White v Blackmore

Facts

A motor club organised jalopy races on a field. Notices displayed at the entrance and around the course warned that motor racing was dangerous and stated that the organisers would not be liable for accidents to spectators however caused. The deceased, Mr White, had entered as a competitor and was standing with members of his family near the ropes during a race in which he was not driving. A car crashed into the safety ropes; because of the way the ropes were set up, the impact pulled up a stake near where he was standing and he was flung into the air and killed. His widow sued the organisers in negligence and under the 1957 Act.

History

The trial judge found that the organisers had been negligent in the arrangement of the ropes but held that liability had been effectively excluded by the notices, and dismissed the claim. The widow appealed.

Issue

Whether the defence of volenti non fit injuria applied; whether the notices amounted to a warning discharging the common duty of care under section 2(4)(a) of the 1957 Act; and whether the notices effectively excluded liability under section 2(1) of the Act.

Held

Appeal dismissed by a majority. Volenti did not apply and the notices did not discharge the duty as a warning, but they were effective to exclude liability for the negligence of the organisers.

Ratio

• Under section 2(1) of the Occupiers Liability Act 1957 an occupier may, by a notice adequately brought to the attention of the visitor, exclude its liability for breach of the common duty of care, including liability for negligence, and such an exclusion operates even though it does not amount to a warning sufficient to make the visitor reasonably safe under section 2(4)(a).
• Volenti non fit injuria requires the claimant to have known of and freely accepted the risk which caused the injury; a spectator who did not know of the particular danger created by the negligent arrangement of the ropes did not consent to it.

The judgments

Key reasoning

• Although spectators at motor racing accept the inherent risks of the sport, the deceased had no knowledge of the specific danger created by the negligent arrangement of the ropes, so there was no consent to that risk.
• A notice that racing is dangerous does not enable a visitor to be reasonably safe, so it did not discharge the common duty of care as a warning.
• Section 2(1) of the 1957 Act expressly preserves the ability of the occupier to restrict or exclude its duty by agreement or otherwise, and a licensee who enters on terms displayed in a notice takes subject to those terms; the exclusion therefore operated independently of any warning.

Where it fits in the module

On occupiers liability to visitors, White v Blackmore is used to explain the three distinct routes by which an occupier may avoid liability: discharge of the duty by adequate warning, the defence of volenti, and exclusion of the duty by notice. It also raises the policy question of how far an occupier should be able to unilaterally exclude liability for its own negligence, and how later consumer protection legislation reshaped the position.

Criticisms

• Allowing an occupier to exclude liability for negligence by a unilateral notice, while denying that the visitor consented to the risk, sits uneasily with the idea that exclusions rest on agreement.
• The decision gave occupiers greater protection through exclusion than through warnings, encouraging broad disclaimers rather than safety measures, which helped prompt reform by the Unfair Contract Terms Act 1977.
• Whether a notice binds a visitor who has not read it, or who enters in a capacity the notice does not obviously address, is left uncertain by the divided reasoning.