White v John Warwick & Co Ltd

[1953] 1 WLR 1285

Court of Appeal

The facts are stated in the judgement of Denning LJ.

Denning LJ

In this case the defendants supplied a cycle on hire to the plaintiff,

who was a news vendor, intending that he and his servants should
ride it. The cycle was defective and, in consequence of the defect, the
plaintiff was thrown off and injured, and he now claims damages for
breach of contract or for negligence. The defendants claim to be
protected by the printed clause of the agreement which... read
["Nothing in this agreement shall render the owners liable for any
personal injuries..."].

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 part of 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.) 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 [counsel for the owners] 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 gave rise to the tort
were, he said, the same as those which gave 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 Parker J, but I cannot agree with it.

In my opinion, the claim for negligence in this case is founded in tort

and not on contract...

... In my judgement, [the exemption clause] 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.
Bird v. Holbrook
Citation. 130 eng. Rep. 911 (C.P. 1825).

Brief Fact Summary. Bird (Defendant) set a spring gun trap in his garden to
protect his property. The spring gun trap injured Holbrook (Plaintiff) innocent
trespasser.

Synopsis of Rule of Law. No man can do indirectly that which he is

forbidden to do directly.

Facts. Defendant occupied a walled garden in which Defendant grew

valuable tulips. Defendant’s garden had been robbed of flowers and roots
worth 20 pounds. To protect his property, Defendant decided to set up a
spring gun in the garden.

Issue. Is Defendant permitted to set a spring gun trap to protect his property?

Held. No. Judgment for Plaintiff.

* One who sets spring gun trap for the purpose of catching an intruder
without posting a notice is liable for damages. In this case, Defendant
placed the spring gun trap for the purpose of doing injury. Defendant decided
not to give notice of the spring gun trap because if he did, he would not catch
the thief. Defendant intended the gun to be discharged into the victim.
Concurrence. (J. Burrough) Notice of the spring gun trap should have been
given. If the Defendant wanted only to protect his property from thieves, then
he would have set the spring gun trap only at night. Plaintiff was only a
trespasser. If Defendant were present he would not even be allowed to take
Plaintiff into custody. No man can do indirectly that which he is forbidden to do
directly.

Discussion. Defendant placed of a spring gun in his house to protect his

property. If the spring gun is tripped, it would not be able to distinguish
between the innocent trespasser or the intentional trespasser. Here,
Defendant is held liable, and Plaintiff happens to be an innocent trespasser. It
is not clear how the court would have held had Plaintiff been an actual
burglar.
Search Results
Ashby v. White
Brief
View this case and other resources at: Citation. 92 ER 126, Volume 92 Brief
Fact Summary. After a free burgess of a corporation was precluded from
voting, he brought suit to recover as to the injuries he suffered. Synopsis of
Rule of Law. When the actions of one party hinder the rights of another, that
party may be found liable. ...
Subject of law: Civil Rights

Case Overviews
Outline
Ashby v. White (1702) Facts: The defendant, an election official, denied the
plaintiff his legal right to vote. ...
Rylands v. Fletcher, House of Lords, L.R. 3 H.L. 330 (1868).
Case Summary

Facts: See Fletcher v. Rylands

Issue 1: Is an absolute duty imposed on a landowner who lawfully brings something onto his
land which, while harmless while it remains there, will naturally cause damage if it escapes?
Issue 2: Will a party be liable for damage caused by a thing or activity that is unduly
dangerous and inappropriate in a certain place, in light of the character of the place and its
surroundings?
Holding and Rule 1: Yes.
The law casts an absolute duty on a person who lawfully brings on his land something which
though harmless while it remains there will naturally cause damage if it escapes. Ds are prima
facie answerable for all the damage which is the natural consequence of its escape. The
plaintiff does not have to show negligence. The defendant however can use as a defense a
showing that the escape was P’s fault or that it was caused by a major act of God.

Holding and Rule 2: Yes.

Where the owner of land, without willfulness or negligence, uses his land in the ordinary
manner of its use, though mischief should thereby be occasioned to his neighbor, he will not
be liable in damages. But if he brings upon his land any thing which would not naturally come
upon it, and which is in itself dangerous, and may become mischievous if not kept under
proper control, though in so doing he may act without personal willfulness or negligence, he
will be liable in damages for any mischief thereby occasioned.

Disposition: Reversed, judgment for P.

