299 / 364
fashioned by manufacturers to the specification
of the workman's employers. It had been returned
after fashioning to the suppliers of the steel for
hardening. Some three or four weeks before the
accident the workman's leading hand had been
slightly injured by a splinter from that chisel. The
workman brought an action against his
em
ployers and the manufacturers for damages for
personal injuries.
It was held (Birmingham Assizes :
Baker J :
December 13,
1965),
finding for
the plaintiff
against the employers but not against the manu
facturers, that the keeping of the chisel in use
after the prior mishap was culpable as regards
the employers, but that it broke the chain of
causation of any negligence by the manufacturers.
There was further no personal negligence by them,
and having got a competent hardener to carry
out the process of hardening the chisel they were
entitled to assume that the work had been properly
done and were not responsible for negligence on
the part of the hardeners, whether they were
agents or
independent contractors
(dictum of
Lord Morton of Henryton
in Davie V. Now
Merton Board Mill Ltd. (1959)
1 All E.R. 346
at p. 357 followed).
(Taylor c. Rover Co. Ltd, and Others (Richard
W. Carr & Co. Ltd., Third Party) [1966] 2 All
E.R. 181).
Public Liability Insurance Policy
A telephone cable was damaged when a hole
was dug by a workman employed by a company
who had taken out a public liability policy. The
company went into liquidation so the Post Office
contended, as a preliminary point of law, that
they could pursue an action against the Insurance
company under the Third Parties (Rights against
Insurers) Act, 1930, s.l. The policy provided,
inter
alia,
that the company would indemnify the in
sured "against all sums which the insured shall
become liable to pay." The company contended
that they were under no liability to the insured
or to the Post Office unless the precise amount of
the liability of the insured to the Post Office had
been determined. No judgment had been obtained
by the Post Office against the insured, nor had
there been any agreement as to the amount of
any liability been reached between the Post Office
and the liquidator of the insured.
It was held (Q.B.D. : Donaldson J. :
November
8, 1966) that the Post Office was entitled to pursue
their action against
the company. The word
"sums" meant "sums whether or not liquidated or
ascertained."
(Post Office v. Norwich Union Fire Insurance
Society Ltd.
The Times,
9/11/66).
Fundamental Breach of Contract
The owners of some packages entered into a
contract with some carriers to carry them from
Melbourne to various destinations in Australia.
The carriers employed a sub-contractor to collect
the packages. Normally the sub-contractor would
have taken them to the carriers' depot in Mel
bourne for onward
transmission, but when he
arrived at the depot, it was locked. So he drove
the lorry, with the packages still on board, to his
own house, and left the vehicle in a garage there.
A fire broke out, and some of the packages were
destroyed. The owners sued
the carriers, who
pleaded that they were not liable in view of a
clause in the contract of carriage which purported
to exempt them from liability.
It was held by the High Court of Australia
that the action succeeded. There had been a
fundamental breach of contract, for the presumed
intention of the parties was that, when the goods
had been collected, they would be taken to the
carriers' depot, and not to the sub-contractor's
private premises. Accordingly, the carriers were
not entitled to rely on the exemption clause (Suisse
Atlantique Sciete d'Armement Maritime S.A. v.
N. V. Rotterdarnsche Kolen Centrale
(1966) 2
All E.R. 61, H.L., applied .................. reported
in Vol. 60, No. 3, July 1966 of the GAZETTE at
page 33).
(Thomas National Transport (Melbourne) Pty.,
Ltd. and Pay v. May & Baker (Austialia) Pty.,
Ltd. (1966) 2 Lloyd's Reports page 347).
Sale of Goods — Defective Title
The plaintiff advertised his car for sale. A man
calling himself Colonel Robinson agreed to buy
it subject to a satisfactory report from an en
gineer. The plaintiff permitted him to drive the
car away. After Robinson had left, the plaintiff
missed
the registration book and he had not
consented to Robinson's possession of it. A month
later, Robinson sold
the car to the defendant,
who bought it in good faith. The plaintiff claimed
the value of the car. He had not been paid by
Robinson and had never seen him again.
It was held (Q.B.D. : Megaw J. : November 7,
1966)
that the action succeeded. The Factors
Act 1889, protected an
innocent purchaser
if
(1) there had been an agreement by the seller
(i.e.
the plaintiff) to sell;
(2)
the original pur
chaser (i.e. Robinson) had obtained possession of
the goods with the consent of the seller, and (3)
the ultimate purchaser (i.e. the defendant) had
acted in good faith. Conditions (1) and (3) were
fulfilled. Condition (2) had been fulfilled as far
as the car itself was concerned. But there was no
consent as to the possession of the registration
81