1954 D. No.

1495
Tn t h e Supreme Court of J u d i c a t u r e
Court of Appeal

Royal Courts e f J u s t i c e
Tuesday, 26th November, 1957

Before:
LORD JUSTICE JENKINS,
LOHD JUSTICE PARKER
and
LORD JUSTICE PEARCE

JAMES GI3S0N DAVIE Plaintiff

(Respondent)

-V-

NEW MERTON BOARD MILLS^j LIMITED First Defendants

(Appellants)
and
FRANK GUYLEE & SON LIMITED Second Defendants
("Respondents)

T r a n s c r i p t of t h e Shorthand Notes of The A s s o c i a t i o n of O f f i c i a l

n S h o r t h a n d w r i t e r s , L t d . , ROOK 392, Royal Courts of J u s t i c e - , and
NOc 2, New S q u a r e , L i n c o l n ' s I n n , V/.C.2.

Mr. R. MARVEN EVERETT, Q.C., and Mr. H. TUDOR EVANS ( i n s t r u c t e d

by M e s s r s . E . P . Rugg & Co.) appeared on ben a l l ' of t h e
Appellants.
Mr. _M ART IN JUKES. Q.C., and Mr. MALCOLM MORRIS ( i n s t r u c t e d by
M e s s r s . Y/.H. Thompson} appeared on b e h a l f of t h e
Respondent ( P l a i n t i f f ) .
Mr. MICHAEL HOARE ( i n s t r u c t e d by M e s s r s . Doyle, Devonshire &
Co., Agents f o r M e s s r s . Kershaw, Tudor & Co., S h e f f i e l d )
appeared on b e h a l f of t h e Respondents (Second Defendants)

JUDGMENT

1.
 LORD JUSTICE JENKINS:
This i s an appeal by t h e f i r s t Defendants, The New
Merton Board M i l l s , L t d . , from a judgment of Mr. J u s t i c e
Ashworth d a t e d 1 4 t h March, 1957, whieh awarded t h e Plaintiff,
James Gibson Davie, a g a i n s t t h e f i r s t Defendants and t h e
second Defendants, Frank Guylee & Son, L t d . , t h e sum of ,030
damages, w i t h c o s t s , i n r e s p e c t of t h e l o s s of t h e s i g h t of h i s
l e f t eye through t h e b r e a k i n g of a t o o l c a l l e d a " d r i f t " ,
manufactured by t h e second Defendants and p r o v i d e d f o r h i s u s e
by t h e f i r s t Defendants, by whom he was employed as a
maintenance f i t t e r at t h e i r f a c t o r y at Merton.
The judgment f u r t h e r d e a l t w i t h the q u e s t i o n of
c o n t r i b u t i o n between t h e Defendants by d i r e c t i n g t h a t t h e first
Defendants should have a g a i n s t t h e second Defendants a f u l l
indemnity i n r e s p e c t of t h e damages, and an indemnity i n r e s p e c t
of t h e P l a i n t i f f ' s costs limited to two-fifths thereof.
There i s no a p p e a l by t h e second Defendants i n r e s p e c t
of t h e i r l i a b i l i t y t o indemnify t h e f i r s t Defendants a g a i n s t t h e
f u l l amount of t h e damages awarded; but t h e f i r s t Defendants'
appeal i n c l u d e s a claim t o t h e e f f e c t t h a t even i f t h e y f a i l to
secure t h e r w o r s a l of t h e l e a r n e d J u d g e ' s d e c i s i o n as r e g a r d s
t h e i r l i a b i l i t y to the P l a i n t i f f , t h e y should n » t be o r d e r e d
to pay any p a r t of t h e P l a i n t i f f ' s costs. The second Defendants
have a c c o r d i n g l y s e r v e d a n o t i c e of t h e i r i n t e n t i o n t o s u p p o r t
the l e a r n e d J u d g e ' s o r d e r as t o c o s t s , and i f n e c e s s a r y t o r a i s e
various a l t e r n a t i v e contentions in that regard. The P l a i n t i f f
on h i s p a r t h a s served a n o t i c e of h i s i n t e n t i o n t o r a i s e v a r i o u s
c o n t e n t i o n s as t o t h e i n c i d e n c e of c o s t s i n t h e event of t h e
f i r s t Defendants s u c c e e d i n g i n t h e i r appeal on t h e i s s u e of
liability.
The a c c i d e n t happened on t h e 8 t h March, 1953. On t h a t
day t h e P l a i n t i f f i n t h e o r d i n a r y course of h i s employment was
working on a machine and had o c c a s i o n to s e p a r a t e c e r t a i n p a r t s
which were f i t t e d t o g e t h e r too t i g h t l y f o r s e p a r a t i o n by hand.
The a p p r o p r i a t e t o o l f o r t h i s purpose was a d r i f t , which may be
d e s c r i b e d as a t a p e r e d b a r o r s t r i p of metal say 12 i n c h e s l o n g ,
2.
 The proper method of using a drift is to hold the pointed end
against the point of junction "between the parts to be separated
and to beat the thick end with a hammer so as to force them
apart. The Plaintiff went to a cupboard where drifts provided
by the first Defendants for the use of their employees were kept,
took one which appeared to be nearly new and proceeded to work
with it in the way I have described; but unfortunately at the
second stroke of the hammer the drift broke and a piece flew off,
striking, and destroying the sight of, his left eye.
The history of the defective drift can be shortly stated.
It was made by the second Defendants, who are tool makers
carrying on business at Sheffield, in the year 1946, and on a
date prior to July in that year it was sold by the second
Defendants to a company called Baldwin & Co., Ltd., who are
suppliers of tools of this kind. In July 1946 the first
Defendants ordered a supply of drifts from Baldwin & Co., Ltd.,
and the drifts delivered to them by Baldwin & Co., Ltd., in
response to this order included the defective drift with which
we are now concerned. Nearly seven years later this drift,
which had in the meantime apparently been seldom if ever used,
was put into use by the Plaintiff with the disastrous result I
have mentioned. The drift was defective in that the, steel of
which it was made was excessively hard and consequently liable
to fracture when subjected to blows of the force to which a
drift in ordinary use would be subjected. This was a defect
which ought to have been discovered by a manufacturer using
reasonable skill and care in the making of drifts.

There is no dispute as to the facts, but it is right

to refer specifically to the following findings of the learned
Judge. At page 3 of the transcript he said: "On the evidence
I am satisfied in regard to the drift used by the Plaintiff
(a) that it was made of silico-manganese steel; (b) that the
hardness of its head was 622 according to the Vickers Pyramid
hardness scale; (c) that this hardness was greatly in excess
of the hardness which should have existed, having regard to the
3.
 fact t h a t the d r i f t was intended and designed to be struck on the
head with a hammer; (d) t h a t i n the circumstances the d r i f t
was dangerous, i n t h a t chips or p a r t i c l e s might fly off i t when
struck". At page 7 he said: "As already i n d i c a t e d , I am
s a t i s f i e d t h a t the d r i f t P. 2 was of excessive hairiness, a
condition which would not have occurred i f proper care had been
A taken during the heat treatment process". He continued: "The
problem of l i a b i l i t y , t h e r e f o r e , must be" considered on the b a s i s
that the employers provided for t h e i r employee* the P l a i n t i f f ,
a dangerous t o o l which had been n e g l i g e n t l y made by the second
Defendants. I consider f i r s t the question whether in these
B circumstances the employers are l i a b l e . In the f i r s t p l a c e ,
i t i s clear t h a t no negligence can be a t t r i b u t e d to any of the
employers' own servants or agents. The d r i f t P.J was apparently
in good eondition and no a l l e g a t i o n was or could be made t h a t t h e
employers' system of maintenance or i n s p e c t i o n was at f a u l t .
C Moreover, the employers bought the d r i f t from a reputable
supplier and paid a reasonable p r i c e for i t " .
The l e a r n e d Judge then proceeded to s t a t e the question
af law a r i s i n g on h i s findings of fact in these succinct terms;
"The problem a r i s e s in naked simplicity,- Are they" - t h a t i s ,
D the f i r s t Defendants - "responsible to the P l a i n t i f f because t h e
d r i f t was n e g l i g e n t l y manufactured by the second Defendants?"
One may take as a s t a r t i n g point i n the discussion of
t h i s question the well-known case in the House of-Lords of
Wilsons & Clyde Coal Co., Ltd. v . English (1938 Appeal Cases,
E page 57). By t h a t case i t was c l e a r l y e s t a b l i s h e d t h a t an
employer's duty to take reasonable care for the safety of h i s
employees i s a duty personal to him, of which he cannot divest
himself by e n t r u s t i n g the performance of i t to a servant or
agent however competent. I t follrws t h a t i f i n the present
P ease the F i r s t Defendants had employed some competent person
as t h e i r servant or agent to make d r i f t s for the use of t h e i r
f i t t e r s , and the person so employed had n e g l i g e n t l y made the
defective d r i f t which broke and injured the P l a i n t i f f , the
4.
 f i r s t Defendants would c l e a r l y have been l i a b l e to the P l a i n t i f f
for breach of t h e i r common law duty to take reasonable care to
provide sound t o o l s , and the fact t h a t they had employed a
competent servant or agent to perform t h a t duty would have
afforded no defence.
I think i t must also be regarded as s e t t l e d t h a t the
same r e s u l t would have ensued i f the defective d r i f t had been
made by the second Defendants to the order of the f i r s t
Defendants, the second Defendants being in the p o s i t i o n of
independent c o n t r a c t o r s , as d i s t i n c t from servants or ( i n the
s t r i c t sense) agents of the f i r s t Defendants.
I t i s t r u e t h a t the speeches i n the Wilsons & Clyde
Coal Company's case do not i n terms r e f e r to independent
contractors, for the very good reason t h a t the case then before
the House was one in which the employers claimed to have
delegated t h e i r s t a t u t o r y duty of providing a reasonably safe
system of work to an agent in the s t r i c t sense, and to have
thereby performed i t , with the r e s u l t t h a t any negligence on
the p a r t of the agent would as between the agent and any
employeti injured thereby be negligence on the part of a fellow
employee to which (as the law then stood) the doctrine of common
employment afforded the employers a complete defence. But I
think the same r a t i o decidendi must be taken to apply where the
performance of the employer's duty has been entrusted to an
independent c o n t r a c t o r . This seems to me to be i m p l i c i t in the
passage from Bain v. Fife Coal Co-. (1935 Sessions Cases, page
681, at page 693) c i t e d with approval by Lord Th anker ton at
Page 73 of the r e p o r t and also expressly commended by Lords
Atkin (at page 62), Macmillan (at page 76) and Maugham (at page
87). From the complete c i t a t i o n I need take only t h i s
concluding passage: "The duty may not. be absolute, and may-
be only a duty to exercise due c a r e , b u t , i f , in f a c t , the
master e n t r u s t s t h e duty to someone else i n s t e a d of performing
i t himself, he i s l i a b l e for injury caused through the want
of care of t h a t someone e l s e , as being, i n the eye of the law,

5.
 his own negligence".
I should add the following c i t a t i o n s from the speeches
in the Wilsons & Clyde Goal Company's case ( s u p r a ) . Lord
Macmillan, a t pqge 75, s a i d : "Now I take i t to be s e t t l e d law
t h a t the provision of a safe system of working in a c o l l i e r y i s
an o b l i g a t i o n of the owner of the c o l l i e r y . He cannot divest
himself o f t h i s duty, though he may - and, i f i t involves t e c h n i c a l
management and he i s not himself t e c h n i c a l l y q u a l i f i e d , must -
perform i t through the agency of an employee. I t remains the
owner's o b l i g a t i o n , and the agent whom the owner appoints to
perform.it performs i t on the owner's behalf. The owner remains
v i c a r i o u s l y r e s p o n s i b l e for t h e negligence of the person whom
he has appointed to perform h i s o b l i g a t i o n for him, and cannot
escape l i a b i l i t y by .merely proving t h a t he has appointed a
competent agent. I f the owner's duty has not been performed,
no m a t t e r how competent the agent s e l e c t e d by the owner to
perform i t for him, the owner i s r e s p o n s i b l e . "
Lord "/right, a t page 78, said: "In Rudd' s case the
Court of Appeal, applying t h e i r general views which I have j u s t
s t a t e d , held t h a t the employers could escape l i a b i l i t y by
showing t h s t they had appointed competent servants to see t h a t
the duty was f u l f i l l e d . This House held t h a t , on the contrary,
the s t a t u t o r y duty was personal to the employer, in t h i s sense
t h a t he was bound to perform i t by himself or by h i s s e r v a n t s .
The same p r i n c i p l e , i n my opinion, applies to those
fundamental o b l i g a t i o n s of a contract of employment which l i e
outside the doctrine of common employment, and for the
performance of which employers are a b s o l u t e l y r e s p o n s i b l e . When
I use the word a b s o l u t e l y , I do not mean t h a t employers warrant
the adequacy of the p l a n t , or the competence of fellow-employees,
©r the p r o p r i e t y of the system of work. The o b l i g a t i o n i s
f u l f i l l e d by the exercise of due care and s k i l l . " And at page
80: "If I may take an analogy or instance of a s i m i l a r
personal o b l i g a t i o n , I note t h a t the Carriage of Goods by Sea
6.
 Act, 1924, r e q u i r e s a shipowner to exercise due diligence or
to take reasonable care to provide a seaworthy s h i p . The
shipowner i s almost c e r t a i n l y not an expert naval a r c h i t e c t ,
engineer, or stevedore. So far as I know i t has never been
claimed t h a t t h i s o b l i g a t i o n i s f u l f i l l e d by the shipowner
taking reasonable care to appoint a competent expert; the
shipowner i s absolutely held to the fulfilment of the
obligation. I t i s the obligation which i s personal to him,
and not the performance".
Lord Maugham, a t page 87, s a i d : "We now come to the
r e a l point i n the present case, which may be s t a t e d t h u s :
Admitting t h a t the employer was l i a b l e to provide a reasonably
safe system of working the c o l l i e r y , was not t h i s a l i a b i l i t y
which he could delegate to s k i l l e d persons with the
consequence t h a t h i s personal l i a b i l i t y would be discharged?
I t must, I t h i n k , be admitted t h a t i n England the early
a u t h o r i t i e s on t h i s point were not very c l e a r . In Scotland i t
was not so. The admirable opinions of the Lord J u s t i c e - C l e r k
in Bain v . ffife Coal Co., and of the Lord p r e s i d e n t i n the
present case, e s t a b l i s h i n my view t h a t there has been a
long and uniform p r a c t i c e i n Scotland, repeatedly approved
in t h i s House, to the effect t h a t an employer cannot divest
himself of r e s p o n s i b i l i t y i n regard to the t h r e e matters which
are i n h i s p e c u l i a r province". Also a t page 87 he s a i d : "It
has already been pointed out t h a t t h e employers' l i a b i l i t y i s
discharged by the exercise of due care and s k i l l ; and I may be
allowed to point out t h a t i t i s t h i s circumstance which has
led on occasion to a misapprehension of the t r u e p o s i t i o n .
An i l l u s t r a t i o n will demonstrate the mistake. Suppose some
new machinery i s necessary in a f a c t o r y , and the employer i s
absent or completely u n s k i l l e d i n such t h i n g s . He
n e c e s s a r i l y leaves the matter to a manager, l e t us suppose
a highly s k i l l e d person, who, however, i s negligent i n t h i s
ease. An accident follows, due to a defect i n the machine.
7.
 If the liability of the employer is stated as being an
obligation to use his best endeavours to supply and instal good
machinery, it may well be said on his behalf that he left the
matter to a highly skilled man, and it may be asked with
force, what more could he do? I should reply, nothing; but
A I should add that the premise is incorrect. The possessive
pronoun 'his' is that which leads to the error. yb.e
proposition would be more correctly stated to be that his duty
is to supply and instal proper machinery so far as care and skill
can secure this result. He can, and often he must, perform
B this duty by the employment of an agent who act3 on his behalf,"
but he then remains liable to the employees unless the agent
has himself used due care and skill in carrying out the
employer's duty. This has sometimes been expressed by saying
that the duty is personal to the employer; but the adjective
C if unexplained is apt to mislead, like the word "absolute' and
the word 'delegate'. The employer can, of course, and
frequently must delegate the performance of any of his duties
to skilled agents; but it would neo.d an altogether new
implied term in the contract between employer and employee before
3 a Court could properly held that this delegation has the result
ef freeing the employer from his liability. This becomes
apparent if we imagine the contract between employer and
workman to be written out in full with all the implied clauses.
There would be, for the reasons given by the Lord Justice-Clerk
S in Bain v. Fife Coel Co., and by your Lordships, no clause
t» the effect that the employer was to be freed from his special
obligations to the workmen if he delegated them to an agent;
and in the absence of such a clause the employer would plainly
remain liable if the agent was guilty of not using proper care
F end skill, since in the contract lav/ of Scotland as in England
it is impossible to get rid of a liability towards the other
party to the contract without the consent of that party".

