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High Court of Australia |
DERBYSHIRE BUILDING CO. PTY. LTD. v. BECKER [1962] HCA 14; (1962) 107 CLR 633
Contract
High Court of Australia
Dixon C.J.(1), McTiernan(2), Kitto(3), Taylor(4) and Windeyer(5) JJ.
CATCHWORDS
Contract - Plaintiff to carry out certain fencing work for defendant - Term of contract that plaintiff to have the use of defendant's electrical saw - Plaintiff injured by saw - Evidence that injury caused by defect in saw - Whether term as to fitness of saw to be implied - Matter of law or fact - Effect of plaintiff's knowledge of defect - Remoteness of damage.
HEARING
Sydney, 1961, August 23, 24;DECISION
1962, March 8.2. According to the plaintiff respondent when he took over the work of fencing the timber was supplied at the site by the company cut to size; the timber means the fencing rails and, as it is said in some of the evidence, the posts. This went on for a considerable time. Then the plaintiff respondent said that the rails were not cut before they were delivered and apparently that applied to the posts. He said he complained and at length saw A. H. Derbyshire who is described as the chairman of the company. Two versions of the interview are given. The plaintiff's version is that he complained that the rails were not cut although they had been cut for his predecessor and the rates were the same. To this A. H. Derbyshire said: "Oh well, you take the Black & Decker: it's yours to use of a week-end on the fencing". According to the evidence for the defendant, the Black & Decker was not referred to; the plaintiff had been sent by the works manager to see A. H. Derbyshire at the latter's instance; he complained that he was kept waiting for the material, that the rails had been cut for the previous man, and said that he would not go on. A. H. Derbyshire said that the plaintiff could cut them at the machine in the joinery, that is to say, at the fixed saws where a number of rails or posts could be cut at one time to the same size and with the same indentations. It was of course for the jury to say what version was to be accepted and it is not really to the point that the plaintiff's personal credibility suffered very much in the witness box. It must therefore be assumed that the jury found that the use by the plaintiff of the "Black & Decker" saw was sanctioned. He used it in the joinery as need arose in the ordinary course of his work, and apparently he took it as he chose to the fencing jobs. There was a very long flex and on the day he was injured he obtained the electrical power from a point in the next door cottage built or in course of building by the company. In the process of using the tool, portion of the four fingers of his left hand were lost as a result of encountering the unguarded under part of the revolving circular saw. The implement was made an exhibit and has been examined and it is needless to describe it in great detail. It is enough to say that when it is held in the right hand and the circular blade of the saw is applied vertically the upper part of the blade is covered completely by a fixed guard which goes down to a horizontal plate called the sole. On the under side the sole provides the metal surface that is moved over the wood as the saw cuts through it. Under the sole, however, the saw is contained in a movable guard of like appearance. It is formed like a segment of a circle, but when its forward lip or point is thrust against the wood it moves back as the saw bites into the wood and goes forward; the guard moves back and turns upward until it disappears into the cavity of the upper guard which is sufficiently wide to admit it while the saw continues revolving within it. Within the handle by which the implement or tool is held there is a switch which a finger will turn on or off. Operated from above, the guard and the saw within it are concealed from the view of the user by the horizontal plate or sole but if the left hand were put under it and the guard were there and not pushed back, no harm could come to the hand. The plaintiff did put his hand under it, but the guard was not there; it was pushed back and thus he sustained the injury to his hand. How came he to do this? He maintains that the guard stuck and had failed to spring forward, as it should, to cover the blade of the saw, and that it did this because it was defective or clogged through lack of maintenance. (at p638)
3. The declaration in the action contained seven counts, six of which were based on the view that the relationship between the plaintiff and the defendant company when he worked during the week-end erecting the fences was that of master and servant as it was during the week when he worked in the joinery. At the trial Brereton J., who presided, ruled against this view and directed a verdict for the defendant on the six counts and with them we are not now concerned. But the remaining count - the second - which was framed on the footing that during the week-end when the plaintiff worked at fencing he was an independent contractor, the learned judge put to the jury who found a verdict for the plaintiff for 3,700 pounds. A motion by way of appeal on the part of the defendant for an order setting aside the verdict for the plaintiff and entering a verdict for the defendant or alternatively ordering a new trial was dismissed by the Full Court of the Supreme Court (Evatt C.J., Herron and Collins JJ.). The count upon which the plaintiff thus recovered began by alleging that it was agreed between the plaintiff and the defendant that the former would for reward perform certain services for the latter, namely, the erection of certain fences. Then it alleged that it was a term of the agreement that the defendant would provide for the use of the plaintiff an electrical saw and that it was a further term and condition of the agreement that the saw should be and be maintained in a safe condition for the plaintiff's use. After the usual averment of the fulfilment of conditions the count alleged that yet the saw so provided by the defendant was not, and was not maintained, in a safe condition but was dangerous and unsafe whereby etc. In leaving this count to them the learned judge in effect directed the jury that they first must determine whether the accident occurred substantially in the manner which the plaintiff described. Then his Honour said: "Assuming you come to the conclusion that the accident did happen as described, the next question to be answered is this: Was it a term of the contract for fencing that the defendant was to have provided the plaintiff with this saw, the Black & Decker saw?" It is to be noticed that his Honour speaks of a specific identified tool. The count is expressed in terms that might be read as if it alleged a duty to supply not the specific tool but a tool answering the description. Such a reading would have been foreign to the facts of the case which related not to the nature or description of a tool to be supplied but simply to a particular tool habitually handled by the plaintiff; the count, in other words, alleges a breach of duty to maintain in safe condition a specific tool which the plaintiff could take for his use. Next the learned judge directed the jury that once they found - if they did - that there was a contract for the use of the Black & Decker there is an implied term that it would be available for the plaintiff as and when he required it in a fit condition to do the job and so far as the defendant knew or ought to have known, not unsafe; it certainly would not have been reasonably fit for the purpose if it contained some defect which was a source of potential danger to the plaintiff. The defendant complains of this direction upon the ground that it was for the jury and not the judge to say whether such an implication should be made. His Honour then put to them, on the assumption that they found that the accident happened as the plaintiff said and there was a contract for the use of the Black & Decker, that the next question was whether the saw was defective in that the guard stuck forward or back as a result of failure to maintain it properly. His Honour distinguished between, on the one hand, the cause being a failure to maintain the spring mechanism in a proper state and, on the other hand, the jamming occurring because a chip got in or the tool got packed with wet sawdust. "What the plaintiff says, if he is to be believed, is that this was in a chronically sticking condition, not because of those occasional impediments, but because the defendant had failed to maintain the spring mechanism in a proper state." A little later his Honour said: "The whole tenor of the plaintiff's complaint is that the spring mechanism was not kept clean and maintained so that the guard operated effectively." (at p639)
