WHITE V. JOHN WARRICK & CO. LTD.(1953) 2ALL ER 1021

FACTS

The plaintiff, a news agent and tobacconist carrying on business at Canonbury, entered into an arrangement with the defendants that they should supply him with a tradesman’s tricycle, a tricycle with a large carrier in front, for use in the delivery of newspapers. This arrangement was embraced in a written contract.

As per the contract, the owners supplied a tricycle which was used by the plaintiff for a considerable period. When the machine required repair, the owner was informed by the plaintiff. A representative of the owners went to the plaintiff’s shop and left a spare tricycle instead of the one that was out of order, which he took away. The plaintiff did not examine the tricycle but soon mounted it to go about his work. After traveling about a quarter of a mile, the saddle went forward in such a manner that he was thrown off the tricycle onto the ground and was injured. Although it was not initially thought that he was badly hurt, he had, in fact, suffered an injury to his knee.

CONTENTIONS

The plaintiff set up two causes of action against the owners:

1. The first was that the owners were responsible to him in damages for breach of warranty. It was said that they were under a duty, under the contract, to supply a tricycle that was reasonably fit for the purpose for which it was required, which they did not do, and that the plaintiff was entitled to damages.
2. The second claim of the plaintiff was that the owners owed a duty to take reasonable care in providing another tricycle for use, and they failed in that duty. If the tricycle had been examined, it would have been found that the nuts were rusty and the saddle was loose. The tricycle was used in the way it was intended to be used, and due to that, injuries were sustained. The owners had not taken reasonable care and were negligent; hence, the plaintiff was entitled to damages.

DEFENDANTS

The owners denied negligence, breach of duty, and breach of contract. By Clause 11 of the written agreement between the parties, the owners were not liable for any personal injuries to the plaintiff when riding a machine provided for him.

Clause 11 of the agreement states:
"Nothing in this agreement shall render the owners 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."

ISSUE

1. Was the owner liable for damages under the contract?
2. If the owner was not liable under the contract, would they still be liable for negligence?

RATIO

Referring to the speech of Lord Macmillan in M’Alister (or Donoghue) v. Stevenson [(1932) AC 609], Singleton L.J. observed that an action for damages for breach of contract and an action in tort may arise from the same set of facts.

HELD

Justice Singleton held that the primary object of Clause 11 of the contract is to relieve the owners from liability for breach of contract or breach of warranty. As for negligence, unless there are clear words which would also exempt the owners from liability for negligence, the clause ought not to be construed as giving absolute exemption to the owners if negligence is proved against them. If it is proved that the injury the plaintiff sustained was due to a lack of care that one in the owners’ position ought to take when supplying a tricycle for the use of a hirer, then Clause 11 should not absolve the owners from liability for negligence.

Justice Denning added that the claim for negligence in this case is founded on tort and not on contract. That can be seen by considering what the position would be if, instead of the plaintiff himself, it was his servant who had been riding the tricycle and had been injured. If the servant could show that the owners 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 M’Alister (or Donoghue) v. Stevenson, and, as against the servant, the exemption clause would be no defense. That shows that the owners owed a duty of care to the servant. A fortiori, they owed a like duty to the hirer himself. In either case, a breach of that duty is a tort that can be established without relying on any contract at all. It is true that the hirer could also rely on the contract, if he 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.