White v John Warwick & Co. (1953): A case analysis

Case name & citation: White v John Warwick & Co. Ltd. [(1953) 2 All ER 1021]
Year of the case: 1953
The bench of judges: Singleton, L.J., Denning, L.J., and Morris, L.J.
Jurisdiction: The Court of Appeal

What is the case about?

White v John Warwick is one of the leading cases that illustrates whether an exemption clause in an agreement is capable of relieving the defendant of liability arising in the contract as well as in a tort of negligence.

It says that even though an exemption clause in a contract is comprehensive enough to eliminate all types of contractual liability, it may not eliminate tortious liability.

Facts of the case (White v John Warwick)

The plaintiff, a newsagent and tobacconist doing business in Canonbury, entered into an agreement with the defendants to provide him with a tradesman’s tricycle. He needed the tricycle for use in the delivery of the newspaper. The agreement was spelled out in a written contract of hire dated April 13, 1948.

Later, the machine, i.e., the tricycle was found to be malfunctioning, and the hirer got injured. The plaintiff (or hirer) filed a claim for damages against the defendant company.

Contentions of the plaintiff

The plaintiff (White) filed two claims against the owners. The first was that the owners were liable to him for damages in breach of contract. It was claimed that they had a contractual obligation to provide a tricycle that was reasonably fit for the purpose for which it was required. And since they failed to do so, the plaintiff was entitled to damages.

The plaintiff’s second claim was that the owners (defendants) from whom he hired the tricycle, owed a duty to take reasonable care, i.e., to take the care that a reasonably careful tricycle owner would take on lending a tricycle to another for his use, but they failed in that obligation. If they had looked at the tricycle, they would have discovered that the nuts were rusted and the saddle was loose. The plaintiff further contended that he used the tricycle as it was meant to be used, and he was injured because the owners failed to perform their duties. They were negligent, and thus, he was entitled to damages since they did not exercise reasonable care.

Contentions of the defendants

In reply to the above claims, the defendants (John Warwick & Co.) denied both negligence and breach of duty as well as breach of contract.

In defense, they rested their plea on Clause 11 of the agreement. They said that Clause 11 of the agreement between the parties stated that the owners are not liable for any personal injuries caused to the plaintiff (i.e., hirer) when riding a machine supplied to him.

Clause 11 of the agreement read as follows:

“Nothing in this agreement shall render the owners liable for 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.”

Issue raised

Can the exemption clause of the agreement limit the liability of the defendants for the injury suffered by the plaintiff?

Can liability in tort arise?

Judgement of the Court in White v John Warwick

It was decided that the presence of a contractual relationship between the parties, which may give rise to an action for breach of contract, does not preclude the co-existence of a cause of action based on negligence as between the same parties, independent of the contract, although arising out of the relationship between the parties. For example, the right of an injured railway passenger to sue the railway company can be for both, i.e., for breach of contract of safe carriage or for negligence in carrying him. Therefore, an action for damages for breach of contract and an action for negligence in tort may arise from the same set of facts.

Now, in the instant case, even though an action for damages for breach of contract may be said to be precluded by Clause 11 of the agreement, it cannot be said that the hirer won’t have the right to take an action for damages for the tort of negligence.

It was observed that there was negligence on the part of the owners and they owed a duty of care to the hirer. They failed to take proper care to ensure that the machine (the tricycle) was in proper working condition. Thus, a breach of duty gave rise to tort and it could be established even without relying on any contract at all.

Moreover, no exemption clause of a contract can exempt a party from fulfilling his duty of care conferred upon him by tort law. It can limit the liability of the defendants in contract, but not in tort.

Hence, it was held that the plaintiff can recover damages.

Conclusion (White v John Warwick)

Although the clause exempted the defendants from their liability in the contract, it was decided that it did not exempt them from liability for negligence.

List of a few references used:

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