4. On all these issues the learned judge put it strongly to the jury that the fundamental issue was the credibility of the plaintiff and whether they accepted his evidence as against that given for the defendant company. (at p639)
5. The plaintiff had given evidence that he had used the tool ever since it was obtained by the company, about two years. For two or three weeks before the accident he had noticed a tendency of the guard to stick, generally in the forward position, occasionally in the backward position. He complained about it to one Marshall (who was described as the works manager and was one of the family) but the condition went on and got worse. A companion employee who gave evidence said that he used it and that the guard that protects the teeth was faulty and used to jam in a forward position. He did not mention, however, jamming in the backward position. The plaintiff said that the accident occurred when he had a post on two saw stools. He was making four cuts to produce two indentations. The guard had been sticking in the forward position and he had been releasing it with his left hand and he supposed (erroneously, of course) that it was sticking again in the forward position. He knew, however, that it had stuck several times before in the backward position. (at p640)
6. The learned judge next directed the jury that the defendant was entitled to say that even if the machine was defective, the plaintiff was the author of his own injury in that no accident would have happened at all if it had not been for his folly in putting his hand under the saw while the blade was running, knowing full well that the guard sometimes stuck back. He told them that that therefore was the final question: was the defect the cause of the accident or was the accident caused by the plaintiff's own foolish act, in the sense that it would not have happened without that? The manner in which this last question is framed, if analysed, will be seen to be perhaps too favourable to the defendant in one way; for plainly the accident could not have happened had not the plaintiff put his hand on the unguarded saw. Thus the only element left by the form of the question for consideration was whether it was a foolish thing to do on the unverified supposition that the guard had stuck in the forward position and, moreover, while the finger of his right hand kept the power on, if that were so, or if not, while the saw was still revolving. On the other hand the terms in which the issue is framed are not those used to define a defence of contributory negligence. Be that as it may the jury found the issue for the plaintiff as well as the other issues submitted to them. (at p640)
7. No small part of the difficulty in this case arises, one may suppose, from the elevation of what doubtless was a trivial matter to a position of critical significance, that is to say, the nature of the authority under which the plaintiff used the portable saw. It is a question on which much has been made to depend. But after all it is a question for the jury. It is a question for the jury subject to the qualification that there must be a preliminary question whether there is evidence to go to the jury. The jury might readily have believed had they so chosen that no more was involved than the borrowing of a portable machine tool for the Saturday work to add to the plaintiff's own tools. But they did not so choose, or at all events they must be taken not to have done so and the evidence must be looked at as a whole with a view to seeing what the jury might make of it in the proper exercise of their function of making a discriminatory selection on grounds of credibility and probability. When it is so looked at the conclusion seems difficult to avoid that it was open to the jury to find that it became one of the terms of the agreement about the plaintiff's fencing that he should have the use of the electric saw during the week-end. In other words, they might reasonably find that it became part of the agreement that he should do the fencing for 1s. 9d. a foot for paling fences and 2s. 1d. a foot for chain wire fences. It must be borne in mind that neither party wished to put the fencing work on the footing of work done by an employee for an employer and doubtless the conclusion that the relation was one of independent contract was right. But it was a contract only to perform the work of fencing out of ordinary hours and it meant, one may be sure, to do the work of fencing as that work was required, not to erect a specific fence or fences defined in advance independently of the construction of the houses. In other words, it was very like an extension of his ordinary employment but at piece rates. Either side no doubt could terminate both relationships by due notice. In these circumstances it seems that it was within the province of the jury, taking into account both the version given for the defendants as well as that given by the plaintiff which apparently they accepted, to find that it was agreed that the plaintiff should be at liberty to use the Black & Decker saw at the work of fencing at the week-end if he would continue it at the rates he was receiving. (at p641)
8. In the circumstances of this case it may indeed be doubted whether the duty of the defendants with respect to the safety of the condition of the machine tool in the hands of the plaintiff on Saturday was any different in tenor or degree from the duty when it was in his hands on the other days of the week when he worked as an employee. But if he were injured by a danger arising from a neglect in maintenance that would be enough. The duty as stated to the jury by Brereton J. was based on that which ordinarily accompanies a bailment for reward. It is interesting even at the present day to read and compare the judgments of Byles and Grove JJ. on the one side and Willes J. on the other side in Fowler v. Lock (1872) LR 7 CP 272 , the case where the majority held the cabman not to be a servant of the owner of the horse and cab but a bailee and so to have the benefit, in the language of Grove J. of "an implied contract by the former (the bailor) that the thing supplied (in that case the horse) is reasonably fit for the purpose for which it is hired" (1872) LR 7 CP, at p 280 . It should be noted perhaps that in the dissenting judgment of Willes J. the measure he states of a master's duty to his servant as to defective or dangerous implements is not that now established: it is enough that there is a danger due to neglect on the part of the employer: see Davie v. New Merton Board Mills (1959) AC 604 . The point made for the defendant at the trial of the present case was that the existence of the "implication" was a question for the jury and not for the judge. If the question had been of the existence in fact of an intention of the parties, that might be so. But the question was of the duty arising from a relationship, the question whether the relationship was created by the parties being left to the jury. If there was, as the jury must be taken to have held, an agreement that the plaintiff should take the Black & Decker saw for his fencing, it seems to follow that it was not a gratuitous bailment. Perhaps in the circumstances of this case the liability of the defendant should have been put to the jury as depending upon the danger to the plaintiff arising from a neglect in maintenance. But that exact point was not taken and when the manner in which the questions of the source of the injury and the question of maintenance in relation to the sticking of the guard were put, as summarized above, are considered, the difference is not such as to require this Court now to order a new trial or indeed to justify such an order. Again, a strong case of contributory negligence may be made out on the facts, but again the actual direction as to the causation of his injury by the plaintiff's own folly, while not in precise terms covering the exact ground, was not objected to. The jury's verdict really puts contributory negligence out of the case and it was not relied upon by the appellant as a separate ground. On the whole case no sufficient ground appears for holding that the verdict was not open to the jury or that a new trial should be ordered. Accordingly the appeal should be dismissed. (at p642)
