Appleton Hall Ltd v T. Geddes Grant Distributors Ltd

• Jurisdiction: Jamaica
• Judge: HARRISON JA , PHILLIPS JA , McINTOSH JA
• Judgment Date: 29 July 2011
• Neutral Citation: JM 2011 CA 76
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 5/2007
• Date: 29 July 2011

[2011] JMCA Civ 30

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE HARRISON JA

THE HON MISS JUSTICE PHILLIPS JA

THE HON MRS JUSTICE McINTOSH JA (Ag)

SUPREME COURT CIVIL APPEAL NO 5/2007

BETWEEN

APPLETON HALL LIMITED

APPELLANT

AND

T. GEDDES GRANT DISTRIBUTORS LIMITED

RESPONDENT

Ransford Braham and Shaun Henriques for the appellant

Maurice Manning and Miss Tavia Dunn instructed by Nunes Scholefield & DeLeon for the respondent

CONTRACT - Breach of contract - Negligent misstatement - Purchase of fungicides - Whether fungicides fit for purchase intended - Whether there was a breach of Sale of Goods Act - Damages

HARRISON JA

1 [1] This is an appeal by Appleton Hall Limited (the appellant) from an order made by Pusey J, dismissing the appellant's claim for damages arising from a breach of contract and negligent misstatement.

2 Background

3 [2] In 1992, the appellant, a registered company, operated a farm in YS Estates, St Elizabeth on which it cultivated papaya for export to the United States of America. The respondent, which is also a company, at that time carried on the business of, among other things, selling and distributing agricultural products and farm supplies such as insecticides and fungicides. Sometime around 5 January 1994, Mr Samuel Ashley, a sales representative at the respondent company, holding a Bachelor of Science Degree in Zoology and Botany and who had training and experience in the application of fungicides, visited the appellant's farm. The appellant's farm manager, Mr Michael Browne, indicated that he needed to purchase a fungicide known as Mancozeb to spray the papaya plants on the farm. The respondent had none in stock at that time and Mr Ashley suggested as an alternative, another product, Ridomil but Mr Browne indicated that this was not a suitable alternative. Mr Ashley then suggested Tri-Miltox Forte (TMF) which apparently was a product that was unfamiliar to the appellant and had never been used on its farm. As a result of the conversation between the parties, Mr Browne purchased two bags of TMF. Mr Browne combined these bags of TMF with another product Malathion, which he had always used with Mancozeb, to create a “cocktail” mixture. This mixture was used to spray the papaya plants. Subsequently, the appellant purchased several bags of TMF, combined it in the same manner and used it to spray the entire acreage of papayas.

4 [3] In April 1996, the appellant commenced proceedings against the respondent ‘for breach of a contract for the sale of fungicide and/or negligent misrepresentation in advising the plaintiff to purchase Tri-miltox Forte fungicide for use in spraying papaya plants’. In support of the cause of action for breach of contract, the appellant in its statement of claim asserted that:

• ‘4. Acting on the said advice the plaintiff brought a quantity of the said Fungicide [Tri-miltox Forte] from the Defendant.

• 5. It was an express and/or implied condition or term of the said sale agreement that the said fungicide was safe and suitable or fit for its said purpose.

• 6. In breach of the said condition or term the said fungicide was neither safe nor suitable or fit for the said purpose and substantially affected the flowering of the plaintiff's papaya plants and reduced their yield.’

5 The particulars of negligence in respect of the claim for negligent misrepresentation were:

• ‘(1) Advising the Plaintiff that Tri-miltox Forte was a suitable substitute for Mancozeb which it had requested for the spraying of its papaya plants.

• (2) Advising the use of Tri-miltox Forte for the spraying of papaya plants without taking into account sufficiently or at all, its ingredients or composition, or in particular the dangers of the substantial proportion of copper it contained.

• (3) Recommending or advising the use of Tri-miltox Forte as a fungicide for spraying papaya plants when it knew or ought to have known that it was unsafe and/or unsuitable for use for that purpose.

• (4) Failing to foresee or wilfully or negligently failing to inform the Plaintiff of the likely effects or the danger in the use of Tri-miltox Forte in the spraying of papaya plants.’

6 [4] In its defence, the respondent denied that TMF was unsuitable or unfit for the purpose for which it was bought. It instead averred that:

• ‘a. Tri-miltox is a suitable substitute for Mancozeb.

• b. Tri-miltox Forte is a copper based fungicide, and in particular does contain copper compounds which are not known to damage papayas.

• c. The Defendant will aver that at all material times it took reasonable care to employ persons who were trained in agricultural/natural sciences.’

