77 Law Journal 9.
[116] Ibid. It was also noted that Grant had book debts amounting to £180.
[117] [1935] UKPCHCA 1; (1935) 54 CLR 49; [1936] AC 85.
[118] [1935] UKPCHCA 1; (1935) 54 CLR 49, 57: ‘Mathematical, or strict logical, demonstration is generally impossible: juries are in practice told that they must act on such reasonable balance of probabilities as would suffice to determine a reasonable man to take a decision in the grave affairs of life.’ As noted earlier, Dixon had little confidence in juries to handle abstract questions of causation. However, there was no jury in Grant, and in most of the cases cited above the question of the appropriate inference was raised as a matter of law.
[119] The costs of the action are a matter of some dispute. It was reported that the total cost of the proceedings were £20 000, with the 9 days Privy Council hearing costing £10 000 (Truth (Country edn), 8 December 1935, 15). The High Court file indicates that the taxed costs of the original hearing were £386 17s 7d and the High Court appeal £567 9s 8d – see High Court File No 4/1933.
[120] See, for example, (1935) 80 Law Journal 266 (26 October 1935); (1935) 79 Solicitors Journal 952; (1935) 180 Law Times 309; (1935) 9 ALJ 288; (1936) 52 LQR 12; [1936] CLJ 118; (1936) 81 Law Journal 92 (8 February 1936); H R Blair, ‘Negligence itself a Wrong (1936) 10 Law Institute Journal 21.
[121] Roll of the Royal Australasian College of Physicians [1994] vol 2, 128.
[122] Ibid, Adelaide Children’s Hospital, Annual Report for 1979, 3. I am grateful to Dr Brian Fotherington and Professor Donald Simpson for the latter reference.
[123] I am grateful to Mr Rob Parker of Australian Knitting Mills for this information.
[124] Truth (Country edn), 15 December 1935, 13.
[125] Ibid.
[126] Ibid.
[127] Evidence has emerged that, by March 1938, Evatt was actively seeking assistance from John Wren to be made a Privy Councillor (James Griffin, John Wren: A Life Reconsidered (2004) 281-283). In fact, Evatt was not made a Privy Councillor until he became Attorney-General in 1942. I am grateful to Dr Frank Bongiorno for this reference.
[128] ‘Dixon never much admired Evatt, seeing him as an essentially political judge and as dishonest, though he forced himself to get along with him.’ Ayres, above n 88, 59.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUJlLegHist/2005/11.html