McTIERNAN J. This is an appeal from a decision of the Full Court of the Supreme Court of New South Wales dismissing an appeal from a verdict of a jury which found in favour of the plaintiff and awarded damages in the amount of 3,700 pounds for personal injuries. The declaration contained seven counts, on six of which the trial judge directed a verdict for the defendant. The appellant claims that the trial judge should have directed a verdict for the defendant on the remaining count or, alternatively, that he so misdirected the jury with respect to this count that a new trial should be ordered. (at p643)
2. It is common ground that the plaintiff was employed by the defendant as a carpenter and that an agreement, separate from the contract of employment, had been made between them that the plaintiff would carry out the fencing of certain cottages being constructed by the defendant, outside working hours. For this purpose, the plaintiff had the use of tools belonging to the defendant. At the trial, there was a conflict between the evidence of the plaintiff and that of the defendant as to the conversations which led to the formation of the agreement and to the provision of the tools; however, it is not argued in this appeal that the jury could not reasonably have accepted the plaintiff's evidence as to these matters. The plaintiff alleged that, whilst engaged in this work, he suffered serious injury because one of the tools supplied to him by the defendant, namely, a Black and Decker power saw, was in a defective condition. The count submitted to the jury alleged that the defendant was in breach of a duty of care which it owed to the plaintiff to supply him with a saw which was safe. (at p643)
3. The appellant's principal argument as to the evidence was that there was no evidence before the jury from which it could infer that the saw was in a defective condition. It submitted that the only inference open from the evidence was that sawdust had clogged the spring operating the guard which ought to have protected the plaintiff's hand, and that it was normal for this situation to occur. Usage of the saw required the operator, when this happened, to remove the sawdust before he continued with his work; this was a simple matter which could be attended to in a matter of seconds. In support of this argument, it was pointed out that certain witnesses had sworn that there was, in their opinion, nothing abnormal about the saw, except, according to one witness, that the guard might tend to stick if it were used in a position other than that in which it was being used at the time of the accident. (at p643)
4. In my view, however, there was evidence on which the jury was able to take the contrary view. Apart from the plaintiff's testimony, there was the evidence of the service engineer of the defendant company, C. A. Ainsworth, who stated that the spring in question was contained in a housing, and that, if the housing were choked with sawdust, the guard would not close. He further said that the housing was so placed that it was impossible for the person using the saw to examine it to see whether it is filled with sawdust, and that the removal of the sawdust required a major servicing, necessitating the dismantling of the saw. Another witness, J. F. Lister, a carpenter employed by the defendant, also gave evidence that in his opinion the guard was not operating correctly in that it used to jam in the forward position. It seems to me that on this evidence it was open to the jury to find that there was a defect in the spring mechanism operating the protecting guard, as a result of which the guard jammed, thereby exposing the plaintiff's fingers to the blade. (at p644)
5. The next question relating to the findings of the jury on the evidence raised by counsel for the appellant was that there was no evidence which could exculpate the plaintiff from contributory negligence, since he admitted that he was aware of the tendency of the guard to stick. An examination of the relevant evidence shows that this submission is unsound. Whilst it is true that the plaintiff was aware that the guard was sticking in the forward position, it was open to the jury to find that he did not expect it to stick in the backward position, and that therefore he did not run the risk of injury to his hand with a full appreciation and acceptance of the particular danger to which he was exposed. (at p644)
6. The appellant also based its case on a submission that the trial judge misdirected the jury on the law applicable to the facts before them. The declaration alleges, inter alia, that "it was a term and condition of the said agreement that such saw should be and be maintained in a safe condition for the plaintiff's use". As there was no evidence of an express term to this effect, the plaintiff rested his case on an implied term at common law that the saw should be "reasonably fit" for the purpose for which it was supplied. Brereton J. adopted this view, and submitted the facts to the jury with the following direction: "Once you find - if you do - that there was a contract for the use of the Black and Decker, there is what we call an implied term that it would be available for the plaintiff as and when he required it in a fit condition to do the job and, so far as the defendant knew or ought to have known, not unsafe. It would certainly not have been reasonably fit for the purpose if it contained some defect which was a source of potential danger to the plaintiff". (at p644)
7. The defendant submitted also that, although a term that the saw should be reasonably fit can be implied in this type of agreement, it was not proper for the judge to have directed the jury to imply the term in this case; rather, he should have submitted to them the alternative view that, on the evidence, the contract related to the supply of a particular saw, with all its defects, so that this case might fall within the principle in Robertson v. Amazon Tug Co. (1881) LR 7 QBD 598 . It seems to me that this argument is based on a misunderstanding of the evidence, in that it is founded on the assumption that the saw in question was a "particular article specified by the plaintiff". It is clear that, in so far as the evidence of the plaintiff and the defendant differed as to which saw was to be supplied, the jury accepted the plaintiff's version, otherwise they would have returned a verdict for the defendant. On the plaintiff's evidence, it was not the plaintiff himself who specified the saw in question: if it had been, there might have been some substance in the defendant's submission on this point; it was the defendant who invited the plaintiff to take the particular saw. (at p645)
8. The Full Court, supporting the directions to the jury given by the trial judge, stated that the common law rule was, in the words of Jordan C.J. in Gemmell Power Farming Co. Ltd. v. Nies (1935) 35 SR (NSW) 469 , that "when one person, for value, supplies a chattel to another to be used for an agreed or stated purpose, or for a purpose indicated by the nature of the chattel, he impliedly promises, in the absence of some provision to the contrary, that it is reasonably fit for such use" (1935) 35 SR (NSW), at p 475 . I agree that this is a correct statement of the law and therefore the question arises, should the trial judge have directed the jury's attention to some matter in the nature of a "provision to the contrary". Certainly, if the plaintiff had asked for the specific saw, the trial judge might have indicated that this was a matter to the contrary to be considered, but, as I have shown, that was not so in this case. In my view, there was no evidence upon which the judge could direct the jury to find that the plaintiff was prepared to accept this saw in whatever condition it came to him; the evidence merely indicates that the plaintiff accepted the saw as provided for him. If there is no evidence as to express terms relating to the condition of the saw, nor to the plaintiff's willingness to accept a defective saw as an article specified by himself, then the existence of an implied term is a matter for the judge. In my opinion, his direction to the jury in this respect was accurate. (at p645)
