Lambert v Lewis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE ROSKILL,LORD JUSTICE LAWTON |
| Judgment Date | 24 May 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0524-4 |
| Docket Number | 1973 L No: 2695 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 1979 |
[1979] EWCA Civ J0524-4
Lord Justice Stephenson
Lord Justice Roskill
Lord Justice Lawton
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bench Division
MR. R. BELDAM, Q.C. and MR R. NELSON (instructed by Messrs. Stevensons) appeared on behalf of the First and Second Defendants.
MR M. MAGUIRE, Q.C. and MR R.J.D. LIVESEY (instructed by Messrs. Hextall, Erskine and Company, Agents for Laces, Liverpool) appeared on behalf of the Fourth Party.
MR M. TURNER. Q.C. and MR H. PALMER(For Mr P. Phillips) (instructed by Hair & Company) appeared on behalf of the Fourth Defendants and Third Party.
The judgment I am about to read is the judgment of the CourtFrom the judgment we have already given in the third party proceedings allowing the first defendant's appeal and holding the fourth defendants liable to indemnify the first defendant arises the necessity to decide the fourth party proceedings brought by the fourth defendants against the third defendants. I interpose here to say that the first judgment will need correction which we will discuss with counsel at the end of the judgment.
The necessity for taking those proceedings arose simply from the fact that the fourth defendants were unable to identify the stockist or distributor who sold to them the particular Dixon-Bate towing hitch (or trailer coupling) which they sold to Mr Lewis, the first defendant. If they could have identified that party they could, in the absence of special contractual terms, have obtained an indemnity from that party for his breach of contractual condition or warranty, or perhaps for negligent misrepresentation under the Misrepresentation Act 1967 and that party could in turn have been indemnified by the seller of the hitch to him, probably the third defendants themselves, but without that identification the fourth defendants must have recourse direct to the third defendants, with whom they had no contract of sale, but who may be considered in part responsible because they do not identify each coupling by a serial number.
Counsel for the fourth defendants have addressed to us an ingenious argument that they are none the worse off for that lack of identification. The argument was put before us, as it was put before Mr Justice Stocker, in three different ways. Having dismissed the third party proceedings it was not necessary for him to consider the argument or pronounce upon it; but he did so for the sake of completeness should it be held on appeal, as it has been, that he was wrong to dismiss the third party proceedings, and after considering the argument (at pages 55 to 60 of the transcript of his judgment) he rejected it and stated that he would have dismissed the fourth party proceedings.
We agree with him that they should be dismissed and in deference to the interesting arguments of Mr Turner and Mr Phillips, and also because the learned Judge did not expressly deal with the third way in which they put theircase we shall state our reasons more fully perhaps than we need.
We take their pleaded claim from the Judge's judgment (pages 55 to 56) with a few additions: "By their fourth party notice the fourth defendants claim by sub-paragraph (4) and paragraph 3 that the third defendants owed a duty to distributors, garages, sellers and/or users, of whom they were one, to exercise reasonable care in the design of the towing hitches to ensure that they were safe to be fitted to vehicles such as Land Rovers, and were suitable for use when so fitted. The duty is alleged to arise from the in matters pleaded in sub-paragraphs (1) (2) and (3) of paragraph 3 of the fourth party notice. The third defendants represent themselves by selling such and other towing hitches on a world wide scale by promotion and otherwise, being experienced and competent manufacturers of towing hitches which are safely fitted to vehicles such as Land Rovers were suitable to be used when so fitted for the purpose of safely towing a trailer. (2) Further the third defendants supply such towing hitches to distributors with the expectation that such distributors will sell them to others, including garages, or are likely to sell them to customers for their use. (3) Yet further the said third defendants so pack and sell their said towing hitches to be ready for immediate easy attachment to another vehicle and accordingly knew or ought to have known no intermediate distributor seller garage or user would test, examine or otherwise appraise the qualities of any such towing hitches, or any of them. Alternatively it is claimed that the third defendants by the fact of their manufacture, packing and selling of the hitches, warranted to each distributor who might handle, sell or fit one of their towing hitches, that the same was safe to be fitted to vehicles such as a Land Rover and was suitable to be used when so fitted for the purpose of towing trailers". Then paragraph 4 (1) and (2) reads: "(1) The towing hitch which the fourth defendants fitted to the first defendant's Land Rover they acquired from such a distributor who had acquired the same directly or through another from the third defendants, (2) At the same time, when the fourth defendants came to fit the said towing hitch to the said Land Rovercase we shall state our reasons more fully perhaps than we need.
