Wormell v R.HM Agriculture (East) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE NICHOLLS,SIR FREDERICK LAWTON |
| Judgment Date | 21 May 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0521-6 |
| Docket Number | 87/0517 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 May 1987 |
[1987] EWCA Civ J0521-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
(MR. PIERS ASHWORTH Q.C., Sitting as a Deputy Judge of the Queen's Bench Division)
Lord Justice Dillon
Lord Justice Nicholls
and
Sir Frederick Lawton
87/0517
1984 W No. 35
MR. WILLIAM BARNETT Q.C. AND MISS ADRIENNE PAGE (instructed by Messrs. Metson Cross & Co., Solicitors, London EC3N 2AR) appeared on behalf of the Defendants (Appellants).
MR. ANTHONY HIDDEN Q.C. AND MR. RICHARD RUNDELL (instructed by Messrs. Jackson & Partners, Solicitors, Colchester, Essex, CO 3ET) appeared on behalf of the Plaintiff (Respondent).
This is an appeal by the defendants in the action, R.H.M. Agricultural ( East) Limited, against a judgment in the sum of £12,900-odd awarded to the plaintiff at the trial of the action by Mr. Piers Ashworth, Q.C., sitting as a deputy judge of the Queen's Bench Division. The sum awarded represented damages and interest thereon under section l4(3) of the Sale of Goods Act 1979 in respect of a sale by the defendants to the plaintiff of some weedkiller known as Commando.
Subsection (3) of section 14 provides that where a seller sells goods in the course of a business and the buyer, expressly or by implication, makes known to the seller, (and then there is an alternative which is not relevant) any particular purpose for which the goods are being bought, there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied. It is not in doubt that the plaintiff, as buyer, did rely on the skill or judgment of the defendants as sellers.
The plaintiff put forward an alternative claim under subsection (2) of section 14 of the Act, to the effect that the goods supplied were not of merchantable quality, but it was conceded in the court below, as in this court, that if the plaintiff could not succeed under subsection (3) he could not succeed under subsection (2), and accordingly we have not heard any argument under subsection (2).
It is as well to have in mind that the claim to damages is not founded on misrepresentation; nor is it founded on the tort of negligence. It is founded on subsection (3) of section 14 of the Act.
The defendants were the suppliers of the goods. They have been backed throughout this litigation by the manufacturers, Shell Chemicals. In fact, nothing in this appeal turns on any distinction between supplier and manufacturer.
The plaintiff is an experienced farmer. He has been farming land at Abberton, east of Colchester in Essex, for some 25 years and more. That is heavy clay land, London clay, prone to be cold and wet in winter. For that reason he often sowed winter wheat rather than seeking to rely on spring sowing, and in the autumn of 1982, which is the beginning of the time with which we are concerned, he had sowed nearly 600 acres of his land with winter wheat. He was concerned to control the weed known as wild oats, which he had found infested his land, and in the early part of 1983 he was concerned to see what could be done about the wild oats. This would have been in the middle of March, when it was already apparent that there was a cold and wet season, and spring was likely to be late. By that time he knew that it was too late for him to use certain well known wild oat weedkillers; accordingly he spoke to a Mr. Fuller, who was the manager of the defendant's depot at Whittlesford. Mr. Fuller had been known to the plaintiff for some ten years; Mr. Fuller also knew the nature of the plaintiff's land, which he had on occasion visited.
The evidence which the plaintiff gave of his conversation with Mr. Fuller, which was by telephone, was to the effect that he asked Mr. Fuller what there was on the market which he, the plaintiff, could still use at that relatively late stage for wild oats in that season, and Mr. Fuller's reply was "There's only one thing left, and that's Commando". In the upshot the plaintiff bought a consignment of Commando from the defendants; it was delivered on 24th March 1983 and, after a second telephone conversation with Mr. Fuller, the plaintiff bought a second, and larger, consignment which was delivered on 15th April.
