Burnett v British Waterways Board
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PHILLIMORE,LORD JUSTICE SCARMAN |
| Judgment Date | 06 February 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0206-2 |
| Date | 06 February 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J0206-2
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants from judgment of Mr. Justice Waller on 11th May 1972.
The Master of The Rolls (Lord Denning),
Lord Justice Phillimore and
Lord Justice Scarman.
Mr. DERMOD P. O'BRIEN (instructed by Mr. H. C. Rutherford) appealed on behalf of the Appellant Defendant.
Mr. D. J. TURNER-SAMUELS. C., and Mr. J. GOUDIE (instructed by Messrs. W. H. Thompson) appeared on behalf of the Respondent Plaintiff.
Mr. Burnett is a lighterman on the River Thames. He is a Freeman of the silver. On 12th September 1968 he was employed by Charrington Lightorage. He was on the barge "Durley", which was one of five barges which were being towed to the Limehouse Cut. It was being warped in towards the entrance of the look. It was still in the tidal way, a little distance from the lock gates. The warping in was being done by means of ropes from the shore. The ropes were attached to the shore, then round a button on the quay, thence on to the barges. Mr. Burnett was looking to the ropes on his barge. Suddenly the rope which was pulling his barge forward snapped. It snapped because it was defective. It is admitted now by the british Waterways Board that the defect was due to the negligence of some one of their staff, for which at common law they would be liable.
The rope snapped and part of it hit Mr. Burnett. He was rendered unconscious. Fortunately he was not seriously injured. He was only in hospital for three days; but he was an out-patient for some time and suffered from depression which lasted for some months. The Judge assessed the general damages at £350 and the special damages at £135.52. It seems a high figure for such a small accident. There was an appeal about it. But it is not the sort of figure which was so wholly unreasonable that tois Court would interfere with it.
The serious issue is on liability. The British Waterways Board say that they are protected by a notice which was put out outside toe docks office. It was some distance away from the barges. It could not be read at the distance where Mr. Burnett was. In any case, he would not dream of reading it from the place where he was working on the barge. But he admitted that as an apprentice, when he was young, he had been to the docksoffice and had seen and read this notice: but he said that he thought that it did not apply at the time he had his accident. The notice was in these words:-
"BRITISH WATERWAYS BOARD
NOTICE
TO LIGHTERMEN & OTHERS
LIGHTERMEN AND OTHERS AVAILING THEMSELVES OF THE FACILITTES AND ASSISTANCE OF THE SERVANTS OF THE B.W.B. IN BRINGING THEIR CRAFT INTO AND THROUGH THE ENTRANCE OF THE DOCK MUST DO SO AN THEIR OWN RISK AND UPON THE UNDERSTANDING THAT NO LIABILITY WHATEVER SHALL ATTACH TO THE B.W.B. OR ITS SERVANTS FOR ANY LOSS, DAMAGES OR INJURY FROM OR WHATEVER CAUSE ARISING TO OR BY THE CRAFT OR TO OR BY ANY PERSON OR GOODS ON BOARD THEROF.
BY ORDER."
The first question is whether the wording, was strong enough to cover this accident. Mr. Burnett argued that it did not, because he had not availed himself of the facilities or assistance of the servants of the British waterways Board. It was his employers, Charrington Lighterage, who had done so. The Judge rejected this argument. He said that the words were apt to cover this situation. I am inclined to agree with him.
The second question is anat was the duty owing by the British Waterways Board to Mr, Burnett? I doubt that her the Occupiers Liability Act 1957 applies to this case, because the case were not in occupation of the barge on which the accident occurred. They were in occupation of the quay alongside and of the equipment there, I should have thought their duty was at common law to use reasonable care towards the men on the barge who would be affected by their activities. That is virtually the same duty as an occupier owes to a visitor. so it does not matter under which head it is put. Inany case it was a duty to use reasonable care. It was broken. They are liable "or negligence unless the notice is a defence.
The third question is whether the notice affords a defence. If the Board had made a contract with Mr. Burnett, in which this notice was incorporated, of course the Board could rely upon it. But there is no shadow of ground for saying that there was a contract between the Board and Mr. Burnett. He was Just one of the men working on the barge corning in. His only contract was with the barge owners.
Irrespective of whether there was a contract properly so called, there are cases which show that if Mr. Burnett agreed, expressly or impliedly, to be bound by the terms of the notice, he could not claim. Thus there are several cases where the driver of a vehicle gives a passenger a lift and, at the same time, gives him reasonable notice that rides at his own risk. The passenger is bound by the notice. He cannot claim, see Buckpitt v. Oates 1968 1 A. E. R. 1145, Bennett v. Tugwell 1971 2 Q. B. 267, Birch v. Thomas 1972 1 W. L.;… 294. Likewise when a man is when a free pass to go on a vehicley he is bound by the conditions on it, if reasonable notice is given of them, see Wilkie v. London Passenger Board 1947 63 T. L. R. 115. Similarly when dangerous operations are in progress on land and apparent, and the owner gives a licensee permission to go upon it, but at the same time gives him reasonable notice that he comes at his own risk, again he cannot claim, see Ashdown v. Williams 1957 1 Q. B. 409, White v. Blackmore 1972 3 W. L. R. 296. In some of these Cases, there may not be a contract properly so called: but the passenger who accepts the lift, or the licensee who takes advantage of the permission, is bound by the notice. He has a choice either to go on the premises on the terms of the notice, or not to go to them. If he goes, heis taken to have impliedly agreed to take the risk. Just as in the "ticket" cases, a man, by accepting the ticket with the conditions, is taken to have agreed to them, see Parker v. South Eastern Railway Co. (1877) 2 C. P. D. 416. The "ticket" cases are, of course, based on contract, whereas the licensee cases are not. But in each the basis is implied agreement.
In the present case the plaintiff' had no choice. No agreement can be implied or imputed to him. The Judge put it well: "The plaintiff was not somebody arriving on his own at the entrance to the dock saying '. Well, I will not go in because of this notice.' He was an employee on a barge part of a train of barges, and by the time he had got to the dock, it was certainly beyond his ability to make a choice and not to go in." On this ground - that there was no choice to the plaintiff - the Judge held that the plaintiff was not bound by the notice. I agree entirely.
The other ground on which it was sought to deprive the plaintiff of his claim was the doctrine of volenti non fit injuria. This defence too must be based on implied agreement. It is only available when the plaintiff freely and voluntarily if with full knowledge of the nature and extent of the risk, impliedly agreed to incur it, see Letang v. Ottawa 1926 A. J. at page 731, and to waive any claim for injury, Nettleship v. Weston 1971 2 Q. B. 691,...
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