9. It has been further argued that the principle of law expressed in the preceding paragraph is limited to the case where the supplying of a chattel is by selecting an article which is not known and identifiable before or during the contract. This is contrary to the authorities on this point. In Beaton v. Moore Acceptance Corporation Pty. Ltd. [1959] HCA 59; (1959) 104 CLR 107 this Court had to consider the question, inter alia, whether a condition of fitness could be implied in a case where a specific article was in the contemplation of the contracting parties as at the time of the contract and it held that, quite apart from the effect of the Sale of Goods Act, the article in question should be reasonably fit for the purpose for which it was made: "Clearly, we should think, it was, at the least, implicit in the transaction that the tractor should be free from such defects as would make it unfit for use as the major component in a bulldozer and, equally clearly, the appellant was entitled to damages if the existence of such defects was proved" (1959) 104 CLR, at p 122 . In Jones v. Page (1867) 15 LTR 619 the Court of Exchequer implied a term of fitness in an article supplied pursuant to a contract even though the article in question had been inspected by the plaintiff. Kelly C.B. said: "To say that, because a person hiring a carriage looks at and selects a vehicle, therefore the person letting it out to hire is to be relieved from all liability with respect to its safety, would indeed, be a very dangerous doctrine" (1867) 15 LTR, at p 620 . In my opinion, these cases show that the broad common law principle applies in a case where the chattel in question is defined and ascertainable by the parties to the contract as at the time of the contract. (at p646)
10. The defendant's final contention was that the trial judge should not have allowed the matter to proceed to the jury because the injury did not result from the defect in the saw, but from the plaintiff placing his hand underneath the saw, and this latter fact was a novus actus interveniens. I cannot agree with this submission, because it was manifestly clear on the evidence that the plaintiff's hand came in contact with the saw blade during the operations for which the saw had been supplied to him by the defendant. (at p646)
11. For these reasons, I am of the opinion that the appeal should be dismissed. (at p646)
KITTO J. This appeal is from a rule of the Supreme Court of New South Wales (Full Court) dismissing a motion by an unsuccessful defendant for judgment or alternatively a new trial. The action out of which the appeal arises was tried before Brereton J. and a jury. The plaintiff had sued the defendant on a number of counts, but the trial judge had directed a verdict for the defendant on every count but one. On the count that remained, the jury returned a verdict for the plaintiff for substantial damages. It was a count for breach of a term and condition of an agreement under which the plaintiff, for reward, was to erect certain fences for the defendant, and the defendant was to provide for the use of the plaintiff in erecting the fences "an electrical saw". The count alleged that it was a term and condition of the agreement that the saw "should be and be maintained in a safe condition for the plaintiff's use", that it "was not and was not maintained in a safe condition but was dangerous and unsafe", and that by reason of the unsafe and dangerous condition of the saw the plaintiff suffered damage. It appears from particulars which the plaintiff gave that the dangerous and unsafe condition of the saw was alleged to consist in this, that a guard with which it was provided was not effective in that it failed to retract when the saw was engaged in cutting, and, having been opened, to close when the operation ceased. (at p647)
2. It will be observed that the count was not free from ambiguity; but as the trial proceeded the intended meaning became clear enough. In particular it became clear that the expression "an electrical saw" was to be understood as referring to a specific Black and Decker portable electrically-driven circular saw which was the only one of its kind in the defendant's possession at material times. And it became clear enough too that in speaking of the saw not being "maintained" in a safe condition the count was referring to a condition due to lack of proper maintenance, including cleaning. (at p647)
3. The defendant is a building company engaged in the erection of dwellings. Throughout the period of the fencing operations, the plaintiff was employed by the defendant as a carpenter, working forty hours a week from Monday to Friday. But the fencing work fell outside the duties of his employment. It was the subject of a separate agreement; and the trial judge held, by a ruling not now challenged, that the separate agreement was a contract under which the plaintiff was to do the fencing in week-ends as an independent contractor for remuneration at an agreed rate. Whether the contract covered the provision by the defendant of the Black and Decker saw was a disputed question. If it did, it was because of a variation introduced by agreement after the contract had been partly performed. There was no mention of the saw when the contract was first made, early in May 1954; and for a while the plaintiff had no need of it, for the timber was delivered on the site cut to size, as it had been for a fencer called Mick who had formerly been doing the work. But when the plaintiff had been doing the fencing for about a year, he came to the office of the defendant company and had a conversation with Mr. A. H. Derbyshire, the chairman of directors. At the trial the plaintiff gave an account of the conversation which, if it had been the only evidence of what was said, would have established no more as to the Black and Decker saw than a promise by the defendant of a gratuitous bailment. For according to the plaintiff, upon his complaining that the fence rails were not being cut for him as they had been for Mick, although the latter was being paid at the same rate, Mr. Derbyshire told him he could have the use of the Black and Decker saw at week-ends for the fencing. But Mr. Derbyshire's own evidence put a different complexion on the matter. His version of the conversation was that the plaintiff at first, being annoyed because the timber was being delivered uncut, announced an intention of doing no more fencing at the old price, but that he eventually agreed to continue the work provided that the company gave him the use of certain saws. "It was a new contract", said Mr. Derbyshire, "definitely a new contract". And this account of the conversation was supported by the evidence of Mr. Derbyshire's son, the secretary and general manager of the company, who occupied the next room and overheard what was said. Thus a foundation was provided which in my opinion would support a finding that the fencing contract was varied by the addition of a term obliging the company to make the saw or saws mentioned available for use by the plaintiff during his week-end fencing operations. According to the Derbyshires the discussion referred to certain saws in the company's joinery shops which did not include the Black and Decker saw. But if the jury believed the plaintiff's assertions that it was to the Black and Decker and not the other saws that he and Mr. A. H. Derbyshire were referring, they would have been justified in making, upon the Derbyshires' evidence, a finding of a contract whereby for valuable consideration the company was to make the Black and Decker saw available to the plaintiff each week-end when he needed it for use in connexion with the fencing. The trial judge directed the jury to this effect in his summing-up, and apparently without objection on the part of the defendant. But he proceeded, against objection, to tell the jury that if there were a contract for the making available of the Black and Decker saw the contract would contain an implied term concerning the condition of the saw in relation to the safety of a person using it. His Honour rightly held, overruling a contrary submission made for the