Hill (Christopher) Ltd v Ashington Piggeries Ltd (Description)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Hodson,Lord Guest,Viscount Dilhorne,Lord Wilberforce,Lord Diplock
Judgment Date24 February 1971
Judgment citation (vLex)[1971] UKHL J0224-1

[1971] UKHL J0224-1

House of Lords

Lord Hodson

Lord Guest

Viscount Dilhorne

Lord Wilberforce

Lord Diplock

Ashington Piggeries Limited and Fur Farm Suppliers Limited
and
Christopher Hill Limited
Christopher Hill Limited
and
Norsildmel
(Conjoined Appeals)

Upon Report from the Appellate Committee, to whom were referred the Causes Ashington Piggeries Limited and others against Christopher Hill Limited, and Christopher Hill Limited against Norsildmel, that the Committee had heard Counsel, as well on Tuesday the 10th, Wednesday the 11th, Thursday the 12th, Monday the 16th, Wednesday the 18th, Thursday the 19th, Monday the 23d, Tuesday the 24th, Wednesday the 25th, Thursday the 26th and Monday the 30th, days of November last, as on Tuesday the 1st and Wednesday the 2d, days of December last, upon the Petition and Appeal of Ashington Piggeries Limited, whose registered office is situate at Westminster Bank Chambers, South Road, Poole, in the County of Dorset and Fur Farm Supplies Limited, whose registered office is situate at Westminster Bank Chambers, South Road, Poole, in the County of Dorset, 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 22d of July 1969, except so far as regards the words " and further Directed that the Judgment should be entered for the Third Party "Norsildmel" against the Plaintiffs with Costs" and the words " It is further Ordered that the Plaintiffs do pay to the Third Party their Costs of their Appeal such costs to be taxed by a Taxing Master", might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, except so far as aforesaid, might be reversed, varied or altered, or that the Petitioners 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 Case of Christopher Hill Limited, lodged in answer to the said Appeal; as also upon the Petition and Appeal of Christopher Hill Limited, whose registered office is situate at The Quay, Poole, in the County of Dorset, 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 22d of July 1969, so far as regards the words " It is ordered that both Appeals herein be allowed and that the said Judgment of the Honourable Mr. Justice Milmo be set aside", the words " and further Directed that Judgment should be entered for the Third Party "Norsildmel" against the Plaintiffs with costs" and the words " It is further Ordered that the Plaintiffs do pay to the Third Party their Costs of their Appeal such Costs to be taxed by a Taxing Master", might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Norsildmel, lodged in answer to the last-mentioned Appeal; and due consideration had this day of what was offered on either side in these Causes:

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 22d day of July 1969, in part complained of in the said Appeals, be, and the same is hereby, Discharged, and that the Judgment of the Honourable Mr. Justice Milmo of the 26th day of June 1968, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents in the First Appeal do pay, or cause to be paid, to the Appellants in the First Appeal the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the First Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the Respondents in the Second Appeal do pay, or cause to be paid, to the Appellants in the Second Appeal the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the Second Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the Respondents in the Second Appeal do pay, or cause to be paid to the Appellants in the Second Appeal, such further Costs as the Respondents in the First Appeal have been ordered to pay to the Appellants in the First Appeal: And it is also further Ordered, That the Causes be, and the same are hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Hodson

My Lords,

1

In July, 1961, the first case was noticed of a new and hitherto unknown disease afflicting mink which are bred in a large number of farms in this country. A male kit was found with a grossly enlarged abdomen and died within a few days. Similar cases were reported from that time onwards in various parts of the country. The common factor was that all the afflicted mink had been fed a fortified cereal mink food marketed under the brand name "King Size" and made up according to a formula. This formula emanated from a Mr. Udall who, since the early nineteen fifties, had been concerned with the breeding of mink in the Wimborne area and was recognised as an expert on mink farming. The company, Ashington Piggeries Ltd., the defendants in the action, was controlled by Mr. Udall. In 1960 he approached a Mr. Granger, who was the personal assistant to the managing director of the plaintiff company (Christopher Hill, Ltd.) with a view to the latter company compounding for him a mink food to be called "King Size" in accordance with a formula prepared by himself. This last named company is an old established and well-known animal feeding stuff compounder carrying on business at Poole. At this time the company was compounding 167 varieties of feeding stuffs principally for poultry, pheasants, calves and pigs but, until the events giving rise to this case, had had no experience or knowledge of mink.

2

To put the matter shortly, the ingredients were to be supplied by the plaintiffs and were to be of the best quality available. These were commodities which the plaintiffs were in the habit of handling in the course of their business and the manufacture of compounds for animal feeding to customers' formula was something which the trial judge found was something which the plaintiffs habitually undertook. The contract of Sale was entered into in May, 1960, and deliveries of "King Size" commenced immediately either to the defendants or to their customers. Between May, 1960, and the end of March, 1961, "King Size" had been supplied to about 100 farms, but no real trouble arose until the end of July, 1961. Mr. Udall's herd of mink was affected and he began to suffer increasing losses. "King Size" came under suspicion as being the cause of the outbreak of the severe liver disease from which the animals were suffering.

3

These proceedings were started by the plaintiffs claiming the price of goods sold and delivered, namely, the "King Size". To this the defendants answered that the goods were worthless and relied in the first instance on a change made in the formula of the goods without their consent, making their attack on the use of an anti-oxidant called Santoquin No. 6 as being the cause of the liver disease in the mink. After several days this attack was abandoned and in its place the attack was directed against Norwegian herring meal claimed to have been included in "King Size" and to have been the cause of the toxin which killed the mink. It was said that the meal was manufactured from herring preserved with sodium nitrite in circumstances which rendered the meal toxic to animals and in particular mink. The substance said to be toxic was dimethylnitrasomine (DMNA) which was not a constituent of the formula. There was at the trial a conflict as to causation which no longer subsists. The findings of fact made at the trial and no longer disputed are that the cause of the liver disease in the mink was "King Size" and that the toxic element was DMNA which was in the herring meal because of the use of sodium nitrite for preservation purposes.

4

A great deal turns in this case on the use of the word "toxic" which is an emotive word equivalent to poisonous�and I must return to it, in view of the difference of opinion between the trial judge and the Court of Appeal as to the application of the Sale of Goods Act, 1893, in particular section 14(1), to the facts of this case.

5

The defendants have established that the mink were poisoned by ingestion of "King Size" because it contained Norwegian herring meal contaminated by DMNA used in the processing of herring to which sodium nitrite had been applied as a preservative.

6

The Norwegian herring meal had been obtained by the plaintiffs from Norsildmel, the third parties in these proceedings, under a written contract which must be treated separately from the contract between the plaintiffs and the defendants. It differs materially from that made between the original parties but involves consideration of the same sections of the Sale of Goods Act.

7

The herring meal which caused the damage was found to be 8 1/2 tons out of 333 1/2 tons herring meal delivered to the plaintiffs at Poole from the motor vessel Hansa which had come from Factory 72 at Honningsvaag in Norway. Of the balance of 325 tons, 21 tons were sold to ordinary (non mink) farms as feeding stuff and the rest was used by the plaintiffs in their various compounds. No animal which consumed any of this balance suffered any injury so far as is known.

8

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