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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> White v John Warwick & Co [1953] EWCA Civ 2 (24 June 1953) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1953/2.html Cite as: [1953] WLR 1285, [1953] 2 All ER 1021, [1953] 1 WLR 1285, [1953] EWCA Civ 2 |
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COURT OF APPEAL.
B e f o r e :
LORD JUSTICE DENNING
and
LORD JUSTICE MORRIS
____________________
WHITE |
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V |
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JOHN WARRICK & CO LTD |
____________________
Counsel for the Respondents: MR E BRIAN GIBBENS, instructed by Messrs Doyle, Devonshire & Co., London, Agents for Messrs Dennis Berry & Co., Reading.
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Crown Copyright ©
LORD JUSTICE SINGLETON: The Plaintiff, Mr Tom White, is a newsagent and tobacconist carrying on business at Canonbury, and he entered into an arrangement with the Defendants,who have a number of carrier cycles and other things of that nature, that they should supply him with a tradesman's cycle, a cycle with a large carrier in front, so that he could deliver his newspapers by that means.
"The Defendants agree to let, and the Hirer agrees to hire, Carrier Cycles Nos. 13409 for the term of three years from the date hereof (and thereafter from year to year) at the weekly rent of 5s. each payable Quarterly in advance at the Defendants' above address, the first payment being due on delivery of the machines."
"In consideration of such sum the Defendants agree to maintain the machines in working order and condition (punctures excepted) and to supply Spare Carriers as soon as possible when the Hirer's machines are being repaired without any charge beyond the agreed amount as above … "
On Saturday the 3rd June a representative of the Defendants went to the Plaintiff's newsagents shop and left a spare cycle instead of the cycle which was out of order, and he took away the cycle which required repair. In doing that the Defendants were purporting to perform their obligation under Clause 2 of the contract. The Plaintiff very soon got upon the cycle to go about his work. He did not examine the cycle, but made off up the road, and when he had gone about a quarter of a mile the saddle of the cycle went forward in such a manner that he was thrown off the machine on to the ground, and he hurt his right leg rather badly and he was shaken. He said he got up and pushed the bicycle back to his shop, the saddle then sloping down on to the cross-bar, and when he looked at the cycle again he found that the saddle was quite loose and moved about. It was not thought at first that Mr White was badly hurt, but unfortunately he had suffered an injury to his knee; he was in hospital some considerable time suffering from synovitis, and his condition, as shown by the medical reports, is that there is a certain amount of stiffness in the knee joint and that he is likely to have further trouble from time to time. The Judge who had the Plaintiff's claim before him said that if he had found the Plaintiff entitled to damages he would have awarded £505. That was a provisional assessment and no more.
The Plaintiff mad an alternative claim in paragraph 6 of the Statement of Claim in this way:
"The said accident was due to the negligence and/or breach of contract of the Defendants their servants or agents whereby the Plaintiff has sustained personal injury and suffered damage. Particulars of negligence and/or breach of contract. The Defendants their servants or agents failed to take any or any proper care to ensure that the said spare carrier cycle was in proper working condition or in a proper state of repair or equipped or prepared for use by the Plaintiff and handed over the same and permitted the Plaintiff to mount and ride such spare cycle without warning when they knew or ought to have known that by reason of its defective condition as aforesaid the saddle thereof was not properly fastened and was dangerous whereby an accident and injury such as occurred was to be apprehended."
"By Clause 11 of the written agreement between the parties the Defendants are not liable for any personal injuries to the Plaintiff when riding a machine provided for him."
Clause 11 of the agreement is:
"Nothing in this Agreement shall render the Defendants liable for any personal injuries to the riders of the machines hired nor for any third-party claims, nor loss of any goods, belonging to the Hirer, in the machines."
In my opinion "machines hired" as used in that clause covers the spare machine which takes the place of the machine hired. I have formed that view after considering Clause 2 of the agreement, and Clause 12. I think it is the natural reading of the agreement, and that the submission made on behalf of the Plaintiff on that head fails.
"There are many cases where a claim can properly be brought either in contract or in tort. Two examples spring to mind: the first is a case of a claim against a carrier. It can be brought in written contract; it can also be brought at common law for breach of the carrier's agreement at common law. Similarly, in the case of bailment, if a bailee fails to deliver goods at the end of the bailment the claim can be based on tort, on the ground that the bailee has detained or converted the bailor's goods, but in the present case there is, as it seems to me, no room for an alternative claim at common law."
