Case Briefing/ Summary:

Case Name - White v. John Warrick & Co. Ltd

Citation: 1953 2 All ER 1021

Plaintiff of the case: White

Defendant of the case: John Warrick & Co. Ltd

Bench of this case : Lord Justice Singleton Lord Justice Denning, and Lord
Justice Morris.

Facts of the case: The plaintiff, a newsagent and tobacconist carried a business
at Canonbury, entered into an arrangement with the defendants that they should
supply him with a tradesman’s tricycle, a tricycle which has a large carrier in
front, for the purpose of delivering the newspaper. The arrangement was
embraced in a written contract dated Apr. 13, 1948. The contract was on a
printed form used by the defendants, on which their name appears in print, and
the agreement is stated to be made between them (described as the owners) and
the plaintiff, who is described as the hirer.
On Saturday, June 3, a representative of the owners went to the plaintiff’s shop
and left a tricycle which was out of order which was supposed to be a spare
tricycle. The plaintiff did not examine the tricycle but soon rode it to go to his
work. When he had gone about a quarter of a mile the saddle went forward in
such a manner that he was thrown off the tricycle on the ground, and was
injured. He said he got up and pushed the tricycle back to his shop, the saddle
then sloping down on to the crossbar, and when he examined the tricycle, he
found that the saddle was loose. He was not thought, at first to be badly hurt,
but unfortunately, he had suffered an injury to his knee. He was in the hospital
for some considerable time suffering from synovitis. PARKER. J. who heard the
plaintiff’s claim said that, if he had found the plaintiff entitled to damages, he
would have awarded £505. That was a provisional assessment and no more. The
plaintiff took the matter to the Court and wanted the defendants to be held liable
in tort (for negligence) as well as in contract.

Issues of the case: 1.Whether there was negligence on the part of the
defendant?
2. Whether there was a breach of duty and contracts?

Essentials of Negligence: In an action for negligence, the plaintiff has got to

prove the subsequent essentials:
1. DUTY TO TAKE CARE: One of the essential requirements for liability
for negligence is that the defendant owed a legal duty towards the
plaintiff. The following case laws can be referred for this essential
element.
1. DUTY TO WHOM: In the case of Donoghue v. Stevenson [1], carried the
idea further and expanded the scope of duty saying that the duty so raised
extends to your neighbour. Justifying so as to who it was the neighbour
LORD ATKIN stated that the answer shall be “the persons who are so
closely and directly stirred by my act who are needed to be taken in
consideration are being so affected once I am directing my mind to the
acts or omissions which are called in question.”
1. DUTY MUST BE TOWARDS THE PLAINTIFF- It is not sufficient that
the defendant owed a duty to take care. It must also be proved that the
defendant owed a duty of care towards the plaintiff.
In Bourhill v. Young [2], the plaintiff, a fishwife, alighted from a tram car. While
she was being helped in putting her basket on her back, a motor-cyclist after
passing the tram collided with a motor car, 15 yards afar on the other side of the
tram and died instantly. The plaintiff could see neither the deceased nor the
accident because the tram was standing between her and the place of accident.
She simply heard about the collision and after the dead body was removed, she
went to the place and saw blood left on the road. Resulting in she suffered a
nervous shock and gave birth to a still-born child of 8 months. She sued the
representatives of the deceased motorcyclist. It was held that the deceased did
not hold any duty of care towards the plaintiff and hence she could not claim
any damages.
 1. BREACH OF DUTY TO TAKE CARE: Yet another important condition
for the liability in negligence is that the plaintiff must prove that the
defendant committed a breach of duty to take care or he did not perform
that duty well.
In Municipal corporation Delhi v. Subhag Vanti [3], a clock-tower in the heart of
the Chandni Chowk, Delhi collapsed causing the death of a number of people.
The structure was 80 years old but its normal life was 40-45 years. The
Municipal Corporation of Delhi having the control of the structure could not
take care and be, therefore, liable.
In MCD v. Sushila Devi [4], a person passing by the road died because of the fall
of a branch of a tree standing on the road, on his head. The Municipal
Corporation was held liable.
1. The last essential requisite for the tort of negligence is that the damage
caused to the plaintiff was the result of the breach of the duty. The harm
may fall into the following classes: –
 physical harm, i.e. harm to the body;
 harm to reputation;
 harm to property, i.e. land and buildings and rights and interests
pertaining thereto, and his goods;
 economic loss; and
 mental harm or nervous shock.
In Achutrao Haribhau Khodwa v. State of Maharashtra [5], a cotton mop was
left inside the body by the negligence of the doctor. The doctor was held liable.

Judgement/Court Reasoning: It was stated by Lord Denning, that there were

two possible heads of liability on the defendants, one for negligence, the other
for breach of contract. The liability for breach of contract was stricter than the
liability for negligence. The defendants could have been liable in contract for
supplying a defective machine, even though they were not negligent. Counsel
for the defendants admitted that, if the negligence was a completely independent
tort, the exemption clause would not avail, but he said that the negligence
alleged was a breach of contract, not an independent tort. The facts which gave
rise to the tort are the same as those which gave rise to the breach of contract
and the plaintiff was not allowed to recover just by framing his action in tort
instead of contract.
The claim for negligence, in this case, was founded on tort and not on contract.
That could be seen by considering what would be the position if, instead of the
plaintiff himself, it was his servant who was 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. That shows that the defendants owed a duty of care towards the
servant. And with more reason, they also owed the same duty to the hirer
himself. In either case, a breach of that duty is a tort which was established
without relying on any contract at all. The hirer could also rely on a contract if
he had wished, but he was not bound to do so, and if he could avoid the
exemption clause by framing his claim in tort he was entitled to do so,
according to the judgement of the Court of Appeal. Therefore, it was finally
held by The Court of Appeal that the clause only extended to the strict (non-
negligent) liability (contract), this would, therefore, allow action in tort for
negligence.