Lord Wright:-

The appellant is a fully qualified medical man practising at Adelaide in South Australia. He brought his action against the respondents, claiming damages on the ground that he had contracted dermatitis by reason of the improper condition of underwear purchased by him from the respondents, John Martin & Co., Ltd., and manufactured by the respondents, the Australian Knitting Mills, Limited; the case was tried by Sir George Murray, Chief Justice of South Australia, who after a trial lasting for 20 days gave judgment against both respondents for the appellant for £2,450 and costs. On appeal the High Court of Australia set aside that judgment by a majority. Evatt, J., dissented, and agreed with the Chief Justice. Of the majority, the reasoning of Dixon, J., with whom McTiernan, J., concurred, was in effect that the evidence was not sufficient to make it safe to find for the appellant. Starke, J., who accepted substantially all the detailed findings of the Chief Justice, differed from him on his general conclusions of liability based on these findings. The appellant's claim was that the disease was caused by the presence in the cuffs or ankle ends of the underpants which he purchased and wore, of an irritating chemical, viz., free sulphite, the presence or which was due to negligence in manufacture, and also involved on the part of the respondents, John Martin & Co., Ltd., a breach of the relevant implied conditions under the Sale of Goods Act.

The underwear, consisting of two pairs of underpants and two singlets, was bought by the appellant at the shop of the respondents, John Martin & Co., Ltd., who dealt in such goods and who will be hereafter referred to as the retailers, on 3rd June 1931; the retailers had in ordinary course at some previous date purchased them with other stock from the respondents, the Australian Knitting Mills, Ltd., who will be referred to as the manufacturers; the garments were of that class of the manufacturers' make known as Golden Fleece. The appellant put on one suit on the morning of Sunday, 28th June 1931; by the evening of that day he felt itching on the ankles but no objective symptoms appeared until the next day, when a redness appeared on each ankle in front over an area of about 2½ inches by 1½ inches. The appellant treated himself with calomine lotion, but the irritation was such that he scratched the places till he bled. On Sunday, the 5th July, he changed his underwear and put on the other set which he had purchased from the retailers; the first set was washed and when the appellant changed his garments again on the following Sunday he put on the washed set and sent the others to the wash; he changed again on 12th July. Though his skin trouble was getting worse he did not attribute it to the underwear, but on the 13th July he consulted a dermatologist, Dr. Upton, who advised him to discard the underwear, which he did, returning the garments to the retailers with the intimation that they had given him dermatitis; by that time one set had been washed twice and the other set once. The appellant's condition got worse and worse; he was confined to bed from 21st July for 17 weeks; the rash became generalised and very acute. In November he became convalescent and went to New Zealand to recuperate. He returned in the following February and felt sufficiently recovered to resume his practice, but soon had a relapse and by March his condition was so serious that he went in April into hospital where he remained until July. Meantime in April 1932, he commenced this action, which was tried in and after November of that year. Dr. Upton was his medical attendant throughout and explained in detail at the trial the course of the illness and the treatment he adopted. Dr. de Crespigny also attended the appellant from and after 22nd July 1931, and gave evidence at the trial. The illness was most severe, involving acute suffering and at times Dr. Upton feared that his patient might die.

It is impossible