Hill (Christopher) Ltd v Ashington Piggeries Ltd (Description)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES |
| Judgment Date | 04 July 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0704-4 |
| Docket Number | 1962 C. No. 149 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 July 1969 |
(Consolidated by Order of Master Harwood dated 24th May 1962)
[1969] EWCA Civ J0704-4
Lord Justice Davies
Lord Justice Russell and
Lord Justice Megaw
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Justice Milmo - London)
Mr. ANTHONY LLOYD, Q.C. and Mr. A.B.R. HALLGARTEN (instructed by Messrs. William A. Crump & Son) appeared on behalf of the Third Party (Appellant).
Mr. DAVID CROOM-JOHNSON, Q.C. and Mr. ANDREW BATESON (instructed by Messrs. Metson, Cross & Co.) appeared on behalf of the Plaintiffs (Respondents to appeal by the Third Party, and Appellants against the Defendants).
Mr. G.R.F. MORRIS, Q.C. and Mr. PETER CRAWFORD (instructed by Messrs. Sharpe, Pritchard & Co., Agents for Messrs. Andrews, Wetherall, McQueen & Co., Poole, Dorset) appeared on behalf of the Defendants (Respondents to appeal by the Plaintiffs).
The long and complicated tale of the events leading up to these consolidated actions and of the progress of the actions themselves is fully set out in the judgment of Mr. Justice Milmo now under appeal. That judgment was delivered on 30th January, 1968, though the formal order was not drawn up until 26th June. For the full story of the case, reference should be made to the account given by the learned judge; but it is nevertheless necessary to attempt here to recapitulate - not, it is to he hoped, at too great length - the main outlines.
The Plaintiffs, Christopher Hill Ltd., are old-established and well known animal feeding-stuff compounders who carry on business at Poole in Dorset. At the material time they were producing some 167 varieties of feeding stuffs, principally for poultry, pheasants, calves and pigs. But it is to be particularly observed that until the events in question they had no experience or knowledge whatsoever of mink.
The two defendant companies are - if one may use the phrase - the alterego of a Mr. Udall, who since the carly nineteen-fifties had been concerned with the breeding of mink in the Wimborne area and the supply of equipment and feeding-stuffs to other mink farmers. He was recognised as one of the greatest experts in the country on the subject of mink-farming.
The Third Party are the successors and for all practical purposes stand in the shoes of a Norwegian organisation called Silde-melutvalget (The Export Committee for Herring Meal and Herring Oil). This is some sort of co-operative society which directly or indirectly controls the sale and distribution of Norwegian herring meal both in Norway and abroad. Their selling agents in this country were C.T. Bowring & Co. Ltd.
In the Spring of 1960 Mr. Udall approached the Plaintiffs with a view to their compounding for him a vitamin-fortified mink food to be called "King Size" in accordance with a formula supplied by himself. He was in possession of a number of formulae obtained from various sources. This King Size was to he sold tomink farmers lay Mr. Udall to be used by them at the minimum level of 20 per cent. of the feed given to the animals. 20 per cent. of the King Size was to consist of another substance celled Concentrate M which the Plaintiffs were also asked to make up in accordance with another formula supplied by Mr. Udall. This, as already stated, was to be an ingredient in King Size but was also to be available for sale separately to such farmers as might not wish to buy King Size but might wish to include the concentrate as an ingredient in the food given by them to their mink.
In the course of the discussions, the Plaintiffs, who, as already stated, were completely ignorant of mink and mink food, made two suggestions to Mr. Udall, both of which he accepted. In the first place, for an antioxidant contained in the concentrate to prevent rancidity and called B H A there was substituted a substance called B H T. The other alteration was with regard to fish meal. Mr. Udall had originally intended to use English white fish meal to constitute 15 per cent. of the King Size. But the Plaintiffs suggested that herring meal would be more economical and better. And this was agreed to, though in Mr. Udall's brochure advertising King Size it is "fish meal" not herring meal that is stated to be an ingredient.
A note, dated 11th May, 1960, by Mr. Granger, the personal assistant to Mr. Hunt, the Chairman and Managing Director of the Plaintiffs, of the arrangement made between the parties for the manufacture and supply of King Size and Concentrate M appears at page 1 of Bundle 7; and Mr. Udall agreed that this was correct. The formula for King Size is at page 25 of Bundle 8 and that for Concentrate M at page 31.