8.
 I think these citations taken together point strongly
to the conclusion that their Lordships would have drawn no
distinction for the present purpose between a servant or
agent (in the strict sense) of the employer and an independent
contractor engaged by the employer. But the matter does not
rest there. In Thomson v. Crenin and Others (19 53, 2 All
England Report?, page 1185)(a case decided by the House of
. Lords in 1941 but not reported till 1953) the House had to
consider the position of an invitor who had entrusted to an
independent contractor the performance of certain work, the
proper performance of which was essential to the. safety of the
premises (in this instance the hold of a ship) which the
invitee had to enter in the course of his work. The duty of
the invitor was taken as being a duty to teke reasonable care
for the safety of the invitee;, and at page 1158 of the report
Lord Simon said this: "The shipowner's responsibility for the
safety of the structure is not, indeed, absolute, but, on the
principle of Indermaur v. pames, he owes to the invitee a duty
of adequate care. If adequate care was not exercised in fitting
and securing the shore, it would be no answer (as the
appellant's counsel candidly admitted) to say that the shipowner
employed an independent contractor at Fremantle to do the work.
For this last proposition, reference may usefully be ma.de to
a recent decision of the Court of Appeal in Wilkinson v. Rea, Ltd.
(1941, 2 All England Reports, page 50) and especially to the
observations of Lord Justice Luxmoore at page 60. I can see
no ground for drawing a distinction between the permanent
structure of the ship and the temporary erections put up in
her holds for the purpose of the special cargo she was
carrying".

Lord Wright, at page 1191, said: "That the first

respondent was working on the appellant's premises, the steamship
Sithonia, as an 'invitee' and not as a mere licensee has not been
questioned. Thus the case fell within the general rule
enunciated in Indermaur v. Dames. The rule there laid down as
9.
 to the duty of the 'invitor' to the 'invitee' has been affirmed
in several decisions of this House, whether the particular oase
was held to fall within or without the rule. In the present
appeal, however, the failure to exercise due care for the
safety of the invitee which has been found was due, not to the
negligence of the appellant or his servants, but to that of
independent contractors, the Australian shipwrights who
constructed the shifting-boards before the grain was loaded.
I agree with the Lord Chancellor in his approval of the
decision of the Court of Appeal in Wilkinson v. Rea, Ltd.,
where it was held by Lord Justice Luxmoore, with whom Lord
Justice MacKinnon concurred, that the invitor was not
excused for a failure to perform his duty to the invitee
merely because he had entrusted performance to another.
Lord Justice Luxmoore adopted the view of Mr. Justice
Williams in Pickard v. Smith. The duty of the invitor
towards the invitee is, in my opinion, a duty personal to
the former, in the sense that he does not get rid of the
obligation by entrusting its performance to independent
contractors. It is true that the invitor is not an insurer:
he warrants, however, that due cs'.re and skill to make the
premises reasonably safe for the invitee have been exercised,
whether by himself, his servants, or agents or by independent
contractors whom he employs to perform his duty. He does not
fulfil the warranty merely by leaving the work to contractors,
however reputable or generally competent. His warranty is?
broken if they fail to exercise the proper care and skill.
This is only an instance of the general rule which was stated
by Lord Blackburn in another connection in palton v. Angus
(6 Appeal Cases, page 740, at page 829), where he
distinguished the case of what has been called the
collateral negligence of a sub-contractor from their
negligence in failing to perform a duty resting on the

10,
 the p r i n c i p a l himself 'who cannot escape from the
r e s p o n s i b i l i t y attaching to him of seeing t h a t duty
performed by delegating i t to a c o n t r a c t o r ' . Lord
Blackburn again enunciated the same p r i n c i p l e i n Hughes
v . Percival (8 Appeal Cases, page 443, at page 446).
More r e c e n t l y t h i s House, again i n a different context
of f a c t , applied t h i s r u l e i n Wilsons & Clyde Coal Co.
Ltd. v. English. I t i s always a question of the
extent of the duty i n c u r r e d . In the present case,
the i n v i t e e i s not concerned with the course which the
i n v i t o r adopts by way of discharging the duty. He
i s e n t i t l e d , when he comes on the i n v i t o r ' s premises,
to r e l y on the warranty t h a t the i n v i t o r ' s duty to him
has been performed and to complain i f he i s injured
because the duty has not been properly performed".

I would r e s p e c t f u l l y adopt t h i s comment made

by the learned Judge on Thomson v. Cremin: "It i s t r u e

t h a t Lord V/right i s t h e r e dealing with the p o s i t i o n of

an i n v i t o r , but the duty of an employer to h i s workmen

i s c e r t a i n l y no l e s s . Indeed, in London Graving pock v .

\Horton Lord P o r t e r said 'Admittedly the duty of a

master to h i s servant i s higher than t h a t of an i n v i t o r to

his invitee"1.

11.
 As was r e c o g n i s e d i n Wilsons &. Clyde Coal Co, Ltd, v . English.
(aupra) ( i t s e l f a S c o t t i s h case) t h S c o t t i s h law on t h i s question
i s the same as E n g l i s h law* In a d d i t i o n t o t h e passage from
Bain v . Fife Coal Co, c i t e d above,•© were r e f e r r e d t o a number of
Scotch d e c i s i o n s , i n c l u d i n g MacdonaId v . Wylie (1 E r a s e r , page 359)
(decided i n 1898), In t h a t case a firm of b u i l d e r s having a
A c o n t r a c t t o take down c e r t a i n high w a l l s c o n t r a c t e d w i t h a firm of
j o i n e r s for t h e e r e c t i o n of a s c a f f o l d , which a f t e r i t had been t a k e n
over by the b u i l d e r s c o l l a p s e d . I t was admitted t h a t t h e f a l l of
the s c a f f o l d was due t o a defect which might have '>een discovered
by any sk-.lled person i n s p e c t i n g i t , A workman i n the employment of
" the b u i l d e r s v; as inj .-.red by the f a l l of the s c a f f o l d , ana brought an
action for damages a g a i n s t t h e b u i l d e r s .
The action v/as t r i e d w i t h a j u r y , and the Lord J u s t i c e - C l e r k
d i r e c t e d the j u r y a s follows : - "That i f the j u r y are satisfied
that the defender, not having the knowledge and s k i l l t o e r e c t the
C
s c a f f o l d i n g in q u e s t i o n , s e l e c t e d a tradesman having s k i l l ^nd
experience of such worse, and c o n t r a c t e d :-i • th him to provide such a
s c a f f o l d , ho would not be l i a b l e as for f a u l t i f th-; s c a f f o l d i n g fell
in consequence of i t s b e i n g e r e c t e d i n an u n s k i l f u l manner through
the f a u l t of the sk l i e d person who c o n t r a c t e d t o e r e c t it".
D
On a B i l l of E x c e p t i o n s , i t was h:,ld t h a t t h i s d i r e c t i o n was
erroneous i n law. Lord Young, a t page 543, s a i d : "This bill
of e x c e p t i o n s comes before us on the f o o t i n g t h a t the s c a f f o l d was
d e f e c t i v e and dangerous. I t i s admitted t h a t for tiii purposes of
t h i s d i s c u s s i o n t h a t must be conceded, and i t i s s t a t e d by the
li

learned Judge who t r i e a the case t h a t i t was upon t h a t supposition

t h a t the r u l i n g now in q u e s t i o n was given by him, and also t h a t it
was given upon the f u r t h e r s u p p o s i t i o n t h a t the defect was not a
l a t e n t d e f e c t , but one which could have boen discovered by a proper
i n s p e c t i o n by a r e a s o n a b l y s k i l l e d p e r s o n . Therefore t h e cmesdon
F . . .
of latent defect does not srise hero. The ruling v;ns asked and
given on the footing that the scaffolding was defective and dangerous,
and that the defect was not latent. Accordingly the Earned Judge
12.
who t r i ^ e . the case, in accordance with the defence put forward
by the defenders, ^eve t h i s direction - (His Lordship re 2d the
Lord J u s t i c e - C l e r k ' s d i r e c t i o n ) . This ruling was ,-ivcn on the
assumption t h a t the joiner employed oy the defenders as a
properly s k i l l e d person. The direction .^ivon p r s c t i c s i l y amounts
to t h i s , that the defenders discharged t h e i r whole duty to the
pursuer by cr.trustinr t h . erection oi' the scaffolding to a
properly s k i l l e d j o i n e r , ?nci t h a t , howev_r unskilfully t h a t
joiner might e rect the s caffolding, tho defenders would not be
l i a b l e in consequence to th:. pursuers. Y.'c have now to determine
whether t h i s rulin~ is in accordance with the law of Scotland.
I nm of opinion that i t i3 not."
At pare 344 ho further s.oid: "The basis of the workman* s
claim against h i s master is that there i s a r e s p o n s i b i l i t y
on the pert of h i s employer lor th. scaffolding be in,.; en a
reasonably safe conaition to enabl. the workman to perform
the work which he li- s been onge/r.jd bo d o . I t i s no
answer to him for the mcrt^.r to say, - 'T a:ri not a joiner and I
employed a s k i l l e d joiner t o do the work for me.' I t i s no more
an answer lor him to say so to h i s workman, than i t would be an
ansrer for a person who hod erected o scaffolding; for people to
u
see a procession, to one of the persons who h?;; engaged 2 seat
upon i t , and who hsd been injured through a o.efect in i t , to say
to t h a t person that he himself was not a competent j o i n e r , that he
had employed a f i t joiner to e rect the scaffolding, and that he was

13.
 not responsible for thu j o i n e r ' s fault."
Lord Trayner said, at page 345: "If a master buys e machino,
l e t us say, necessary for the execution 01 h i s work, and gives i t
to h i s orcman, i t is the master's mach.nc, not the -workman's
or manufacturer's. If the machine turns out to be f a u l t y , defective,
or otherwise i n s u f f i c i e n t , the master must answer for i t . He may
A
have his r e l i e f against th:, maker or manufacturer, but the injured
workman has no claim against the maker of th machine; there was
no contractual or other r e l a t i o n between them; the ma,:er of t;hc
mcchlne had no duty cowards the workman. vVhen the scaffolding
or the machine passes out of the hands of the man who erected or
P
made it, it becomes the scaffolding or the machine of the man who
ordered it and .gave it to his workman. it is th: master's
scaffolding or machine, although erected or made per alium, and ho
is directly responsible for its insufficiency.
"iho rule that a person is not reseonsible for damage done
C
through the neglect or fault of an independent contractor does not
apply to a case like this. It applies in c ases where there is no
relation between the person injured ana the person who employs
or engages with t hi. contractor. But 'th- case is wholly different
where a distinct duty is imposed upon the person s.cd towards the
i.'

person injured, and wher the duty has not been performed' - (per
Lord Justice-Clerk Ivloncroiff in Stephen' s c a s e ) . That c o r r e c t l y
represents the case now before u s .
" I t was argued by the defenders that they v;cre not responsible
P for defects in t h e i r appliances which wore l a t e n t , and that t h e i r
duty was limit, d t o supplying the workman with appliances which were
reasonably sufficient, I am not ;repi.r^d to admit the soundness
Of t h i s argument to t h e extent to which i t was carried by the defend-
ers. But i t i s not a point raised for decision by the exception
P before us* The charge excepted to i3 absolute, and neither s t a t e s
nor suggests any l i m i t a t i o n in the d i r e c t i o n to which the defenders 1
argument p o i n t s , I therefore give no opinion upon the question
so raised"*
14.
 Lord Moncrieff, at pago 346, said: "So viewed, I am of the
opinion that the direction is not exhaustive, r-nd that therefor, it
is defective As it stands the jury way have supposed that the
defenders sufficiently discharged their duty to th~ir servants
by c ntrusting the construction of the scaf-'old to a competent
joiner* In order to make the direction complete I think his
Lordship should have added the words funless by the exercise of
reasonable care the defenders could have discovered the insufficiency
of the scaffold,1 or v/ords to that effect.
"A master is bound to supply safe and sufficient plant for the
use of his workmen, but he is not bound to v,: arrant the sufficiency
of the plant. Pie is not personally bound to make it or to keep
it inropair* Ho is only bound in a question with his servant
to take reasoable care that it is sufficient; and in order to
render him liable there rnu.t be proof of fault or negligence on his
part or those for whom he is responsible,
"In judging whether an employer has or has not used reasonable
caro regard must be had to the whole circumstances of each case.
The fact that he has entrusted the manufacture or construction
of the plant to a skillo.* tradesman under an independent contract
will go far to establish that he had taken r casonable care. But
of itself it is not necessarily sufficient, because if he could on
inspection have discovered the defect he will not be frood from
liability. It is for the jury to decide in each case what i3
re Tonablo care and what defects are to be considered latent in
a question with the employer".

