B e f o r e :
LORD JUSTICE SALMON
LORD JUSTICE STAMP
and
MR JUSTICE LATEY
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WALTER WILLIAM FREDERICK HOLLIER
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RAMBLER MOTORS (A.M.C.) LTD.
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(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters, Ltd.,
Room 392 Royal Courts of Justice, and 2, New Square, Lincoln's Inn, W.C.2.)
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MR R. JOHNSON, (Instructed by Messrs. Herbert Smith & Co.) appeared on behalf of the Appellant (Plaintiff).
MR S. TUCKEY. (instructed by Messrs. Linklater & Paines) appeared on behalf of the Respondents (Defendants).
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE SALMON: The plaintiff bought a second-hand Rambler car early in 1970. I understand that that is a make of car which is manufactured by the American Motor Corporation. The plaintiff had had Rambler cars for some five years. In the middle of March, 1970, he telephoned the defendants, Rambler Motors (A.M.C.) Ltd., spoke to the manager and told him that he wanted some repair work done to the car as it had developed an oil leak. The manager said that the defendants could not do anything about it for the moment, but if the plaintiff would have it towed or sent in on a conveyor the defendants would attend to the defects and put them in order. The plaintiff agreed. Those were the only terms of the agreement, expressed over the telephone. There would, however, obviously be an implied term that the defendants would carry out the repairs and look after his car with reasonable skill and care; and there would also be an implied term that the plaintiff would pay a fair and reasonable price for the repairs. The plaintiff had his motor car conveyed to the defendants' garage towards the end of March. While it was at the garage a fire broke out as a result of which substantial damage was done to the car.
The plaintiff brought an action against the defendants claiming that the fire and the ensuing damage had been caused by the defendants' negligence. At the trial, the chief issue of fact which was fought - and it was fought very hard - was whether or not the defendants had discharged the onus of proof (which would rest upon them as bailees) of having taken reasonable care of the plaintiff's property. The learned county court Judge, in the course of a lucid and admirable judgment, said:
''I have no hesitation in finding that the defendants failed to show that they ''had taken reasonable care of the plaintiff's property. I am satisfied that the electric wiring of their premises was faulty in design and was not properly inspected or maintained, and accordingly they are in breach of their duty as bailees of the plaintiff's property."
It is to be observed that not only did he decide that the defendants had not discharged the onus of proof resting upon them, but that it had been proved affirmatively that they had been negligent. The defendants do not challenge this finding. They rely, however, as they did in the court below, upon a clause which they contend excludes their liability for negligently causing a fire while the plaintiff's motor car was in their care. The defendants argue that this clause was incorporated into the oral contract by a course of dealing between them and the plaintiff.
The points of law to be decided by the learned county court Judge were: Was the clause upon which the defendants were relying to be implied into the contract? And if so, did it have the effect for which the defendants were contending? The learned county court Judge was persuaded by Mr. Tuckey (in an argument which I am sure was as persuasive and skilful as that which he has addressed to this court), that such a term was to be implied into the contract; and the learned county court Judge found that, on the authority of Turner -v- Civil Supply Association Ltd. (1926 1 Q.B. p.50) he was bound to hold that that clause had the meaning for which the defendants contended. The plaintiff now appeals from the decision of the learned county court Judge on those points.
I will deal first of all with the point as to whether the clause relied on by the defendants can properly be implied into this oral contract by reason of the course of dealing between the parties. Mr. Hollier, the plaintiff, had during the five years preceding March, 1970 on many occasions bought spare parts from the defendants. As a rule, when he wanted the car to be repaired or serviced, he sent it elsewhere, but three or four times during those five years he had had the repair or service carried out by the defendants. It was the defendants' practice when they were doing repairs or servicing a motor car - but not when they were merely supplying spare parts - to have a form which is described as an "invoice" signed by the customer. The form, which is before us, I need not read in detail, but it describes the work which is to be carried out and gives the price for carrying out the work. At the bottom of the form appear the words:
''I hereby authorise the above repairs to be executed and agree to pay cash for same upon delivery of car to me. Customer's signature"
- and the customer normally signed the form. Then immediately underneath the signature appear the words:
''The Company is not responsible for damage caused by fire to customer's cars on the premises. Customer's cars are driven by staff at owner's risk."