7 The respondent further averred that if the appellant suffered any loss, it was caused by the negligence of the appellant in:

• ‘a. Failing to apply Tri-Miltox Forte, in keeping with the clear instructions given to the Defendant.

• b. Applying Tri-Miltox in a manner wholly inconsistent with the Defendant's and/or manufacturer's recommendation and in particular the clear instructions outlined on its label.

• c. Spraying its plants at 7 day intervals and not at 2-3 week intervals as prescribed in the instructions for use.

• d. Applying a mixture of Tri-miltox Forte with the insecticide Malathion 25 WP to its papaya plant.

• e. Failing to make any preliminary test with the planned mixtures in order to observe the physical aspects of the spray and the reaction it produces on the crop to be treated.

• f. Failing to take any or any appropriate step to ensure that the mixture it intended to apply to its papaya would be safe and suitable for the purposes intended.

• g. Failing to forsee or willfully neglecting to consider the effects or danger in applying the mixture of Tri-Miltox Forte and the insecticide Malathion 25 /WP to its papaya.’

8 [5] Each party relied on expert evidence. In support of its case, the appellant relied on the expert report of Dr Omer Thomas. Dr Thomas expressed the view that TMF is not an appropriate substitute for Mancozeb because, among other reasons, Mancozeb does not cause phytotoxicity in the same way that TMF does and TMF induces ‘acropetal blossom fall’. The respondent's expert, Mr Standford McDonald, whose report was accepted by the learned judge, was of the view that although TMF contained copper, which, if applied in large amounts would be toxic to plants, it was a suitable substitute for Mancozeb because TMF was a combination of copper salts plus Mancozeb. He also stated that spraying compounds on papaya trees during flowering, especially on hot days, could result in the flowers falling off.

9 [6] The learned judge gave an oral judgment which dealt succinctly with his reasons and indicated that should the need arise, he would deliver a written judgment at a later date. This written judgment, however, did not materialise. Both parties recorded the learned judge's findings and at the hearing before this court, the appellant indicated that it would rely on the findings as recorded by the respondent, which are as follows:

• ‘1. … Mr. Samuel Ashley employee of the Defendant Company did not hold himself out to be an Agronomist or agricultural expert in any way. The relationship between them was merely one of salesperson to customer.

  When Mr Ashley gave his opinion as to what was suitable, it was taken in that particular light. Mr Brown having received the advice, he then tried it out, looked at the plants and he made his observations about the plants. He was not relying on the technical expertise of Mr. Ashley as an Agronomist he was merely taking his recommendations as a sales person.

  The Defendant did not know of any negative effects of Tri-Miltox Forte on papaya plants.

  Nor am I of the view that they (sic) had a duty to test the Tri-Miltox Forte to see its effect.

  …

  Tri-Miltox Forte does affect the flowering of papaya plants and consequently again on the balance of probability apparently did affect the flowering of papaya plants at Appleton Limited. However, I am not of the view that there is sufficient evidence to indicate that the loss in relation to what Appleton Hall suffered was caused by the Tri-Miltox Forte for these reasons:

  • 1. Evidence is that Tri-miltox Forte inhibits the flowering of papaya plants. Mr. McDonald's evidence is that the flowering would fall off. There is no evidence that Tri-Miltox Forte would end any possible re-productive cycle and subsequent production of fruit of the papaya plant.

  • 2. The evidence was insufficient in terms of the newly planted acres, as to when they were sprayed. A detailed explanation as to whether the figures that were shown as to the lack of production resulted (sic) in Tri-Miltox Forte was missing.

  • 3. There is no evidence sufficient to indicate that the manner in which the Claimant applied the Tri-Miltox Forte or the mixture actually did cause this particular effect. (sic) Cognizant of the fact that the label indicated that one should be careful about mixing Tri-Miltox Forte and that one should do so in a trial basis. Having said that, I see nothing to indicate that this particular mixture was the reason for the damage to the plants.’

10 [7] The appellant's 14 grounds of appeal challenged these findings of fact, save and except for the findings that Tri-Miltox Forte inhibited the flowering of the papaya plants and that the mixture was not the reason for the damage to the plants. I do not propose to set out the grounds as filed. In summary, the issues which we have to determine are:

• (a) whether there was a breach of section 15 of the Sale of Goods Act;

• (b) the extent to which the respondent is liable to the appellant for negligent misstatement; and

• (c) damages.

11 ISSUE NO 1

12 The Action for Breach of Contract

13 [8] The appellant's complaint is that the learned judge failed to...