Finally, the Lord Justico-Clerk, who had given the direction

under consideration,said this at pago 347: "But having now heard
a full debate and citation of authorities upon the point I have
come to be of opinion that the direction which I gave to the
jury was erroneous in respect that it v/as incompleto, I think it
was right a s far as it went, but that I should have added some words
to tho s amc effect as the addition suggostod by Lord Moncroiff in
15.
 his opinion. In this connection, questions of Intent defect
often present considerable difficulty. A defect might bo latent
to one person and not latent to another who was highly skillod."
The case is important in that the firm who provided the
faulty scaffolding were undoubtedly independent contractors.
The members of the Court were not entirely at one, but I
A
think i t can f a i r l y be said that none of them regarded the fact
that the employers had entrusted the erection of the scaffolding
to s k i l l e d independent contractors as sufficient in- i t s e l f to
discharge the employers' duty to t h e i r workman. Lords Young and
Trayner seem to have been c l e a r l y of opinion that employers
B
cannot be held to have discharged t h e i r duty t o a workman by
the employment of s k i l l e d independent contractors if the contractors
do t h e i r work negligently and damage to the workman r e s u l t s ,
with a possible exception i n favour of the employers where the
defeot which does the damage i s l a t e n t . Lord i/Ioncrieff and the
Lord J u s t i c e Clerk on the other hand tiiought that the employer's
duty would be discharged by the employment of s k i l l e d independent
contractors, unless by the exercise; of reasonable care the employ-
ers could have discovered the insufficiency of the scaffold.
Lord I.ioncrieff regarded the question whether an employer has or
has not used reasonable care as depending on the circumstances
of each case, but thought that the fact that an employer had
entrusted the relevant work to a s k i l l e d independent contractor
would go f a r to e s t a b l i s h t h a t he had used reasonable care, but
£ was not n e c e s s a r i l y of i t s e l f sufficient to do so, because i f he
could on inspection have discovered the defect he would not be i'roe
from l i a b i l i t y . Lord i.ioncrieff and the Lord J u s t i c e Clerk
appear, i n effect, not only to have admitted an exception in favour
of the employer in respect of l a t e n t defects in the independent
p c o n t r a c t o r ' s work, but to have regarded a l a t e n t defect as a
defect not discoverable by the employer on reasonable inspection.
That i s , of course, a view far more favourable to the employer
than the a l t e r n a t i v e conception of a l a t e n t defect as a defect
16.
 not d i s c o v e r a b l e by the use of r e a s o n a b l e s k i l l and care on the
p a r t of the independent c o n t r a c t o r . I w i l l l a t e r return to
t h i s important a s p e c t of t h e m a t t e r . But so f a r a s the effect
of the employment of an independent c o n t r a c t o r i s conoerned, I
do not t h i n k I/la c dona Id - v - Wylie can be regarded a s a u t h o r i t y
, for the p r o p o s i t i o n t h a t the e n t r u s t i n g of the r e l e v a n t work to
a s k i l l e d independent c o n t r a c t o r i n i t s e l f d i s c h a r g e s an
employer's duty of care to h i s workmen.
To r e v e r t tp E n g l i s h c a s e s , i n Kaismith - v - London Film
P r o d u c t i o n s . Ltd. (1939, 1 A l l England R u p o r t s , page 794), Lord
n Maugham1 s d e f i n i t i o n of un employer's duty to h i s employee was
e x p r e s s l y adopted by S i r W i l f r i d Greene, Master of t h e R o l l s , i n
t h i s Court. The blaster of t h e R o l l s s a i d , a t page 796: "The law
on t h i s p o i n t has r e c e n t l y been l a i d down by the House of Lords
i n t h e case of Wilsona & Clyde Goal Go. , Ltd. - v - E n g l i s h , and
•0 for p r e s e n t purposes I can take t h e very ooncise statement of
Lord Maugham, a t page 88 (1937, 3 A l l England Reports a t page 6 4 6 ) :
'The p r o p o s i t i o n would be more c o r r e c t l y s t a t e d to be thut h i s
duty i s t o supply and i n s t a l p r o p e r machinery so far as care
and s k i l l can secure t h i s r e s u l t . ' " Lord J u s t i c e MacKinnon,
D a t page 797, s a i d : "Such s t a n d a r d of duty i s explained by
Wilsons & Clyde Coal Co., Ltd. - v - E n g l i s h to which S i r V a l f r i d
Greene, Master of t h e R o l l s , has r e f e r r e d . " Lord J u s t i c e
Goddard (as he then was) at page 797, r e f e r r e d t o - t h e Wilsons &
Clyde Coal C o ' s . case as having "done so much to c l a r i f y the law
E on t h a t p o i n t " , and continued: "The r e l a t i o n s h i p of the p a r t i e s
was not t h a t of i n v i t o r and i n v i t e e , but t h a t of employer and
employee, and i t follows t h a t t h e j u r y should have been d i r e c t e d
t h a t the defendants* duty was not merely to warn a g a i n s t unusual
dangers known t o them, and not to the p l a i n t i f f , but <ulso to make
f the p l a c e of, employment, and t h e p l a n t and m a t e r i a l used, a s safe
a s the e x e r c i s e of r e a s o n a b l e s k i l l and care would permit 1 *,
I t h i n k Lords J u s t i o e s MacKinnon and Goddard must be taken t o have
17.
 had i n mind the p a r t i c u l a r passage from the speech of Lord Maugham
whioh the f a s t e r of the Rolls had just c i t e d .
In Paine -v- Colfre Valley E l e c t r i c i t y Supply, Ltd. -v-
British Insulated Gables. L t d . , (1938, 4 A l l England Reports,
page 803) Lord Justice Goddard, s i t t i n g as a Judge of f i r s t
instance, said: " I t follows, in my opinion, not only that there
had been a breach of the Factory and Workshop Act, 1901, but also
that the f i r s t defendants had f a i l e d to provide a stsfe place for
t h e i r workmen, and had, t h e r e f o r e , committed a breach of t h e i r
common law duty as recently l a i d down in Wilsons & Clyde Goal
Co., Ltd. - v - English. This i s a duty which cannot be avoided
by delegation. I t i s no answer to say, as counsel for the f i r s t
defendants submitted: M'e employed competent contractors to
provide a safe place or p l a n t . T The class of cuses i n which
the employment of a competent contractor affords a defence belongs
to a wholly different category i n the law of negligence. I have
no h e s i t a t i o n in holding t h a t the f i r s t defendants have no defence
whatever to the p l a i n t i f f ' s claim".
I t i s r i g h t to note t h a t on the facts of t h a t case i t seems
reasonably plain that the defect in the e l e c t r i c a l apparatus which
brought about the death of the employee could have been discovered
by the employers on reasonable inspection. But Lord J u s t i c e
Godderd was clearly of opinion that the fact that the employers
had entrusted the provision of the plant in question to reputable
independent contractors afforded the employers no defence to a
claim based on breach of t h e i r duty of reasonable care, and i n
the present s t a t e of the a u t h o r i t i e s I think t h i s must be taken
to be the law.
But, i t i s said, t h a t i s not t h i s cese. Here the f i r s t
Defendants did not cause the defective d r i f t to be made to t h e i r
order by the second Defendants. They bought i t ready made from
the suppliers, against whom no negligence i s a l l e g e d . Here a t
l e a s t , i t i s elbimed, a l i n e should be drawn; and the f i r s t
18.
 Defendants should not be saddled with responsibility for a defeot
in the drift which they could not reasonably have been expected
to deteot, and which was due to negligence on the part of
manufacturers, the second Defendants, v.lth whom the first Defendants
were never in contractual privity, and whom the first Defendants
had never in any sense entrusted with the performance of their duty
to take reasonable oare to provide their employees with safe tools,
I oannot accept this argument. The first Defendants, when
they set about the provision of drifts, must be taken to have been
alive to their duty to take reasonable cere to provide sound drifts.
If they were alive to that duty they must, in purchasing the drifts
of which the defective drift was one, be taken to have assumed that
reputable suppliers such as Baldwin & Co., Ltd., from whom they
purohased the drifts, would have obtained them from reputable
manufacturers who could be relied on as having exercised due skill
and care in their manufacture. In other words, the first Defendants
must be taken to have relied on the reputation of Baldwin & Co,, Ltd.,
as a sufficient assurance that in providing their employees with
drifts purchased from Baldwin & Co., Ltd., they would be providing
them with drifts made with reasonable care and skill, and thus
performing their duty of taking reasonable care to provide their
employees with sound drifts.

But if the duty is as Lord Wright said in the Wilsons &

Clyde Co's. case at page 80 a duty "personal to the employer and one
to be performed by the employer per se or per alios", or if the
duty is, as Lord Maugham termed it in the same case at page 88, &
duty "to supply" sound tools "so far as care und skill can secure
this result", I do not see how reliance on Baldwin & Co., Ltd,, or
on their manufacturers for the soundness of the drifts could amount
to performance of the duty, if the manufacturers actually concerned,
namely the second Defendants, had in fact failed to use reasonable
oare and skill in the making of them.

19,
 I f the law was, us i t mighu quite reasonably be, t h a t en
employer disohurged his duty of taking reasonable cere to provide
sound tools by having them made by a reputable manufacturer or
buying them ready made from reputable suppliers, the f i r s t
Defendants here could no doubt repel the charge of negligence now
brought against them by showing that they bought the d r i f t which
turned out defective from reputable s u p p l i e r s , and that the defeot
was not one which they could have discovered by reasonable
inspection.
But the lav/ as i t i s does n o t , as I understand i t , accept
Is

