White v. John Warrick & Co. Ltd
By; Robin Pandey February, 16 2022
[This case illustrates the scope of Law of Torts. This case shows that the defendant's liability arises out of a tort and not out of breach of contract and no exemption clause in a contract is capable of exempting a party from tortuous liability.]
Facts:
The defendant (owners) supplied a tradesman's tricycle on hire to the plaintiff (a news vendor), intending that he and his servants should ride it. The arrangement was embraced in a written contract. The owners agree to maintain the machines in working order and to repair damage. But under one of the clauses the defendants had made it clear that they would not be liable for any accident or injury caused to the plaintiff when riding a machine. The tricycle was defective, and, in consequence of the defect. the plaintiff was thrown off and hospitalised; he suffered injury to his knee. The plaintiff (hirer) brought an action for damages in tort against the company The defendant owners claim to be protected by the printed clause in the written contract.
Plaintiff’s Contention
Though an action for damages for breach of contract may be barred by written clause of the contract, it cannot be said that the words of the clause shut out the hirer from what he would normally have , an action for the damages for the Tort of negligence. In the circumstances proved there was negligence on the part of the defendant and that the clause is no bar to an action for the damages for negligence.
Defendant's Contention
It there was negligence, it was negligence in connection with the performance of the contract, that the machine which was supplied in performance of the obligation arising under the contract and that what was done was under the agreement. The cause of action, if there was one. arose out of the agreement, and that, whether there was negligence or not, the clause prevents the plaintiff from succeeding in an action of this nature. If the negligence was a completely independent tort the exemption clause would not avail, but the negligence hee alleged was a breach of contract, not an independent tort. The facts which give rise to the tort are the same as those which give 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.
Legal Issue:
1. Is it possible that an action for damages for breach of contract and an action for a tort may arise from the same set of facts?
2. Is it true that facts which constitute a contract cannot have any other legal effect?
Court's Observations
On the one hand, there is the well established principle that no one other than a party to a contract can complain of a breach of that contract. On the other hand, there is equally well established doctrine that negligence apart from contract gives a right of action to the party injured by the negligence. in its technical legal sense, implying a duty owed and neglected. The fact that there is a contractual relationship between the parties which may give rise to an action for breach of contract does not exclude the co-existence of a right of action founded on negligence as between the same parties, independently of the contract, though arising out of the relationship. Of this the best illustration is the right of the injured railway passenger to sue negligence in carrying him. And there is no reason why the same set of facts should not give one person a right of action in contract and another person a right of action in tort. A person lawfully upon railway premises may maintain an action against a railway company for injuries sustained whilst there by reason of the active negligence of the company's servants, whether he has a contract with the company or not.
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 that, if there are two possible heads of liability on the 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.
Decision: In the present case, there are two possible heads of liability on Owners, one for negligence, the other for breach of contract. The liability "Breach of contract is more strict than the liability for negligence. The owners may be liable in contract for supplying a defective machine, even though they were not negligent. In these circumstances, the exemption clause must be constructed as exempting the owners only from their liability in contract, and not from the liability for negligence.
In the circumstances of the present case the primary object of the clause is to relieve the owners from liability for breach of contract, or for breach of warranty. Unless, then, there be clear words which would also exempt from liability for negligence, the clause ought not to be construed as giving absolute exemption to the owners if negligence is proved against them. The result is that clause ought not to be read as absolving the owners from liability for negligence if it is proved that the injury which the plaintiff sustained was due to lack of that care which one in the owners position ought to take when supplying a tricycle for the use of a hirer. If that is proved, then the owners do not escape liability by reason of clause in the agreement.
The claim for negligence in this case is founded on tort and not on contract. That can be seen by considering what would be the position if, instead of the plaintiff himself, it was his servant who had been riding the tricycle and had been injured. If the servant could show that the owners had negligently sent out a defective machine for immediate use, he would have had a cause of action in negligence and, as against the servant, the exemption clause would be not defence. That shows that the owners owed a duty of care to the servant. A fortiori they owed a like duty to the hirer himself. In either case, a breach of that duty is a tort which can be established without relying on any contract at all. It is true that the hirer could also rely on a contract, if he had wished, but he is not bound to do so, and if he can avoid the exemption clause by framing his claim in tort he is entitled to do so.
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