We take their pleaded claim from the Judge's judgment (pages 55 to 56) with a few additions: "By their fourth party notice the fourth defendants claim by sub-paragraph (4) and paragraph 3 that the third defendants owed garages a duty to distributors, sellers and/or users, of whom they were one, to exercise reasonable care in the design of the towing hitches to ensure that they were safe to be fitted to vehicles such as Land Rovers, and were suitable for use when so fitted. The duty is alleged to arise from the in matters pleaded sub-paragraphs (1) (2) and (3) of paragraph 3 of the fourth party notice. The third defendants represent themselves by selling such and other towing hitches on a world wide scale by promotion and otherwise, being experienced and competent manufacturers of towing hitches which are safely fitted to vehicles such as Land Rovers were suitable to be used when so fitted for the purpose of safely towing a trailer. (2) Further the third defendants supply such towing hitches to distributors with the expectation that such distributors will sell them to others, including garages, or are likely to sell them to customers for their use. (3) Yet further the said third defendants so pack and sell their towing hitches to be ready for immediate easy attachment to another vehicle and accordingly knew or ought to have known no intermediate distributor seller garage or user would test, examine or otherwise appraise the qualities of any such towing hitches, or any of them. Alternatively it is claimed that the third defendants by the fact of their manufacture, packing and selling of the hitches, warranted to each distributor who might handle, sell or fit one of their towing hitches, that the same was safe to be fitted to vehicles such as a Land Rover and was suitable to be used when so fitted for the purpose of towing trailers". Then paragraph 4 (1) and (2) reads: "(l) The towing hitch which the fourth defendants fitted to the first defendants Land Rover they acquired for such a distributor who had acquired the same directly or through another from the third defendants. (2) At the same time, when the fourth defendants came to fit the said towing hitch to the said Land Roverthe said towing hitch was of the game condition and packing as was manufactured and sold by the third defendants".
The fourth defendants relied upon the third defendants representations, reputation and warranties and carried out no test or examination and fitted the towing hitch to the first defendants' Land Rover in such reliance. The fourth defendants therefore claim under the heads above specified: (1) damages for negligent misrepresentation, and/or (2) damages for the breach of the warranty alleged to have been given to them as distributors. They also alleged (in paragraph 6) a breach of the duty alleged in paragraph 2 (4) and claimed damages for that.
The learned Judge dealt first, and so will we with the argument that the fourth defendants could succeed on a breach of warranty. The allegation of implied collateral warranty - and here I read from the bottom of page 56 of the judgment - "………is based upon a submission that the following facts are established: 1. The third defendants were well known in the trade as manufacturers of a variety of towing hitches. 2. The third defendants had justly acquired not only a good trade reputation but also a reputation for quality and safety. 3 The third defendants sought to improve their reputation by obtaining approval of certain of their products from Messrs Rovers the Ministry of Defence, and so on. 4. To the trade and to the public the third defendants expressly claimed in relation to safe towing trailer coupling that it requires no maintenance, it is foolproof, once pin home locked absolutely. They also claimed that the pin 'locked positively and automatically and no springs to break or rust'. 5 The third defendants were thus making these claims seriously and intending that any purchaser should rely upon them. It is said that Mr Dixon-Bate said in his evidence 'ouch claims were intended to be serious and to be acted upon by users'. 6. The third defendants did not consider or publicly claim that any instruction or warning in relation to a hitch was necessary, nor did they give any indication with regard to restrictions of user in relation to the suitability for that purpose of their coupling. 7. The third defendants expressly or by implication...
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