reliance on the care and s k i l l of others as a performance of the

duty. Therefore ( t o apply Lord Wright's language), the f i r s t
Defendants did not, in buying the d r i f t from Baldwin & Co., L t d . ,
perform the duty per s e ; nor did they perform i t per a l i o s , since
r the second Defendants unfortunately foiled to take reasonable care
in the making of the d r i f t . Nor (to apply Lord L;Iaugham's language)
did the f i r s t Defendants provide, in the shape of the defective
d r i f t , a sound d r i f t so far us care and s k i l l could secure t h i s
result; for due care und s k i l l were not in fuct exercised i n the
j manufacture of t h i s drift.
The argument for the f i r s t Defendants i s based on the
broad propositions that there should be no r e s p o n s i b i l i t y
without f a u l t , and that an employer's duty to h i s workmen i s
not an absolute duty, but only a duty to take reasonable care.
I I t i s said that the learned Judge's decision i n favour of the
P l a i n t i f f can only be j u s t i f i e d e i t h e r (a) on the ground that
the f i r s t Defendants were v i c a r i o u s l y responsible for the second
Defendants' negligence or (b) on the ground that the P l a i n t i f f ' s
v
contract with the f i r s t Defendants included a warranty by the
p f i r s t Defendants to the effect that the tools provided for him
by the f i r s t Defendants would be sound tools,. As to the former
ground, i t i s pointed out t h a t t h i s can only be appropriate where
en employer has entrusted the performance of h i s duty to a servant
20.
 or agent, and t h a t servant or agent has negligently failed to
perform i t . Even i f :'&gent'T for t h i s purpose oan properly be
regarded c;s including an independent contructor, i t connot
possibly be r e t r o s p e c t i v e l y extended to a manufacturer making
for the market tools which ultimately find t h e i r way into the
A
hands of an employer through some supplier with whom he may
happen to d e a l . As to the l a t t e r ground, the warranty imputed
to the f i r s t Defendants could only be a warranty that reasonable
care had been taken by the f i r s t Defendants t h e i r servants or
agents. But there was no lack of reasonable care on the part of
the f i r s t Defendants themselves, or on the part of Baldwin &
Co., L t d . , i f they can properly be termed the f i r s t Defendants'
agents. As to the second Defendants, who were admittedly
negligent, they were never i n any sense the f i r s t Defendants'
.. agents, and accordingly the warranty could not extend to t h e i r
acts or d e f a u l t s . The argument goes on to point out the
inconsistency between the view that -n employer i s to be
responsible on the basis of warranty for the f a i l u r e of persons
over whom he has no control to take reasonable cure in the
P manufacture of goods which he buys in the market, and the
a u t h o r i t i e s to the effect that an employer i s not i n general
responsible to h i s workmen for the safety of premises of t h i r d
p a r t i e s , which proceed on the ground that the employer has no
control over those premises. In t h i s connection reference wus
£ made to Taylor -v- Sims (1942, 2 A l l England Reports, puge 375)
and Cilia -v- James & Sons (1954, 1 Weekly Law Reports, puge 721);
and also to Hodgson -v~ B r i t i s h Arc Welding Co. t Ltd. (1946,
1 King's Bench Division, page 302), where employers ( s p e c i a l i s t
sub-contractors) were held not to be l i a b l e at common law for
p a injuries to t h e i r workmen through a defect in scaffolding provided,
maintained and controlled by the head contractors for the r e p a i r
of a s h i p ,
21,
 An authority directly in the first Defendants' favour
is to be found in Mason -v- Williams (1955, 1 All England Reports,
page 808), where in circumstances closely comparable to those of
the present case, Mr, Justice Finnemore held that certain
,\ employers were not liable to their-workman for an injury to his
eye caused by the breaking of a defective chisel. Mr. Justice
Ashworth found himself unable to follow that case in view of the
other authorities, but the first Defendants claim that he ought
to have followed i t as containing a correct statement of the law.
As t 0
B Wilsons & Clyde Coal Co. -v- English (supra) i t ia
said on the first Defendants' side that in so far as the speeches
contain language capable of carrying the implication that an
employer cannot divest himself of hia duty by entrusting i t s
performance to an independent contractor, and in particular in so
•C far as the speech of Lord Maugham contains language capable of
being construed us supporting the view that an employer who .buys
tools from a reputable supplier is answerable for defects in them
due to the negligence of the manufacturer by whom they .jay turn
out to have been mt.de, albeit a complete stranger to the employer,
D they go far beyond what was necessary for the decision of the actual
case in hand, and accordingly should not be regarded as providing
binding authority for the extreme proposition contended for by the
Plaintiff.
As to this last point, I think i t was necessary for the
E decision of the matter in question in Wilsons & Clyde Coal Co., Ltd.
-v- English for their Lordships to examine the character and
incidents of an employer's duty of care to his workmen, and in
particular the question whether i t could be discharged by entrusting
. i t s performance to others, and I think what was said by them on
' that question must be regarded as authoritative.
As to the alleged inconsistency of the P l a i n t i f f ' s propositio
with the oases concerning work on the premises of third parties, I
doubt if i t would ever be possible to reconcile a l l the cases which
£2.
 have been decided on an employer 1 s duty to his workmen at
oommon lav/, and each case depends to a great extent on i t s own
faots. But I do not think t h i s p a r t i c u l a r charge of
inconsistency i s well founded. Where a workman i s put by his
employer to work on premises belonging to t h i r d p a r t i e s the
employer in no sense provides or s e l e c t s or controls the premises.
In oases such as the present case the employer decides what t o o l s
he w i l l buy and from whom he w i l l buy them.
As to the impossibility of imputing to the f i r s t Defendants
vicarious l i a b i l i t y for the negligence of the second Defendants,
who were n e i t h e r t h e i r servants nor t h e i r agents nor t h e i r
independent c o n t r a c t o r s , to t h i s , as a general proposition, I
agree. But I do not think that the p r i n c i p l e upon which an
employer i s held not to have performed h i s duty of a . r e , where
he hcs entrusted i t s performance to somebody else who has i n fvct
failed to perform i t , i s confined in i t s a p p l i c a t i o n to cases in
which the employer i s v i c a r i o u s l y l i a b l e for that other person's
negligence in the sense in which a p r i n c i p a l may be hald l i a b l e
for the negligence of h i s agent. Hor in my view c~n there be
any v a l i d d i s t i n c t i o n for t h i s purpose between an employer who
has t o o l s made for him by a manufacturer thereby entrusting to
the manufacturer the performance of h i s duty to tdke reasonable
care to provide sound t o o l s , und an employer who buys t o o l s ready
made on the assumption t h a t they have been made with that degree
of s k i l l and care which the performance of his duty demands.
As to the terms of any implied warranty, a verbal point
can no doubt be made. But I think the case r e a l l y turns on the
nature of the f i r s t Defendants' duty of reasonable oare and the
manner in which i t i s capable of being discharged. As I understand
the Wilsons & Clyde Coal Go's, case, i t i s an absolute duty to
take reasonable care which can be discharged only by showing that
Qll reasonable care has i n fact been taken to ensure the soundness
of the tools provided, and not by showing that the employer
S3.
 e n t r u s t e d t o somebody e l s e t h e t a k i n g of a l l r e a s o n a b l e c a r e ,
or assumed t h a t somebody e l s e had taken a l l r e a s o n a b l e c a r e , t o
ensure t h e soundness of t h o s e t o o l s . I f the duty must be
^ expressed a s a w a r r a n t y , I t h i n k the warranty would be t h a t
( t o p a r a p h r a s e Lord Maugham* s language i n t h e V'ilsons & Clyde
Coa 1 Co• s . case) t h e t o o l s v/ere a s sound a s r e a s o n a b l e core could
make them.
I have left to the l^st the question of latent defect,
g The first Defendants' duty being to take reasonable care, they
clearly could not be held liable if the defect could not h^ve
been detected either by the first Defendants themselves on such
inspection as they could reasonably be expected to make or by the
second Defendants using reasonable skill ^nd care in the
C manufacture of the tool. But the learned Judger while holding
that the first Defendants could not have been reasonably expected
to discover the defect, found that the second Defendants could
by the exercise of reasonable skill and care have discovered it,
and were negligent in failing to do so. The defect may thus
D be said to have been latent quoad the first Defendants, but it
was clearly not latent quoad the second Defendants, the manufacturers
of the tool. Therefore reasonable care was not in fact tuken
by the second Defendants in the manufacture of the tool, and it
follows that the first Defendants' duty of care; as I have
E endeavoured to define it above, was in fact not performed, and
it is immaterial that the defect may be said to have been latent
quoad the first Defendants themselves.

My conclusion as to the law on this point, and indeed on

the whole case, is strongly borne out by the Scotch case of
F
Donelly -v- Glasgow Corporation (1953 Scots Lav/ Times, page 161).
In that case the plaintiffs were employed by the Defendant Corpora-
tion as driver and conductor of an omnibus, and they claimed damages
from the Corporation in respect of personal injuries which they
had sustained due to a defect in the chassis of the omnibus. The
24.
 oase came before the Court on an application by the p l a i n t i f f s
in which they attacked the relevance of certa'in defences raised
by the Corporation. At page 168 the Lord Justice Clerk (Lord
Thomson) said t h i s : "The main defence put forward by the
Corporation i s t h a t t h i s defect was a defect of design for the
non-discovery of v/hich they cannot be blamed as they r e l i e d and
were e n t i t l e d to r e l y f i r s t on the manufacturers of the chassis,
and second on the circumstances that they had been issued with
a c e r t i f i c a t e of f i t n e s s under section 68 of the Road Traffic Act,
p 1930 (20 & 21 Geo. V. cap, 43), applicable to t h i s omnibus.
So far as the d r i v e r 1 s and conductor's c-eses are concerned, they
both being servants of the Corporation, I huve no doubt that the
defences are i r r e l e v a n t . I t i s admitted by the Corporation that
the omnibus was defective and they aver t h a t t h e i r suppliers were
.£ responsible for the defective condition. But on t h i s branch of
the law a master cannot escape l i a b i l i t y to his servant for defeotive
plant by blaming his agents. The persona 1 r e s p o n s i b i l i t y which
the law lays on the master i n respect of plant covers the a c t i v i t i e s
of any person whom the master employs to provide t h a t p l a n t . The
5 supplier and the master are as one. I f then the s u p p l i e r erred,
the master i s saddled with the r e s u l t s of that e r r o r . I t may be
that the master i s able to have recourse against the supplier on
account of his e r r o r , but that i s no concern of the injured
servant and, indeed, one of the reasons behind the development of
E t h i s branch of the law i s to give the workman the advantage of
being able to go d i r e c t l y against his master. Of course, the
master does not warrant the plant and he i s not l i a b l e in the
oase when the defect i s l a t e n t in the sense that i t was not
discoverable by the exercise of reasonable care. I f the p o s i t i o n
F in the present case had been that the Corporation had been able to
say t h a t n e i t h e r they, nor t h e i r s u p p l i e r s , could have discovered
the defect by means of any reasonable inspection, the defence
would be r e l e v a n t . But, as I have already said, the Corporation
25.
 agree that the defect was patent to t h e i r suppliers and that i n
t h i s branch of the law means that i t was patent to them".
Those observations, while not binding upon us, are of great
persuasive force, and they s u b s t a n t i a l l y accord with what I take
to be the law on t h i s subject as deducible from the English
authorities.
I t may be said with some force that the conclusion to which
I think we should come places upon the employer a heavier burden
them the brood p r i n c i p l e of reasonable care enunciated by Lord
Herschell in Smith -v- Baker (1891 Appeal Gases, a t page 5o2)
would appear to involve according to the ordinary meaning of the
language used. But I think i t i s a conclusion which t h i s Court i s
constrained on the a u t h o r i t i e s to adopt. I would moreover observe
that i t does not e n t a i l the s u b s t i t u t i o n of an absolute duty to
ensure safety for the duty of reasonable care enunciated i n Smith
-v- Baker, and accepted passim by the House of Lords in the.
Wilsons & Clyde Goal Opts, case. The duty remains a duty of
reasonable care, but the obligation to take that degree of care
per se or per a l i o s i s an absolute obligation*
As to the merits of t h i s conclusion, while i t may be said
to bear somewhat hardly on the employer, on the other hand an
employee has to use the tools provided by the employer and has no
voice i n the s e l e c t i o n of the tools or as to the manufacturer or
supplier from whom they a r e obtained. I f he i s injured through a
defeot i n one of the t o o l s provided by h i s employer, i t i s surely
not unreasonable t h a t the employer should be held l i a b l e i f the
defect was due to the negligent manufacture of the t o o l , whether by
the employer himself or by somebody e l s e . Otherwise the employee-
might well be without remedy. He would not know and might not be
able to find out who the manufacturer was. I f he could find out
who the manufacturer was, he might have a good claim on the Donoghue
-v- Stevenson p r i n c i p l e . But claims of that kind are not always
QQsy to make out, though in the present case the P l a i n t i f f did in
26.
fact succeed ugainst the second Defendants on that principle,

as well as succeeding against the first Deiendcnts for breach

of their common lav; duty as his employers.

At oil events, it would as I think be un irr-tional

and intolerable refinement to distinguish for this purpose

between tools made by a manufacturer to the order of the

employer and tools bought by the employer ready made.

For the reasons I have endeavoured to state, I agree

with the conclusion reached by the learned Judge and would,

for my part, dismiss this uppeal.

27.
 LORD JUSTICE PAFK3R: With r e l u c t a n c e and d i f f i d e n c e I feel
c o n s t r a i n e d t o take a d i f f e r e n t view t o t h a t which ray Lord
has expressed and I would allow t h i s Appeal.
The duty owed by a master t o h i s s e r v a n t a t common lav/
can be s t a t e d in g e n e r a l terms as a duty t o t a k e r e a s o n a b l e
A
care for the safety of his servants. It is as bord
Herschell said in Smith v. Baker» 1891 Appeal Cases, at page
362: "..... the duty of taking reasonable care to provide
proper appliances, and to maintain them in a proper condition,
and so to carry on his operations as not to subject those
B
employed by him to unnecessary risk". jiven before the
Employers Liability Act, 1360, it was regarded as a personal
duty in this sense that if the master delegates, as he often
must, the performance of that duty to another he remains liable
for the failure of that other to exercise reasonable care,
•C

In Bain v.,Fife Coal Qo, 1935, Sessions Cases 631 at page 693,
the Lord Justice-Clerk, a fter referring to the decision, of this
Court in Fanton v. Denville, 1932 2 King's Bench, page 309,
said this: "It ignores what has always been legardedas a
fundamental doctrine of the law of master and servant, viz,
that there are certain duties owed by a master to his servant
so imperative and vital to safety that the master cannot divest
himself of responsibility by entrusting their performance to
others, so as to avoid liability in the event of injury arising
P to the s ervant through neglect of any of these' duties. The
master*s liability as for breach of these paramount duties is
unaffected by the doctrine of fellow-servant, for in the eye
of the law they are duties that cannot be delegated. If, in
fact, they are entrusted by the master to others, the maxim
P applies qui facit per alium facit per se. The duty may not
be absolute, and may be only a duty to exercise due care, but,
if, in fact, the master entrusts the duty to someone else instead
of performing it himself, he is liable for injury caused through
the want or care of that someone else, as being, in the eye
28.
 of the law, h i s own negligence". I have quoted t h a t statement
since i t was expressly approved by a l l t h e i r Lordships in
Wilsons & Clyde Coal Co, v. English' 1938, Appeal Case3 page 57, as
representing the ]aw of England a's well a s of Scotland. See also
A
the p r i n c i p l e as enunciated in that case by Lord Thankerton at
page 70, Lord MacMillan at page 75, Lord Wright at page 00 and
pages 83/84, and Lord Maugham at page 88,
Further, i t is I think clear that t h i s principle holds good
whether the tiers on employed by the master i s a s e r v a n t , a full-Nfc-itoe
B
agent or an independent contractor. I t is true t h a t in Wilsons'
case the person under consideration was a manager employed by the
owner of a mine, but a l l that was said there i s equally applicable
to the case of an independent contractor* Indeed Lord Wright,
at pages 80/81 gave as an i l l u s t r a t i o n the case of a shipowner
who employed an expert naval a r c h i t e c t , engineer or stevedore to
make h i s ship seaworthy - persons who in general would be
independent c o n t r a c t o r s .
Further in Paine v. Colne Valley E l e c t r i c i t y Supply Co. Ltd y ,
1938 4 All England Reports, page 803, Lord J u s t i c e Goddard (as he
then was) s i t t i n g as an a d d i t i o n a l judge of the King's .Bench
Division, expressly included independent contractors as within tha
principle.
Again in Thomson v. Crernin, 1956 1 Vi/eekly Lav; Reports, page 103,
P the Defendant was held l i a b l e for the negligence o'f independent
contractors employed to perform the duty. I t i s true that that
was a case of invitor and i n v i t e e , but the duty cf a master to h i 3
servant is c e r t a i n l y no less than that of an i n v i t o r to h i s i n v i t e e .
The p r i n c i p l e i s , I think, c l e a r , but d i f f i c u l t i e s a t once
P arise v/hen i t is sought to apply i t in the present case. Is It
to be said t h a t in ordering a standard t o o l from Baldwin Ltd,
wholesale s u p p l i e r s , they were delegating a duty owed to the
P l a i n t i f f or were employing Baldwins to perform t h e i r duty, or
were appointing 3aldwins t h e i r agents in that regard, to employ
29,
 phrases often used in the coses? I cannot believe that the matter
can be looked at in this way when thore is nothing more than the
purchase and sale of a standard article and this whether the seller
1
is a distributor or the manufacturer. Of course if the Defendants
purchased the tool from suppliers or manufacturers whom they had
reason to believe were unreliable or if the defectwas patent
to the Defendants or one v/hich they ought to have suspected, the
position might be different. It would then be a question of fact
whether in all the circumstances the./ had failed to ex. rcise
reasonable care. Ho consideration oi this kind, however, arises
here.