defendant, that it was for him and not for the jury to decide what term was implied: In re Comptoir Commercial Anversois and Power Son & Co. (1920) 1 KB 868, at p 899 ; Tournier v. National Provincial and Union Bank of England (1924) 1 KB 461, at p 483 ; Hall v. Brooklands Auto Racing Club (1933) 1 KB 205, at pp 213, 222 ; Heimann v. The Commonwealth (1938) 38 SR (NSW) 691, at p 695; 55 WN 235, at p 237 . His Honour's statement of the term to be implied was not, however, unambiguous. Having said in the first instance that it would be implicit in the contract that the saw would not be dangerous to use, he went on to describe the implied term as being that the saw would be available for the plaintiff, as and when he required it, in a fit condition to do the job and, so far as the defendant knew or ought to have known, not unsafe. He added immediately that the saw would certainly not have been reasonably fit for the purpose if it contained some defect which was a source of potential danger to the plaintiff. And then he put as a question for the jury whether the saw was defective in that the guard stuck forward or back as a result of failure to maintain it properly. The reference, at the one point, to what the defendant knew or ought to have known was, perhaps, unfortunate. The authorities concerning the nature of an implied term in a contract of bailment, the more important of which are reviewed by Sir George Paton in his book Bailment in the Common Law (1952) pp. 289 et seq., are not uniform. But the weight of judicial opinion is, I think, in favour of applying to all contracts for the supply of chattels, including contracts of bailment, the principles laid down with respect to sales in s. 14 of the Sale of Goods Act, 1893 (U.K.). In particular, the better view appears to be that where an implication as to the fitness of a chattel arises under such contract it is not limited to fitness so far as the supplier knew or ought to have known: Jones v. Page (1867) 15 LT 619 ; G. H. Myers & Co. v. Brent Cross Service Co. (1934) 1 KB 46 ; Gemmell Power Farming Co. Ltd. v. Nies (1935) 35 SR (NSW) 469, at p 475 ; Woods Radio Exchange v. Marriott (1939) VLR 309, at p 317 ; Beaton v. Moore Acceptance Corporation Pty. Ltd. [1959] HCA 59; (1959) 104 CLR 107, at p 119 ; Star Express Merchandising Co. v. V. G. McGrath Pty. Ltd. (1959) VR 443 . The point, however, seems of little practical importance in the present case, because, as his Honour made clear to the jury, the plaintiff's case on breach of an implied term was that his injuries resulted from a failure of the guard on the saw to function properly, and that the failure of the guard had been caused by a defective condition of the spring due to faulty maintenance, including cleaning, by the defendant. If the jury were satisfied that that was the cause of the failure, they could hardly fail to conclude that it was a defective condition of which the defendant ought to have known, especially as the plaintiff gave uncontradicted evidence that before the week-end in which he suffered his injuries he complained to the defendant's works manager, a man named Matthews, that the guard was jamming. (at p650)
4. In any case, the mention by the learned judge of what the defendant knew or ought to have known must have operated in favour of the defendant if it had any operation at all, and therefore cannot have affected the verdict. The important questions in the case seem to be, first, whether in the circumstances of the case there should be inferred a condition as to fitness of which the jury, on the evidence, could properly find a breach, and, secondly, whether, if such a condition should be inferred, the jury could properly find that the plaintiff's injuries arose naturally and directly from a breach of that condition. (at p650)
5. The necessary foundation for implying a condition as to fitness is proof that the person to whom the chattels are supplied brought home to the mind of the supplier that he was relying on him in such a way that the supplier can be taken to have contracted on that footing: see Cammel Laird & Co. v. Manganese Bronze & Brass Co. (1934) AC 402, at p 423 ; Stewart v. Reavell's Garage (1952) 2 QB 545, at pp 549, 550 ; Ingham v. Emes (1955) 2 QB 366, at pp 374, 378 ; Beaton v. Moore Acceptance Corporation Pty. Ltd. [1959] HCA 59; (1959) 104 CLR 107, at p 119 . Conformably with this view, it has been said, and I think accurately, that if the recipient stipulates that he is to be supplied with a particular specified article, this may be a material factor in showing that an implication of fitness ought not to be made, as where it goes to show that he was relying on his own judgment: per Jordan C.J., Gemmell Power Farming Co. Ltd. v. Nies (1935) 35 SR (NSW) 469, at p 475 . In order to apply the principle in the present case, it becomes necessary to examine the facts in order to decide whether the circumstances were such as to make it apparent to the defendant, when entering into the contract with respect to the saw (assuming a contract to be found), that the plaintiff, when he took the saw each week-end, would be relying upon the defendant's not having let the saw become dangerous through lack of maintenance. (at p650)
6. The circular cutting blade of the saw was partially enclosed by a fixed metal case, but it protruded from the case at its base sufficiently to engage and cut into wood to a depth of some inches. The guard was a curved strip of metal which, in the forward or protecting position, enclosed the portion of the blade which protruded from the case. It was movable backwards, into a recess provided to receive it. When the saw was pressed forward against a piece of wood to be cut, the pressure would normally force the guard back in the recess, and so expose the blade. Upon the saw being lifted from the wood, a spring would normally push the guard forward again into the protecting position. Obviously, the efficiency of the guard might be impaired in two ways. Foreign matter, such as a chip or a collection of sawdust, might clog the movement of the guard so that either the forward pressure on the wood to be cut might not suffice to open it or the pressure of the spring might not suffice to close it when lifted from the wood. Or, again, the spring might become either so weakened, or so impeded by foreign matter, as to remain in the open position after the saw had been lifted from the wood. A sticking of the guard in the forward or closed position could be overcome by the user's pulling the guard back to the open position by hand. According to the plaintiff's story, which the jury must have accepted, on the occasion of the plaintiff's injury, in July 1956, the guard had been sticking in the closed position, and whenever this happened the plaintiff, as he pressed the saw against a piece of fencing timber in order to cut it, was in the habit of putting his left hand under the saw and pulling back the guard to the open position. But there came a moment when - apparently without first trying the saw against the timber - he assumed that the guard was stuck again in the closed position and needed to be manually retracted, although in fact it was stuck in the open position; and his left hand, when he put it down to move the guard, instead of meeting the guard met the blade, and he lost portions of some fingers. Unfortunately, no-one then examined the saw to see why it had stuck in the open position, or why it had sometimes been sticking in the closed position; but the plaintiff himself testified, and the jury were entitled to find, that two or three weeks before the accident the plaintiff had noticed the tendency of the guard to stick, usually forward but occasionally back, and that it had become worse as time went on. An expert gave evidence that saws of this type require maintenance, by the cleaning out of any accumulation of sawdust which might retard the spring, and sometimes by the replacing of the spring itself. On this, the jury might properly have found that the sticking which led to the accident was due to a condition of the spring existing before the plaintiff's use of the saw in that week-end began, but not existing at the time when the contract with respect to it was made. (at p651)
