Ashmore, Benson, Pease & Company Ltd v A. v Dawson Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PHILLIMORE,LORD JUSTICE SCARMAN |
| Judgment Date | 13 February 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0213-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 1973 |
[1973] EWCA Civ J0213-2
In The Supreme Court of Judicature
Court of Appeal
appeal by defendants from Judgment of Mr. Justice Waller on 25th July 1972,
Lord Master of the Rolls (Lord Denning),
Lord Justice Phillimore and
Lord Justice Scarman
Mr. COLIN ROSS-MUNRO, Q. C. and Miss MARY HOGG (instructed by Messrs, L. Bingham & Co., agents for Messrs, Doberman, Richardson, Broady & Horsman of Middlesbrough) appeared on behalf of the Appellant Defendants.
Mr. H. POTTS, Q.C. and Mr. BRUCE McIntyre (instructed by Messrs. Jacksons, Monk & Rowe of Middlesbrough) appeared on behalf of the Respondent Plaintiffs.
THE MASTER OF THE ROLLS: In February 1967 a big piece of engineering equipment called a tube bank was being carried from Stockton on-Tees to Hull where it was to be shipped to Poland. It was very heavy. It weighed 25 tons. It was loaded on an articulated lorry. Half way to Hull that lorry with its load tipped over. Damage was done to the load. It cost £2,225 to repair. The manufacturers claim damages from the hauliers. In answer the hauliers plead that the load was too heavy for the vehicle: and that the contract of carriage, or the performance of it, was illegal.
The relevant regulations are The Motor Vehicles (Construction and Use) Regulations 1966 ( Statutory Instrument 1966 No. 1288). They were made by virtue of the Road Traffic Act 1960, section 64. Subsection (2) of Section 64 says;
"……it shall not be lawful to use on a road a motor vehicle or trailer Which does not comply with any such regulations as aforesaid"… In the present case the vehicle was on articulated vehicle with a tractor and trailer. Under Regulation 73(2) the maximum weight laden was specified as 30 tons. Now the unladen weight of the vehicle was 10 tons. This load (consisting of the tube bank) was 25 tons. So the total weight laden was 35 tons. So it was 5 tons over the regulation weight.
Furthermore, the tube bank was top heavy. It had fittings on the top which made its centre of gravity high. Not only was it in breach of the Regulations, but it was a dangerous and unsafe load to be carried on this vehicle along the roads of England,
The evidence showed clearly that the only vehicle suitable for. this load was a "low loader", which is underslung so thatit can take heavier weights and bigger loads. So the expedition was certainly illegal.
I turn now to consider the contract of carriage. The makers of the tube bank were Ashmore, Benson, Pease & Co. Ltd. of Stockton-on-Tees. Their transport manager was a Mr Bulmer. His assistant was Mr. Jones. Two of these tube banks were to be sent from the works at Stockton-on-Tees to the port of Hull. Mr. Bulmer told Mr. Jones to arrange for the carriage the two tube banks and to give the work to A. V. Dawson Ltd. That was a small firm in which the principals were Mr. Maurice Vernon Dawson, the father, and Mr. Maurice Dawson, the son. This firm had 10 articulated vehicles. The biggest of them was only a 30 tonner. They had no low loaders. They had worked for Ashmores for several years. Mr. Jones knew the whole of their fleet well; and Mr. Bulmer had known it for some six months. On getting the instructions, Mr. Jones telephoned Dawson and spoke to Mr. Maurice Dawson, the son. He suggested that Maurice Dawson should come up and see the nature of the load. Maurice Dawson did so. The weight of it was shown plainly on the place and on each tube bank and on the case. It was "25 tons". It was arranged that Dawsons should take the loads. The price was arranged: it was £55 for the trip for each of the two articulated vehicles. If it had been on low loaders (which Dawsons had not got), the price would have been £85 or more for each: but here it was £55.
Later that day Damsons sent two of their drivers with the articulated vehicles to get the two loads. The tube banks were loaded on to the trailers. Mr. Bulmer was there for a short time. He saw them loaded, and so did Mr. Jones. The tube banks were firmly secured in by chains.