But even if Baldwin Ltd fell in some way to be considered

as the Defendants' agents, there is no suggestion that they
were negligent. They in turn bought from reputable manufacturers,
and had no reason to suspect any defect in the bool.

In these circumstances it seems to me that the Plaintiff can

only hold the Defendants liable if the true duty of a master is
not merely to take reasonable care to provide a reasonably safe
D
tool, but to proviue a tool which has been manufactured with
reasonable skill ana care oven when the manufacturer is in no
contractualrelationship with the master. Unless constrained
to do so by authority I would be loath to hold that there was any
such duty. Subject only to a defect latent to the manufacturer,
E
and ordinarily this will not arise by reason of his expert knowledge,
such a duty would amount to a warranty that the tool was safe.
Indeed such a duty would be one incapable of performance in that
the master would have no control over the processes of the
ultimate manufacturer. Viewed as a matter of contract I find it
F
difficult to imply any such term. Viewed as a matter of tort
it would be a retrograde step towards the thoory of liability without
negligence: c.f. Read v. Lyons cc Co. Ltd, (1947 Appeal Cases per
Lord MacMillan at pages 170/171 and per Lord Simonds at page 180).
30,
 What then is the position on the authorities? Oddly enough
the question until r ecently has never fallen to be decided in
England. In the recent case of Mason v. Williams & Williams Ltd«^
1955 1 Weekly Law Reports, pago 549, Mr.. Justice Finnemore decided
A that an employer who buys tools from reputable makors is entitled
to assume that they are such as will bo proper for their intended
purpose. Apparently, however, no cases,were referred to in
argument,,
Much reliance in the present case was put on two passages,
B one in the speech of Lord Maugham in Wilsons' case and on., in the
speech of Lord Wright in Thomson v. Cr Drain. In Wilsons' case at
pages 87/88 Lord Maugham said: "Suppose some new machinery is
necessary in a factory, and tne employer is absent or completely
unskilled in such things. Ho necessarily leaves the matter to a

'C manager, let us suppose a highly skilled person, who, however, is

negligent in this case. An accident follows, due to a defect
in the machine. If the liability of the employer is stated as being
an obligation to use his best endeavours to supply and instal good
machinery, it may well be said on his behalf that he left the matter

" to a highly skilled man, and it may be asked with force, what more
could he do? I should reply, nothing; but I should add that the
premise is incorrect. The possessive noun "his" is that which
leads to the error. The proposition would be more correctly
stated to be that his duty is to supply and instal proper machinery
so far as care and skill can secure this result". Taken out of
their context these words are no doubt wide enough to embrace the
higher duty contended for, but I cannot bring myself to believe
that Lord Maugham was intending to lay down such a duty. Wilsons'

case concerned the manager of a mine; it decided that though an

F
employer c a n , and often should, d e l e g a t e h i s duty to s e r v a n t s ,
agents and even independent c o n t r a c t o r s , he remains l i a b l e for t h . . i r
negligence. The House was not c o n s i d e r i n g t h e q u e s t i o n which
a r i s e s here which i s not a case of d e l e g a t i o n . That Lord Maughara
31.
 had no such question in mind is, I think, made clear by the words
which follow the passage cited above. Lord Maugham goes on:
"Ho can, and often must, perform this duty by the employment of an
agent who acts on his behalf; but ho then remains liable to the
employees unless the agent has himself used due care and skill
* in c arrying out the employer.'s duty. This has sometimes been
expressed by saying that the duty is personal to the employer; but
the adjective if unexplained is apt to mislead, like the word
"absolute" and the word "delegate". The employer can, of course,
and frequently must delegate the performance of any of his duties
B
to skilled agents."
In Halsmith v, London i?ilm Production Ltd., 1959 1 All England
Reports, page 794, Lord Maugham's statement was cited and followed,
and Lord -Justice Goddard (as he then w as) at page 798 expressed
the duty as one "to make the place of employment, and the plant .
and material used, a s safe as the exercise of reasonable skill
and care would permit". In that case also, however, the Court
were not concerned with the point which a rises in the present case.
The second passage, in particular relied upon, is that of Lord

Wright in Thomson v. Cremlin (vide supra) at page 110: "The duty

D
of the invitor towards the invitee is, in my opinion, a duty
personal to the former, in the sense that he does not get rid of the
obligation by entrusting its performance to independent contractors.
It is true that the invitor is not an insurer: he warrants,
however, that due care and skill to make the premises reasonably
E
safe for the i n v i t e e have been exercised, whether by himself, h i s
servants, or agents, or by independent contractors whom he employs
to perform h i s duty, rlo does not f u l f i l the warranty merely by
leaving the work to c ontractors however reputable or generally
competent. His warranty is broken if they f a i l to exercise
F
the proper care and s k i l l " . The warranty there referred t o ,
however, does not extend t o the care and s k i l l of persons not
in any contractual r e l a t i o n s h i p with the Defendant but only t o
the care and s k i l l of those"whom he employs to perform his duty",
32.
 I would a l s o r e f e r t o Biddle v, H a r t , 1907 1 King's Bench-
D i v i s i o n , page 649, a d e c i s i o n of t h i s Court. In t h a t case a
s t e v e d o r e ' s workman was i n j u r e d as a r e s u l t of a defect in t a c k l e
g r a t u i t o u s l y provided by the ship as was customary, Tho
D i v i s i o n a l Court had held, a f f i r m i n g t h e County Court Judge, t h a t
in such circumstances the master wa.3 under no duty i n r e g a r d t o
the t a c k l e . The Court of Appeal, however, ordered a new t r i a l ,
h o l d i n g t h a t the Defendant was under a duty and t h a t i t was for
tho j u r y t o consider whether the duty had been performed. It
i s t r u e t h a t the claim was made under the Employers L i a b i l i t y
Act, 1830, but under t h a t Act the P l a i n t i f f t o succeed had t o
provo n e g l i g e n c e , and the Court c l e a r l y did not c o n s i d e r t h a t tho
s t e v e d o r e ' s duty was such t h a t he was rospons-blo ior tho as f e e t
i n the shipowner's t a c k l e . Thus Lord J u s t i c e Farwvll at page
654 s a i d : "The Act of 1880 was a mode of d e p r i v i n g tho employer
of p a r t i c u l a r defences which were open t o him a t common law, such
as common employment and the l i k e . That i s p o i n t e d out by' Lord
J u s t i c e A.L. Smith i n Howe v . Mark Pinch •:; Go. (1366) 17 Queen's
Bench D i v i s i o n , page 187, The case must t h e r e f o r e be considered
as i f t h i s p l a i n t i f f were an o r d i n a r y person employed t o use
tho t a c k l e by the defendant for the purposes and f o r the profit
of the: defendant. In such a Ciise t h e defendant has t o take reason-
able care t h a t the t a c k l e , whether h i s own, or h i r e d , or l e n t ,
i s reasonably f i t f o r t h e purpose for which he employed the
p l a i n t i f f t o use i t ' 1 . And a t page 655 S i r Gorell Barnes s a i d :
" I t may be t h a t i n a case of t h i s c h a r a c t e r , although he had t h a t
duty, y e t , i f he had d e a l t w i t h these shipowners before and had
never h"d any cause f o r c o m p l a i n t , the j u r y might t h i n k t h a t he had
reasonably discharged t h a t d u t y . On t h e other hand, when you
have evidence t h a t the p l a n t was old and hsd been m use for a long
t i m e , t h e j u r y might say t h e y were not s a t i s f i e d t h a t r e a s o n a b l e
care had been taken t o see t h a t i t was in a proper c o n d i t i o n . Once
e s t a b l i s h the duty tho q u e s t i o n i s , What would the j u r y consider

33,
 a discharge of that duty?"
Finally, as far .as the English authorities are concerned,
reference has been made to the position when premises, upon which
the s ervant is required to work, are not in the occupation or
control of the master: c.f. Taylor v. Sims & Sims (1942 2 All
A England Reports, page 375), Cilia v. H.M. James & Sons (1954 1
Weekly Law Reports, page 721). In both those cases it was held
that the master owed no duty to see that the premises were safe,
but that if there were any duty it had been performed. These cases
were, of course, relied upon by the Defendants*" Though it is
B unnecessary for the purposes of the present case to come to a final
conclusion, I am inclined to the view that theso decisions, in so
far as they decided that there was no duty, c annot stand with the
decision in Biddle v. Hart (vide supra). The duty, as it seems to
me, is always th,,rc, and it is a question for the jury whether that

C duty has been penornod, bearing in mind that the premises are not
in,the occupation or under the control of the master. That, as I
understand his judgment, was the approach of Mr. Justico Hilbory
in Hodgson v. British Arc Welding Ltd. (1946 King's Bench Division,
page 302).

^ Turning to the Scottish authorities, these were strongly

relied upon by the Plaintiff. Thus, in MacdonaId v # Wylie ,
(1S98 1 Praser, page 339), a workman was injured by the fall of a
scaffold due to thu negligence of a firm of joiners-v/hom his

employers, builders, had employed to erect. At the trial the

F

Lord J u s t i c e - C l e r k had d i r e c t e d the jury that if they were s a t i s f i e d

that the defenders, not having the knowledge and s k i l l to e r o o t the
scaffolding in question, s e l e c t e d a tradesman having s k i l l and
experience of such work and contracted with him to provide such a
scaffold, he would not be l i a b l e ,
v
Upon a bill of exceptions it was held that there must be a new
trial. Lord Young at page 344 said: "The basis of the workman's
claim against his master is that there is a responsibility on the
34.
 part of h i s employer for the scaffolding being in a reasonably
aafo condition to enable the workman to perform the work which
he has been engaged t o do.
"According t o the law of Scotland in the contract of master
and s e r v a n t , apart from special s t i p u l a t i o n to the contrary, i t i s
implied that the employer i s responsible to his workmen for the
condition of the scaffolding which ho ha3 provided for them to
work upon, and that w ithout any reference to the mode employed by
him to erect i t . " Further,. Lord Trayner at page 345 said: jf a
master buys a machine, l e t us say, necessary for the execution of
his work, and gives i t to h i s workman, i t is the master's machine,
iot the workman's or manufacturer's. I f the machine turns out
to bo f a u l t y , defective, or otherwise i n s u f f i c i e n t , the master must
answer for i t " .
The words used in the,e passages road apart from t h e i r context
strongly support the P l a i n t i f f ' s contentions. But in t h e i r context
I think t h e / do no more than emphasise that the master's duty is
personal in the sense referred to in Wilsons' case. The basis of
the case was that the master had employed the j o i n e r s to erect the
scaffold. I t i s also to be observed t h a t Lord Moncrieff and the
Lord Justice-Clerk took a different view, and only granted a new
t r i a l on the ground that the direction was incomplete in that the
question whether the defect could have been discovered by the
master had not been l e f t to the jury.
In Wilson v. Merry and Cunningham (1867 5 Macpherson, page
807), a case where the defence of common employment was r a i s e d ,
Lord President I n g l i s at page 811 said t h i s : "I think that wherever
the master of a coal-pit or of any other work, has occasion to
purchase snd provide a machine or apparatus to be used by his work-
people, or for t h e protection of h i s workpeople, ha i s l i a b l e for the
insufficiency of that machine or apparatus if i t should turn out
to be i n s u f f i c i e n t " , These again are wide words, but again the
Lord President was not considering a case where the insufficiency

35.
 arose as a r e s u l t of the negligence of o person with whom the
master was in no contractual r e l a t i o n s h i p . The next case i s
McKillop v . The North B r i t i s h Railway, (1896 23 R e t t i e , page 768).#
but t h i s is authority for no more than t h i s , t h a t a Railway
Company is not relieved by the appointment of competent engineers
and managers from r e s p o n s i b i l i t y for injury a r i s i n g to a servant
from a defect in the construction of the >7orks» Jtfor can I find
anything in the Lord J u s t i c e - C l e r k ' s judgment in Bain v. Fife
Coal Co* (vide supra), which supports the duty contended lor by
the P l a i n t i f f .
The 3a st case i s Donelly v. Glasgow Corporation (1953 Scots
Law Times, page 161). The driver and conductor of a bus were
injured as a r e s u l t of a defect i n the chassis of a bus belonging
to t h e i r employers. The employers averred that the defect was
one of design, the fault of the manufuoturers from whom they had
bought the bus. I t was held that the employers could not e.scape
l i a b i l i t y for damages a r i s i n r from th, provision of defective plant
by blaming the manufacturers, and that the defences, no far ag
imputing fault against the manufacturers, were i r r e l e v a n t . The
Lord J u s t i c e - C l e r k , with whom Lord Mackay and Lord Patrick
concurred, s a i d : "So farra the d r i v e r ' s and conductor's c^se3
are concerned, they both being servants of the Corporation, I
have no doubt that the defences are i r r e l e v a n t . I t i s admitted
by the Corporation t h a t the omnibus was defective '.and they aver
that t h e i r suppliers were responsible for the defective condition
But. on t h i s branch of the lav/ ••> master c annot escape l i a b i l i t y
to h i s servant for defective plant by blaming h i s a g e n t s . The
personal r e s p o n s i b i l i t y which the law lays on the master in r e s p e c t
of plant covers the a c t i v i t i e s of any person whom the riaster
employs to provide that p l a n t . The supplier and the master are
as one. I f then the supplier erred, the master is saddled with
the results of that e r r o r " .
While not binding on t h i s Court t h a t decision is,, of course,