Notes: This result here is frequently referred to as the “escaping substances doctrine”. This
case is the foundation of the concept of strict liability or absolute liability.
Bradford Corp v Pickles (1895), AC 587 (HL)

Facts:
P deliberately diverts water so that it doesn’t go onto neighbour’s property anymore; with
the goal of getting them to buy his land at inflated price.

Ratio:
No one has right to water running to their property. The diversion of water by a neighbour
does not constitute a nuisance.

Holding:
Decision in favour of P, who is not committing a legal wrong.
Smith v Baker [1891] AC 325

Contributory negligence: knowledge by the plaintiff; "Volenti non fit

injuria" Facts

The plaintiff was employed by railway contractors to drill holes in a rock

cutting near a crane worked by men in the employ of the contractors. The
crane lifted stones and at times swung over the plaintiff's head without
warning. The plaintiff was fully aware of the danger to which he was
exposed by thus working near the crane without any warning being given,
and had been thus employed for months. A stone having fallen from the
crane and injured the plaintiff, he sued his employers in the County Court
under the Employers Liability Act 1880.

The Decision

It was held by the House of Lords, reversing the decision of the Court of
Appeal (Lord Bramwell dissenting), that the mere fact that the plaintiff
undertook and continued in the employment with full knowledge and
understanding of the danger arising from the systematic neglect to give
warning did not preclude him from recovering; that the evidence would
justify a finding that the plaintiff did not voluntarily undertake the risk of
injury; that the maxim "Volenti non fit injuria" did not apply; and that the
action was maintainable.

Note

The House of Lords decision in Smith v. Baker & Sons [1891] was the first
case in which the defence of "Volenti non fit injuria" was limited in
employee situations.

It is a question of fact in each case whether the knowledge of the plaintiff in

the particular circumstances made it so unreasonable for him to do what he
did as to constitute contributory negligence.

When a workman engaged in an employment not in itself dangerous is

exposed to danger arising from an operation in another department over
which he has no control - the danger being created or enhanced by the
negligence of the employer - the mere fact that he undertakes or continues in
such employment with full knowledge and understanding of the danger is
not conclusive to show that he has undertaken the risk so as to make the
maxim "Volenti non fit injuria" applicable in case of injury. The question
whether he has so undertaken the risk is one of fact and not of law. And this
so both at common law and in cases arising under the Employers Liability
Act 1880.
Haynes v Harwood
Facts
Harwood's servant brought a two horse carriage into a residential neighbourhood and
parked it across the street from a police station while he was off doing work. While
the servant was away, children upset the horses and they broke free and were on a
path to injure people. Haynes, a police officer, saw this from a window. He ran out
and stopped the horses, however one of them fell and injured him. He brought an
action for damages but was unsuccessful at trial and appealed.

Issue
When someone knowingly puts himself or herself in danger to protect others, is the
negligent party liable for damages suffered in the protection effort?
Reasons
The court holds that in cases such as these, the volenti non fit injuria maxim does not
apply. If someone acts to help those in danger as a result of a person's negligent
actions, that person is liable for damages resulting from their actions as long as they
are reasonable in the circumstances. Taking risk upon yourself is not applicable in
rescue circumstances.

Ratio
The doctrine of the assumption of risk does not apply where the plaintiff has, under
exigency caused by the defendant’s wrongful misconduct, consciously and
deliberately faced a risk, even of death, to rescue another from imminent danger of
personal injury or death, whether the person endangered is owed a duty of care by the
plaintiff or not.
UNFORESEEABLE HARM
Hall v Brooklands Auto Racing Club [1933] 1 KB 205

Certain persons were the owners of a racing track for motor cars. The track was oval in shape and
measured two miles or more in circumference. It contained a long straight stretch known as the
finishing straight, which was over 100 feet wide and was bounded on its outer side by a cement
kerb 6 inches in height, beyond which was a strip of grass 4 feet 5 inches in width enclosed within
an iron railing 4 feet 6 inches high. Spectators were admitted on payment to view the races, and
stands were provided in which they could do this in safety, but many persons preferred to stand
along and outside the railing. Among the competing cars in a long distance race on this track two
cars were running along the finishing straight at a pace of over 100 miles an hour and were
approaching a sharp bend to the left; the car in front and more to the left turned to the right; the
other car did the same, but in so doing touched the off side of the first mentioned car, with the
strange result that the first mentioned car shot into the air over the kerb and the grass margin and
into the railing, killing two spectators and injuring others. The course was opened in 1907. No
accident like this had ever happened before.