Unfortunately the spring of 1983 continued to be cold and wet. The plaintiff sprayed two fields, amounting to about 80 acres, with the Commando on 5th and 11th May. It did not do any good, probably because the land was still too wet and cold. He sprayed the rest of his land with the Commando in fine and warm weather over some 4 or 5 days starting on 3rd June 1983. Unfortunately, it did virtually no good.
The plaintiff accordingly puts forward his claim that the goods were not reasonably fit for the purpose of controlling the wild oats on his land, which he had made known to the defendants.
These are goods which both Mr. Fuller and the plaintiff knew would be supplied with detailed instructions, and both of them expected that the plaintiff would read the instructions. Plainly the instructions have to be taken into account in considering whether the goods were fit for the purpose. The plaintiff cannot simply say that the weedkiller was not reasonably fit for its purpose of killing wild oats if it would have been fit for that purpose if used in accordance with the instructions. If the plaintiff says that it did not work, then prima facie at any rate, it is an answer in such a case as this for the defendants to say "Oh, but you didn't follow the instructions; if you had, it would have worked".
The learned deputy judge's finding of fact was that there was nothing wrong with this batch of weedkiller, and it would indeed have been fit for its purpose if used in the conditions envisaged by the instructions and at the stage of plant growth specified in the instructions; that is to say, with winter wheat at the stage between leaf sheath erection and the fourth node becoming detectable.
As it happened, the spring of 1983 was so cold and wet that there never was a time that spring when the weather was warm enough, and the land dry enough, for the weedkiller to be used before the crop growth had passed the latter limit. But the weather conditions cannot, by themselves, render the weedkiller not reasonably fit for its purpose. To take an instance put forward by my Lord, Sir Frederick Lawton, in the course of argument, if a customer buys a packet of runner bean seeds knowing that there will be instructions on the packet, and sees that the instructions on the packet say that the seed is to be planted on open ground during the last fortnight in May, the seed is not rendered unfit for its purpose if it turns out that the last fortnight in May is so continuously wet that it is quite impossible to plant bean seeds in the ground.
Effectively, the plaintiff has not sought just to rely on the weather; he has relied also on a provision in the instructions. The instructions are printed on the canister in which the Commando weedkiller is supplied. The front of the canister sets out the name "COMMANDO; for the control of wild oats in wheat and barley", and describes it as a weedkiller; it gives its contents, and says that it is "for use only as an agricultural herbicide". There are instructions on both the sides and on the back of the canister; they go into considerable detail on many points, and I do not need to read anything like all of them. On the right hand side as you look at the container, under the name "COMMANDO" printed on a diagonal, this is said:
"Do not apply to wheat or barley crops beyond the recommended crop growth stage. Damage may occur to crops sprayed after the recommended growth stage. Damage may result unless all recommendations are followed. Do not spray crops which for any reason whatsoever are under stress."
That is followed by a few more sentences which I need not read.
On the back, in the centre column there is a reference to compatibility in relation to the sequential application of Commando and broad-leaved weedkillers. This sets out that there is evidence that applying Commando and some broad-leaved weedkillers without the interval specified in the instructions reduces the activity of Commando against wild oats; it then goes on to say what intervals should be allowed where a broad-leaved weedkiller is being used in the spraying programme.
In the right hand column there is a reference to growth regulators for wheat; it says:
"It is recommended that growth regulators be tank mixed with COMMANDO but where growth regulators are applied at early crop growth stages the sequential use of COMMANDO may result in some loss of wild oat control."
In the left hand column, under the heading "Rate of Application" certain quantities per hectare are given, in a specified water dilution, and it is said that vigorous growth and crop competition is essential for optimum control; and that where there is less vigorous growth or crop competition the rate of application should be increased.
Further down the left hand column, under the heading "Time of Application", the following is set out;
"The best control of wild oats will be achieved when both the crop and wild oats are growing strongly...
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...14, when, in the absence of such a warning, the claim would have succeeded. A relatively recent example may be found in Wormell v RHM Agriculture (East) Limited [1987] 1 WLR 1091. The case was concerned only with a claim under section 14(3), because it was accepted that if the claim failed ......