36.
 mo3t p e r s u a s i v e a u t h o r i t y . Or.ce more, however, the d e c i s i o n
appears to be based on agency, but i n so far as i t t r e a t s tbs
manufacturer as the employer's agent I crave leave t o doubt i t s
correctness. As I understand the f a c t s t h e r e was no s u g g e s t i o n
that t h e c h a s s i s had been rnado t o t h e employer's r e q u i r e m e n t s .
I t was a s t a n d a r d c h a s s i s . Moreover t h e r e was no averment t h a t
tho master could not w i t h reasonable, care have discovered the defect.
But i n any event t h a t d e c i s i o n , as I read i t , i s no a u t h o r i t y for
the duty contended for i n the p r e s e n t c o s e , since tho eraployers here
were in no c o n t r a c t u a l r e l a t i o n s h i p with the n e g l i g e n t
manufacturers.
Having considered the a u t h o r i t i e s , I have; come t o the c o n c l u s i o n
t h a t a judgment i n favour of the P l a i n t i f f i n v o l v e s an e x t e n s i o n of
the duty owed a t common law by a master t o h.i.3 s e r v a n t . Now t h a t
the d o c t r i n e of common employment i s a b o l i s h e d , and now t h a t t h o
workman canrocover d i r e c t from t h e n e g l i g e n t manufacturer, I can s e e
no j u s t i f i c a t i o n for extending the duty t o ;;:-•:.;reise r e a s o n a b l e
care as enunciated by Lord Herashell i n Smith v, Baker (vide s u p r a ) .
Accordingly I would allow t h i s Appeal,
LORD JUSTICE PEARCE: I t o o f e e l r e l u c t a n c e and d i f f i d e n c e a t t a k i n g
a d i f f e r e n t view from t h a t expressed by Lord J u s t i e e J e n k i n s ,
We have t o decide what i s the l e g a l r e s p o n s i b i l i t y of an
employer in r e s p e c t of a t o o l bought by him without negligence
from a. r e p u t a b l e s u p p l i e r who, without negligence, had bought it
from a r e p u t a b l e manufacturer, who was g u i l t y of n e g l i g e n c e i n
i t s manufacture. I t i s c l e a r from the l e a r n e d J u d g e ' s findings
t h a t no one save the manufacturer has been a t fault.
I t i s important to consider the e x a c t e x t e n t of t h e
employers d u t y . I f the duty i s t o e x e r c i s e care in supplying
p l a n t , then one would t h i n k at f i r s t s i g h t t h a t he must be
discharged from l i a b i l i t y i f he or those t o whom he has e n t r u s t o d
the duty have w i t h due care bought a s t a n d a r d t o o l from a r e p u t a b l e
in d dleman who has bought i t from a r e p u t a b l e manufact u r e r . To

37.
hold him liable in such circumstances seems to me tantamount to
saying that his duty is to make and that the manufacturer must bo
regarded notionally as having had that task entrusted to him by
the employer*
The duty of an employer in respect of the provision of plant
has been put in various phrases, all based on a duty to take
reasonable care - e.g. he has "the duty of taking reasonable care
to provide proper appliances" (per Lord Herschell in Smith v.
Baker, 1891 Appeal Gases, at page 362) : "a duty to furnish workman
with adequate materials and resources for the work" (per Lora
Cairns in V/ilson v. Merry & Cunningham (Lav; Reportr, 1 House of
Lords (Scottish) at page 332): "a duty of providing good and
sufficient apparatus" (per Lord Wensleydale in v7eems v. Mathieson
4 i.Iacpherson, page 215): and of "proviaing propor plant"
(Toronto Power Co. v. Pa slew, an 1915 Appeal Cases, at page 738),
Nowhere does one find it described as a duty to make.
In the latter case it was said: "It is true that the master
does not warrant the plar.t and if there is a latent defect which
could not be detected by reasonable examination or if in the
course of working the plant becomes defective and the defect is not
brought to the master's knowledge and could not by reasonable
diligence have been discovered by him the master is not liable
and further a master is not bound at once to adopt all the latest
improvements and appliances. It is a question of- fact in e aoh
case, was it in the circumstances a want of reasonable care
not to have adopted them". Lord Thsnkerton in Wilsons oc Clyde
Cpal Co« v, English (1938 Appeal Cases, at page 72) accepted
that passage a a adequstoly expressing the law*

In the same case Lord Wright said (at page 78): "The same
principle, in my opinion, applies to those fundamental
obligations of a contract of employment which lie outside the
doctrine of common employment, and for the performance of which
employers are absolutely responsible, When I use the word

38.
 absolutely, I do riot mean that employers warrant the adequacy
of tho p l a n t , or the competence of fellow-employees, or the
propriety of tho system of work. The obligation i s fulfilled
by the e x e r c i s e of due euro and s k i l l " . And Lord Maugham said
at page 66: "In such employments i t was hold that there w as a duty
on the employer to t ake reasonable caro and to use reasonable
s k i l l f i r s t t o provide and maintain proper machinery, p l a n t ,
appliances and works". And l a t e r (at page 87), " i t has already
been pointod out t h a t the employer's l i a b i l i t y i s discharged, by
the exercise of due caro and s k i l l " .
I t is c l e a r , therefore, that the duty is merely to use
reasonable care and s k i l l in providing adequate plant* This
duty, as was pointed out in that case, i s one of v/hich the employer
cannot r i d himself, "But in t ruth the employers obligation"
said Lord Wright (at page 80), "as i t has boon dofinod by t h i s
house i s personal to the employer and one to be performed by
the employer per so or por a l i o s . If I may take an analogy
or instance of a aim.lar personal o b l i g a t i o n , I note that the
Carriage of Goods by Sea Ace, 1924, requires a shipowner to
exercise duo diligence or to take reasonable care t o provido a
seaworthy s h i p . The shipowner i s almost c e r t a i n l y not an expert
naval a r c h i t e c t , engineer, or stevedore. So fares I know i t has
never boon claimed that t h i s obligation i s f u l f i l l e d b y t h o ship-
o n e r taking reasonable caro t o appoint a competent expert;
the shipowner is absolutely held to the fulfilment of the
obligation. I t i s the obligation which i s personal to him, and
not tho performance".
Lord Maugham put the proposition in these words (at page 07)g
" I t has already been pointed out t h a t tho employers' l i a b i l i t y
is discharged by tho exorcise of due care and s k i l l ; and I may be
allowed to point out that i t is t h i s circumstance which has le d on
occasion to a misapprehension of the true p o s i t i o n . An
i l l u s t r a t i o n w i l l demonstrate the mistake* Suppose some new

39.
 machinery is necessary in v factory, and the employer is absent
or completely unskilled in such things. He necessarily leaves
the matter to a manager, let us suppose a highly skilled person^
who, however, is negligent in this case. An accident follows, due
to a defect in the machine. If the liability of the employer
A
is stated as being an obligation to use his best enaeavours to
supply and instal good machinery, it ;v,ay well be said on his
behalf that he left the matter to a highly skilled man, and it may
be asked with force, what more could he do?' I should reply,
nothings but I should sad that the premise is incorrect,
B
The possessive pronoun "his" is that v/hich Is ads to the error.
The proposition would be more correctly stated to be that his
duty is to supply and instal proper machinery so far as care and
3kill can secure this result. He can, and often he must, perform
this duty by the employment of sn agent who acts on his behalf;
but ho then remains liable to the employees unless the agent has
himself used due care aix; skill in carrying out the employers'
duty" 6
Four years a f t , r Wilsons cc Clyde Goal Co, v, 3n ; ::lish in
. Thomson v. Cretain ( l a t , . r reported in li'55, 2 Ail England Reports,
at page 1191), Lord Wright again defined the rule which he said
tho House had in a d i f f e r e n t context applied in Wilsons & Clyde Go,
v
» English, "The duty of the i n v i t o r towards the invitee i s ,
in my opinion, a duty personal to the former, in -the sense that
£ he does not get r i d of the obligation by e n t r u s t i n g i t s
performance t o independent c o n t r a c t o r s . I t i s true that the
i n v i t o r is not an i n s u r e r : he warrants, however, that due care
and s k i l l to ma:-:e the promises reasonably safe-X->> the invitee
have been exercised, whether by himself, h i s servants, or agents
p or by independent contractors whom he employs t o perform h i s
duty. He does not f u l f i l the warranty merely by leaving the
work to c o n t r a c t o r s , however reputable or generally competent.
His warranty is broken i f thoy f a i l t o exorcise the proper care
40.
and skill".
As long as the employer's liability is based on want of care
it is a difficult concept to regard hi-; as vicariously liable foi»
the negligence of a rnanufacte.rer whom he did not employ, who never
had any business relations • ith him, and '"ho, (if th.:y arc both
companies) may evon have ceased to exist before toe employer came
into existence. Che employer can hardly be said in such a case
to have made the tool cor so. or o^r- alios* Yet, here, it vas
only in the making that there was negligence. Such a concept
would presumably make -n employer liable if he bought a factory
v/hich through the negligence of the original buileor years before
had a defect (undir-coverable by r e ,-:s enable examination when once
the build ins v;as cempl. t. :l) which subsequently harmed his employee.
To call this a vicarious liability would be to use the words
in quite a different sense facm any in -vhich, as f\r as I can see,
they have hitherto beer. uced. If thw liability were based on a
breach of a warranty of the fitness of bl'.o plant, the concept would
be a neat ana easy one. Bu: such a warranty has always bjen
exprossly disclai./ed by th. courts. One is oound therefore to
enquire closely whether th . words in the opinions on which the
respondent chiefly r-.lica ;."'• i.-ly compel one to the conclusion
reached by the learned Ju.*ge,

It strikes me as straiige that, if Lord '"right and ^ord Maugham

were intending their words to cov..r each a. case as this, they made
no mention of it. Defects in machinery or tools that have been
bought from suppliers or manufacturers must have been a possibility
present .to their minus. Indeed Lord I-.laugh.am gives a specific
illustration dealin with a defect in new machinery in the passage
I have -oad. In speaking of "a :ief ct in the machine" he is
referring, as I understand it, to a defect which would have been
discovered by a careful manager, and he eases the liability of the
employer on the manager's nealieence. If the- r ospondent's argument
is correct, the emplcyor would have been liable in any event,

41.
 (since ox hypothesi thv defect was discoverable) and the manager 3
negligence would have been i r r e l e v a n t .
Again i t is noticeable that Lord "/Jright in the passage whigh
I have read refers t o the naval a r c h i t e c t , the engineer, the
A stevedores, as people for whose neglect the shipowner w i l l find
himself vicariously l i a b l e . He does not r e f e r to the ship-
builder* I t 3oems t o me unlikely that he was intending to
express a p r i n c i p l e by which every subsequent purchaser of the
ship w i l l be l i a b l e to his employee for some undisoc^erable defect
B due t o the o r i g i n a l n-^ligenco of the shipbuilder. By ur:d'_scev ^rablo
defect I m. an a defect t h a t though patent to the shipbuilder during
the construction was not discoverable by subsequent purchasers.,
using reasonable care.
I t seems t o me that the opinions read f a i r l y in their' contexts
C are dealing only with the negligence of persons t o whom the employer
has "entrusted" the provision of plant and ' re concerned t o make the
point that although they be independent c o n t r a c t o r s , yet anything
that they do i s the act of the employer acting per s l i p s . If those
opinions were intending to define a rule of such far r.^ching
D consequence t h a t i t would make the employer responsible for defects
duo t o the negligence of the manufacturer and undiscovcrablo by a
purchaser even in respect of small standard a r t i c l e s that he buy3,
I would think i t probable that they would have said sc in express
terms.
E When Lord Maugham in the passage which I have read expressly
eliminates the word " h i s " , and says t h a t "the proposition would
be more correctly stated to be that his duty i s to supply and i n s t a l
proper machinery so far as care and s k i l l can produce t h a t r e s u l t " ,
he follows i t with the s e n t e n c e , "He can and often must perform
** t h i s duty by t h e employment of an agent who acts on h i s behalf;
but he then remains l i a b l e to the employees unless the agent
has hi..;sclf used due care and s k i l l in carrying out the employer's
duty". I think t h a t , in the context, ho i s removing the

42.
 l i m i t a t i o n of the pronoun " h i s " in order t o widen t h o p r i n c i p l e
.only to tho e x t e n t of s u b s t i t u t i n g (by i m p l i c a t i o n ) vhc words "Lhe
care and s k i l l of any persons whether a g e n t s or independent
c o n t r a c t o r s who have boon e n t r u s t e d by the employer with tho
A fulfilment of h i s d u t y " ,
I would t h e r e f o r e r e g a r d the respondent'3 c o n t e n t i o n i n t h i s
caso as extending t h o words of Lord VJright and Lord Maughara beyond
their true i n t e n t i o n . To r e g a r d the t o o l i n question on the
facts o f " t h i s case as having boon manufactured by•the employer
per a l i o s seems t o me u n r e a l and a r t i f i c i a l and I venture t o t h i n k
i t cannot be r i g h t i n p r i n c i p l e ,
I see the forc^ of tho argument t h a t the view of t h e matter
which I have expressed may seem to draw a c a p r i c i o u s line; botweun
the employer who buys a standard a r t i c l e of p l a n t from a middleman
r
end tho employer who ma,<es it himself or the employer who has th„
article specially made for him by a manufacturer to his spe'c.al
requirements (as in Paine v, C'olne Valley Electricity Supply Go, Ltd,,
1938, (4) All England Reports, p-go 803). But overy line is liable
to have anomalies alon^ its borders and I do not think that is a
D
so una argument for not drawing; a l i n o a t a l l i f -r i n c i p l e seems to
demand t h a t i t should be drawn,
I agree w i t h Lord J u s t i c e Parker i n h i s o b s e r v a t i o n s on the
S c o t t i s h cases and I have nothing t o add t o them.
For the r e a s o n s I have givun and those mere c l e a r l y and
1

cogently s e t out by Lord J u s t i c e Parker I 7/ould. allow t h e appjal.