I am not sure that this is right. We have had an advangage in this Court which was not given to Mr Justice Parker, in that we have had cited to us a number of authorities. I am inclined to think for this purpose most help is given by reference to the Speech of Lord MacMillan in the case of M'Alister (or Donoghue) v Stevenson reported in 1932 Appeal Cases at page 562 at page 609. The passage is as follows:
"On the one hand, there is the well established principle that no one other than a party to a contract can complain of a breach of that contract. On the other hand, there is the equally well established doctrine that negligence apart from contract gives a right of action to the party injured by that negligence - and here I use the term negligence, of course, in its technical legal sense, implying a duty owed and neglected. The fact that there is a contractual relationship between the parties which may give rise to an action for breach of contract, does not exclude the co-existence of a right of action founded on negligence as between the same parties, independently of the contract, though arising out of the relationship in fact brought about by the contract. Of this the best illustration is the right of the injured railway passenger to sue the railway company either for breach of the contract of safe carriage or for negligence in carrying him. And there is no reason why the same set of facts should not give one person a right of action in contract and another person a right of action in tort. I may be permitted to adopt as my own the language of a very distinguished English writer on this subject. 'It appears', says Sir Frederick Pollock, Law Of Torts, 13th Edition, page 570, 'that there has been (though perhaps there is no longer) a certain tendency to hold that facts which constitute a contract cannot have any other legal effect'."
In Taylor v Manchester, Sheffield & Lincolnshire Ry Company, reported in 1895 1 Queen's Bench Division at page 134, Lord Justice A. L. Smith said at page 140:
"It is clear that a person lawfully upon railway premises may maintain an action against a railway company for injuries sustained whilst there by reason of the active negligence of the company's servants, whether he has a contract with the company or not."
We were also referred to Kelly v Metropolitan Railway Company, which is reported in the same volume of the reports at page 944, and further to the case of Olley v Marlborough Court Ltd., which is reported in 1949 1 King's Bench Division at page 532, where at page 547 there is a reference in the judgment which I delivered, to words of Lord Justice Scrutton in Rutter v Palmer :
"First the defendant is not exempted from liability for the negligence of his servants unless adequate words are used … ."
Lord Justice Denning at page 550 of the same report said:
"In cases where the establishment is clearly a common inn or, indeed, where it is uncertain whether it is a common inn or a private hotel, I am of opinion that a notice in these terms would not exempt the Defendants from liability for negligence but only from any liability as insurers."
In Olley's case the words of the notice were:
"The proprietors will not hold themselves responsible for articles lost or stolen unless handed to the manageress for safe custody. Valuables should be deposited for safe custody in a sealed package and a receipt obtained."
Mr Macintyre, too, referred the Court to Alderslade v Hendon Laundry Ltd., which is reported in 1945 1 King's Bench Division at page 189, and in particular to the words of Lord Greene the Master of the Rolls at the top of page 192 where the learned Master of the Rolls summarised the effect of the authorities in this way:
"The effect of those authorities can I think be stated as follows: where the head of damage in respect of which limitation of liability is sought to be imposed by such a clause is one which rests on negligence and nothing else, the clause must be construed as extending to that head of damage, because if it were not so construed it would lack subject-matter. Where, on the other hand, the head of damage may be based on some ground other than that of negligence, the general principle is that the clause must be confined to loss occurring through that other cause to the exclusion of loss arising through negligence."
The difficulty in this case arises from the fact that there is no finding on negligence. It may well be said that the learned Judge, in accepting the Plaintiff's evidence in preference to that of the Defendants, was inclined to the view that there was negligence on the part of the Defendants, but he did not so say. He placed an interpretation on Clause 11 which would cover negligence on the part of the Defendants; he assumed that it would. In those circumstances, I am afraid we are not in a position to deal with this case finally, and it appears to be necessary that there should be a new trial on the subject of negligence, with the expression of opinion of this Court that if negligence is proved against the Defendants they do not escape liability by reason of the terms of Clause 11.