It is not clear whether on each of the three or four occasions when the plaintiff had work carried out he signed the form to which I have, referred, but he did, at any rate, sign the form on two of those occasions: one was on the 15th April, 1967, and the other hurriedly in the rain on the 3rd February, 1970, not quite two months before the date of the telephone conversation at which the oral contract relating to the present case was made. This form that the plaintiff signed has three copies underneath it, with carbons in between. The three copies underneath the form are retained by the defendants. The top copy is handed to the customers after the work has been done and paid for. The plaintiff did not read the forms on any occasion when he signed them, but there was nothing to have prevented him from doing so.
Mr. Tuckey says that there was a course of dealing which constituted the three or four occasions over five years - that is, on an average, not quite one dealing a year - from which it is to be implied that what he called ''the condition'' at the bottom of the contract should be imported into the oral agreement made in the middle of March, 1970. I am bound to say that, for my part, I do not know of any other case in which it has been decided or even agued that a term could be implied into an oral contract on the strength of a course of dealing (if it can be so called) which consisted at the most of three or four transactions over a period of five years.
We have been referred to the Hardwick Game Farm case (1969 A.C. p.31). That was a case in which some feeding-stuff was sold by some merchants to a farmer. The feeding-stuff was found to be defective. The farmer sued the merchants. The merchants brought in as third party the persons from whom they had purchased the feeding-stuff; they in their turn brought in their suppliers, and there was a long list of many parties brought in right down the chain. As between two of these suppliers a point arose as to whether a term that the buyer under the contract took the responsibility of any latent defects was a term which had been imported into the contract in question by reason of the course of dealing between those parties. It is to be observed that in that case there had been three or four dealings each month between the parties during the previous three years. The course of dealing had been that the feeding-stuff was ordered orally by the buyer and the order was accepted orally by the suppliers. Then on the day of the oral contract, or perhaps the next day, the suppliers sent on to the buyer a sold note. One of the terms appearing on the sold note was that the buyer under the contract took the responsibility for any latent defects. Three or four times each month, year in and year out for three years, sold notes had been sent on to the buyer, and the buyer had never raised any protest or said anything which would have led the sellers to assume that the buyers were doing anything other than accepting the terms of the contract which appeared on the sold note.
In that case, although this practice had been going on all that time, and the buyers had received well over 100 sold notes containing the condition to which I have referred, he had not actually read the condition and knew nothing about it. It was argued that therefore the condition could not be implied into the contract in question, although it had been made in exactly the same way as all the other contracts, namely, orally, with a sold note in the usual form sent on after the contract had been made. The House of Lords decided that the fact that the buyer had not read the condition on the sold notes, having had every opportunity of doing so, did not avail him, because any reasonable seller in circumstances such as those, having had no intimation from the buyer that he took any objection to the condition, would have had good cause to assume that the buyer was agreeing to the condition.
That case is obviously very different from the case in question. That seems to be a typical case where a consistent course of dealing between the parties makes it imperative for the court to read into the contract the condition for which the sellers were contending. Everything that the buyer had done, or failed to do, would have convinced any ordinary seller that the buyer was agreeing to the terms in question. The fact that the buyer had not read the term is beside the point. The seller could not be expected to know that the buyer had not troubled to acquaint himself with what was written in the form that had been sent to him so often, year in and year out during the previous three years, in transactions exactly the same as the transaction then in question. The sellers in that case sought to rely on the case of McCutcheon -v- David MacBrayne Ltd. (1964 1 W.L.R. p.125), which was also a decision of the House of Lords. They relied on that authority chiefly for a passage in the speech of Lord Devlin, which taken literally would mean that no term can be implied into a contract by a course of dealing unless it can be shown that the party charged has actual and not only constructive knowledge of the term, and with such actual knowledge has in fact assented to it. McCutcheon -v- David MacBrayne Ltd. is an example of a case in which dealings between the parties prior to the contract in question cannot be relied upon to import-a term into the relevant contract.
In that case the appellant had asked his brother-in-law to have a car shipped from Islay to the mainland. The appellant had personally consigned goods on four previous occasions. On three of them he was acting on behalf of his employer; on the other occasion he sent his own car; and each time he signed what was called a " risk note''. The risk note made it plain that the respondents were accepting the goods on their ship on the condition that they would not be responsible for any damages by negligence that the goods might suffer during the course of the voyage. In that case, through negligence, the ship sank and the car was lost. The appellant's brother-in-law, who took the car to be shipped on the occasion in question, had himself consigned goods of various kinds on a number of previous occasions. He said that sometimes he had signed a note, and sometimes he had not. On one occasion he sent his own car. He said that on the occasion in question no risk note was put before him. Apparently, unknown to him, the purser, by mistake, had taken the car on board without asking him to sign the risk note. The House of Lords held, as I have already indicated, that there was no previous course of dealing from which the term of exclusion could be implied into the contract which had been made on behalf of the appellant by his brother-in-law. The appellant himself, as I have already said, had only consigned goods on some four previous occasions, but he, "the appellant, had always signed a risk note. His brother-in-law had done so many times, sometimes after signing the risk note and sometimes not.