7. Is there, then, an implication to be made in the contract that during the period in which the plaintiff was to have the saw for week-ends the defendant would keep it so maintained that it would not be, on any occasion when he took it, so affected by lack of maintenance as to be more dangerous than it was at the date of the contract? If the plaintiff had been a stranger to the defendant's establishment, the answer would clearly have been, I think, that that implication should be made: cf. Robertson v. Amazon Tug and Lighterage Co. (1881) 7 QBD 598, at pp 606, 609 ; for in that situation the plaintiff almost certainly would have been relying upon the defendant to hand over the saw on each occasion in at least as well maintained a condition as it was in when they were making their contract about it. But in fact the plaintiff was the person in the defendant's organization who generally used the saw during the week, and it was he who used to carry out most of the maintenance work on it. Do these facts make any difference? I do not think they do. The evidence was that although the plaintiff did maintenance work on the saw, the person ultimately responsible for the maintenance was the works manager, Mr. Matthews; and there is nothing to show that the plaintiff's duty during the week with respect to any such sticking of the guard as in fact developed was to do any more than in fact he did, namely, to report the matter to the works manager. The natural inference as to the plaintiff's reliance seems to be that he relied on the defendant to do, through the works manager, whatever might be proper for remedying defects from time to time, so that whenever he took the saw at a week-end pursuant to the contract it would be a saw which had not been allowed to become unsafe. (at p652)
8. Then does it matter that on the relevant week-end the plaintiff took the saw knowing that the safety guard was apt to stick? No doubt it reduced the implied condition to the level of a warranty, but in my opinion the trial judge was right in telling the jury that it did not relieve the defendant from its contractual obligation as to maintenance. The plaintiff's knowledge of the tendency of the guard to stick has, however, a bearing on the remaining question to be considered, namely whether the plaintiff's injury was a natural and direct result of the defective condition of the guard; for it is the fact that, knowing that the guard, when it stuck, might be in the backward or open position, he yet, when he found the guard stuck, placed his fingers where they must be cut unless it was stuck in the forward or closed position. If the jury had concluded that his action was deliberate, in the sense that having present to his mind the possibility of the guard being open he consciously decided to take the risk and move his hand to the vicinity of the blade, no doubt they should have found a verdict for the defendant on the ground that there was a novus actus interveniens between the breach of contract and the damage. But they were not bound to take that view; indeed the only view fairly open to them if they believed the plaintiff's evidence was that he, having had to retract the guard by hand on a number of occasions before he could apply the blade to the timber, thoughtlessly - carelessly maybe - made the movement with his hand which would have been necessary if the same thing had happened again, not thinking for the moment that it might be the opposite form of sticking that had occurred. As I see the case, therefore, the jury were entitled to act on the view that injury from the kind of thing that the plaintiff did was within the very purpose of the contractual obligation to have a properly maintained guard on the saw, and that the defendant's failure to perform that obligation on the occasion in question entitled the plaintiff to damages for the injury that he suffered. (at p653)
9. I see no ground for interfering with the verdict, and I would therefore dismiss the appeal. (at p653)
TAYLOR J. This is an appeal from an order of the Full Court of the Supreme Court which dismissed a motion for judgment in an action in which the respondent had succeeded in obtaining, at the hands of a jury, a verdict for damages for personal injury. The respondent's injuries were caused whilst he was operating a portable circular saw in the circumstances hereinafter mentioned. (at p653)
2. Broadly, the respondent's case at the trial was that he agreed with the appellant to undertake certain fencing work as an independent contractor and it was said to be a term of the agreement that the latter would provide an electric saw for the use of the respondent in connexion with the work. At the time when the agreement for the fencing work was said to have been made the respondent had been employed by the appellant for some time as a carpenter and his working week extended from Monday to Friday inclusive. But the fencing work was not to be done during the regular hours of work. This was to be additional to the respondent's ordinary work; it was to be done on Saturdays and the respondent was to be paid for it at a specified rate. The latter spent a number of Saturdays on the fencing work and then complained to Mr. A. H. Derbyshire that whereas his remuneration was at the same rate as his predecessor, the fencing rails were not cut to size by the appellant as had formerly been done. Apparently the respondent had been cutting the rails to size with a hand saw but upon his own evidence his complaint seems to have been disposed of when the appellant told him that he could "take the Black and Decker saw" for use on Saturdays. This was a portable eight inch electrically operated circular saw. The blade of the saw was substantially enclosed in a casing or housing and when the saw was not in use the aperture in the casing which permitted the application of the blade to material to be sawn was closed by a spring-controlled guard. Then as the saw was brought into contact with a piece of timber the guard, moving about a pivot, would be forced back into the casing as the sawing operation progressed. When the operation was completed and the saw removed from the timber the guard would resume its normally closed position. According to the respondent, however, the guard was not operating effectively at the time of his injuries and, indeed, had not done so for some little time. He first noticed that this was so some months after his conversation with Mr. Derbyshire and about two or three weeks before the accident. In the course of his ordinary work he noticed that the guard "stuck" in the forward or closed position and this occurred about a half a dozen times in the first week after the defect became apparent. According to him, "it got worse" and he spoke to the works manager about it but, apparently, nothing was done and he described its condition at the time of the injury as "very bad". Occasionally the guard also stuck in the backward, or open, position and it was to such an occurrence that the respondent ascribed his injuries. When the guard stuck in the forward position it seems to have been the practice of the respondent, whilst holding the saw handle in one hand, to place his other hand under the saw for the purpose of easing the guard back in order to commence sawing. However, on the occasion of his injury, the guard had "stuck" in the backward, or open, position and the respondent, being about to saw a piece of timber, placed his hand underneath the saw to release the guard and his fingers immediately came into contact with the revolving blade. Properly instructed the jury apparently concluded that the respondent was not the author of his own misfortune and that his injuries had resulted from the defective condition of the guard. (at p654)
