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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: https://www.bailii.org/ew/cases/EWCA/Civ/1953/2.html

Cite as: [1953] 1 WLR 1285, [1953] 2 All ER 1021, [1953] EWCA Civ 2, [1953] WLR 1285

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JISCBAILII_CASE_CONTRACT

BAILII Citation Number: [1953] EWCA Civ 2

Case No.:

IN THE SUPREME COUR T OF JUDICATURE

COURT OF APPEAL.

Royal Courts of Justice

June 24 1953.

B e f o r e :

LORD JUSTICE SINGLET ON

LORD JUSTICE DENNING

and

LORD JUSTICE MORRIS

____________________

Between:

WHITE

V

JOHN WARRICK & CO LTD

____________________

(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Limited , Room

392 Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London W.0.2).

____________________

Counsel for the Appellant: MR DONALD MACINTYRE, instructed by Messrs Alfred H Silvertown &

Co., London, Agents for Mr Arnold K Maplesden, London.

Counsel for the Respondents: MR E BRIAN GIBBENS, instructed by Messrs Doyle, Devonshire &

Co., London, Agents for Messrs Dennis Berry & Co., Reading.

____________________

HTML VERSION OF JUDGMENT

____________________

Crown Copyright ©

LORD JUSTICE SINGLET ON:

LORD JUSTICE SINGLET ON: 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 arrangement which I have mentioned was embrased in a written contract dated 13th April, 1948.

When I say a "written contract" I mean that it is on a printed form used by the Defendant Company on

which their name appears in print, and the agreement is stated to be made between them and the

Plaintiff, who is spoken of as the hirer, while they are described as the Defendants

Clause 1 is:

"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."

Clause 2:

"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 … "

And in other clauses Defendants also agree to supply lamps and accessories and the like, and to repair

damage in certain cases.

Upon that the Defendants supplied a machine which was used by the Plaintiff for a considerable

period, and which, so far as we know, was kept in order until towards the end of May, 1950, when the

machine, which was in the Plaintiff's possession under the contract, was in need of repair, and the

Defendants were told of that.

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.

Mr Gibbens, on behalf of the Defendants, has submitted that that amount is too much having regard to

the nature if the injury and to the medical report. It was indicated to him, when he dealt with that part

of the case, that this Court could not see any reason why it should be asked to interfere with the

provisional assessment of damages by the learned Judge.

But more serious questions arise, and in order to appreciate them it is desirable that I should say a word

or two upon the facts. The evidence given by the Plaintiff and by his wife, and by a young man named

Anthony who was employed by the Plaintiff, seemed to show that the cycle was out of order in that

some nuts under the seat were rusty and could not be moved. The chief witness, whose evidence

impressed the judge on that, was Anthony, who was not employed by the Plaintiff at the time of the

trial, but was engaged on delivering newspapers and the like for the Plaintiff in June, 1950. He told the

judge that, after hearing of the accident, he saw the cycle, and the saddle had tilted back. He said that

on several occasions thereafter he used the cycle, and the saddle used to slip and caused him to lose

control. He said the saddle slipped backwards generally when he was riding it; he tried to tighten the

nut, but it was too rusty, the nut was too rusty to shift. There was other evidence on that on both sides.

The Plaintiff in this action against the Defendants set up two causes of action; the first was that the

Defendants were responsible to him in damages for breach of warranty; they were under a duty under

the contract to supply a cycle which was reasonably fit for the purpose for which it was required. I was

said that they did not do so, and that the Plaintiff was entitled to damages.

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."

The second claim of the Plaintiff thus was: You, the persons from whom I had this cycle, owed a duty

to take reasonable care, that is, to take that care which a reasonably careful cycle owner would take on

the hiring to another of a cycle for his use, and you failed in that duty. If you had examined the cycle,

you would have found that the nuts were rusty and that the saddle was loose. I used the bicycle in the

way in which it was intended that I should use it, and I sustained an accident because you had not

fulfilled your duty; you had not taken reasonable care; you were negligent, and I am entitled to

damages.

In reply to both those claims the Defendants said: in the first place, they denied negligence and said

that there was no breach of duty, nor was there a breach of contract. They added a plea in Paragraph 4

of the Defence:

"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."

The important part of that is in the first line in the printed form: "Nothing in this Agreement shall

render the Defendants liable for any personal injuries to the riders of the machines hired."

It is conceded by Mr Macintyre, who appears for the Plaintiff, that that clause would prevent the

Plaintiff from succeeding on a claim based on breach of contract, but his submission is that in the

circumstances proved there was negligence on the part of the Defendants, and that that clause is no bar

to an action for damages for negligence.

The case was heard before Mr Justice Parker, whose judgment was in favour of the Defendants and

against that judgment the Plaintiff appeals.

Mr Justice Parker appears to have accepted the evidence of the Plaintiff as to the condition of the cycle

in preference to the evidence given on behalf of the Defendants, but he did not say in so many words

that he found there was negligence on the part of the Defendants or of their servants. he said at page 7

of his judgment: The Defendants however rely on clause 11 of the written agreement", and he added,

after reading that clause: "The first answer to that defence made on behalf of the Plaintif f is that the

accident in question did not occur with a machine hired, but with a spare machine. It is submitted that

this agreement, on its true construction, applies, and can only apply, to a hired machine. In other words,

it was said the clause of the agreement which specifically mentioned machines hired gave the

Defendants exemption or and escape only in respect of a machine which was a machine hired under the

terms of the contract and not in respect of a spare machine provided to replace the hired machine when

the hired machine was out of order, and that is the first point taken by Mr Macintyre on behalf of the

Plaintiff in this Court.