It seems to me that if it was impossible to rely on a course of dealing in McCutcheon -v- David MacBrayne Ltd., still less would it be possible to do so in this case, when the so-called course of dealing consisted only of three or four transactions in the course of five years. As I read the speeches of Lord Reid, Lord Guest and Lord Pearce, one, but only one amongst many, of the facts to be taken into account in considering whether there had been a course of dealing from which a term was to be implied into the contract was whether the consignor actually knew what were the terms written on the back of the risk note. Lord Devlin said that this was a critical factor. Even on the assumption that Lord Devlin's dictum went further than was necessary for the decision in that case, and was wrong - which I think is the effect of the Hardwick Game Farm case - I do not see how that can help the defendants here. The speeches of the other members of the House on the decision itself in McCutcheon's case make it plain that the clause upon which the defendants seek to rely cannot in law be imported into the oral contract they made in March, 1970.
That really disposes of this appeal, but in case I am wrong on the view that I have formed, without any hesitation, I may say, that the course of dealing did not import the so-called exclusion clause, I think I should deal with the point as to whether or not the words on the bottom of the form, had they been incorporated in the contract, would have excluded the defendants' liability to compensate the plaintiff for damage caused to the plaintiff's car by a fire which in turn had been caused by the defendants' own negligence. It is well settled that a clause excluding liability for negligence should make its meaning plain on its face to any ordinarily literate and sensible person. The easiest way of doing that, of course, is to state expressly that the garage, tradesman or merchant, as the case may be, will not be responsible for any damage caused by his own negligence. No doubt merchants, tradesmen, garage proprietors and the like are a little shy of writing in an exclusion clause quite so bluntly as that. Clearly it would not tend to attract customers, and might even put many off. I am not saying that an exclusion clause cannot be effective to exclude negligence unless it does so expressly, but in order for the clause to be effective the language should be so plain that it clearly bears that meaning. I do not think that defendants should be allowed to shelter behind language which might lull the customer into a false sense of security by letting him think - unless perhaps he happens to be a lawyer - that he would have redress against the man with whom he was dealing for any damage which he, the customer, might suffer by the negligence of that person.
The principles are stated by Lord Justice Scrutton with his usual clarity in Rutter -v- Palmer (1922 2 K.B. p.87 at p.92):
"For the present purposes a rougher test will serve. In construing an exemption clause certain general rules may be applied: First the defendant is not exempted from liability for the negligence of his servants unless adequate words are used; secondly, the liability of the defendant apart from the exempting words must be ascertained; then the particular clause in question must be considered; and if the only liability of the party pleading the exemption is a liability for negligence, the clause will more readily operate to exempt him.''
Lord Justice Scrutton was far too great a lawyer, and had far too much robust common sense, if I may be permitted to say so, to put it higher than that ''if the only liability of the party pleading the exemption is a liability for negligence, the clause will more readily operate to exempt him." He does not say that ''if the only liability of the party pleading the exemption is a liability for negligence, the clause will necessarily exempt him." After all, there are many cases in the books dealing with exemption clauses, and in every case it comes down to a question of construing the alleged exemption clause which is then before the court. It seems to me that in Rutter -v- Palmer, although the word "negligence" was never used in the exemption clause, the exemption clause would have conveyed to any ordinary, literate and sensible person that the garage in that case was inserting a clause in the contract which excluded their liability for the negligence of their drivers. The clause being considered in that case - and it was without any doubt incorporated in the contract - was: "Customers cars are driven by your staff at customers sole risk." Any ordinary man knows that when a car is damaged it is not infrequently damaged because the driver has driven it negligently. He also knows, I suppose, that if he sends it to a garage and a driver in the employ of the garage takes the car on the road for some purpose in connection with the work which the customer has entrusted the garage to do, the garage could not conceivably be liable for the car being damaged in an accident unless the driver was at fault. It follows that no sensible man could have thought that the words in that case had any meaning except that the garage would not be liable for the negligence of their own drivers. That is a typical case where, on the construction of the clause in question, the meaning for which the defendant was there contending was the obvious meaning of the clause.