In an action by one of the injured spectators against the owners of the racing track the jury found
that the defendants were negligent in that having invited the public to witness a highly dangerous
sport they had failed by notices or otherwise to give warning of, or protection from, the dangers
incident thereto, and to keep spectators at a safe distance from the track. Judgment having been
given for the plaintiff on these findings: -

Held, that it was the duty of the appellant s to see that the course was as free from danger as
reasonable care and skill could make it, but that they were not insurers against accidents which no
reasonable diligence could foresee or against dangers inherent in a sport which any reasonable
spectator can foresee and of which he takes the risk, and consequently that there was no, evidence
to support the verdict of the jury.
Donoghue V Stevenson
Introduction
Donoghue, a Scottish dispute, is a famous case in English law which was instrumental in shaping
the law of tort and the doctrine of negligence in particular.

Facts
On August 26 1928, Mrs Donoghue’s friend bought her a ginger-beer from Wellmeadow Café in
Paisley. She consumed about half of the bottle, which was made of dark opaque glass, when the
remainder of the contents was poured into a tumbler. At this point, the decomposed remains of a
snail floated out causing her alleged shock and severe gastro-enteritis.

Mrs Donoghue was not able to claim through breach of warranty of a contract: she was not party
to any contract. Therefore, she issued proceedings against Stevenson, the manufacture, which
snaked its way up to the House of Lords.

Issues
The question for the HoL was if the manufacturer owed Mrs Donoghue a duty of care in the
absence of contractual relations contrary to established case law. Donoghue was effectively a test
case to determine if she had a cause of action, not if she was owed compensation for any damages
suffered.

The law of negligence at the time was very narrow and was invoked only if there was some
established contractual relationship. An earlier case, involving two children and floating mice,
held that:

Absent a contract, a manufacturer owed no duty of care to a consumer when putting a product on
the market except:

If the manufacturer was aware that the product was dangerous because of a defect and it was
concealed from the consumer (i.e., fraud);

The product was danger per se and failed to warn the consumer of this.

Unlike Mullen, which stopped at the Court of Session, Mrs Donoghue took her case to the HoL.

Decision/Outcome
The HoL found for Mrs Donoghue with the leading judgment delivered by Lord Atkin in a 3-2
majority with Buckmaster L and Tomlin L dissenting. The ratio decidendi of the case is not
straightforward. Indeed, it could be interpreted as narrow as to establish a duty not to sell opaque
bottles of ginger-beer, containing the decomposed remains of a dead snail, to Scottish widows.
Read more broadly, the decision has several components: first, negligence is distinct and separate
in tort; second, there does not need to be a contractual relationship for a duty to be established;
third, manufacturers owe a duty to the consumers who they intend to use their product.

However, the primary outcome of Donoghue, and what it is best known for, is the further
development of the neighbour principle by Lord Atkin, who said:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour;
and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who
are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which
are called in question.

Mrs Donoghue had proved her averments that she had a cause of action in law.

Analysis
Donoghue was not the first case to attempt to sever the dependence of negligence on contract; a
few years previously, Lord Ormidale in Mullen, said, ‘. it would appear to be reasonable and
equitable to hold that, in the circumstances and apart altogether from contract, there exists a
relationship of duty as between the maker and the consumer of the beer.’ Thus, the doctrine is
based in law and morality. The impact of Donoghue on tort law cannot be understated; it was a
watershed moment effectively establishing tort as separate from contract law.

However, it is important to remember that Donoghue was a milestone in a new principle which
needed refining, as Lord Reid said, ‘. the well known passage in Lord Atkin’s speech should, I
think, be regarded as a statement of principle. It is not to be treated as if it were a statutory
definition. It will require qualification in new circumstances.’

The next major development in the ‘neighbour principle’ came from Hedley Byrne v Heller which
concerned economic loss. However, the locus classicus of the ‘neighbour test’ is found in another
economic loss case called Caparo Industries v Dickman:

What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any
situation giving rise to a duty of care are that there should exist between the party owing the duty
and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or
‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and
reasonable that the law should impose a duty of a given scope on the one party for the benefit of
the other.

Thus, boiled down the requirements are: forseeability, proximity, and fairness (policy
considerations). There has been a certain degree of overlap between the requirements with Lord
Hoffman stating that the distinctions between them, ‘. . .somewhat porous but they are probably
none the worse for that.’
Hambrook v Stokes Bros [1925]
Facts

 A mother allowed her children to walk by themselves, a little way in

front of her
 The defendant’s employee negligently secured a lorry, therefore it rolled
down a hill to the corner where the children were walking
 She feared that her children may have been injured, and coupled with a
bystander telling her a child had been injured, shesuffered mental injury

Issue

 Could people outside the zone of immediate physical danger be owed a

duty of care?

