Davie v New Merton Board Mills Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS,LORD JUSTICE PARKER,LORD JUSTICE PEARCE |
| Judgment Date | 26 November 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J1126-5 |
| Docket Number | 1954 D. No. 1495 |
| Court | Court of Appeal |
| Date | 26 November 1957 |
and
[1957] EWCA Civ J1126-5
Lord Justice Jenkins,
Lord Justice Parker And
Lord Justice Pearce
In The Supreme Court of Judicature
Court of Appeal
Mr. R. MARVEN EVERETT, Q.C., and Mr. H. TUDOR EVANS (instructed by Messrs. E.P. Rugg & Co.) appeared on behalf of the Appellants.
Mr. MARTIN JUKES. Q.C., and Mr. MALCOLM MORRIS (instructed by Messrs. W.H. Thompson) appeared on behalf of the Respondent (Plaintiff).
Mr. MICHAEL HOARE (instructed by Messrs, Doyle, Devonshire & Co., Agents for Messrs. Kershaw, Tudor & Co., Sheffield) appeared on behalf of the Respondents (second Defendants)
This is an appeal by the first Defendants, The New Merton Board Mills, Limited., from a judgment of Mr. Justice Ashworth dated 14th March, 1957, which awarded the plaintiff, James Gibson Davie, against the first Defendants and the second Defendants, Frank Guylee & Son, Limited., the sum of,030 damages, with costs, in respect of the loss of the sight of his left eye through the breaking of a tool called a "drift", manufactured by the second Defendants and provided for his use by the first Defendants, by whom he was employed as a maintenance fitter at their factory at Merton.
The judgment further dealt with the question of contribution between the Defendants by directing that the first Defendants should have against the second Defendants a full indemnity in respect of the damages, and an indemnity in respect of the Plaintiff's costs limited to two-fifths thereof.
There is no appeal by the second Defendants in respect of their liability to indemnify the first Defendants against the full amount of the damages awarded; but the first Defendants' appeal includes a claim to the effect that even if they fail to secure the reversal of the learned Judge's decision as regards their liability to the Plaintiff, they should not be ordered to pay any part of the Plaintiff's costs. The second Defendants have accordingly served a notice of their intention to support the learned Judge's order as to costs, and if necessary to raise various alternative contentions in that regard. The plaintiff on his part has served a notice of his intention to raise various contentions as to the incidence of costs in the event of the first Defendants succeeding in their appeal on the issue of liability.
The accident happened on the 8th March, 1953. On that day the Plaintiff in the ordinary course of his employment was working on a machine and had occasion to separate certain parts which were fitted together too tightly for separation by hand. The appropriate tool for this purpose was a drift, which may be described as a tapered bar or strip of metal say 12 inches long. The proper method of using a drift is to hold the pointed end against the point of junction between the parts to be separated and to beat the thick end with a hammer so as to force them apart. The Plaintiff went to a cupboard where drifts provided by the first Defendants for the use of their employees were kept took one which appeared to be nearly new and proceeded to work with it in the way I have described; but unfortunately at the second stroke of the hammer the drift broke and a piece flew off striking, and destroying the sight of, his left eye.
The history of the defective drift can be shortly stated It was made by the second Defendants, who are tool makers carrying on business at Sheffield, in the year 1946, and on a date prior to July in that year it was sold by the second Defendants to a company called Baldwin & Company., Limited., who are suppliers of tools of this kind. In July 1946 the first Defendants ordered a supply of drifts from Baldwin & Company., Limited., and the drifts delivered to them by Baldwin & Company., Limited., in response to this order included the defective drift with which we are now concerned. Nearly seven years later this drift, which had in the meantime apparently been seldom if ever used, was put into use by the Plaintiff with the disastrous result I have mentioned. The drift was defective in that the steel of which it was made was excessively hard and consequently liable to fracture when subjected to blows of the force to which a drift in ordinary use would be subjected. This, was a defect which ought to have been discovered by a manufacturer using reasonable skill and care in the making of drifts.