The next case to which I wish to refer is the well-known case of Alderslade -v- Hendon Laundry Ltd. (1945 K.B.D., p.189). In that case articles were sent by the plaintiff to the defendants' laundry to be washed, and they were lost. In an action by the plaintiff against the defendants for damages, the defendants relied on the following condition to limit their liability: "The maximum amount allowed for lost or damaged articles is twenty times the charge made for the laundry." Again, this was a case where negligence was not expressly excluded. The question was: What do the words mean? I have no doubt that they would mean to the ordinary housewife who was sending her washing to the laundry that, if the goods were lost or damaged in the course of being washed through the negligence of the laundry, the laundry would not be liable for more than twenty times the charge made for the laundering. I say that for this reason. It is, I think, obvious that when a laundry loses or damages goods it is almost invariably because there has been some neglect or default on the part of the laundry. It is said that thieves break in and steal, and the goods (in that case handkerchiefs) might have been stolen by thieves. That of course is possible, but I should hardly think that a laundry would be a great allurement to burglars. It is a little far-fetched to think of burglars breaking into a laundry to steal the washing when there are banks, jewellers, post offices, factories, offices and homes likely to contain money and articles far more attractive to burglars. I think that the ordinary sensible housewife, or indeed anyone else who sends washing to the laundry, who saw that clause must have appreciated that almost always goods are lost or damaged because of the laundry's negligence, and therefore this clause could apply only to limit the liability of the laundry, when they were in fault or negligent.
But Mr. Tuckey has drawn our attention to the way in which the matter was put by Lord Greene in delivering the leading judgment in this court, and he contends that Lord Greene was in fact making a considerable extension to the law as laid down by Lord Justice Scrutton in the case to which I have referred. For this proposition he relies on the following passage in Lord Greene's judgment, at page 192: "The effect of those authorities can I think be stated as follows: Where the head of damage in respect of which limitation of liability is sought to be imposed by such a clause is one which rests on negligence and nothing else, the clause must be construed as extending to that head of damage, because it would otherwise lack subject-matter." If one takes that word "must" au pied de la lettre that passage does support Mr. Tuckey's contention. However, we are not here construing a statute, but a passage in an unreserved judgment of the Master of the Rolls, who was clearly intending no more than to re-state the effect of the authorities as they then stood. It is to be observed that Lord Justice Mackinnon, who gave the other judgment in this court, set out the rule or principle which he said was very admirably stated by Lord Justice Scrutton in Rutter -v- Palmer He said: "Applying that principle to the facts of the case, I think that the clause in question does avail to protect the proprietors of the laundry in respect of liability for negligence which must be assumed to be the cause of these handkerchieves having disappeared." And clearly it did, for the reasons that I have already given. I do not think that Lord Greene was intending to extend the law in the sense for which Mr. Tuckey contends. If it were so extended, it would make the law entirely artificial by ignoring that rules of construction are merely our guides and not our masters; in the end you are driven back to construing the clause in question to see what it means. Applying the principles laid down by Lord Justice Scrutton, they lead to the result at which the court arrived in Alderslade -v-Hendon Laundry Ltd. In my judgment these principles lead to a very different result in the present case. The wards are; ''The company is not responsible for damage caused by fire to customers' cars on the premises." What would that mean to any ordinarily literate and sensible car owner? I do not suppose that any such, unless he is a trained lawyer, has an intimate or indeed any knowledge of the liability of bailees in law. If you asked the ordinary man or woman: "Supposing you send your car to the garage to be repaired, and there is a fire, would you suppose that the garage would be liable?", I should be surprised if many of them did not answer, quite wrongly: ''Of course they are liable if there is a fire." Others might be more cautious and say: ''Well, I had better ask my solicitor.", or: ''I do not know. I suppose they may well be liable." That is the crucial difference, to my mind, between this case and Alderslade -v-Hendon Laundry Ltd. and Rutter -v- Palmer. In those two cases, any ordinary man or woman reading the conditions would have known that all that was being excluded was the negligence of the garage, in the one case, and the laundry, in the other. But here I think the ordinary man or woman would be equally surprised and horrified to learn that if the garage was so negligent that a fire was caused which damaged their car, they would be without remedy because of the words in the condition. I can quite understand that the ordinary man or woman would consider that, because of these words, the mere fact that there was a fire would not make the garage liable. Fires can occur from a large variety of causes, only one of which is negligence on the part of the occupier of the premises, and that is by no means the most frequent cause. The ordinary man would I think say to himself: "Well, what they are telling me is that if there is a fire due to any cause other than their own negligence they are not responsible for it". To my mind, if the defendants were seeking to exclude their responsibility for a fire caused by their own negligence, they ought to have done so in far plainer language than the language here used. In my view, the words of the condition would be understood as being meant to be a warning to the customer that if a fire does occur at the garage which damages the car, and it is not caused by the negligence of the garage owner, then the garage owner is not responsible for damage.
