ON APPEAL FROM CAMBRIDGE COUNTY COURT
His Honour Judge O'Brien
Claim No: 8PE01274
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
SIR DAVID KEENE
| BSS GROUP PLC
|- and -
|MAKERS (UK) LIMITED (t/a Allied Services)
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Neil Levy (instructed by Over Taylor Biggs) for the Respondent
Hearing date: 7 July 2011
Crown Copyright ©
Lord Justice Rimer :
'(3) Where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known –
(a) to the seller; or …
any particular purpose for which the goods are being bought, there is an implied term that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of the seller ….'
Section 14(6) explains that the term so implied is a condition.
'The Fax enquiry, the written quotation and the written order all place these items squarely within an order for Uponor pipe and accessories. The order was for delivery to site at The Earl of Derby. By 8th August 2007 [BSS] was well aware that the Uponor system was being used for the job.'
The judge rejected as unsustainable BSS's argument that the valves might have been ordered for use in another job. If he was wrong that the purpose was expressly made known, he found, for the same reasons, that it was made known by implication.
'62. Counsel for [BSS] argued that this was an "idiosyncrasy" case where no liability should attach to the seller. He relied upon the House of Lords decision in Slater v. Finning  AC 473. The principle is accurately expressed in the headnote. "Where a buyer purchased goods from a seller who dealt in goods of that description there was no breach of the implied condition for fitness … where the failure of the goods to meet the intended purpose arose from an idiosyncrasy, not made known to the seller by the buyer, in the buyer or in the circumstances of the use of the goods by the buyer, and that that principle applied whether or not the buyer was himself aware of the idiosyncrasy." The case concerned a boat and its engine and camshafts. Another example was referred to in the case of Griffiths v. Peter Conway, Ltd  1 All ER 685 where the purchaser of a fur coat had unusually sensitive skin. These were plainly cases of an idiosyncrasy.
63. In this case the Uponor pipe and adaptor is perfectly normal. No doubts tens of thousands of metres of pipe and thousands of adaptors are manufactured each year. These are items which [BSS] customarily supplies. The Boss valves are [BSS's] own brand. This valve and this adapter do not fit together. There is no idiosyncrasy in either part. They are simply incompatible the one with the other. This is not an idiosyncrasy case.'
'It is sufficient that the seller was aware of the buyer's purpose. On the other hand, it must be borne in mind that our law generally subscribes to an objective theory of contract. What matters in this context is how a reasonable person, circumstanced as the seller was, would have understood the buyer's purpose at the time of the making of the contract: Hardwick Game Farm v. Suffolk Agricultural Poultry Producers Association  2 AC 31, 81 [the Henry Kendall case].
In the present case the buyers did not expressly communicate their purpose to the sellers. The question is what could the sellers fairly have been expected to infer about the buyers' purpose from the circumstances of the case. … The correct approach is well settled. In Goode, Commercial Law, 2nd ed. (1995), p. 335, Professor Roy Goode explains:
"The seller is entitled to assume that the goods are required for their normal purpose, or one of their normal purposes, unless otherwise indicated by the buyer. Accordingly, if the buyer requires the goods for a non-normal purpose, he must take steps to acquaint the seller of this fact before the contract is made, otherwise the seller, if unaware of the special purpose for which the goods are bought, will not be considered to undertake that they are suitable for that purpose."
In other words, the implication will normally be that the goods are fit for the purpose for which the goods would ordinarily be used.'
'As a matter of principle, therefore, it may be said that where a buyer purchases goods from a seller who deals in goods of that description there is no breach of the implied condition of fitness where the failure of the goods to meet the intended purpose arises from an abnormal feature or idiosyncrasy, not made known to the seller by the buyer, in the buyer or in the circumstances of the use of the goods by the buyer. That is the case whether or not the buyer is himself aware of the abnormal feature or idiosyncrasy.'
'4. I have seen the Witness Statement of Mark Dowdeswell [a Uponor employee] who states that he specifically instructed Mr Daniel [a claimant] to be careful about the compatibility of the thread on the adaptor and valve.
5. … I accept that [the claimants] did not select the material but as experienced plumbers if they had not previously had much experience of Uponor pipe then it would be a matter for them to ensure that they understood what was required, and if they wanted either the brochure or technical information they should have asked for it. I was aware they did not have experience of this system and hence I arranged Mr Dowdeswell's instruction. Though they say that they received no instructions as to compatibility I do not believe that that is the case because of what Mr Dowdeswell says. The fact that we had been assured by the suppliers that the valve was compatible is I believe irrelevant because I do not think that anybody ever said that to [the claimants]. As [the claimants] had been warned about incompatible valves, I would have expected them to take special care to ensure that the fitting was done properly.' (Emphasis supplied).
Sir David Keene :
Lord Justice Pill :