Marshall & Son v Russain Oil Products Ltd

JurisdictionScotland
CourtCourt of Session (Inner House - Second Division)
Judgment Date14 July 1938
Docket NumberNo. 63.

2ND DIVISION.

Ld. Jamieson.

No. 63.
Marshall & Son
and
Russain Oil Products
Limited.

Evidence—Burden of proof—Presumptions as affecting onus—Res ipsa loquitur—Negligence—Bursting of barrel containing petrol while being unloaded from lorry—Resulting fire causing damage to property—Whether inference of negligence rebutted by consignors.

Negligence—Breach of statutory duty—Conveyance of petrol—Bursting of barrel containing petrol while being unloaded from lorry—Resulting fire causing damage to property—Consignors' liability—Whether breach of statutory regulation inferred civil liability—Petroleum-Spirit (Conveyance) Regulations, 1932 (S. R. & O. 1932, No. 1052), Reg. 2 (i).

In an action by a firm of general merchants to recover damages in respect of the destruction of their bakery premises by fire in consequence of the bursting of a barrel of petrol while being delivered there, the pursuers alleged negligence on the part of the sellers and consignors of the petrol, in respect (1) that they had failed in their duty at common law to deliver the petrol in sound containers so as to avoid accident, and (2) that they were in breach of their statutory duty to convey the petrol "in strong metal vessels, in good condition and securely closed so as to prevent leakage," as required by Reg. 2 (i) of the Petroleum-Spirit (Conveyance) Regulations, 1932.

A proof disclosed that, for conveyance of petrol in metal barrels, the practice of the defenders was to select barrels from stock, the barrels being examined externally for visible fractures and internally to ascertain whether they were clean. When filled, they were again examined for leakages. The barrel which burst was one of a batch purchased about six years before the accident, and it was one of a stock of 80 or 90 barrels which were all that remained of an original order of 5000 barrels. With normal usage a barrel remained sound for 10 years. While the precise number of barrels which the defenders had required to scrap was not proved, the number found fractured was such as should have suggested to them a doubt whether those that remained in stock were suitable for the conveyance of petrol. Certain possible explanations of the bursting of the barrel were advanced by the defenders' expert witnesses, but the precise defect which had led to the accident was not established.

Held (rev. judgment of Lord Jamieson) that, upon the evidence, the defenders were liable in damages, in respect (1) that they had failed in their duty to provide a barrel which was reasonably fit for conveyance of petrol, and (2), following the decision in The Merchant Prince, [1892] P. 179, that, in any event, as no satisfactory explanation of the accident was offered, it was not open to the defenders to maintain that they had discharged the onus of proving that the bursting of the barrel had occurred independently of any negligence or want of care on their part.

Upon the question of the pursuers' right to recover damages under Reg. 2 (i) of the Petroleum Spirit (Conveyance) Regulations, 1932, the Court found it unnecessary to pronounce any decision; but opinions were expressed—per the Lord Justice-Clerk, that Reg. 2 (i) applied to consignors of petrol up to the time of actual delivery, and that the defenders having, as consignors, failed to comply with the requirements of the regulation were liable in damages; per Lord Pitman, that, if the defenders had in fact been in breach of any of the Regulations, which in this instance he doubted, they would be civilly liable; per Lord Wark, that, while breach of some of these Regulations might involve civil liability, breach of Reg. 2 (i) did not do so.

On 21st May 1936 John Marshall & Son, general merchants in Glasgow, brought an action against Russian Oil Products, Limited, incorporated under the Companies Acts, having their registered office at 153 Moorgate, London, and carrying on business at Grange-mouth, in which they concluded for payment of £6000 in name of damages.1

The circumstances in which the action was brought were as follows:—On 4th November 1935 Marshall & Son ordered from Russian Oil Products, Limited, 250 gallons of petrol, to be delivered that day at their bakery at St Ninians, Stirling. In accordance with a long course of dealing between the parties, the petrol was to be delivered into a tank in the bakery premises. Russian Oil Products, Limited, engaged a contractor, William Alexander Mitchell,

to convey the petrol from their depot at Grangemouth to the bakery. Five steel barrels, each containing 50 gallons, were filled with the petrol. These barrels were examined in the customary way, but by inspection only, for defects both before and after being filled; were loaded upon a lorry belonging to the contractor and driven by one of his servants; and were conveyed to St Ninians, where the lorry was backed into the loading yard of the bakery. While the first barrel was being unloaded by the contractor's servants it broke, splitting, almost entirely, round the periphery. Some of the escaping petrol found its way into the bakery, and, the vapour becoming ignited, the premises were destroyed by fire, and loss of life ensued.