There is another case which I think throws some light upon the problem before us, and that is Olley -v- Marlborough Court Ltd. (1949 1 K.B. p.532). In that case there was a notice in the bedroom of a private residential hotel to this effect: "Proprietors will not hold themselves responsible for articles lost or stolen, unless handed to manageress for safe custody." Owing to the negligence of the hotel, a thief managed to get into a room, which had been taken by the plaintiff, and stole a quantity of articles. The plaintiff brought an action against the proprietors of the hotel, and succeeded in this court. In that case there was a question as to whether the notice to which I have referred formed part of the contract between the plaintiff and the hotel proprietors; and there was also some question as to whether the hotel was an inn, in which case they would have been to some extent insurers of the goods, and another question as to whether the hotel was only a private hotel. This court considered the case on the basis that the notice did form part of the contract between the parties, and that the hotel was a private hotel, and came to the conclusion, as I have already indicated, that the plaintiff was entitled to recover.
Lord Justice Denning said at page 550:
"Ample content can be given to the notice by construing it as a warning that the hotel company is not liable, in the absence of negligence, As such it serves a useful purpose. It is a warning to the guest that he must do his part to take care of his things himself, and, if needs be, ensure them. It is unnecessary to go further and to construe the notice as a contractual exemption of the hotel company from their common law liability for negligence."
Similarly, I think, in this case the words at the bottom of this form can be given ample content by construing them as a warning in the sense that I have already indicated. It seems plain that if the notice in bedroom of the hotel had read as follows: "Proprietors will not hold themselves responsible for articles lost or stolen, nor for the damage or destruction of articles caused by fire", and then there had been a full stop, and the notice went on to say that to avoid articles being lost or stolen they should be handed to the manageress for safe custody, by a parity of reasoning the court must have come to the conclusion that the notice would not have excluded the hotel proprietors from liability for the loss of articles by a fire caused by their own negligence.
We have been referred to the case upon which the learned county court Judge relied and by which he was bound, namely, the decision of Mr. Justice Sankey in Turner -v- Civil Supply Association Ltd. (supra). In that case the defendants were furniture removers and warehousemen, and they entered into a contract to remove the plaintiff's furniture from London to Hailsham. The contract was made subject to various conditions. The plaintiff's goods were loaded on to the defendants' motor lorry, and in the course of transfer a fire caused by the negligence of the defendants' servants destroyed the bulk of the goods and damaged the remainder. Mr. Justice Sankey held, as he said with some hesitation and reluctance, that Clause 11 In the contract did exempt the defendants from liability. That clause read:
"The contractors are not responsible for loss or damage caused by fire, aircraft or bombardment of property in transfer or in storage or in process of being packed."
Mr. Justice Sankey thought that, since the defendants could not be responsible for damage by fire, save fire caused by negligence, the clause to which I have referred must necessarily be taken to exclude their liability for negligence. I am afraid I cannot agree with that decision. It is fair to say, reading that judgment, that the correct arguments do not appear to have been addressed to the court. I think that in that case the defendants were to an even weaker position than the defendants are here: Clause 11 was manifestly dealing with matters which had nothing to do with negligence.
"The contractors are not responsible for loss or damage caused by fire, aircraft or bombardment of property in transfer .." It is difficult to see how the contractors could have been liable for any damage by aircraft or bombardment. It is hardly to be supposed that they would have negligently manipulated an aircraft over one of their own lorries, or bombarded it. It seems to me manifest that that clause was merely a warning to the customer that the contractors were not responsible for damage by fire, aircraft or bombardment, so that he could insure the goods against those risks. That case does not decide anything except what the learned Judge conceived to be the true construction of the clause there in question. In my judgment, his decision was wrong.
I consider also, for much the same reasons, that the decision in Fagan -v- Green & Edwards Ltd. (1926 1 K.B. p.102) following Turner -v- Civil Service Supply Association Ltd. was wrong.
