By John McKechnie AO, KC
A lady crossed her legs.
From this inconsequential movement, like the proverbial butterfly fluttering its wings and causing a hurricane on the other side of the world, the dogged owner of a bus company and the respected owner of a leather goods manufacturer came face to face in a court room before Justice Abbott of the Supreme Court of South Australia.
It happened on the 3rd of September 1945. War had ended. Ray McGuire finished his schooner at the Windsor Castle Hotel near Victoria Square in Adelaide and took a seat on a Choat Bus Company Fageol bus for his homeward journey to Aldgate in the Adelaide hills.
McGuire was a wild lad in his youth having several brushes with the law, but by 1945 had settled into the trade of boot repairer. He carried three parcels with him. Two contained boots and the third a quantity of rubber strips, shoe repairing nails, and finishing ink. Oh, and a quart tin of Demon Sole Cement.
He walked down the aisle to the back of the bus and there he sat in the centre of the long bench seat. Putting two parcels by his feet, and the third containing the bits and pieces on his lap, he made himself comfortable and began to read the evening paper.
But not for long. As the bus grew more crowded, passengers began filling the bench seat. A young lady sat down next to McGuire. Trying for a more comfortable position, she crossed her legs. Unfortunately, in so doing, she bumped McGuire and the third package fell from his knees.
What a mess. The lid of the tin of Demon Sole Cement came off, spilling its contents over the floor. McGuire did his best to clean up, using his newspaper to mop the sticky mess. He managed to soak up most of the liquid.
Other passengers, once keen to sit at the back, now moved forward to other seats. Windows were opened to let out the smell.
The bus continued its journey leaving McGuire in a puddle of misery and Demon Sole Cement.
About 6.20 pm, the bus had wheezed its way up past Eagle on the Hill to Stirling. Here McGuire planned to alight. He also had another light in mind. He put a cigarette in his mouth – and struck a match.
“Before I got near the cigarette, there was enough fire to light 10,000 cigarettes. The flame had a sputtering shooting effect … my trousers were burnt and singed up to the knee.”
The bus immediately stopped and the few remaining passengers quickly evacuated. Gathering buckets of water and bags, they tried desperately to put out the fire. To no avail. Perhaps they should have tried sand to smother it as Justice Abbott, in an impressive display of hindsight, later suggested.
Although McGuire claimed to have made some scatter-brained attempt to put out the fire, the driver’s evidence was that he, the driver, was the last to leave the bus which, according to Justice Abbott “relieves the occasion of any fancied resemblance to the exploit of Casabianca”(The boy stood on the burning deck, when all around had fled).
Now actions for product liability had received a boost ever since a mischievous snail climbed into a bottle of beer in Paisley Scotland.
Mr Choat, whose bus it was, consulted lawyers including a future Chief Justice of South Australia, Dr Bray. They recommended suing in tort for a dangerous and defective product.
An action was launched against Julius Cohn & Co, a leather goods manufacturer now run by the founder’s son Jack.
Julius Cohn & Co purchased Ajax Cement in 5 gallon tins which the firm sold in quart tins as Demon Sole Cement. The Ajax tins were marked “Highly Inflammable – Flash point 60. Demon Sole Cement had no such warning.
The trial ran for eight days and judgment was delivered on Christmas Eve 1947. It was not an early Christmas present for Mr Choat who lost. Justice Abbot found no negligence on the part of Julius Cohn & Co. He found Demon Sole Cement would not burn even if a lighted taper was held to it. However, it would blaze merrily if lit by a match.
In reaching this conclusion, he conducted experiments with an expert. He also had a view of a boot factory where employees dropped burning cigarette ends and matches without any fear despite the constant smell.
Justice Abbott rejected any notion that the tin lid was defective.
So Mr Choat lost both his bus and his lawsuit.
Founded with his wife Ruth in 1927 by Mr Choat to provide a service between Mount Barker and Adelaide, Mr Choat watched the bus company grow even through the depression years. A backward step was taken in 1935 when he was sent to gaol for defrauding the state revenue by forging tickets, but by 1945, the business was well established and had a dozen buses (less of course one Fageol).
When he died in 1970, Mr Choat was still in the family business, survived by Ruth, five children, 17 grandchildren and one great grandson.
Choat Bus Company was taken over by the Transport Authority in the 1970s.
Julius Cohn & Co, founded in 1899 was taken over by a larger leather goods company in the early 1950s. Jack Cohn stayed on for a time.
In 1950 McGuire was drinking with a mate with his rifle leaning up against the bar. While he went on an errand, his mate stole it. Perhaps he should have used Demon Sole Cement to fasten it to the floor.
Adapted from Choat v Cohn (1948) SASR 21. Other articles from Trove.