Thereafter (and these are the words of the learned judge) the Defendants from time to time placed orders with the Plaintiffs for the manufacture of quantities of King Size for delivery to themselves or to their customers. The orders would be received by the Defendants from their customers. The Defendants would pass them on to the Plaintiffs, who would manufacture sufficient quantities to fulfil the orders so received, but would not maintain more than asmall stock of the compound itself. Delivery, in so far as it was not made to the Defendants themselves, would be made direct to the Defendants' customers by the Plaintiffs and the goods invoiced to the Defendants.
The marketing of King Size by the Defendants to mink farmers commenced in May/June, 1960, and by the end of the year the sales had reached about 25 tons per month. Between May, 1960, and the end of March, 1961, King Size had been supplied to about 100 farms and no relevant complaints had been received about it. No real trouble arose till the end of July of that year.
But before passing on to this it is necessary to say something about mink and mink-farming generally and to introduce the Third Party into the story.
On a mink farm the animals are kept in individual cages except during the mating season and the period prior to weaning when the females are still suckling their young, who are called kits. It follows that the mink have no opportunity to forage for themselves and have no alternative but to eat the food which is given to them. Hating takes place at the end of March and the kits are born in May and weaned about the middle of June. It is at this stage that a count is made, since it is not possible to conduct the operation whilst the kits are very small and moreover the death rate in the earliest stages is high. An average count at weaning of 3.5 kits per litter would be considered good. After weaning, the male and female kits for a period of 8-9 weeks grow at approximately the same rate, but for the next 6 weeks thereafter the males grow very much faster than the females. Their intake of food is correspondingly greater and can amount to as much as 16 oz. per day. The normal food consumption for an adult mink is about 10-12 oz. per day. Pelting takes place towards the end of the year, when the kits are full grown and the pelts have achieved their full winter bloom and are in their best condition. The practice is to leave one male to every four females as a breeding stock. At the material time the mink population of the United Kingdom - that is to say, the number of mink in captivity onfarms was between 250,000 and 300,000.
Up until March, 1961, at no time during the period when they had been making King Size did the Plaintiffs have any Norwegian herring meal in stock. But on the 14th February of that year the Plaintiffs by telephone ordered from C.T. Bowring & Co. Ltd. 500/550 tons of Norwegian herring meal (see Bundle 9 page 1). The written contract for these goods is at Bundle 9 page 4 and is for "300/350 tons…. of Norwegian Herring Meal, fair average quality of the season, expected to analyse not less than 70 per cent. Protein, not more than 12 per cent. Pat and not more than 4 per cent. Salt". There are, of course, many other terms; and it will be necessary to consider this document in more detail later. Under that contract the Third Party on 10th and 11th March, 1961, delivered to the Plaintiffs at Poole 333 1/2 tons of herring meal per s.s. Hansa. It had come from Factory 72, as we now know, which is at Honningsvaag, a place which is situate at latitude 71° N. within the Arctic Circle, not far from the North Cape. It was part of the case against the Third Party at the trial, as will appear later, that of this consignment some 3 1/2 tons were or might have been used in the eight batches of King Size manufactured by the Plaintiffs between 20th March and 10th July, 1961. The judge has so found and has also found that the toxic substance which caused the disease in mink, to be mentioned in a moment, was contained in this material. It may be stated that of the balance of 325 tons of this consignment, some 21 tons were sold to ordinary (non-mink) farmers for use as animal feeding stuff and the remainder was used by the Plaintiffs themselves in their various compounds; and there is no suggestion that any animal which consumed any of this material suffered any injury therefrom.
At the end of July, 1961, the first case came to notice of what was to be recognised as a new and hitherto unknown disease in mink in this country. A male kit was found to have a grossly enlarged abdomen and died within a few days. Prom that date onwards similar cases were reported from mink farms in widely separatedareas all over the country. The common factor was that all the mink concerned had been fed Xing Size. Within a day or two of this initial fatality Mr. Udall's own herd was affected and he began to suffer increasing losses. In these early days it was principally the...
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