There have been many cases, to which I do not think it is necessary to refer, in which these exclusion clauses have been construed in relation to the liability of common carriers. I do not think those cases have any application to the present case. Some of them may appear not to be very satisfactory, but they can be reconsidered should the occasion arise. It does not arise in this case.
For these reasons, I have come to the conclusion that, although this was a most careful and in many ways an excellent judgment, the decision was wrong; first, on the point as to whether or not the term relied on by the defendants was imported into the contract by a course of dealing; and secondly, on the construction of the clause , although on this point the learned county court Judge was bound by the decision of Mr. Justice Sankey to reach the conclusion at which he arrived. For these reasons, I would allow the appeal. Before parting with this case, I should like to say how much we are indebted to learned counsel on both sides for their most interesting and able arguments.
LORD JUSTICE STAMP: I agree, for the reasons given by my Lord, that the course of dealings between the parties described by my Lord was not such that the terms of earlier contracts can properly be imported into the oral contract here in question.
On the question of construction, I reach the same conclusion as my Lord, but by, I think, a slightly different route. As I understand the law, it is settled that where in a contract such as this you find a provision excluding liability capable of two constructions, one of which will make it applicable where there is no negligence by the defendant, and the other will make it applicable where there is negligence by the defendant, it requires special words or special circumstances to make the clause exclude liability in case of negligence. (see, for example, Price & Co. -v- Union Lighterage Company (1904) 1 K.B. D. p.412). Similarly, I would hold that where the words relied upon by the defendant are susceptible either to a construction under which they become a statement of fact in the nature of a warning or to a construction which will exempt the defendant from liability for negligence, the former construction is to be preferred. The words here, ''The company is not responsible for damage caused by fire to customer's cars on the premises", are, in my judgment, certainly susceptible to a construction which would regard them as a mere statement in the nature of a warning, and reinforced by the principle that I have stated, I would hold that that is how they ought to be construed in this case. If this be correct, I do not find it necessary to consider the cases which have been decided upon the footing that the clause under consideration was a term of the contract excluding some liability: for on the view that I have formed, the clause on its true construction is not a clause of that nature.
For those reasons, I would agree with the conclusion of my Lord. I also agree, for the reasons which he has given, that the decisions in Turner -v- Civil Service Supply Association Ltd. and Fagan -v- Green & Edwards Ltd. cannot be regarded as reliable authorities. I, too, would allow the appeal.
MR JUSTICE LATEY: As regards the first ground of appeal, namely, that the learned county court Judge was wrong in holding that these printed words were imported as a term into the oral agreement by a course of dealing, I agree that the learned Judge, while his findings of primary fact on the evidence were impeccable, did reach a mistaken conclusion. As I so wholly agree with the reasons stated by my Lords, there is no need to repeat them.
As regards the second ground of appeal, the main stream of the law, the basic principle, as I understand it, is that if A enters into a contract with B. and wants to include in it a term exempting himself from liability for his own negligence, to be effective that term must sufficiently clearly convey that it is liability for negligence which is being excluded. It has been argued during this appeal that where A cannot be liable otherwise than in negligence, no such sufficiently clear words are required. In my opinion, that is not the law. In each case one has to look, at the words which are claimed to exempt. When in fact A can be liable in negligence only, the law, I believe, is that that fact, to employ Lord Justice Scrutton's words in Rutter -v- Palmer, "will more readily operate to exempt him.'' But the law goes no further than that.
In saying that, I want to add that I wholly and emphatically agree with what my Lord, Lord Justice Salmon, has said in his judgment when dealing with Rutter -v- Palmer and Alderalade -v- Hendon Laundry Ltd.; when referring to the passage in Lord Green's judgment in the latter case and with what he has said about Turner -v- Civil Service Association Ltd. and Fagan -v-Green & Edwards Ltd. In the sense I have mentioned and to that limited extent, in this case the defendants are entitled to pray in aid that as bailees they could only be liable in negligence and, therefore, that the court should more readily read these words as sufficient words of exemption. I approach the words in question with that in mind and, doing so, to my mind these words would not convey to many intelligent laymen that the garage is saying: "If your car is damaged by fire we shall not be liable, and this is so even though it is due to our own fault that the fire happens." In my opinion, other and plainer words are required. I therefore agree that on both grounds this appeal should be allowed.
(Appeal allowed, with costs, and costs in the court below on Scale 3. Damages to be assessed or agreed. Leave to appeal to the House of Lords refused).