3. The respondent's advisers were, apparently, in some doubt as to the precise character of his rights, if any, in these circumstances and the declaration by which his claims were formulated contained seven counts. These included counts in negligence alleging that the respondent was a servant of the appellant and counts for breaches of the Factories and Shops Act, 1912 (as amended). But all of the counts except one were withdrawn from the consideration of the jury by the learned trial judge and since no subsequent objection was taken to their withdrawal we are not concerned with them. But the second count remained and upon this the respondent secured a verdict. This count alleged that it was agreed by and between the plaintiff and the defendant that the plaintiff would for reward from the defendant perform certain services for the defendant, namely the erection of certain fences and that it was a term and condition of the said agreement that the defendant would provide for the use of the plaintiff therein an electrical saw. Further, it was alleged that it was a term and condition of the said agreement that such saw should be and be maintained in a safe condition for the plaintiff's use, yet the saw so provided by the defendant was not maintained in a safe condition but was dangerous and unsafe. According to the Full Court the count as construed at the trial alleged that the saw was to be supplied in a safe condition from time to time or, as I understand this observation, on each Saturday when it was secured by the respondent. It will be seen, therefore, that the respondent sued under this count and recovered damages for a breach of the contractual obligation alleged. The appellant, however, asserts that no such contractual obligation ever arose and, alternatively, that there was no evidence capable of supporting the breach alleged. (at p655)
4. Several questions arise upon the appeal. First of all there is the question of the capacity in which the respondent was in possession of the saw at the time of his injury. This involves an enquiry whether it was open to the jury to find that, on the occasion when the respondent complained that the fencing rails were not being cut to size, the parties made a new agreement a condition of which was that the respondent should be entitled to "take the Black and Decker saw" for use on Saturdays. If they did so the next question is what term, if any, ought to be implied as to the condition of the saw from time to time. And finally the question arises whether there was evidence upon which the jury were justified in finding, as alleged, that the saw was "dangerous and unsafe" when it was made available to the respondent on the occasion when he was injured. (at p655)
5. It is convenient to deal, first of all, with the last of these matters. It was pressed upon us that the evidence on this aspect of the case was, at the best, equivocal. The evidence concerning the condition of the saw at the time was meagre in the extreme and does not permit us to say precisely what it was that caused the guard to stick. But we are told that this may have been caused either by an accumulation of sawdust and shavings in the housing, or, on the other hand, by the development of a defect in the spring or some other part of the mechanism which controlled the movement of the guard. The first of these causes, it is said, might have been avoided or removed merely by cleaning in the course of the everyday work of a tradesman and could not be regarded as substantiating the allegation that the saw was, in any sense, dangerous and unsafe. But a defect in the spring or some other part of the controlling mechanism was a different matter entirely. There was, however, no direct evidence as to which of these factors brought about the defective operation of the guard. It is true that the saw, itself was tendered in evidence and the defendant's witnesses testified that no repairs of any consequence in the case had been effected since the accident. But the jury was not bound to accept this evidence and they had before them testimony which was capable of proving that the saw had been operating defectively for at least three weeks prior to the accident and that during this period it "got worse". On the whole I am of the opinion that it was open to the jury to conclude that if all that was wrong with the saw was that sawdust or shavings had accumulated in the housing, the obstructing material would, in the ordinary course of affairs at some time during that period, have been removed and, consequently that the cause of the defect was something more substantial and such as to entitle the respondent to assert that the saw was unsafe to operate. (at p656)
6. At the trial the evidence in the case was treated as sufficient to justify a finding that, at the time of the accident, the Black and Decker saw had been entrusted to the respondent for his use as a bailee for reward. But there was a great deal of discussion in the Supreme Court and in this Court whether, in the circumstances of the case, it was proper to imply a condition of the character alleged in the second count of the declaration. According to the appellant the condition was, in substance, concerned with the fitness of the saw for the purposes for which it was lent and it was contended that no condition of that character could be imported until it was first shown that the transaction was one in which the respondent had relied upon the skill and judgment of the appellant. This, it was said with some force, was not such a case for the bailment was of a specific chattel and one with which, by reason of his everyday work, the respondent was entirely familiar. We have held in Beaton v. Moore Acceptance Corporation Pty. Ltd. [1959] HCA 59; (1959) 104 CLR 107, at p 119 that the common law rules relating to the implication in a contract for the sale of goods of a general condition that the goods shall be reasonably fit for a specified purpose apply with equal force to a hire purchase agreement relating to goods and we have pointed out that it was a prerequisite to the implication of such a general condition at common law that it should appear, in effect, that the buyer had bought on the seller's judgment that the subject goods would answer a particular purpose. Likewise, I see no reason why the same rules should not apply with equal force to an agreement for the hire of a chattel for a particular purpose. Jones v. Just (1868) LR 3 QB 197 contains a precise and authoritative classification of contracts for the purpose of the application of the common law rules and I see no reason why this classification should not extend to agreements for the hire of chattels. But it is of some importance to observe that the respondent's case was not that there had been merely a breach of a condition as to general fitness of the saw for a particular purpose; his complaint was that at the time of the accident it was in a dangerous condition. Secondly, if it was a condition of an agreement made between the appellant and the respondent that an electric saw should be made available to the latter for his use in performing the work in question, it is of vital importance to bear in mind that the problem with which we are concerned is not the ascertainment, by analogy to the common law rules relating to the sale of goods, of the condition which ought to be imported into a single and isolated bailment for reward; upon the stated hypothesis the problem is to ascertain what relevant condition, if any, ought to be imported into an agreement which provided for an indefinite number of future successive bailments of the same article. Upon any such enquiry it is of no consequence to assert that the saw was in a defective condition when the respondent accepted the loan of it on the occasion when his injuries were sustained. To my mind it is clear that the obligations of the appellant under such an agreement would not be discharged if, the saw being in an unexceptionable condition at the time of the agreement, on some future occasion it delivered the saw to the respondent in an obviously useless or dangerous condition. There may be some difficulty upon the authorities in stating precisely the limits of the appellant's obligations under such an agreement but in the present case there is evidence that the guard became defective to the knowledge of the appellant some months after the agreement was said to have been made, it is apparent that the defect introduced a real element of risk and that the saw was, in effect, delivered to the respondent in this condition on the occasion when he was injured. However the minimal standard of the appellant's obligations under such an agreement may be stated it was, in those circumstances, a clear breach to deliver the saw to the respondent in that condition. Whether the respondent's injuries resulted from the breach is, of course, another matter but the jury has found that they did and that finding is not open to attack. (at p658)
