Pearce v Round Oak Steel Works Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE PHILLIMORE |
| Judgment Date | 17 February 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0217-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 February 1969 |
[1969] EWCA Civ J0217-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants against judgment of Judge Carr at Stourbridge County Court on 29th March, 1968.
The Master of the Rolls (Lord Denning),
Lord Justice Edmund Davies and
Lord Justice Phillimore.
Mr. S. BROWN, Q.C, and Mr. W. DAVIDSON (instructed by Messrs. E.G. Seagroatt & Co.) appeared on behalf of the Appellant Defendants.
Mr. J.H. INSKIP, Q.C., and Mr. ANTHONY MICHOLL (instructed by Messrs. Russell Jones & Walker) appeared on behalf of the Respondent Plaintiff.
On the 9th November 1965 Mr. Pearce was wording for his employers, The Hound Oak Steel Works, Ltd., at their factory at Brieriey Hill in Staffordshire with a tensile testing machine was suddenly from above his head a piece of machinery fell off. It was held by a bolt which broke. It was a heavy bit of the machine, and it fell on his toe. He was injured - fortunately not very severely because he was wearing special boots. He brought an action in the County Court against his employers for damages. It was shown that the breakage of the bolt was due to metal fatigue and that routine inspection would not have disclosed it. But that is not enough. It appears from the recent case of Henderson v. Henry E. Jenkins & Sons (1969 2 W.L.R. 147) that even though there is a latent defect, nevertheless the defendants must prove that the accident happened despite all reasonable care on their part: and this means reasonable care, not only in inspection and maintenance, but also reasonable care when they first caught the article. As Lord Reid said in Davie v. New Merton Board Mills Ltd. (1959 A.C. 604) at page 646: … "that he (a contractor) is not liable for the negligence of the manufacturer of an article which he has bought, provided he has been careful to deal with a seller of repute and has made any inspection which a reasonable employer would make." The contractor does not satisfy the burden on him unless he shows not only that there was a latent defect which was due to metal fatigue, but also in acquiring the machine and his dealings with it he took all reasonable care to see that it was in good order and condition.
The important point in this case is that the defendants did not call any evidence. The injured man himself gave evidence and spoke of the piece of metal falling on his toe. Then he called a metallurgist at the works who had received the bolt after it had broken. He said it was due to metal fatigue. He said that this machine had been built in about 1950. It was second hand when the defendants got it in 1959. He said that he would expect there would be drawings with a machine like this when it was bought; and if the drawings were there, it might be that they would give a specification ox the steel of which this bolt was made. It would show in particular its...
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