Derbyshire Building Co Pty Ltd v Becker - [1962] HCA 14 - HCA 1962 case summary — Zoe

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Derbyshire Building Co Pty Ltd v Becker

[1962] HCA 14

High Court of Australia|1962-07-01|Before: Windeyer JJ

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Court

High Court of Australia

Decision date

1962-07-01

Before

Windeyer JJ

Source

Original judgment source is linked above.

Judgment (51 paragraphs)

[1]

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. Derbyshire Building Co Pty Ltd v Becker [1962] HCA 14

[2]

The respondent Becker is the plaintiff in an action for damages for personal injuries sustained while he was using a hand tool consisting of a portable electrical circular saw. The work he was doing at the time was fencing a cottage for the appellant, a building company. The accident took place on Saturday 14th July 1956, when he was working for the defendant company at contract rates in the capacity, as it has been held, of an independent contractor. That he was not working as an employee or servant at the time is not now disputed by the plaintiff. But during the ordinary working week he was an employee of the defendant company at wages and he had been employed by them for some years. It appears that he worked in the joinery shop. The defendant, which seems to be a family company, carried on the business of building houses and at the time in question they were building cottages which they fenced with chain wire or with paling fencing. The work done in the joinery shop was done by employees but at least some of the work done in building appears to have been done by sub-contract. That applied at all events to the work of fencing the houses. It was work that was done or could be done out of ordinary working hours by a tradesman in the defendant's employ. About the end of May 1954, as the plaintiff respondent put the date, he was told by one of the family that the man doing the fencing was leaving it and asked whether he would take it on at the same rates, which were 1s. 9d. a foot for paling fences and 2s. 1d. a foot for chain wire fences. He agreed to do so. This meant working at the week-end. The defendant company of course supplied all the materials. The plaintiff, as carpenters do, used his own tools during the working week and of course he did so during the week-end. But there was one hand machine tool which he used during the week as occasion required which belonged to the defendant company. It was an eight inch circular saw called by the name of its makers, Black & Decker.

[3]

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.

[4]

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. 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."

[8]

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.

[9]

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 [1] , 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" [2] . 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 [3] . 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.

[26]

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. [1] ; Tournier v. National Provincial and Union Bank of England [1] ; Hall v. Brooklands Auto Racing Club [2] ; Heimann v. The Commonwealth [3] . 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 [4] ; G. H. Myers & Co. v. Brent Cross Service Co. [5] ; Gemmell Power Farming Co. Ltd. v. Nies [6] ; Woods Radio Exchange v. Marriott [7] ; Beaton v. Moore Acceptance Corporation Pty. Ltd. [1] ; Star Express Merchandising Co. v. V. G. McGrath Pty. Ltd. [2] . 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.

[31]

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.

[33]

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.

[36]

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.

[40]

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. [1] 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 [1] 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.