The parties averred, inter alia:—(Cond. 4) "The said fire and the damage resulting therefrom were caused by the fault and negligence of the defenders and their servants, and those for whom they are responsible … It was the defenders' duty to send out the said petrol in barrels which would not crack or burst even if mishandled or dropped from a height, such as the height of the delivery lorry. The barrels commonly used in the trade by suppliers of petrol are not cracked or burst by rough handling, and, even if dropped from a height considerably higher than the said lorry belonging to the said William Alexander Mitchell, they do not crack or burst or allow petrol to escape. But the defenders negligently took the said five barrels from a stock which they knew, or ought to have known, contained defective barrels which were liable to crack or burst in the course of use, and the said barrel which burst in the said John Marshall & Son's premises was a defective barrel similar to those which, as the defenders were aware, had previously cracked or burst during use … Owing to the defective condition of the said barrel, the handling of it by the said George Graham Mitchell and Alexander Kerr [employees of the contractor William Alexander Mitchell], or one or other of them, caused it to burst open so that the petrol in it escaped and set fire to the said John Marshall & Son's property. But for the negligence of the defenders and their servants, and of those for whom the defenders are responsible, said fire would not have occurred. …" (Ans. 4) "Admitted that it was the defenders' duty to supply barrels which were fit for the purpose of transporting petrol. Admitted also that it was the defenders' duty to take reasonable precautions by inspecting and examining the barrels which they used. Quoad ultra denied. Explained that the transport of petrol in steel barrels is an ordinary operation and does not involve any exceptional risk, provided ordinary care is taken. Admitted that the five barrels selected had been used before, but explained that they had not been subjected to excessive use, and, so far as could be ascertained by the defenders, they were strong, sound and serviceable barrels in good condition. It is believed and averred that the said barrel fractured owing to latent defect in the metal thereof, which could not have been discovered by any test or inspection practicably possible to the defenders. The defenders used reasonable care and diligence in testing the said barrel. Fatigue of the metal of the said barrel, if present, could have been detected only by a newly invented X-ray apparatus, which is not yet used commercially in this country, or by expert metallurgical examination involving destruction of the fabric of the barrel. It is averred that the breaking of the barrel and the resulting fire at the pursuers' premises were not caused through any breach of the said Petroleum Regulations by the said William Alexander Mitchell, or his servants, or by any other persons. Explained that the barrels used by the defenders for transporting petrol are strongly constructed of welded steel. They are specially made for the transport of petrol, and are designed to withstand the ordinary usage and handling to which they are subjected in being transported from place to place, and are of the type ordinarily used for the conveyance of petrol. The five barrels filled with petrol for the pursuers were carefully selected from the defenders' stock of barrels, and were thoroughly examined before being filled by the defenders' depot manager and foreman, who satisfied themselves, so far as it was reasonably practicable to do so, that the barrels were free from cracks or dents and sound and safe for use. The barrels were then cleaned inside and out, filled with the pursuers' petrol, and thereafter tested for leaks. The said barrels, so far as could be ascertained by any reasonably practicable examination and test, were in a thoroughly safe and sound condition when loaded on to the motor lorry for delivery to the pursuers. …" (Cond. 5) "Further, the said fire and the damage resulting therefrom were caused by the defenders' breach of their statutory duties under the Petroleum-Spirit (Conveyance) Regulations, 1932 (S. R. & O. 1932, No. 1052), for the conveyance of petroleum spirit by road. By Regulation 2 (i) thereof it is provided: 'The petroleum-spirit shall be conveyed in strong metal vessels in good condition. …' By Regulation 18 thereof it is provided 'all persons engaged in the loading, unloading or conveyance of petroleum spirit shall observe all precautions necessary for preventing fire. …'The defenders were in breach of the statutory duties incumbent upon them under the said Regulations 2 (i) and 18. It was their duty to put...

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