There is no dispute as to the facts, but it is right to refer specifically to the following findings of the learned Judge. At page 3 of the transcript he said: "On the evidence I am satisfied in regard to the drift used by the Plaintiff (a) that it was made of silice-manganese steel; (b) that the hardness of its head was 622 according to the Vickers Pyramid hardness scale; (c) that this hardness was greatly in excess of the hardness which should have existed, having regard to the fact that the drift was intended and designed to be struck on the head with a hammer; (d) that in the circumstances the drift was dangerous, in that chips or particles might fly off it when struck". At page 7 he said: "As already indicated, I am satisfied that the drift P.2 was of excessive hardness, a condition which would not have occurred if proper care had been taken during the heat treatment process". He continued: "The problem of liability, therefore, must be considered on the basis that the employers provided for their employee, the Plaintiff, a dangerous tool which had been negligently made by the second Defendants. I consider first the question whether in these circumstances the employers are liable. In the first place, it is clear that no negligence can be attributed to any of the employers' own servants or agents. The drift P.2 was apparently in good condition and no allegation was or could be made that the employers' system of maintenance or inspection was at fault. Moreover, the employers bought the drift from a reputable supplier and paid a reasonable price for it".
The learned Judge then proceeded to state the question of law arising on his findings of fact in these succinct terms: "The problem arises in naked simplicity; Are they" – that is, the first Defendants – "responsible to the Plaintiff because the drift was negligently manufactured by the second Defendants?"
One may take as a starting point in the discussion of this question the well-known case in the House of Lords of ( Wilsons & Clyde Coal Company., Limited. v. English 1938 Appeal Cases, page 57). By that case it was clearly established that an employer's duty to take reasonable care for the safety of his employees is a duty personal to him, of which he cannot divest himself by entrusting the performance of it to a servant or agent however competent. It follows that if in the present cage the First Defendants had employed some competent person as their servant or agent to make drifts for the use of their fitters, and the person so employed had negligently made the defective drift which broke and injured the Plaintiff, the first Defendants would clearly have been liable to the Plaintiff for breach of their common law duty to take reasonable care to provide sound tools, and the fact that they had employed a competent servant or agent to perform that duty would have afforded no defence.
I think it must also be regarded as settled that the same result would have ensued if the defective drift had been made by the second Defendants to the order of the first Defendants, the second Defendants being in the position of independent contractors, as distinct from servants or (in the strict sense) agents of the first Defendants.
It is true that the speeches in the Wilsons & Clyde Coal Company's case do not in terms refer to independent contractors, for the very good reason that the case then before the House was one in which the employers claimed to have delegated their statutory duty of providing a reasonably safe system of work to an agent in the strict sense, and to have thereby performed it, with the result that any negligence on the part of the agent would as between the agent and any employee injured thereby be negligence on the part of a fellow employee to which (as the law then stood) the doctrine of common employment afforded the employers a complete defence. But I think the same ratio decidendi must be taken to apply where the performance of the employer's duty has been entrusted to an independent contractor. This seems to me to be implicit in the passage from ( Bain v. Fife Coal Co. 1935 Sessions Cases, page 681, at page 693) cited with approval by Lord Thankerton at page 73 of the report and also expressly commended by Lords Atkin (at page 62), Macmillan (at page 76) and Maugham (at page 87). From the complete citation I need take only this concluding passage: "The duty may not. be absolute, and may be only a duty to exercise due care, but, if, in fact, the master entrusts the duty to someone else instead of performing it himself, he is liable for injury caused through the want of care of that someone else, as being, in the eye of the law, his own negligence".
I should add the following citations from the speeches in the Wilsbns & Clyde Coal Company's case (supra). Lord Macmillan, at page 75, said: "Now I take it to be settled law that the provision of a safe system of working in a colliery is an obligation of the owner of the colliery. He cannot divest himself of this duty, though he may – and, if it involves technical management and he is not himself technically qualified, must – perform it through the agency of an employee. It remains the owner's obligation, and the agent whom the owner appoints to perform it performs it on the owner's behalf. The owner remains vicariously responsible for the...
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