This case analysis has been done by Parul Sharma , pursuing BBA LLB from Centre for legal studies Gitarattan International Business School GGSIPU. In this case analysis, she is dealing with the case of White v. John Warrick & Co. Ltd.
This case was considered the issue of exclusion clauses and whether or not an exclusion clause in a contract involving the hiring of a tricycle could relieve the hiring company from liability in both contracts and therefore, the tort of negligence.
Lord Justice Singleton
Lord Justice Denning, and
Lord Justice Morris
Facts of the Case
The plaintiff, a newsagent and tobacconist carried a business at Canonbury, entered into an arrangement with the defendants that they should supply him with a tradesman’s tricycle, a tricycle which has a large carrier in front, for the purpose of delivering the newspaper. The arrangement was embraced in a written contract dated Apr. 13, 1948. The contract was on a printed form used by the defendants, on which their name appears in print, and the agreement is stated to be made between them (described as the owners) and the plaintiff, who is described as the hirer.
On Saturday, June 3, a representative of the owners went to the plaintiff’s shop and left a tricycle which was out of order which was supposed to be a spare tricycle. The plaintiff didn’t examine the tricycle but soon rode it to go to his work. When he had gone about a quarter of a mile the saddle went forward in such a manner that he was thrown off the tricycle on the ground, and was injured. He said he got up and pushed the tricycle back to his shop, the saddle then sloping down on to the crossbar, and when he examined the tricycle, he found that the saddle was loose. He was not thought, at first to be badly hurt, but unfortunately, he had suffered an injury to his knee. He was in the hospital for some considerable time suffering from synovitis. PARKER. J. who heard the plaintiff’s claim 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 took the matter to the Court and wanted the defendants to be held liable in tort (for negligence) as well as in contract.
- Whether there was negligence on the part of the defendant?
- Whether there was a breach of duty and contracts?
Essentials of Negligence
In an action for negligence, the plaintiff has got to prove the subsequent essentials:
- DUTY TO TAKE CARE: One of the essential requirements for liability for negligence is that the defendant owed a legal duty towards the plaintiff. The following case laws can be referred for this essential element.
- DUTY TO WHOM: In the case of Donoghue v. Stevenson , carried the idea further and expanded the scope of duty saying that the duty so raised extends to your neighbour. Justifying so as to who is was the neighbour LORD ATKIN stated that the answer shall be “the persons who are so closely and directly stirred by my act who are needed to be taken in consideration are being so affected once I am directing my mind to the acts or omissions which are called in question”.
- DUTY MUST BE TOWARDS THE PLAINTIFF- It isn’t sufficient that the defendant owed a duty to take care. It must also be proved that the defendant owed a duty of care towards the plaintiff.
In Bourhill v. Young , the plaintiff, a fishwife, alighted from a tram car. While she was being helped in putting her basket on her back, a motor-cyclist after passing the tram collided with a motor car, 15 yards afar on the other side of the tram and died instantly. The plaintiff could see neither the deceased nor the accident because the tram was standing between her and the place of accident. She simply heard about the collision and after the dead body was removed, she went to the place and saw blood left on the road. Resulting in she suffered a nervous shock and gave birth to a still-born child of 8 months. She sued the representatives of the deceased motorcyclist. It was held that the deceased didn’t hold any duty of care towards the plaintiff and hence she couldn’t claim any damages.
- BREACH OF DUTY TO TAKE CARE: Yet another important condition for the liability in negligence is that the plaintiff must prove that the defendant committed a breach of duty to take care or he didn’t perform that duty well.
In Municipal corporation Delhi v. Subhagvanti , a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of people. The structure was 80 years old but its normal life was 40-45 years. The Municipal Corporation of Delhi having the control of the structure couldn’t take care and be, therefore, liable.
In MCD v. Sushila Devi , a person passing by the road died because of the fall of a branch of a tree standing on the road, on his head. The Municipal Corporation was held liable.
- The last essential requisite for the tort of negligence is that the damage caused to the plaintiff was the result of the breach of the duty. The harm may fall into the following classes: –
- physical harm, i.e. harm to the body;
- harm to reputation;
- harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods;
- economic loss; and
- mental harm or nervous shock.
In Achutrao Haribhau Khodwa v. State of Maharashtra , a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable.
It was stated by Lord Denning, that there were two possible heads of liability on the defendants, one for negligence, the other for breach of contract. The liability for breach of contract was more strict than the liability for negligence. The defendants could have been liable in contract for supplying a defective machine, even though they were not negligent. Counsel for the defendants admitted that, if the negligence was a completely independent tort, the exemption clause would not avail, but he said that the negligence alleged was a breach of contract, not an independent tort. The facts which gave rise to the tort are the same as those which gave rise to the breach of contract and the plaintiff was not allowed to recover just by framing his action in tort instead of contract.
The claim for negligence, in this case, was founded on tort and not on contract. That could be seen by considering what would be the position if, instead of the plaintiff himself, it was his servant who was 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. That shows that the defendants owed a duty of care towards the servant. And with more reason, they also owed the same duty to the hirer himself. In either case, a breach of that duty is a tort which was established without relying on any contract at all. The hirer could also rely on a contract if he had wished, but he was not bound to do so, and if he could avoid the exemption clause by framing his claim in tort he was entitled to do so, according to the judgement of the Court of Appeal.
Therefore, it was finally held by The Court of Appeal that the clause only extended to the strict (non- negligent) liability (contract), this would, therefore, allow action in tort for negligence.
 1932 AC 562
 1943 AC 92
 AIR 1966 SC 1750
 AIR 1999 SC 1929
 (1996) 2 SCC 634
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