43,
MR.EVERETT: As far as th© first Defendants are concerned, I
would ask that the Appeal be allowed with costs here and
below.
LORD JUSTICE JENKINS: That is right.
MR. EVERETT» That is judgment for the first Defendants against
the Plaintiff with costs. Under the terms of the Judgment
there was a stay of execution as to £1,530. The first and
second Defendants have paid to the Plaintiff £250 each, and
we have paid into Court the balance, the £1,530, divided
equally. I would ask, in the circumstances, that I might
have.an order for repayment of my £250 by the Plaintiff, and
for payment out to my instructing solicitors, or to the first
Defendants, of half of the £1,530.
LORD JUSTICE JENKINS: Were these sums of £250 paid on the
personal undertaking of the solicitor, or something of that
sort.
MR. EVERETT: No, they were not. We were only given a stay on
the basis that the Plaintiff should have £500, which the first
and second Defendants agreed they would bear equally.
LORD JUSTICE JENKINS: It must follow you are entitled to have
that back.
MR. JUKES: I cannot resist that there should be an order for
repayment by my client of the sum paid by ray learned friend,
Mr. Everett's clients. Nor can I resist an application that
the amount my learned friend Mr. Everett's clients have paid
into Court should be paid out to him.
LORD JUSTICE JENKINS: That seems right.
MR. EVERETT: Then as far as the rest of the appeal is concerned,
on the question of costs, I do not think it arises now.
LORD JUSTICE JENKINS: You are oontent if you get the appeal
allowed with costs here and below, and get Judgment for you
against the Plaintiff with costs?
MR. EVERETT: That is right, yes; I am content with that. I do
not know if my friend desires to address your Lordships on the
question of costs vis a vis the second Defendants, That does
not concern me.
MR. JUKES: I would desire, for a moment, to say.something about
costs in the Court below. There is a notice here. The
second Defendants were brought here by the first Defendants'
subsequent appeal on the order as to costs, but the Plaintiff
has also served a notice on the second Defendants, asking that
this court should make an order that the costs of the first
Defendants in the Court below should be paid by the second
Defendants; in other words, asking for what is known generally
as a Bullock Order.
Perhaps I ought to read the notice, because I do not
suppose your Lordships have had an opportunity of seeing it.
It is document 2.
LORD JUSTICE JENKINS: In that you ask for this indemnity.
MR. JUKES: On the ground that it was reasonable in the circum-
stances, plainly, for the Plaintiff to join the first Defendants
in the action, particularly as a great deal of the trial was
taken up by the allegation that this accident was caused by
an improper use of the drift, that it was not ever designed
44.
 for the purpose for which it was. being used. If that was
so, then my client, the Plaintiff, was provided with the
wrong tool. In fact, of course, it was held by the learned
judge - and there is no appeal against that - that though
in fact the drift was used for a purpose for which it was not
designed, it was not negligent to provide it for him for that
use. In those circumstances there was a considerable dispute,
as between the two Defendants in the Court below, as to which
was liable if any. Certainly the second Defendants case (or
A part of it) was: "If anyone was liable it is the first Defendant
and not us".
In those circumstances, I would submit, it is reasonable
to have kept the first Defendants as parties to the action -
I say "kept" because we did not know until the trial came on
that they themselves had not made the drift - and that the
ordinary consequences should follow, namely, that there should
be a Bullock Order that is, that the costs ordered to be paid
to the first Defendants by the Plaintiff should, in fact, be
B paid by the second Defendants. That is the notice by the
Plaintiff, and I ask your lordships to say that that is a proper
order to make.
MR. HOARE: This, I think, is where I take an active part for the
first time. This is a singularly bold application by my
friend, Mr. Jukes, in the circumstances of this case, all of
which were within the mind of Mr. Justice Ashworth when he made
the Order which he did. I may have to ask your Lordships to
look at the shorthand note of the discussion about it, because
C it is quite apparent that in a very complicated tangle of cir-
cumstances the learned Judge exercised a discretion to order that
the first Defendants (who before him were unsuccessful) should
pay 60 per cent, of the costs, and that my clients should only
be liable for 40 per cent, of the costs.
The facts which wore,of course, present to the learned
Judge's mind were, that the accident was in 1953 snd the writ
against the first Defendants only was in July, 1954- Then on
the 1st October of that year the first Defendants delivered a
D Defence. Then on the 17th January, 1956, the trial came on -
I am still not a party - before Mr. Justice Havers. Then
leave was given after the morning, or the first day, for the
trial to be adjourned and for the first Defendants to have an
opportunity of amending their Defence to allege that they had
the defence which has been the subject of this Appeal, which
had not been pleaded in any way. There was an amendment in
February, 1956, and there were two other applications before
the learned judge, Mr. Justice Havers, who was trying the action
at the time. Then on the 2nd May, 1956, for the first time,
E we were joined as Defendants to this proceeding and served with
a writ which had been issued a day or two before.
All the costs up to then were not dealt with, except
for the actual costs of the.three applications which were made.
The first day of the trial, I think, was not dealt with except
as to the amendment, and the costs of the adjournment and the
two further adjournments were not dealt with. So there were
some costs of the initiation of the trial, and so on, and of
the first day still left over which were dealt with by Mr.
F Justice Ashworth when he dealt with the costs of the action.
My clients, therefore, do not come in till 2nd May, 1956.
Then the Statement of Claim was amended to allege that we were
negligent in respect of r -lace
,1 ,s
" o~~ "•1"4,~,!~ had happened 10 years
f worlc
before, in respect of whicPl •> previous notice, and
in respect of which we had lost or had not kept, after six or
seven years, a great many of the relevant records. That, of
course, is a plea in a sense ad misericordiam, but it was a
45.
fact that we were suddenly faced with a complaint about some-
thing which we could not really chock.
The situation, as it appeared then, was that in our
Defence that we subsequently filed, we did say in paragraph 6 -
and my friend, I think, has referred to it in his notice - that
we adopted the allegations of negligence made by the Plaintiff
against the first Defendants in sub paragraphs (g) and (h) of
paragraph 2 of the Statement of Claim. But those two allega-
tions are the only allegations that were not pursued; they did
not take up any time at the trial or indeed, as I see it, involve
any costs at all, and that is the only point which could be used
to pray in aid the propriety of a Bullock Order in this oase.
Vhat happened then was the trial came on, and to take
a rough proportion - the learned judge thought of it and arrived
at a figure in fractions - three-fifths of the trial was taken
up v/ith the complicated questions of law and the evidence about
the facts which have been argued in this oase, and wore argued
for three-fifths of the time in the Court below. Then you
have to add to that the time taken by the action and the costs
incurred in the action before we ever became parties to it.
The learned judge having those considerations in mind said, in
affect, that though to the Plaintiff both Defendants were liable
for the whole amount of the Judgment and costs, the actual lia-
bility for costs, as between both Defendants both of whom were
solvent - no question of insolvency came into it - should be
that my clients should pay only 4-0 per cent. In that kind of
situation, in my submission, that is right,
Nov/, having received the Judgment of this Court, in
which the first Defendants are not liable, it follows that the
unsuccessful party should pay that part or proportion of the
costs which were incurred as a consequence of his pursuing the
Defendant who has now been held not to be liable, which is no
concern of mine at all. It would, in my submission, be quite
wrong that any of the costs of the trial below, either before
I became a party to it or afterwards, when a great deal of the
time was taken up in arguing the liability of a now successful
Defendant, should now be paid by the unsuccessful Defendant who
has not appealed here, and who is only brought here by reason
of this demand that I should now have to pay more costs than
before. As I say, I put it primarily upon an exercise of
judicial discretion properly exercised upon proper materials.
The amount of the liability, therefore, should net exceed the
40 per cent, which the learned judge found, and th? cost3 .
should be paid (it now should be) by the Plaintiff and not by
the first Defendants. That is how I put it shortly.

I think there are perhaps one or two other considerations

which one ought to have in mind which were present to the
learned judge's mind. There is particularly the difficulty for
my clients of dealing with the facts, having regard to the time
which I have already referred to, and to the fact that the only
tangible piece of (as it were) scientific evidence or piece of
material capable of scientific examination, namely, the piece
from the Plaintiffs eye, was tested, I do not say dishonestly
or dishonourably or anything of that sort, but in fact was
tested to the point of destruction by scientific experiments
before we ever had a chance to know it even existed. It made
our task extremely difficult and extremely onorous in proving,
or endeavouring to prove, that there had been no negligence in
the heat traatment (as your Lordships will remember from the
judgment was the kind of negligence found) some ten years
before by members of the staff, most of whom are no longer with
us. Something might have been ascertained if we had had a
piece to test. That was another of the things present to the
learned judges mind.
46.
 There was also the fact, as the learned judge said,
I think in his final judgment at one time, that he was extreme-
ly doubtful in his own mind as to whether this drift could be
identified as being that of the second Defendants at all.
But that part of the action and trial did not take the major
part of the time. I can tell your Lordship, shortly, from
my own note - I have not been favoured with the full short-
hand note - what the position was: of the four-day trial,
,\ the first day was taken up with the Plaintiff's case against
the first Defendant; the second day was the first Defendant's
case until shortly after the adjournment, and from then on
until the end of the next day the second Defendant's case and
the evidence in an endeavour to prove, or anyhow to disprove
the contrary, that it was the second Defendant's manufacture
at all; then on the third- day were the contentions of the
first Defendants and the Plaintiff; and the fourth day was
again half the contentions of the first Defendant and the
Plaintiff. So it does appear that a very large proportion
g of this trial at which I was present, after I became a party,
was not my concern at all.
In all those circumstances, I submit that the proper
order here, as far as the costs of the trial are concerned,
should be that my clients should still be liable for no more
than 40 per cent, of the whole costs of this action, and that
the person to pay them now should be the Plaintiff and not
the first Defendants. So far as the costs of this appeal are
concerned, I was brought here directly by the Plaintiff by
.£ virtue of the Plaintiff's notice and by implication, of course,
I was brought here by the first Defendants. I submit I ought
to have the costs of today and of the first day of the hearing
of this appeal, the rest of which your Lordship kindly said I
need not attend, and those costs should be paid by the unsuccess-
ful respondent. I think that covers the considerations-which
I ask your Lordships to have in mind.
MR. JUKES: I am a little puzzled about what has been said about
the 40 per cent. In fact, of course, the Plaintiff has an
5 Order for his full costs against the second Defendants. The
40 per cent, is only the contribution order made as between
the two Defendants. There is no appeal at all against the
Order giving me my full costs of the trial against the second
Defendants; that matter is not before the Court even. I am,
therefore, a little puzzled. My only application?which is
as a result of a notice served ex abundanti caut ela having
regard to the possibility that, as it has turned out, the
Plaintiff should lose the appeal against the first Defendants*
is to ask, in that event, that the costs of the trial of
£ the first Defendants should be paid by the secqnd Defendants.
It is quite clear that there was a substantial issue
between the two Defendants. If I may refer to the Judgment
where the matter is dealt with at page 14, the learned judge
deals with it in detail, and this was the contention of
second Defendants as to v/hy they were not, in any event, liable:
"It is true that at the time when the Plaintiff met with
his accident, he was not using the drift in conjunction with
the sleeve or socket for which it was designed and supplied.
P He was using the drift in order to knock out a metal key
which he was trying to fit into a coupling. The key was too
large for the opening and, when removed, would have to be
filed down. As already stated, I accept the Plaintiff's
evidence that he did not strike an unreasonably hard blow,
and although as a rule a drill could be released from a sleeve
or socket by means of a light blow, the evidence satisfied
me that even if the drift were used solely for that purpose,
occasions would probably arise when the drift would have to
be struck at least as hard as it was struck on the day in
question. The question therefore, arises whether it is
47.
 enough for the second Defendants to show that the use to which
the drift was actually put was not the use for which the drift
was supplied, even though the stress on the drift would have
been the same in both cases." I do not think I need go on.
He comes to the conclusion that, in fact>there was nothing in
that particular point. That does show that was one of the
main issues of the trial taken against the first Defendants
that it was the fault of the ^first Defendants, because they
allowed the drift suppliedfiir/specialpurpose to be used for
general purposes. That always was their oase and, I will
submit, in those circumstances it would be unreasonable to
drop the first Defendants out of the action completely.
A MR. HOARE: May I interrupt my friend here. I am not suggesting
that I should be dropped out. I am not suggesting I am not
liable for the 40 per cent., but this point was my only point
or virtually my only point on the law, and it was argued and
it took a very short time.
ME. JUKES: The 40 per cent, did not come into it.
LORD JUSTICE JENKINS: That was the Plaintiff's costs.
B MR. JUKES: 40 per cent, was merely the contribution order, as
between the two Defendants. The Judgment is the last document
in the file, and it is quite plain from the third paragraph of
it which reads: "And the said Honourable Mr. Justice Ashworth
on the 14th Day of March, 1957, having ordered that judgment
be entered for the Plaintiff against both Defendants for the
sum of £2,030 with costs". The 40 per cent, is solely under
the contribution order.
I0RD JUSTICE JENKINS: Now the position is that you nave lost
C your judgment against the first Defendants, and you uphold it
against the second Defendants and are entitled to the sum claimed
with costs, as against them. The only question is, whether in
all the circumstances of the case it would be right, in addition
to getting your costs from them, that you should also get the
whole or some part of the costs that you have to pay the first
Defendants.
MR. JUICES: That is precisely it: it is the circumstance which
is covered normally by a Bullock Order.
D
LORD JUSTICE JENKINS: The general principle, is it not, is that
where there are two Defendants and it was reasonable to sue
them both, and one can be said, in a sense, to be the fons et
origo of the litigation although, perhaps, legally not in the
end held responsible, it may be reasonable to order that party
to pay the whole or some part of the costs.
MR. JUKES: It is normal practice where one does not know against
whom one should go, particularly where both sides, to some extent,
E blame the other as they do here.
LORD JUSTICE PSARCE: And in their defence they blame the first
Defendants.'
MR. JUKES: Otherwise, always the damages are cut down or may be
cut down, but the costs would have to be paid. My friend Mr.
Everett reminds me that the second Defendants denied that they
ever made the drift, and if they were right we could only have
got home against .the first Defendants. This was one of those
F difficult cases where the events happened a very long time
before, and nobody could quite discover until the evidence came
out, who actually made it. Therefore, if the Plaintiff failed
to show that the second Defendants made the drift, his only
hope was to recover from the first Defendants, and it would
have been very unreasonable to have dropped them out of the
action then. ,n
LORD JUSTICE JENKINS: Speaking for myself, I think prima facie
you should "be entitled to some indemnity, but I am not quite
happy at making it go to the whole, because a great deal of
these expenses would have been incurred anyhow, whether the
second Defendants had been joined or not and, in fact, the
second Defendants were not parties until after the case had
come on for trial.
MR. JUKES: That was not our fault, because we did not know it
was made outside; we thought it was made in the first Defendants'
works. The reason for the Plaintiff using the drift was that he
had made his own, but he had lost it that morning and had to get
one out of the tool box. We thought, until the first day of the
trial before Mr. Justice Havers, that the first Defendants had
made it. It was only then that we were told that they had not,
and we had considerable difficulty in finding out who had. I
am in your Lordships' hands, but it is quite normal custom if
it is reasonable for two defendants to be sued for the unsuccess-
ful defendant to pay the whole costs, but I would ask your
Lordships, if your Lordships think it right to make an order for
costs, that it should be an order for all the costs. It is the
normal practice.
LORD JUSTICE PARKER: Are you asking for a direct Order, or a
Bullock Order?
MR. JUKES: I do not mind which it is, A direct Order is easier,
and it saves double taxation. A Bullock Order is where you
have two taxations.
LORD .JUSTICE PARKER: I asked that because you (perhaps inadvert-
ently) asked for a Bullock Order.
MR. JUKES: It would be better if I asked for a Sanderson Order.
MR. EVERETT: The reason why I asked for a Bullock Order, was
because I have already got my Judgment with costs against the
Plaintiff, so as it stands, it would be right to say Bullock
Order. I have only my order for costs against the Plaintiffs.
If your Lordship wanted to make a Sanderson Order, your Lordship
would have to alter that Order.
LORD JUSTICE JENKINS: Do you wish to add anything further, Mr.
Hoare?
MR. HOARE: May I refer to one authority. A Bullock Order is
proper, as your Lordships know, in a number of special cases,
but particularly where the cause of action is a, separate and
distinct cause of action against the two defendants. One of
the modern authorities for that is Mulready v. J.H. & W. Bell
Limited and Another (reported in 1953, 2 All England Reports,
page 215)» Before I refer to that, the cause of action here
against the first defendants was a cause of action alleged by
a servant against his master, and the cause of action against
the second defendants was on the new basis of Donognue v.
Stevenson; it was new since that case, and it is quite a
different cause of action arising out of partially the same
facts. Similarly in this case of Mulready, the facts wore some-
what complicated. I do not know that I need trouble your
Lordships with them, but the causes of action were relying in
one case upon the Factories Act and in the other case upon the
Building Regulations. The action against the master was under
the Building Regulations; the action against the other Defen-
dant, the third person concerned in the transaction, was under
the general provisions of the Factories Act arising out of the
same accident, the same facts on the same day. They were
completely different causes of action.

