Castree v E. R Squibb & Sons Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE ACKNER,LORD JUSTICE OLIVER |
| Judgment Date | 24 April 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0424-2 |
| Docket Number | 1978 C No. 21 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 April 1980 |
[1980] EWCA Civ J0424-2
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
On Appeal from the High Court of Justice
Queen's Bench Division
Birkenhead District Registry (Mr. Justice Phillips)
Lord Justice Buckley
Lord Justice Ackner
and
Lord Justice Oliver
MR. R. LIVESEY (instructed by Messrs. Hextall, Erskine & Co., Solicitors, London SW1 1PW, agents for Messrs. Laces & Co., Solicitors, Liverpool L29 SU) appeared on behalf of the Third Party (Appellants).
MR. V. WALDRON (instructed by Messrs. Weightmans, Solicitors, Liverpool L3 9QW) appeared on behalf of the Defendants (Respondents).
I have asked Lord Justice Ackner to deliver the first judgment in this appeal.
This is an appeal by a third party (since that was its status under the order of Mr. Justice Phillips) against a judgment of Mr. Justice Phillips given on 20th December 1979, when he reversed a decision of the District Registrar on 7th November of that year.
The appeal arises in these circumstances: the plaintiff, Miss Jayne Susan Castree, is suing for damages for personal injuries which she sustained in August 1976 when she was using a machine called a centrifuge for the purpose of separating liquids from solids. She was using that machine in the course of her employment with the defendants, who are the respondents to this appeal, and in the course of using that machine it disintegrated, causing her serious injuries.
The machine was manufactured in Germany by the appellants, who are a private German company, and the machine was purchased in this country by the respondents. The respondents sought leave to issue and serve out of the jurisdiction under Order 11, a third party notice upon the appellants. The basis upon which they sought that leave has changed, but ultimately (I can pur it as shortly as this) the position was that the respondents contended that the appellants were joint tortfeasors from whom they were entitled to claim contribution. They did not assert that they had any remedy against the appellants in contract, but they asserted that had the plaintiff sued the third party in negligence by way of a Donoghue v. Stevenson claim they would have succeeded, and accordingly the basis of the application is that contained in subparagraph (l)(h) of Order 11, namely, that the action isfounded on a tort committed in the Jurisdiction.
The contention of Mr. Livesey, who has argued this case with characteristic skill, is quite simply that the tortious conduct, if there is any, of the appellants was all committed out of this country, namely, the defective design and manufacture of the machinery, and that all that happened in this country was that the plaintiff sustained her damage.
It is important at this stage to make this point in relation to the sale of the machinery in this country. The learned judge recites this in his judgment; it is alleged, and for the present purpose is to be taken as a fact, that the defendants purchased the equipment in this country from a firm acting as sole agents for the third party. "It does seem important to me" says the learned judge, "that the third party has a distribution system as a result of which their goods are distributed in this country …". That assertion is essentially derived from the third party notice as originally served, in which it was alleged that "The said centrifuge … was manufactured … and was purchased by the defendants in or about the month of November 1973 from" the appellants' "United Kingdom agents"; and in the affidavit in support of the application to serve out of the jurisdiction "the centrifuge was manufactured...
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