7. It is, therefore, of critical importance to consider whether it was open to the jury to find that the parties did, in fact, make a new agreement on the occasion when the respondent complained to Mr. Derbyshire for, if they did not, it is clear that the respondent became nothing more than a gratuitous bailee of the saw. Such a conclusion would, of course, be fatal to the respondent's claim based, as it is, upon an alleged breach of contract. Further the evidence could not be said to disclose any breach of duty on the part of the appellant as a gratuitous bailor (Blakemore v. Bristol and Exeter Railway Co. [1858] EngR 386; (1858) 8 El & Bl 1035 (120 ER 385) ; MacCarthy v. Young [1861] EngR 264; (1861) 6 H & N 329 (158 ER 136) and Coughlin v. Gillison (1899) 1 QB 145 ). But on the whole I have formed the opinion that there was evidence upon which the jury were entitled to conclude that the parties did make a new agreement and that this was not merely a case where it could be said that the saw was merely lent by the appellant without reward to the respondent to assist him in carrying out the work he had undertaken to perform (cf. per Baron Wilde in MacCarthy v. Young [1861] EngR 264; (1861) 6 H & N 329 (158 ER 136) ). I have formed this view notwithstanding that the respondent's evidence, standing alone, did not carry the case beyond mere gratuitous bailment for, it seems to me that the evidence of the two Derbyshires provides some basis for the conclusion that a fresh agreement was made. Their evidence contained a denial that the Black and Decker saw was mentioned during the discussion. They said that the respondent was given permission to use the mechanical saws in the joinery shop. But their evidence throws a little more light upon the character of the discussion than does that of the respondent and in my view it leaves open the conclusion that a new contract was then made and that, as the respondent says, one of its terms was that the Black and Decker saw should be made available. (at p658)
8. One more matter remains to be mentioned. The appellant's argument involved some criticism of the count of the declaration upon which the respondent succeeded at the trial and it was contended that in any event no condition of the nature alleged ought to be implied in any such agreement. The count is somewhat inartistic but having regard to its substance and to the course of the trial and the issues which were then debated its deficiencies provide no ground for disturbing the jury's verdict. For these reasons the appeal should, I think, be dismissed. (at p658)
WINDEYER J. In my opinion this appeal should be allowed. My only difficulty and misgiving arises from my being alone in thinking so. I can state my reasons briefly. (at p659)
2. During the week, when the respondent was working for the appellant for wages as a carpenter, the legal relationship between the parties was that of servant and master; but in respect of the fencing jobs that the respondent did at week-ends, with the assistance of a mate whom he himself paid, he was a sub-contractor not a servant. We must accept this as the position. The parties did not dispute it. Indeed they both asserted it. The question with which we are concerned arises under the second count of the declaration. It alleges an agreement by which the respondent was to erect fences and then comes an averment in these words: "it was a term and condition of the said agreement that the defendant would provide for the use of the plaintiff therein an electrical saw, and it was a further term and condition of the said agreement that such saw should be maintained in a safe condition for the plaintiff's use". This is a count in contract. The issues that arise are not those that in somewhat similar circumstances might arise in an action in tort between servant and master: See Davie v. New Merton Board Mills Ltd. (1959) AC 604 , where Viscount Simonds (1959) AC, at p 617 reminded their Lordships that that case was an action founded in tort. In this case the plaintiff was allowed, but not required, to use the saw, and to use it for his own advantage, not in his master's business. An obligation to maintain the saw in a safe condition is, however, said to be implied in the appellant's undertaking to make it available to the plaintiff at week-ends. If there were such an obligation, then the jury could find there had been a breach of it. A mechanical apparatus is not necessarily unsafe and thus unfit for use because it is not equipped with some particular form of safety device. But, if it has a safety device which is defective and does not function as it should, the apparatus may be in fact not reasonably fit for use. (at p659)
3. But first was there the obligation alleged? I do not doubt that in any form of contract by which a chattel of a particular description is to be provided by one party for the purpose of being used by the other there is ordinarily implied a warranty that the thing will be reasonably fit for the contemplated use. For the reasons appearing in the judgments in the Supreme Court of Victoria in Star Express Merchandising Co. Ltd. v. V. G. McGrath Pty. Ltd. (1959) VR 443 , such a warranty is, I think, generally speaking the same in substance whether the transaction be a sale or a letting for hire. But there is no room for such a warranty when the subject matter of the transaction is a particular identified and existing chattel, the relevant characteristics and qualities, defects and vices of which are known to the buyer or bailee. What he then contracts for is that particular chattel as it is. The arrangement was not that the respondent was to have the use of a Black and Decker saw. He was to have the use at week-ends of a particular Black and Decker saw, the very one he was accustomed to using during the week. If, when that arrangement was made, he knew its guard was prone to stick, there was no implied warranty to him that he was to have a saw with a guard that did not stick. He was to have that very saw. (at p660)
4. The matter can, however, be put, and as I understand it is put, in another way. It is that a tendency to stick either in the forward or backward position developed only after the arrangement was made: that at the time the respondent was told he might use the saw the guard was not known to stick, that the saw was then perfectly safe and fit for use and that there was thus an implication in the permission given to him that the saw would be maintained in good order, so that when he took it from time to time at weekends it would be then fit for use. Such a view of the matter is clearly open, for the respondent said that he became aware that the guard was sticking three weeks before the accident; and this, it seems, was after the arrangement for him to have the use of it had been made. If that be so, there was evidence of a breach of the implied term that it would be kept in a fit state for use when required. The respondent would then have been entitled to such damages as he could establish flowed from his not having a thing fit for its purpose, that is a saw he could safely use. Such damages might be more than nominal, because his earnings under his contract might be diminished by, for instance, the need to use a hand saw instead of a mechanical saw. But if, notwithstanding his knowledge of the danger, he used the unsafe thing, could he have damages because he thereby hurt himself? In other words was there any evidence that the damages complained of here so flowed from the breach of contract that they are recoverable? In my opinion there was not. The respondent when using the saw at the time he was hurt knew that it was not in good order. He knew what were its defects and its potential dangers and of the need for care they imposed. Yet, without any obligation at all to use it, he did so; and by doing so in an unwary manner he was hurt. (at p660)
5. It comes in my view to this: either there was no contract that the saw would be in any way different from what it was; or alternatively, if there were such a contract and a breach of that contract, the damages claimed are not recoverable as a consequence of that breach. I do not think any other view is open on the evidence. In my opinion there was, therefore, no evidence to sustain the jury's verdict on the count in question, which was the only count the learned trial judge left to the jury. (at p661)
ORDER
Appeal dismissed with costs.
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