White v John Warwick & Company Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE MORRIS
Judgment Date24 June 1953
Judgment citation (vLex)[1953] EWCA Civ J0624-5
Docket Number1951 W. No. 1399
Date24 June 1953

[1953] EWCA Civ J0624-5

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Singleton

Lord Justice Denning, and

Lord Justice Morris

1951 W. No. 1399
White
and
John Warrick & Company, Ltd.

Counsel for the Appellant: MR DONALD MacINTYRE, instructed by Messrs Alfred H. Silvertown & Co., London, Agents for Mr Arnold K. Maplesden, London.

Counsel for the Respondents: MR E. BRIAN GIBBINS, instructed by Messrs Doyle, Devonshire & Co., London, Agents for Messrs Dennis Berry & Co., Reading.

1

LORD JUSTICE SINGLETON Plaintiff, Mr Tom White, is a newsagent and tobacconist carrying on business at Canonbury, and be entered into an arrangement with the Defendants, who hove a number carrier cycles and other things of that nature, that they should supply him with a tradesman's cycle, a tricycle with a large carrier in front of it, so that he could deliver his newspapers by that means.

2

The arrangement which I have mentioned was embraced in a written contract of the 13th April, 1948. When I say a "written contract" I mean that it is on a printed form used by the Defendant company on which their name appears in print, and the agreement is stated to be made between them and the plaintiff, who is spoken of as the hirer, while they are described as the owners.

3

Clause 1 is: "She Owners agree to let, and the Hirer agrees to hire, Carrier Cycles Nos. 13409 for the term of two years from the date hereof (and thereafter from year to year) at the weekly rent of five shillings payable Quarterly in advance at the owners' above address, the first payment being on delivery of the machines."

4

Clause 2: "In consideration of such aim the Owners agree to maintain the machines in working order and condition (punctures excepted) and to supply Spare Carriers as soon as possible when the Hirer's machines are being repaired without any charge beyond the agreed amount as above"; and in other clauses the owners agree to supply lamps and accessories and the like, and to repair damage in certain cases.

5

Upon that the owners supplied a machine which was used by the Plaintiff for a considerable period, and which, so far as so know, was kept in order untiltowards the end of May, 1950, when the machine which was in the plaintiff's a possession under the contract was in need of repair, and the Defendants were told of that.

6

On Saturday the 3rd June a representative of the Defendants went to the Plaintiff's newsagents shop and left a spare cycle instead of the cycle which was out of order, and he took away the cycle which required repair. In doing that the Defendants were purporting to perform their obligation under Clause 2 of the contract. The Plaintiff very soon got upon the cycle to go about his a work. He did not examine the cycle, but he rode off up the road, and when he had gone about a quarter of a mile the saddle of the cycle went forward in such a say that he was thrown off the machine on to the ground, and he hurt his right leg rather badly and he was shaken. He said he got up and pushed the bicycle back to his shop, and the saddle was sloping right down on to the crossbar, and when he locked at the cycle again he found that the saddle was quite loose and moved about. It was not thought at first that Mr White was badly hurt, but unfortunately he had suffered an injury to his knee. he was in hospital some considerable time suffering from synovitis, and his condition, as shown by the medical reports, is that there is a certain amount of stiffness in the knee joint and that he is likely to have further trouble from time to time. The Judge who had the Plaintiffs claim before him said that if he had found the plaintiff was entitled to damages he would have awarded the sum of £505. That of as a provisional assessment and no more.

7

Mr Gibbens, on behalf of the Defendants, has submitted that that amount is too much having regard tothe nature of the injury and to the medical report, it was indicated to him, when he dealt with that part of the case, that this Court could not see any reason why it should be asked to Interfere with the provisional assessment of damages by the learned judge.

