Cooper & Nephews v Visser

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, De Villiers AJA and Juta AJA
• Judgment Date: 11 December 1919
• Citation: 1920 AD 111
• Hearing Date: 24 October 1919
• Court: Appellate Division

Solomon, J.A.:

This is an appeal from a judgment of the Orange Free State Provincial Division awarding the respondent £450 17s as damages for the loss of 340 sheep, which had died from arsenical poisoning after they had been dipped in a solution of a powder which is manufactured by the appellants, and which the respondent had purchased from a merchant in Jagersfontein. The said powder is represented by the appellant to be a safe cure for eradicating scab in sheep, provided that it is used in a water solution mixed in accordance with certain printed directions issued by him. The case for the respondent in the court below was that "the death of the sheep was caused by the absorption of poison from the said dipping powders, which the appellant had negligently directed to be mixed as aforesaid in a solution containing a larger proportion of poison than was safe for the purpose of dipping sheep."

It appears that on the 24th April of this year, the respondent dipped some 1,600 sheep in a tank containing a solution of Cooper's Sheep Dipping Powder prepared, as he says, in accordance with the directions printed on the packets in which the powder is sold. At the conclusion of the operation some 180 gallons of the dip remained in the tank uncovered for 8 days, at the end of which time viz.: on the 2nd May, it was again used for the second dipping which is required by the Government regulations. The respondent stated that on this occasion be added eight packets of the powder and 300 gallons of water, which is, 100 gallons in excess of the amount required by the printed directions. He then passed 200 bastard sheep, including some 25 lambs, through the tank without any mishap. Thereafter, according to his evidence, he added 4 more packets of the powder with 150 gallons of water, and proceeded to dip some 400 to 450 merinos. The result was disastrous, as some 340 of them died within a week from arsenical poisoning. Cooper's Powder admittedly contains arsenic, and it is not open to doubt that the death of the sheep was caused by their being dipped in a solution of this powder. The question to be determined in this case is whether the appellant should be held liable for the loss sustained.

The evidence shows that Coopers Dip, though like other dips it

Solomon, J.A.

contains poisonous ingredients, has been largely used for many years by farmers in South Africa with beneficial results for the purpose of eradicating scab. According to Mr. Palmer, the appellants' general manager, before the war interfered with the supply, they sold annually in South Africa powder enough to dip 20 million sheep. Inasmuch, however, as it contains arsenic it requires to be used with great caution, and accordingly the packets in which it is sold contain full printed directions not only as to the manner in which the solution is to be prepared, but also as to the conditions under which the sheep should be dipped as, e.g., that "dipping should not take place in very hot or cold weather, or when the sheep are heated, excited, thirsty, or full of food." If, however, the directions are carefully observed, it is claimed that "the dip is perfectly safe and can have none but good effects." The evidence of the respondent in the trial Court was that he had used Cooper's powder for many years, and that on this as on all previous occasions he had strictly carried out the printed directions. Moreover the trial Judges, who heard his evidence, are satisfied that he was a truthful witness. In these circumstances the court below was asked to find that the explanation of the disaster was that the four packets, which were last added to the tank, contained, one or more of them, such an excess of arsenic over the amount which is present in a normal packet as to account for the death of the sheep from arsenical poisoning. And if that fact is established, it was contended that the defendant was liable in law on the ground of negligence in having given such directions for the mixing of these four packets, as to produce a solution containing more arsenic than was safe for the purpose of dipping sheep. It will be observed that the action is not based on breach of contract as in the somewhat similar case of Black v Elliott (1 F. & F. 595) referred to by Mr. JUSTICE WARD in his judgment, for here there was no contractual relationship between the plaintiff and the defendant. The authorities, therefore, referred to by the learned Judge in support of the proposition that on the sale of an article for a specific purpose there is a warranty by a vendor that it is reasonably fit for the purpose, have no application to this case. This action is one on tort not on contract, and it is based upon negligence on the part of the defendant. In order to establish his case, therefore, it would be necessary for the plaintiff to prove (1) that the four packets last added to the dip did contain an excess of arsenic sufficient to cause

Solomon, J.A.

the death of the sheep, and (2) that consequently it was negligent of the defendant to place upon these the same directions as were used for packets in which there was a smaller quantity of the poison. I did not, however, understand Counsel for the appellant to contend that, if once it were proved that there was an excess of arsenic in these packets, he could resist the inference that the defendant had been guilty of negligence. His contention rather was that the onus of establishing the fact lay upon the plaintiff and that he had failed to discharge that onus.

Now I agree that the burden lay upon the plaintiff of proving that these four packets did contain an excess of arsenic. That was the case presented by him at the trial, and relied upon by his Counsel on the appeal. Nor do I see upon...