Adler v Dickson

An exclusion clause protecting a carrier does not, without clear words or necessary implication, protect the carrier’s servants from personal liability in tort. A person seeking immunity for a wrongful act must establish a contractual basis for it. That basis may arise through an express contract, agency or a contract necessarily implied from the circumstances.

A carrier may stipulate for the protection of persons engaged in performing the contract. The injured person must, however, have assented expressly or by necessary implication to surrender the separate remedy against those persons. A clause exempting only the carrier from liability for its servants’ negligence does not establish that assent.

A first-class passenger was seriously injured when a gangway connecting the steamship Himalaya to the quay at Trieste fell. She sued the ship’s master and boatswain personally in negligence. Her ticket exempted the shipping company from liability for personal injury, including injury caused by the negligence of its servants, but did not expressly exempt those servants from their own liability.

Pilcher J determined a preliminary issue in the passenger’s favour under Order 25, Rule 2 of the Rules of the Supreme Court. The master and boatswain appealed. For the preliminary issue, the court assumed that they had been personally negligent. The question was whether the ticket’s exemption clause afforded them a defence to the tort claim.

1. Appeal dismissed unanimously, with costs. The ticket exempted the shipping company from liability but did not exempt the master or boatswain from liability for their own torts. The preliminary issue was therefore correctly determined for the passenger.

2. Denning LJ held that a carrier may stipulate for an exemption benefiting persons engaged to perform the contract, even where they are not parties to it. Such protection may arise expressly or by necessary implication. The injured person must nevertheless have assented, expressly or by necessary implication, to surrender the common law remedy against the actual wrongdoer. The present ticket contained no such stipulation or assent.

3. Jenkins LJ held that the passenger’s right against the company and her right against the individual tortfeasors were separate and distinct. A defendant relying on a contract as having prospectively removed a tort claim must show that the contract expressly or by necessary implication clearly has that effect. The words exempted only the company and fell far short of that standard.

4. Morris LJ held that immunity from the ordinary consequences of a wrongful act must, unless conferred by law, be secured by contract. The contract may operate through agency or may be implied from the particular circumstances. A complete stranger to the contract cannot rely upon it. Nothing showed that the company contracted as agent for its servants or that the passenger intended to confer immunity upon them.

5. Cosgrove v Horsfall (1945) 62 TLR 140 was followed. Elder Dempster & Co Ltd v Paterson, Zochonis & Co Ltd [1924] AC 522 did not establish an automatic immunity for every servant whose employer had obtained an exemption. That decision depended upon the bills of lading, the possession of goods and the agency or bailment relationships arising on its particular facts.

The application concerning leave to appeal to the House of Lords was stood over for no more than one week so that the appellants could decide whether to pursue an immediate application or await determination of the facts.

1. Court of Appeal: The defendants’ appeal was dismissed unanimously. The ticket did not afford them a defence to the passenger’s claim in tort. The application concerning leave to appeal to the House of Lords was temporarily stood over.

2. High Court: Pilcher J determined the preliminary issue in the passenger’s favour, holding that the ticket’s terms did not protect the master and boatswain from the claim against them personally.