Hector Amos Parsons (Plaintiff Respondent) Frank Pearson Pennington (Trading as Lincoln Fertiliser Company) (Defendant Appellant)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DIPLOCK,LORD JUSTICE SACHS |
| Judgment Date | 10 May 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0510-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 May 1968 |
[1968] EWCA Civ J0510-1
In The Supreme Court of Judicature
Court of Appeal
Appeal of Defendant from judgment Of Mr. Justice Cusack On 15th June, 1967.
The Master of the Rolls (Lord Denning)
Lord Justice Diplock and
Lord Justice Sachs
Mr. R. D. LYMBERY, Q, C, and Mr. P. F. CRANE (instructed by Messrs. Sharpe Pritchard & Co,., agents for Mr. William Bains, Briggs, Lincolnshire) appeared on behalf of the Appellant Defendant.
Mr. D. M. COWLEY, Q. C., and Mr. J. DAVIDSON (instructed by Messrs. Kennedys, agents for Messrs. Hodgkinson & Beevor, Newark-on-Trent, Nottinghamshire) appeared on behalf of the Respondent Plaintiff.
In the circumstances we need not trouble you, Mr. Lymbery.
Mr. Parsons is a farmer who has farmed in Lincolnshire most of his life. He has a farm at North Airfield Farm, Coddington, Newark. It was a former airfield, but 200 acres are available for farming. In the year 1959 he met in the market a gentleman who represented the Lincoln Fertiliser Company (which is the trade name of Mr. Pennington). The representative persuaded Mr. Parsons to try a new kind of fertiliser. It was gas liquor, which is obtained from gas companies. It is a sort of sulphate of ammonia; but until recently its bulk rendered it uneconomic for direct application to the land. Now equipment is available for transporting it and spraying it on the land. So it has come into use. Mr. Parsons ordered some of this gas liquor. It was put on his fields in the latter part of 1959. The crop did reasonably well. He made no complaint about it. In the next season he decided to use it again. He proposed to grow on 30 acres of his land a crop of sugar beet. He ordered this gas liquor, but it could not be applied to the land for some time because of the wet weather. It was not applied until March of 1961. He told the salesman that he was going also to put some fish manure on his fields. Fish manure is also a nitrogenous fertiliser. In March 1961 the gas liquor was brought on to the fields by Mr. Pennington's man in a tanker. The fields, it is important to notice, were still in stubble. They had never been ploughed up during the previous Autumn. Then this sequence followed; the gas liquor was put on between the 16th and 20th March of 1961. During the next week the Land was deep ploughed. Then fish manure was put on. Next the fields were harrowed and rolled. Eventually they were drilled and seed sown in the second, third and fourth weeks of April in 1961. So the seed was sown in April. It ought, on the evidence, to have begun to show above the ground within a fortnight. But it did not emerge. Itdid not emerge, according to Mr. Parsons, for months. If it had emerged (as it should have done in a fortnight) he could have hoed between the lines and got it clear of weeds. But it did not emerge at all. So he could not hoe, because he did not know where were the seeds and where were the weeds. Instead of seedlings, he found that the weeds grew tremendously - "Twitch", as it is called in Lincolnshire - masses and masses of it. The sugar beet seedlings did not emerge till towards the end of the year. Photographs have been taken showing us the position in January of 1962, when Mr. Pennington's people went there and saw it, and other experienced people. Those photographs show gross infestation with weeds, such as no farmer has ever seen, I should think. But below the weeds there were small seedlings of sugar beet. They had been greatly delayed in making their appearance.
Mr. Parsons was, of course, very upset. He did not pay the bills rendered him by Mr. Pennington. He put the trouble down, first to one cause, and then to another. At first, he said it was due to Mr. Pennington supplying him with a double supply of kainit. But when that proved incorrect, he said that it was due to Mr. Pennington putting on too much nitrogen. The evidence showed that the number of units in the gas liquor was 180 units. It was proved, however, that 180 units by itself would not have done the damage. So Mr. Parsons altered his case. He said that 180 units was too much having regard to the fish manure. The fish manure contained 70 units of mitrogen. That meant 230 units altogether (180 plus 70) was applied to the land. Mr. Parsons said this was very excessive. It was that excess nitrogen that delayed the germination of the seed.
In answer to that case, Mr. Pennington and his advisers said the cause of the trouble was not excessive nitrogen. The cause was bad husbandry. They said that this land ought not to have been left as it was from the Autumn with the stubble. It ought tohave been ploughed up immediately after the last crop was taken off. After ploughing it should have been left through the Winter, so that the weeds would die off. A practical man, Mr. Thompson, very knowledgeable in these matters, said: "I think it is very bad husbandry to have left this land in stubble until as late as March or April of the following year." "I understand", he says, "that Mr. Parsons had grown three white straw crops in 1968, 1959 and 1960, which is not necessarily bad husbandry; it is quite common on modern practice; but if one is going to grow continuous corn crops, one must take steps to eliminate the weeds which those corn crops will encourage." That evidence of bad husbandry was supported by scientific evidence by Mr. Townsend, an expert from the University of Leeds. He is the Senior Lecturer in the Department of Agriculture and in charge of the Soil and Fertiliser Division. He explained that if there was a heavy infestation of weeds in the land, and they had not been cleared, then when the fertiliser was put on, the weeds would grow; they are a hardy lot. They would outgrow and stifle the more sensitive seeds of the beet. The reason is because the seed of the beet, in order to germinate, need moisture and oxygen and a proper temperature. The weeds taken out the moisture and choke the seed. So it will be greatly delayed in germinating. Mr. Townsend suggested the weed was the cause here.
But the Judge seems to have gone by the evidence of Mr. Austin, who was called on behalf of Mr. Parsons. Mr. Austin was a lecturer from Southampton University, but, as far as I can see, not an expert in agricultural chemistry. He was an analytical chemist. He suggested that excessive nitrogen could cause delay in the germination of the seed. The Judge preferred his evidence and held that it was the excessive nitrogen (in the gas liquor and fish manure combined) which caused this crop to fail.
The burden is on the farmer, Mr. Parsons, to prove that the cause was excessive nitrogen. (I will assume for the moment that there was a condition implied that the gas liquor was reasonably fit for the purpose, and, a further extension, reasonably fit for the purpose in combination with the fish manure). But I find on the evidence no ground for drawing the inference that any excess was the cause of the failure of this crop. It seems to me that this is an equally probable cause. The evidence of Mr. Thompson and Mr. Townsend points to the cause being the failure of Mr. Parsons to plough up his field in the Autumn of 1960. As soon as his com crops were finished, he should, as every good farmer should, plough up his fields and get them clear and leave the weeds to die. He left it to the next Spring. Then he had to rush through his cultivation...
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