This is a cautionary tale about a man not washing his undies, his horrible rash and a snail.

While it sounds comical, the irritation in an Adelaide man’s pants in 1931 set an important legal precedent in many Commonwealth nations.

The principles established still stand today and may even explain the tiny warnings on clothing tags suggesting you wash a garment before wearing it.

As policy debate rages about consumer protections, how did the “itchy underwear case” shape our laws? How bad was that rash? And what about the snail?

The itch

The unfortunate chain of events starts with paediatric physician Richard Grant strolling into the John Martin & Co store in Adelaide’s Rundle Mall, where he buys two singlets and two pairs of Golden Fleece branded long johns.

Within hours he is itching.

“He doesn’t wash his underwear for a week,” Professor Ian Malkin, a specialist in the area of torts and negligence, tells ABC RN’s Law Report.

“So, he wears the same pair for a week … that’s probably the one fact everyone will remember.”

Dr Grant’s underwear purchase would have short and long-term ramifications.(Supplied: State Library of Western Australia)

Wearing underpants for an entire week is quite common in 1931.

He treats the inflamed area with calamine lotion.

He wears the second pair of underpants the following week and doesn’t make the connection between the woollen undergarment and his rash until he finally sees a dermatologist.

He’s got serious dermatitis.

“It’s very severe,” Professor Malkin, from the University of Melbourne Law School, says.

The doctor is bedridden for about 17 weeks from mid-July of that year with the rash affecting most of his body.

A Golden Fleece underwear ad from a 1930s magazine.(Supplied: National Library of Australia)

It takes about a year to fully recover from his illness. By then, he’s facing financial hardship and there’s evidence he’s had a mental breakdown.

Sheep dip, bleach and the legal argument

Dr Grant sues John Madden & Co for breach of contract alleging the goods were not fit for purpose.

Professor Malkin says the central discussion in the case is whether Australian Knitting Mills, the manufacturer of the underpants, is “liable in this new thing called the tort of negligence”.

Dr Grant has the ominous task of proving his severe dermatitis is caused by wearing the Golden Fleece underwear and that the company was negligent when manufacturing them.

His lawyers argue in the South Australian Supreme Court that the knitting mills failed to remove chemicals from the underwear, which caused the rash.

The company argues their practices ensure the woollen garments are free from excessive levels of any substances which could set off dermatitis.

The wool has been through several manufacturing stages including scouring, washing, bleaching and shrinking the fabric before being turned into underpants.

Senior curator Luke Keough, National Wool Museum, with a pair of long johns from Australian Knitting Mills.(ABC RN: Carly Godden)

At the time, the nation’s flock is treated for lice with sheep dip solutions containing arsenic.

Dave Westmoreland, from the National Wool Museum, says it’s quite possible the wool fabric may have still had residual sulphur compounds on it despite being rinsed.

At the 1936 trial, an expert claims Dr Grant’s condition is the result of a “spontaneous outbreak”, while another witness says he suffered a similar problem which he healed with iodine.

Finally, the snail

In London only years earlier, Lord James Atkin in the House of Lords had ruled in favour of a woman who unsuspectingly drank a bottle of ginger beer and discovered a snail in the bottom.

“She suffers gastro as well as shock,” Professor Malkin says.

The case, known as Donoghue v Stevenson, changes commerce forever.

“The court ultimately finds a duty of care exists when you manufactured goods.

“All of a sudden manufacturers are liable to people with whom they did not have a contractual relationship.”

The legal battle

There are similarities between the principle established in Donoghue vs Stevenson and Dr Grant’s case.

Professor Malkin says the South Australian judge makes a “causal connection” between the sulphites in the underwear and Dr Grant’s injury.

But the legal battle is far from over.

The manufacturers win an appeal to the High Court, with Justice Owen Dixon airing concerns there hasn’t been enough evidence to establish the sulphur compounds in the underwear can cause the severe rash.

But London’s Privy Council, Australia’s ultimate court of appeal until 1986, overturns the High Court decision.

Professor Malkin says the decision is “quite interesting” in that it doesn’t pinpoint a particular problem in the manufacturing process.

Rather, it found the company’s carelessness had resulted in the chemicals being in the underwear, and a consumer had no way of knowing that those chemicals were present.

The press closely followed developments in Dr Grant’s case.(National Library of Australia)

“They didn’t contemplate that someone would wash them first,” Professor Malkin says.

“Now interestingly, these days, often we’ll get instructions to wash first. Surely that’s the upshot of this decision.”

Dr Grant is awarded £2,450, roughly $200,000 in today’s money, and continues to practice medicine.

Australian Knitting Mills still operates today.

Current owner Rob Parker says much of the manufacturing process now happens overseas and nowadays eucalyptus is used in the washing process.

And now

The Australian Competition and Consumer Commission (ACCC) records more than 52,000 product safety-related injuries each year.

Choice chief executive Alan Kirkland says it takes years to develop standards for particular products and as products evolve the standards lag behind.

“What we really need to address is the lack of any sort of market-wide requirement that products sold in Australia should be safe before they are released onto the market,” the consumer advocate says.

He says “general safety provisions” already exist in similar economies and legal systems such as the United Kingdom, Canada, Malaysia and Singapore.

A review of Australian Consumer Law in 2017 suggested introducing a general safety law, higher fines breaches and making it easier for consumers to get a refund on a faulty product.

Mr Kirkland says if the recommendations are adopted it would “build a culture” for retailers, manufacturers or importers to think about safety first before selling a product in Australia.

RN in your inbox

Get more stories that go beyond the news cycle with our weekly newsletter.