Decision

 Yes, recovery allowed

Reasoning

 People outside the zone of danger could recover for mental injury (we’d
now call these people secondary victims) for fear for her children’s lives
 For recovery to succeed, the claimant must have seen the event first hand
first hand, not had the event communicated by others in any way
Bourhill v Young [1943]
Facts

 A pregnant lady (Bourhill), upon disembarking from a tram, went to

collect her luggage from the luggage storage area
 At the luggage storage area, she heard a motorcyclist crash (50ft away);
the motorcyclist was killed by the crash. She later saw blood on the road
 The pregnant lady suffered nervous shock and later gave birth to a
stillborn child
Issue
 Could the claimant recover from the estate of the motorcyclist

Decision

 No recovery

Reasoning

 There was no foreseeable harm or relationship between the motorcyclist

and Bourhill, nor was their a close relationship
McLoughlin v O’Brian [1983]
Facts

 A mother was told that her husband and children had been in a serious
car accident with the defendant’s lorry and went to the hospital straight
away
 At the hospital, she saw her family before they had been ‘cleaned up’
 One of her sons had been killed on impact
 The mother suffered severe mental injury

Issue

 Could the mother been viewed as proximate to the accident

Decision

 Yes, recovery allowed

Reasoning

 As a person such as a spouse could be considered to attend the aftermath

of the accident, she was part of the ‘immediate aftermath’ (concept
introduced in this case) of the accident, and therefore could recover as
there was a reasonable proximate relationship between her and the
accident
Alcock v Chief Constable of South Yorkshire Police, [1992] 1 AC 310 (Link)

Facts:
People were crammed into a stadium for a soccer game. While in the stadium, 95 people
died and over 400 were injured. Friends and family of people in the stadium (some of
whom were also in the stadium) witness the event live or afterwards. The friends and
family suffered nervous shock and psychiatric illness, and sued the police for negligence.

Issue(s):
Did the police have a duty of care to the secondary victims who suffered nervous shock
from viewing the consequences of police actions?

More specifically: Can the boundaries of a cause of action for negligence be extended in
the following ways:
→ 1. Remove any restrictions on the categories of persons who may sue;
→ 2. Extend the means by which the shock is caused, so that it includes viewing the
simultaneous broadcast on television of the incident which caused the shock;
→ 3. Modifying the present requirement that the aftermath must be immediate.
Ratio:
A person suffering nervous shock must have reasonable proximity to the event that
caused the shock in order to claim for damages.

Analysis:
Class of persons whose claim should be recognized:
→ If duty extends to immediate family, why not other associations?
→ Case by case basis (nature of the negligent act or omission, gravity of the injury)
Proximity of the plaintiff to the accident:
→ Time and space
→ Immediate aftermath: Case by case -- does not include seeing the body at a
mortuary 8 hours later

The means by which the shock is caused:

→ Television station mediates what is broadcast
→ Therefore shocks sustained through tv or radio cannot found a claim
The court noted that a breach of duty of care affecting third parties must be determined
on a case by case basis.

Holding:
Appeals dismissed. Case by case analysis revealed no proximity and/or no causation.
Page v Smith [1995]
Facts

 The claimant’s car was crashed into by the defendant and was damaged
 Although the defendant was no physically injured, the accident bought
back from remission the claimant’s Chronic Fatigue Syndrome (CFS)
 The claimant could therefore never work again

Issue

 Could the claimant recover for such extreme and unforeseeable (by the
defendant) mental injury

Decision

 Recovery allowed

Reasoning

 Provided personal injury was foreseeable, whether physical or mental,

there was no need to establish that the resulting injury is foreseeable
 As the claimant was at risk of physical injury at the time (today a
primary victim), recovery was allowed
 The defendant must take the claimant as they find them, in this case with
CFS
Dulieu v White [1901]
Facts

 A carriage crashed into a pub, into the room in which a pregnant

barmaid, the claimant, was working
 The crush did not injure the barmaid, however she suffered mental injury
and a subsequently gave birth to a child prematurely, who had
developmental problems

Issue

 Was fear alone enough to create a mental injury claim?

Decision

 Yes, claim allowed

Reasoning

 Recovery could be allowed if there was grounds for reasonable fear of

immediate physical injury where there is no actual impact
King v Phillips [1953]
This case affirmed that the test for liability of mental injury was one of
foreseeability.

[A person] who suffers shock on being told of an accident to a loved

one cannot recover damages from the negligent party on that
account – Lord Denning