Davie v New Merton Board Mills Ltd

JurisdictionEngland & Wales
JudgeViscount Simonds,Lord Morton of Henryton,Lord Reid,Lord Tucker,Lord Keith of Avonholm
Judgment Date28 January 1959
Judgment citation (vLex)[1959] UKHL J0128-1
Date28 January 1959
CourtHouse of Lords
New Merton Board Mills Limited and Others

[1959] UKHL J0128-1

Viscount Simonds

Lord Morton of Henryton

Lord Reid

Lord Tucker

Lord Keith of Avonholm

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Davie against New Merton Board New Merton Mills Limited and others, that the Committee had heard Counsel, as well on Thursday the 27th day of November last, as on Monday the 1st, Tuesday the 2d, Wednesday the 3d and Thursday the 4th, days of December last, upon the Petition and Appeal of James Gibson Davie, of 28 Drydon Road, Wimbledon, S.W.19, in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 26th of November 1957, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of New Merton Board Mills Limited and Frank Guylee and Son Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal, of the 26th day of November 1957, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.

Viscount Simonds

My Lords,


This appeal raises a question of far-reaching consequence. The Appellant is by trade a maintenance fitter. In March, 1953, in the course of his employment by New Merton Board Mills Limited, whom I will call "the Respondents", at their factory at Merton, he was using a tool known as a drift which had been provided by them. It is a tool which is used for the purpose of separating one piece of metal from another when they have been brought together too tightly to be released by hand. He struck the drift with a hammer, and there is no suggestion that there was anything wrong in what he did or the way he did it. But the result was that a splinter flew off the drift into his left eye and caused such serious injury that he lost all useful vision of that eye.


The Appellant accordingly brought the action out of which this appeal arises against his employers, and at a later stage joined as Defendants the manufacturers of the drift. The following facts were proved or admitted at the trial:

(1) That the drift was made by the manufacturers, an old established firm of toolmakers, in the year 1946:

(2) That in July, 1946, they had sold it to a company called C. A. Baldwin & Co. Limited, a reputable firm which sold tools of this kind:

(3) That in response to an order for drifts from the Respondents C. A. Baldwin & Co. Limited in the same month delivered a supply which included the fatal drift:

(4) That between July, 1946, and March, 1953, this drift had been seldom, if ever, used:

(5) That the Appellant properly took the drift from the Respondents' store and that the accident occurred as the result of the second blow that he struck it with a hammer:

(6) That the accident was solely due to the excessive hardness of the metal of the head of the drift:

(7) That this excessive hardness was due to negligent heat treatment by the manufacturers:

(8) That it was in apparently good condition and there was no negligence in the Respondents' system of maintenance and inspection:

(9) That the Respondents bought the drift from a reputable firm of suppliers and paid a reasonable price for it:

(10) That no intermediate examination of it between the time of its manufacture and the time of its actual use was reasonably to be expected:

(11) That it was unreasonable to expect an employer to test a drift for hardness before issuing it to his employee: and

(12) No examination short of a test would have revealed the danger existing in this particular drift.


Some of these findings and admissions were, no doubt, more relevant to the claim against the manufacturers than that against the Respondents. So far as the latter are concerned it is sufficient to say that to them the defect in the drift was latent and not to be discovered by any inspection they could reasonably be expected to make.


It is with this background that the question thus stated by Mr. Justice Ashworth, who tried the case, must be examined, namely, whether the Respondents are responsible to the Appellant because the drift was negligently manufactured by the manufacturers. The learned Judge held that they were; the Court of Appeal (Parker and Pearce, L.JJ., dissentiente Jenkins, L.J.) that they were not. I interpose, for the sake of clarity, that the learned Judge held that the manufacturers also were liable on the principle of Donoghue's case and gave judgment against both Defendants for £2,030 with orders as to indemnities and costs which need not now be considered, and that the Court of Appeal, allowing an appeal by the present Respondents, directed that the judgment for the Appellant should be entered against the manufacturers only with consequential orders as to costs. The Appellant, not being satisfied with judgment against the manufacturers only, brings this appeal by which he seeks to make his employers also liable. It is possible that he or others have an eye on those far-reaching consequences of which I have spoken. But at any rate he is entitled to appeal.


My Lords, in the course of a hearing which lasted many days a great number of authorities were cited. But it appears to me that no cases were cited in which the facts were similar to those now under consideration except two. These were, first, a case heard by Mr. Justice Finnemore in 1955 (Mason v. Williams & Williams Ltd. [1955] 1 W.L.R. 549) in which the learned Judge held upon very similar facts that the employers were not liable and did so in a judgment which, if it was not good law, was notably good sense: it appears that the case was heard at the Chester Assizes and he was not embarrassed by the citation of authority. The second case, in which there was by no means the same degree of similarity, was a Scottish case, Donnelly v. Glasgow Corporation, 1953 S.L.T. 161. Here the question was fully argued and the employers were held liable. I defer the further consideration of this case.


Before I turn to the examination of the cases by which it may be supposed that guiding authority is given, I would remind your Lordships that this action was founded in tort. The accident, it was said, was caused by the negligence of the Respondents, their servants or agents, and their negligence consisted in this that they failed to provide a suitable drift which could be hammered safely without the risk of pieces flying off. I have deliberately used the language of the Statement of Claim which has been repeatedly used in these proceedings. It may be relevant to observe that it is not strictly accurate. The accident occurred not through a failure to supply a suitable drift—a failure that could result in nothing—but through the supply of an unsuitable drift. Therein lay their alleged negligence, and I pause to analyse that allegation. It may mean one of two things. First, it may mean that it was the duty of the Respondents to supply suitable drifts: they supplied an unsuitable one: they did not do their duty: therefore they were negligent. This is a bare statement of absolute obligation. But, secondly, it may mean that the supply of an unsuitable drift was due to a want of reasonable care on their part. It must then be shown wherein lay the want of reasonable care, and at once the question arises, for whose negligence, acts, I suppose, of omission and commission, the employer is liable in the long chain which ends with the supply by him of a tool to his workman but may begin with the delving of the raw material of manufacture in a distant continent. In the case before us the chain is long enough. The Respondents were not guilty of any negligence nor was any servant or agent of theirs nor was the reputable firm who supplied the drifts, but at the end of the chain were the manufacturers. The Respondents stood in no contractual relation to them: so little connection was there between them that it was long in dispute whether the fatal drift had been manufactured by them and delivered by them to the suppliers. But it is for their negligence in manufacture that the Appellant would make the Respondents liable. Remembering, my Lords, that the essence of the tort of negligence lies in the failure to take reasonable care, I am constrained to wonder how this thing can be. But it is made clear by the powerful dissenting judgment of Lord Justice Jenkins that, if such a result cannot commend itself to reason, it yet may find support in authority. I say that it cannot commend itself to reason; for, if indeed it is the law, every man employing another and supplying him with tools for his job acts at his peril: if someone at some time has been careless, then, for any flaw in the tools, it is he who is responsible, be he himself ever so careful. I observe that such a view of the law is usually accompanied by a disclaimer of any idea that an employer warrants the fitness of the tool he supplies and do not find the reconciliation easy.


My Lords, in the consideration of the very numerous cases which may be thought to...

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