The Gazette 1964/67

fashioned by manufacturers to the specification of the workman's employers. It had been returned after fashioning to the suppliers of the steel for hardening. Some three or four weeks before the accident the workman's leading hand had been slightly injured by a splinter from that chisel. The workman brought an action against his em ployers and the manufacturers for damages for personal injuries. It was held (Birmingham Assizes : Baker J : December 13, 1965), finding for the plaintiff against the employers but not against the manu facturers, that the keeping of the chisel in use after the prior mishap was culpable as regards the employers, but that it broke the chain of causation of any negligence by the manufacturers. There was further no personal negligence by them, and having got a competent hardener to carry out the process of hardening the chisel they were entitled to assume that the work had been properly done and were not responsible for negligence on the part of the hardeners, whether they were agents or independent contractors (dictum of Lord Morton of Henryton in Davie V. Now Merton Board Mill Ltd. (1959) 1 All E.R. 346 at p. 357 followed). (Taylor c. Rover Co. Ltd, and Others (Richard W. Carr & Co. Ltd., Third Party) [1966] 2 All E.R. 181). Public Liability Insurance Policy A telephone cable was damaged when a hole was dug by a workman employed by a company who had taken out a public liability policy. The company went into liquidation so the Post Office contended, as a preliminary point of law, that they could pursue an action against the Insurance company under the Third Parties (Rights against Insurers) Act, 1930, s.l. The policy provided, inter alia, that the company would indemnify the in sured "against all sums which the insured shall become liable to pay." The company contended that they were under no liability to the insured or to the Post Office unless the precise amount of the liability of the insured to the Post Office had been determined. No judgment had been obtained by the Post Office against the insured, nor had there been any agreement as to the amount of any liability been reached between the Post Office and the liquidator of the insured. It was held (Q.B.D. : Donaldson J. : November 8, 1966) that the Post Office was entitled to pursue their action against the company. The word "sums" meant "sums whether or not liquidated or ascertained." (Post Office v. Norwich Union Fire Insurance Society Ltd. The Times, 9/11/66).

Fundamental Breach of Contract The owners of some packages entered into a contract with some carriers to carry them from Melbourne to various destinations in Australia. The carriers employed a sub-contractor to collect the packages. Normally the sub-contractor would have taken them to the carriers' depot in Mel bourne for onward transmission, but when he arrived at the depot, it was locked. So he drove the lorry, with the packages still on board, to his own house, and left the vehicle in a garage there. A fire broke out, and some of the packages were destroyed. The owners sued the carriers, who pleaded that they were not liable in view of a clause in the contract of carriage which purported to exempt them from liability. It was held by the High Court of Australia that the action succeeded. There had been a fundamental breach of contract, for the presumed intention of the parties was that, when the goods had been collected, they would be taken to the carriers' depot, and not to the sub-contractor's private premises. Accordingly, the carriers were not entitled to rely on the exemption clause (Suisse Atlantique Sciete d'Armement Maritime S.A. v. N. V. Rotterdarnsche Kolen Centrale (1966) 2 All E.R. 61, H.L., applied .................. reported in Vol. 60, No. 3, July 1966 of the GAZETTE at page 33). (Thomas National Transport (Melbourne) Pty., Ltd. and Pay v. May & Baker (Austialia) Pty., Ltd. (1966) 2 Lloyd's Reports page 347). Sale of Goods — Defective Title The plaintiff advertised his car for sale. A man calling himself Colonel Robinson agreed to buy it subject to a satisfactory report from an en gineer. The plaintiff permitted him to drive the car away. After Robinson had left, the plaintiff missed the registration book and he had not consented to Robinson's possession of it. A month later, Robinson sold the car to the defendant, who bought it in good faith. The plaintiff claimed the value of the car. He had not been paid by Robinson and had never seen him again. It was held (Q.B.D. : Megaw J. : November 7, 1966) that the action succeeded. The Factors Act 1889, protected an innocent purchaser if (1) there had been an agreement by the seller (i.e. the plaintiff) to sell; (2) the original pur chaser (i.e. Robinson) had obtained possession of the goods with the consent of the seller, and (3) the ultimate purchaser (i.e. the defendant) had acted in good faith. Conditions (1) and (3) were fulfilled. Condition (2) had been fulfilled as far as the car itself was concerned. But there was no consent as to the possession of the registration 81