8

But more serious questions arise, and in order to appreciate them it is desirable that I should say a word or two upon the feats. The evidence given by the Plaintiff and by his wife, and by young men named Anthony, who was employed by the plaintiff, seemed to show that the cycle was out of order in that some nuts under the seat were rusty and could not be moved. The chief witness, whose evidence impressed the Judge upon that, was. Anthony, who was not employed by the plaintiff at the time of the trial, but who was engaged on delivering newspapers and the like for the plaintiff in June, 1950. He told the Judge that after hearing of the accident he saw the cycle, and the saddle had tilted back. He sold that on several occasions thereafter he used the cycle, and the saddle used to slip and caused him to lose control. He said the saddle slipped backwards generally when he was riding it; he tried to tighten the nut, but it was rusty; the nut was too rusty to shift. There was other evidence upon that on both sides.

9

The Plaintiff in his action against the Defendants set up two causes of action; the first that the Defendants were responsible to him in damages for breach of warranty; they were under a duty under the contract to supply a cycle which was reasonably fit for the purpose for which it was required. It was said that they did not do so, and that the Plaintiff was entitled to damages.

10

The plaintiff made an alternative claim In Paragraph 6 of his Statement of Claim in this way: "The said accident was due to the negligence and/or breach ofcontract of the Defendants their servants or agents whereby the plaintiff has sustained personal Injury and suffered damage, particulars of Negligence and/or breach of contract, The Defendants their servants or agents filled to take any or any proper care to ensure that the said spare carrier tricycle was in proper working condition or in a proper state of repair or equipped or prepared for use by the Plaintiff and handed over the same sad permitted the Plaintiff to mount and ride such spare tricycle without Earning when they knew or ought to have known that by reason of its defective condition as aforesaid the saddle thereof was not properly fastened and was dangerous whereby an accident and injury such as occurred was to be apprehended,"

11

The second claim of the plaintiff thus was; You, the persons from whom I had this cycle, owed a duty to take reasonable care; that is, to take that care which a reasonably careful cycle owner should take on the letting to another of a cycle for his use, and you failed in that duty, If you had examined the cycle you would have found that the nuts were rusty and that the saddle was loose; I used the bicycle In the way in which it was Intended that I should use It, and I sustained an accident because you had not fulfilled your duty; you had not taken reasonable care; you were negligent, and I am entitled to damages,

12

In reply to both those claims the Defendants said: In the first place, they denied negligence and said that there was no breach of duty, nor Gas there a breach of contract, They added a plea in paragraph 4 of the Defense: "By Clause11 of the written agreement between the parties the Defendants are not liable for any personal injuries to the plaintiff when riding a machine provided for him."

13

Clause 11 of the agreement is: "nothing in Agreement shall render the owners liable 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."

14

The important part of that is in the first line in the printed form: "Nothing in this Agreement shall render the owners liable for any personal injuries to the riders of the machines hired."

15

It is conceded by Mr. Macintyre, who appears for the Plaintiff that that clause would prevent the Plaintiff from succeeding on a Claim based on breach of contract, but his submission is that in the circumstances proved there was negligence on the part of the Defendants, and that that clause is no bar to an action for damages for negligence.

16

The case was heard before or Justice Parker, whose judgment was in favour of the Defendants and against that judgment the plaintiff appeals.

17

Mr. Justice Parker appears to have accepted the evidence of the Plaintiff as to the condition of the cycle in preference to the evidence given on behalf of the Defendants, but he did not sap in so many words that he found there was negligence on the part of the Defendants or of their servants. He said at page 7 of his judgment: "She Defendants however rely on clause 11 of that written agreement", and he added, after reading that clause: "The first answer to that defense made on behalf of the Plaintiff is that the accident in question did not occur with a machine hired, but with a spare machine. It is submitted that this agreement, on its true construction, applies, and can only apply, to a hired machine. in other words, it was said the clause of the agreement which specifically mentionedmachines hired gave Defendants execution or an escape only in respect of a machine which was a machine hired under the terms of the contract and not in respect of a spare machine provided to replace the hired machine when the hired machine was out of order, and that is the first point taken by Mr. Macintyre on behalf of the Plaintiff in this Court.

18

It is to be observed that the printed form of the agreement seems to contemplate that the hirer is going to take more than one machine; it deals with machines in the plural generally; but when you come to Clause 11 you find that the exemption is given in respect of personal injuries to the riders of "the machines hired".

19

In my opinion...

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