In the present case, there are two possible heads of liability on the Defendants, one for negligence, the other for breach of contract. The liability for breach of contract is more strict than the liability for negligence. The Defendants may be liable in contract for supplying a defective machine, even though they were not negligent. (See Hyman v Nye 1881), reported in 6 Queen's Bench Division at page 685.) In these circumstances, the exemption clause must, I think, be construed as exempting the Defendants only from their liability in contract, and not from their liability for negligence.
Mr Gibbens admitted that, if the negligence was a completely independent tort, the exemption clause would not avail, but he said that the negligence here alleged was a breach of contract, not an independent tort. The facts which give rise to the tort are, he said, the same as those which give rise to the breach of contract, and the Plaintiff should not be allowed to recover merely by framing his action in tort instead of contract. That was the view which appealed to Mr Justice Parker but I cannot agree with it.
In my opinion, the claim for negligence in this case is founded in tort and not on contract. That can be seen by considering what would be the position if, instead of the newsvendor himself, it was his servant who had been riding the bicycle and had been injured. If the servant could show that the Defendants had negligently sent out a defective machine for immediate use, he would have had a cause of action in negligence on the principle stated in Donoghue v Stevenson, reported in 1932 Appeal Cases at page 562, and, as against the servant, the exemption clause would be no defence. That shows that the Defendants owed a duty of care to the servant. A fortiori they owed a like duty to the newsvendor himself. In either case, a breach of that duty is a tort which can be established without relying on any contract at all. It is true that the newsvendor could also rely on a contract, if he had wished, but he is not bound to do so, and if he can avoid the exemption clause by framing his claim in tort he is, in my judgment, entitled to do so.
Mr Gibbens relied on a passage in the Speech of Lord Finlay in the case of Elder, Dempster v Paterson reported in 1924 Appeal Cases at page 548. That was a case where a clause in a Bill of Lading exempted the charterers and the owners from liability for bad stowage, and the question was whether the owners (who were not parties to the contract) could take advantage of the exemption. It was held that they could. The decision, as I read it, was that, when a party to a contract has deliberately in plain words agreed to exempt a third party from liability for negligence, intending that the third party should have the benefit of the exemption, he cannot go back on his plighted word and disregard the exemption. It is one of the cases where a third party can take advantage of a contract made for his benefit, of which I gave some illustrations in Smith v River Douglas Catchment Board reported in 1949 2 King's Bench Division at page 514 to 516. It has, however, no application to this case.
Mr Gibbens also relied on the judgment of Lord Justice Scrutton in Hall v Brooklands Auto-Racing Club reported in 193] 1 King's Bench Division at page 213, when he said :
"When the Defendant has protection under a contract, it is not permissible to disregard the contract and allege a wider liability in tort."
This passage only refers to cases where there is a contract by the Plaintiff which plainly gives an exemption to the Defendant from liability for the tort. For instance, if a transport company expressly stipulates with the Plaintiff for exemption from liability for damage, howsoever caused, the Plaintiff cannot overcome that exemption by suing in negligence instead of contract. But the contract in such a case must be by and with the Plaintiff. In a case such as Donoghue v Stevenson, a manufacturer cannot exempt himself from liability to the consumer simply by putting an exemption clause in his contract with the wholesaler, even though the clause is brought to the consumer's notice and says that the consumer is to have no claim for negligence. It is not a clause for the benefit of a third party, but to his prejudice and is not binding on him.
Although the wording of this clause differs from the wording of other clauses, and, perhaps, by its special language raises certain difficulties, there is no doubt in regard to the general approach in a case of this kind. That approach was clearly laid down by Lord Justice Scrutton in Rutter v Palmer, reported in 1922 2 King's Bench Division and the three considerations set out by Lord Justice Scrutton were these:
"In construing an exemption clause certain general rules may be applied: First the defendant is not exempted from liability for the negligence of his servants unless adequate words are used; secondly, the liability of the defendant apart from the exempting words must be ascertained; then the particular clause in question must be considered; and if the only liability of the party pleading the exemption is a liability for negligence, the clause will more readily operate to exempt him.";
and to the same effect were the words of Lord Greene the Master of the Rolls, in the case of Alderslade v Hendon Laundry Ltd., in the passage quoted by Lord Justice Singleton.
"In consideration of such sum the Defendants agree to maintain the machines in working order and condition."
Order: Appeal allowed; judgment below set aside and new trial on issue of negligence. The Appellant to have the costs of the appeal; the costs of the first trial to be dealt with by the judge at the second trial.