Early next morning the two drivers came and set off on the Journey for Hull. When they were about half-way there, the leading vehicle toppled over. It was driven by Mr. Harvey, the best and most experienced driver that Dawsons had, Mr. Harvey was asked the cause: "What do your say caused your lorry to topple over?" He answered: "The camber in the road to the left plus the weight of the load, plus the height of the load," The Judge found that Mr. Harvey made an error of judgment. But that was not the real cause of the toppling over. The real cause was the overweight. The articulated lorry was a most unsuitable vehicle on which to carry it. The whole transaction was illegal, being in breach of the Regulations.
Assuming, however, that Mr. Harvey was negligent, the question is whether the illegality prevents Ashmores from suing for that negligence. This depends on whether the contract itself was unlawful, or its performance was unlawful.
The first question is whether the contract of carriage, when made, was lawful or not. The Judge found that it was lawful, because it could have been lawfully performed. He cited Waugh v. Morris L.R. Q.B. 202 and said: "I find that this contract was concluded between Jones on behalf of the plaintiffs and Maurice Dawson on behalf of the defendants. I find that Jones was relying on Maurice Dawson and his company to carry out the contract, a contract which could perfectly easily be carried out lawfully, and that he relied on the defendants to do so. It was not a term of the contract that it should be carried in any particular lorry. The contract was concluded at a time when Mr. Jones was asking Mr. Maurice Dawson to look at the load and say that he could carry it for the sum offered." I am not alto ether satisfied with thatfinding. Mr. Jones admitted that be knew a little about motor vehicle construction and the Regulations. He was asked by Mr. Ross-Munro: "You knew, for example, that there were specific loads for articulated lorries, didn't you?" And he said: "I would say yes." I would have thought that Mr. Jones, being in the business, would have known that the lorries which Dawsons were going to provide could not lawfully carry these load
Although I have these misgivings; I am prepared to accept the Judge's finding that the contract was lawful when it was made. But then the question arises: Was it lawful in its performance? The Judge's attention does not seem to have been drawn to this point. Yet there are authorities which show that illegality in the performance of a contract may disable a person from suing on it, if he participated in the illegality. This was pointed out by Lord Justice Atkin in Anderson Ltd. v. Daniel (1924) 1 K. B. 138, in a passage Which was quoted by Mr. Justice Devlin in St. John Shipping Corporation v. Joseph Rank Ltd. (1957) 1 Q. B. 267, at page 282: "The question of illegality in a contract generally arises in connexion with its formation, but it may also arise, as it does here, in connexion with its performance. In the former case, were the parties have agreed to do something which is prohibited by Act of Parliament, it is indisputable that the contract is unenforceable by either party. And I think that it is equally unenforceable by the offending party where the illegality arises from the fact that the mode of performance adopted by the party performing it is in violation of some statute, even though the contract as agreed upon between the parties was capable of being performed in a perfectly legal manner,"
That passage was further approved by Lord Justice Jenkins in B. and B. Viennese Fashions v. Losane 1952 1 T. L. R. 750. where he said, at page 755, "that illegality in the performance of a contract may avoid although the contract was not illegal ab initio,"
In this case the parties entered into the performance of the contract when Dawson's driver took the articulated vehicle (the 30-tonner) up to Ashmore's works to pick up this load. Mr. Bulmer, the transport manager, came along and saw it. Mr. Jones, his assistant, was there. Both saw this 25 tons tube bank being loaded on to the articulated lorry. Mr. Bulmer must have known that this was illegal: and Mr. Bulmer's knowledge would affect Ashmores. Mr. Jones was asked: "Mr. Bulmer would know the specific loads for articulated lorries, would he not? (A) Like the back of his hand, yes". Then as to these particular lorries, Mr. Jones was asked: "Mr. Bulmer would have had all the knowledge in the world and would have known what weight these lorries were permitted to carry but you didn't know?" "Well", said Mr. Jones, "I Would say he would have a good idea what they would carry, yes."
Now, Mr. Bulmer was not called to give evidence. The reason was because he left the employment of Ashmores some years ago and had gone to Zambia. But he had given a statement in which he had said: "Identical loads to the one in question have been carried on similar vehicles belonging to G. Stiller (Haulage) Ltd., Middleton St. George, Darlington, completely without incident."
On that evidence I think that Mr. Bulmer...
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