49.
 It was a decision of this Court and the headnote
reads as follows: "A 'Bullock1 order, requiring a defendant
against whom judgment in an action has been obtaine d to
pay the costs of a second defendant (against whom the action
has been dismissed) direct to that defendant, is not an
appropriate order where the plaintiff has alleged
independent causes of action against the two defendants 31d
the two breaches of duty alleged are in no way connected".
Of course, on the facts, they happened in the same set
of circumstances and were connected in that sense, but it
would not be proper, on that authority, in my submission,
for a Bullock order as to the whole costs of the action
to be made in such a case as the present: the causes of
action were different.
LORD JUSTICE JENKINS: I do not know; you may be right
technically, but you get it down to a pretty fine point:
it was one little bit of metal which got into one eye of
a particular person and it may have found itself there
through the fault of A or B.
Mr. HOARE: similarly in the case which I have cited it was an
accident in a factory which was due either to breach of the
Factories Act or to breach of the Building Regulations, for
which the employer alone was liable. It was held it was not
a factory, because it was not quite completed as such, but
the whole circumstances were the same. Here we have the
situation of a great deal of this trial being taken up with
the allegations between master and servant.
LORD JUSTICE JENKINS: In the result you have been held to have
a higher duty towards your neighbour than a master has
towards his servant.
Mr. HOARE: That is the position, but the trial was not taken
up with that and indeed started without my being a party to
it. Therefore, if the first Defendants had never been
parties and my friend for the Plaintiff had not sought
to make the point against them which he succeeded in making
before Mr. Justice Ashworth and has failed to make here, this
trial would have been very much shorter. The short question
as to whether Donoghue v. Stevenson applied and the short
question on the law and the facts as to my liability would
have been the only matters to have been decidedand this trial
would have taken half the time.
LORD JUSTICE JENKINS; I do not know; the things shade into
each other. In this kind of case you might get somebody
who was alleged to be an employer, another person alleged to
be an invitor and another person simply a neighbour in the
broad Donoghue v. Stevenson sense and each of these persons
is sued for one particular wrong to which they all
contributed, but for which some may or some may not be
liable. I should have thought that was well within the
type of case where one could deal with the costs as a whole.
Mr. HOARE: Even when for two years while the action was current
I was not a party?
LORD JUSTICE JENKINS: That is a matter of quantum: one would
have to make some estimate of the costs incurred before you
came into it.
Mr. HOARE: Something of the sort, was done by Mr. Justice
Ashworth in the exercise of his discretion, but he also took
into account that a large part of the trial before him was
taken up with the argument on this point of law against the
50.
 t h e o t h e r Defendant. In e x e r c i s i n g h i s d i s c r e t i o n upon
m a t e r i a l upon which, i n ray submission, he could e x e r c i s e
i t , he a r r i v e d at t h i s 60/40 p r o p o r t i o n and t h a t should
r u l e as t o any l i a b i l i t y at which I must be i n r e s p e c t of
t h e m a t t e r as i t now s t a n d s .
(The Court c o n f e r r e d )
LORD JUSTICE JENKINS: We t h i n k t h e p r o p e r o r d e r i n t h i s
case i n a l l t h e c i r c u m s t a n c e s would be t o say t h a t t h e
second Defendants must pay t w o - t h i r d s of t h e f i r s t
D e f e n d a n t s ' c o s t s ; t h e remaining o n e - t h i r d must be
p r o v i d e d by t h e P l a i n t i f f .
Mr. JUKES: That I t h i n k d e a l s with t h e m a t t e r s of c o s t s
and now I have t o ask y o u r L o r d s h i p s f o r l e a v e t o appeal
to t h e House of L o r d s . I a p p r e c i a t e a t t h e moment i t
appears t h a t t h e S c o t t i s h Court of appeal and t h e E n g l i s h
Court of Appeal have t a k e n d i f f e r e n t v i e w s .
LORD JUSTICE JENKINS: That i s a m a t t e r which, i n t h e
c i r c u m s t a n c e s , I must l e a v e t o ray b r e t h r e n .
LORD JUSTICE PARKER: We w i l l c e r t a i n l y g r a n t it.
Mr. EVERETT: I do not know i f your L o r d s h i p s would h e a r me on
this subject. I am i n s t r u c t e d t o oppose l e a v e . I f your
L o r d s h i p s f e l t d i s p o s e d t o g r a n t l e a v e I am f u r t h e r
i n s t r u c t e d t o ask t h i s , t h a t s i n c e t h e m a t t e r i s of g r e a t
g e n e r a l importance to t h o s e concerned on b e h a l f of
employees - and t h e P l a i n t i f f h e r e , of c o u r s e , has t h e
advantage of membership of a g r e a t t r a d e union - i f t h e
P l a i n t i f f ' s r e p r e s e n t a t i v e s d e s i r e t o canvass t h i s m a t t e r
i n t h e House of Lords t h e y ought to do i t a t t h e i r own
expense and not t h a t of my c l i e n t s .
LORD JUSTICE JENKINS: Are you p l e a d i n g i m p e c u n i o s i t y ?
Mr. EVERETT: No.
LORD JUSTICE PARKER: I s t r o n g l y s u s p e c t i f t h e d e c i s i o n had
gone t h e o t h e r way you would have l e a p t t o your f e e t w i t h
equal e a g e r n e s s .
Mr. EVERETT: I should and I am q u i t e s u r e my l e a r n e d f r i e n d
Mr. J u k e s , almost w i t h t e a r s i n h i s e y e s , would have s a i d
t h e appeal ought t o have been a t my c l i e n t s ' expense i n any
event.
LORD JUSTICE JENKINS: T h i s i s r e a l l y a m a t t e r f o r my b r e t h r e n ,
but I t h i n k we are a c t u a l l y a l l agreed t h a t t h i s i s a p r o p e r
case f o r l e a v e and i t i s not a case i n which i t would be
r i g h t f o r us t o impose any t e r m s .
Mr. EVERETT: I have c a r r i e d out my i n s t r u c t i o n s and I «ay
no mo r e .
May I advert f o r one moment t o t h e c o s t s o r d e r . Do
I u n d e r s t a n d t h a t your L o r d s h i p i s s a y i n g t h a t t h e t w o - t h i r d s
of ray c o s t s are t o be borne by t h e second Defendanta? Is
your L o r d s h i p , so t o speak, making a double o r d e r ; t h a t i s
t o say, t h a t I r e c o v e r a t h i r d of them from t h e P l a i n t i f f
and t w o - t h i r d s from t h e o t h e r Defendants? Particularly
s i n c e t h e r e i s an appeal now p e n d i n g , would i t not be more
convenient i f I r e c o v e r e d t h e whole of my c o s t s from t h e
P l a i n t i f f and have a s i n g l e t a x a t i o n ; and t h e n he can
r e c o v e r t h e t w o - t h i r d s of t h e t a x e d b i l l from t h e o t h e r
51.
 Defendants. Otherwise i t see ma t h e t a x a t i o n w i l l be a
l i t t l e awkward.
LORD JUSTICE PARKER: I t h o u g h t i t was t h e o t h e r way round:
I thought i t was t h e d i r e c t o r d e r which avoided double
t a x a t i o n . I t may be u n a v o i d a b l e i n t h i s case because
t h e r e i s a s p l i t , b u t i t may not m a t t e r .
Mr. EVERETT: I do not n i n d r e a l l y . I was t h i n k i n g of
convenience s i n c e t h e r e i s an appeal p e n d i n g .
LORD JUSTICE JENKINS: We want your c o s t s t a x e d a i d we want
an o r d e r under which you g e t t h e whole o f ' t h e m from t h e
P l a i n t i f f , who r e c o v e r s t w o - t h i r d s of them from thu second
Defendants.
Mr. EVERETT: I am much o b l i g e d ; I am c o n t e n t w i t h t h a t .
LORD JUSTICE JENKINS: Whatever t h e c o n v e n i e n t s t y l e of o r d e r
i s , I do not know, b u t t h a t i s t h e e f f e c t of i t .
Mr. EVERETT: That i s , i f I may so d e s c r i b e i t , a dissected
Bullock o r d e r ,
Mr. JUKES: As I u n d e r s t a n d i t , t h e o r d e r s t i l l remains t h a t
my l e a r n e d f r i e n d ' s c o s t s a r e t a x e d and t w o - t h i r d s are
p a i d by my l e a r n e d f r i e n d Mr. H b a r e ' s c l i e n t s and o n e - t h i r d
by my c l i e n t .
LORD JUSTICE JENKINS: That i s right.
Mr. EVERETT: My judgment f o r my c o s t s i s a g a i n s t t h e
Plaintiff. As a m a t t e r of convenience I s h a l l p e r h a p s have
t h e t w o - t h i r d s d i r e c t from Mr. Ho a r e ' s c l i e n t s .
Mr. JUKES: That i s what I want t o know.
LORD JUSTICE PARKER: I t does n o t m a t t e r t o you, Mr. E v e r e t t .
I t i s a m a t t e r f o r Mr. Jukes what he asks f o r . Your c o s t s
have t o be taxed anyhow.
Mr. JUKES: My l e a r n e d f r i e n d Mr. H o a r e ' s c l i e n t s are,
I imagine, a v e r y s u b s t a n t i a l firm of t o o l m a k e r s i n Sheffield.
Mr. EVERETT: I do know t h e y are not insured.
Mr. JUKES: But t h e y are a l a r g e f i r m .
Mr. EVERETT: With g r e a t r e s p e c t , s e e i n g my f r i e n d ' s d i f f i c u l t y ,
i f t h e s e p e o p l e a r e so r i c h t h e n he can c o l l e c t t h e t w o - t h i r d s
c o s t s from them and i t would be so much t i d i e r : I can t a x my
b i l l and c o l l e c t my c o s t s from t h e P l a i n t i f f .
Mr. JUKES: I am i n s t r u c t e d i t i s much e a s i e r to have one
taxation.
Mr. EVERETT; That i s a l l I want.
Mr. JUKES: And I am i n s t r u c t e d t h a t t h e e a s i e s t way i s t o have
one t a x a t i o n of e v e r y b o d y ' s c o s t s and t h e t w o - t h i r d s p a i d
d i r e c t by t h e second Defendants t o t h e f i r s t D e f e n d a n t s .
I would ask your L o r d s h i p s to o r d e r t h a t i t be done i n t h a t way.
LORD JUSTICE JENKINS: There i s no q u e s t i o n of i n s o l v e n c y ; it
does not make any odds to you a t a l l , Mr. E v e r e t t .
Mr, EVERETT: I f your L o r d s h i p p l e a s e s ; I was only t h i n k i n g of
the future.
52.
LORD JUSTICE JENKINS: Very well, if that is the easiest way.
Mr. HO ARE: Is it clear that your Lordships are saying the
costs of this appeal (to which I am not a party really
except for this matter) are payable by me?
LORD JUSTICE JENKINS: We have not really dealt with the costs
of this appeal.
Mr. HOARE: That is what I am not sure about. Your Lordship
said the first Defendants' costs. I was not sure whether
that was below only.
LORD JUSTICE JENKINS: That is only below. You have only got
your private appeal about costs. As far as I can make out,
you have not got very much out of it.
Mr. HOARE: No, I do not think I hare, but I should suggest
I should not have to pay any part of the costs of arguing
this appeal between my two learned friends, which was not
my concern at all.
LORD JUSTICE JENKINS: I do not think anyone is asking that
you should pay any of the costs of this appeal. I should
have thought if we make no order as to the costs of this
appeal, that would be all right. You, Mr. Everett, get
the costs of the appeal against Mr. Jukes.
Mr. EVERETT: Yes, I am much obliged.
)0o

53.