Its is to be observed that the printed form of the agreement seems to contemplate that the hirer is going

to take more than one machine; it deals with machines in the plural generally; but when you come to

Clause 11 you find that the exemption is given in respect of personal injuries to the riders of "the

machines hired".

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.

The next submission on behalf of the Plaintiff is that though this clause, Clause 11, relieves the

Defendants in respect of a claim for breach of contract arising from the agreement, it does not absolve

them if there is a cause of action established on the ground of negligence.

Mr Gibbens, on behalf of the Defendants, submits that if there was negligence it was negligence in

connection with the performance of the contract, that the machine which was supplied was supplied in

performance of the obligation arising under the contract, and that that which was done was under the

agreement, and that the cause of action, if there was one, arose out of the agreement, and that, whether

there was negligence or not, Clause 11 prevents the Plaintiff from succeeding in an action of this

nature.

That gives rise to a question of some nicety. Mr Justice Parker said (and I read from page 9 of his

judgment):

"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'."

It is clear from those words of Lord MacMillan that you may have arising from some set of facts an

action for damages for breach of contract and an action for a tort. It is said that that position arises in

this case, and that, though an action for damages for breach of contract may be said to be barred by

Clause 11 of the contract, it cannot be said that the words of that clause shut out the Plaintiff from that

which he would normally have, an action for damages for the tort of negligence.

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."

In the circumstances of the present case the primary object of the clause, one would think, is to relieve

the Defendants from liability for breach of contract or for breach of warranty. Unless, then, there be

clear words which would also exempt from liability for negligence, the clause ought not to be

construed as giving absolution to the Defendants if negligence is proved against them. The result ,

Clause 11 ought not, I think, to be read as absolving the Defendants from liability for negligence, that

is, if it is proved that the accident which the Plaintiff sustained is due to negligence, in other words, to

lack of that care which one in the Defendants' position ought to take when handing out a cycle for the

use of a Plaintiff; if that is proved, then the Defendants do not escape liability by reason of Clause 11.

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 that sense I think this appeal ought to be allowed, and there ought to be a direction for a new trial

between the parties.

LORD JUSTICE DENNING : In this case the Defendants supplied a bicycle on hire to the Plaintiff,

who was a newsvendor, intending that he and his servants should ride it. The bicycle was defective,

and, in consequence of the defect, the newsvendor was thrown off and injured. The newsvendor now

claims damages for breach of contract or negligence. The Defendants claim to be protected by the

printed clause which my Lord has read.

In this type of case two principles are well settled. The first is that if a person desires to exempt himself

from a liability which the common law imposes on him, he can only do so by a contract freely and

deliberately entered into by the injured party in words that are clear beyond the possibility of

misunderstanding. The second is: If there are two possible heads of liability on the Defendant, one for

negligence, and the other a strict liability, an exemption clause will be construed, so far as possible, as

exempting the Defendant only from his strict liability and not as relieving him from his liability for

negligence.

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.

Neither of those cases affect the present case, which turns on the construction of the exemption clause.

In my judgment, it exempts the Defendants from liability in contract, but not from liability in tort. If

the Plaintiff can make out his cause of action in negligence, he is, in my opinion, entitled to do so,

although the same facts also give a cause of action in contract from which the Defendants are exempt.

I agree, therefore, with my Lord that this appeal should be allowed, but as there is no definite finding of

negligence or no negligence, and we have no transcript of the evidence with which to decide it

ourselves, there must be a new trial to decide that point.

LORD JUSTICE MORRIS : The determination of the matters raised in this appeal depends on

construing Clause 11 of the agreement.

Mr Macintyre has submitted, in the first place, that the words "machines hired" bear reference only to

machines originally supplied and not to any that are delivered in substitution during a period when the

original ones are under repair. Clause 2 of the agreement provide that there is an obligation "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," There was therefore to be payment for the substituted machine,

and that, in my judgment, was payment by way of hire. I think that a consideration of Clauses 4 and 8

referred to by Mr Justice Parker in his judgment, and a consideration of Clause 12 additionally referred

to by Lord Justice Singleton, all make it impossible to sustain that contention raised by Mr Macintyre.

The far more difficult part of the case concerns the interpretation of Clause 11 so as to decide whether

it does, or does not, provide an exemption from liability in all circumstances.

During the course of the argument I entertained some doubt in regard to this matter, but on

consideration I have reached the clear conclusion that Clause 11 does not provide an exemption if

negligence is alleged and proved, and I am in agreement with the judgments which my Lords have

delivered.

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.

Applying those principles to the words in Clause 11, it seems to me that Mr Macintyre is right when he

says that the words in Clause 11 may refer to matters other than matters based on an allegation of

negligence. The opening words of Clause 2 are as follows:

"In consideration of such sum the Defendants agree to maintain the machines in working

order and condition."

Clause 11 as an exempting clause might operate on such a provision as those opening words of Clause

2; and, doubtless, other provisions also. The clause can apply to some injury occurring without

negligence. Applying the principles of construction laid down by Lord Justice Scrutton and by Lord

Greene, I have reached the conclusion that Clause 11 is not clear so as to exempt from liability if

negligence is proved. I therefore concur in the course which has been proposed for the reasons which

my Lords have given.

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.

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