[1938] 4 All ER 85
Sharp v Avery and Kerwood

COURT OF APPEAL
GREER, SLESSER AND MACKINNON LJJ

20, 21 OCTOBER 1938
Negligence – Action for damages for personal injuries – Motor cyclists – Agreement by leading one to act as pilot to second motor cyclist carrying pillion-rider – Accident due to pilot accidentally leaving road – Whether injured pillion-rider can recover.
The plaintiff was riding on the pillion of the third party's motor cycle. The defendant, who was also riding a motor cycle, had agreed to lead them, as he was familiar with the road. At a left-hand bend, the defendant drove straight ahead off the road on to a piece of waste land. He then applied his brakes, whereupon the third party, who had followed him off the road, slightly collided with him, and the plaintiff was injured. It was contended that the plaintiff could not recover against the defendant, as the latter owed him no special duty, and his injuries were due to the negligence of the third party in driving off the road:—
Held – in the circumstances of this case, the defendant, having undertaken to lead the third party and the plaintiff, was under a duty to both of them not to put them in a position of danger.
Notes
It is to be noted that, though an agreement is found to have been made with the second cyclist, no express agreement was made with the pillion-rider. The latter was present when the agreement was made, and it is held that his safety must have been present to the mind of the contracting party when the agreement was made. There was, therefore, a duty upon the leading cyclist to take care that he should not do anything which might entail injury to the pillion-rider.
As to the Application of the Principles in Donoghue v Stephenson, see Halsbury (Hailsham Edn), Vol 23, pp 632–634, para 887; and for Cases, see Digest, Supp, Negligence, Nos 364a–364f.
[1938] 4 All ER 85 at 86
Cases referred to
McAlister (or Donoghue) v Stevenson [1932] AC 562; Digest Supp, 101 LJPC 119, 147 LT 281.
Re Polemis & Furness, Withy & Co [1921] 3 KB 560; 36 Digest 29, 151, sub nom Polemis v Furness, Withy & Co 90 LJKB 1353, 126 LT 154.
Smith v London & South Western Ry Co (1870) LR 6 CP 14; 36 Digest 29, 150, 40 LJCP 21, 23 LT 678.
Singleton Abbey (SS) v Paludina (SS) [1927] AC 16; 36 Digest 120, 798, 95 LJP 135, sub nom The Paludina 135 LT 707.
Weld-Blundell v Stephens [1920] AC 956; 36 Digest 126, 837, 89 LJKB 705, 123 LT 593.
Oliver v Birmingham & Midland Motor Omnibus Co Ltd [1933] 1 KB 35; Digest Supp, 102 LJKB 65, 147 LT 317.
Appeal
Appeal from a decision of Macnaghten J, dated 22 February 1938. Sharp, the plaintiff, was the pillion-rider on a motor cycle driven by Kerwood, the third party. In company with Avery, the defendant, who was also on a motor cycle, they were proceeding from London to Southend. It had been agreed between them that, as Avery knew the road, he should lead the other two, who followed behind him at a distance of about 8 yds. At a left-hand bend, Avery, who had not got his lights full on, mistook the road and drove straight ahead on to some waste ground. He then applied his brakes and skidded forward, gradually slowing down. Kerwood followed him on to the waste ground, and a slight collision occurred, as a result of which Sharp was thrown into a ditch and received injuries.
Gilbert Beyfus KC and Montague Berryman for the appellant.
Donald McIntyre for the respondent.
Beyfus KC: The negligence of Avery was not a causa causans, but a causa sine qu� non. Kerwood's intervening act of negligence caused the damage. Otherwise there would have been no accident to the plaintiff. [Counsel referred to Re Polemis & Furness, Withy & Co, Smith v London & South Western Ry Co, Singleton Abbey (SS) v Paludina (SS), M'Alister (or Donoghue) v Stevenson and Weld-Blundell v Stephens.]
McIntyre: The defendant owed a duty to take reasonable care. There was a definite agreement that Avery should lead Kerwood. [Counsel referred to Oliver v Birmingham & Midland Motor Omnibus Co Ltd.]
Beyfus KC in reply: Avery was under no duty to Kerwood not to go on to the rough ground.


Gilbert Beyfus KC and Montague Berryman for the appellant.
Donald McIntyre for the respondent.
21 October 1938. The following judgments were delivered.

GREER LJ.
This case involves considerations which will probably never arise again in any case of personal injuries. It raises questions of some importance, and we have had to consider, not only what the judge said in his judgment, but also what this court ought to say (having regard to the consideration that this is a re-trial, a re-hearing), not only on questions of law, but also on questions of fact. If the judge in the court below says “I have heard certain witnesses and do not believe
[1938] 4 All ER 85 at 87
a word they say. I do not like the way in which they give their evidence, and they have not carried conviction to my mind,” we cannot interfere with that. However, if he has not said anything of that sort, then we are entitled to form our own view of the weight of the evidence which has been given.
In this case, the unfortunate plaintiff was seated as a pillion-rider on a motor cycle which was driven by a man named Kerwood, and, in my judgment, he was in a position in which he was entitled to say that Kerwood and he were following a pilot who knew the road, and that the pilot, Avery, knew perfectly well that Kerwood and the man on the pillion were following him, and that they might be only about 8 yds behind him. I personally accept the evidence of Mr Sharp, senior, when he says that on the very evening of the accident Avery made a statement to him in the presence of Kerwood to the effect that on their journey between London and Southend there was an understanding, amounting to an arrangement, that the man who knew the road—that is to say, the defendant Avery—should go on in advance, and that the others should follow. When he came to a bend to the left in the road, instead of following the road to Southend, Avery decided to go straight on. He had no reason to be guilty of that want of care, because, if he had had all his lights on, he could have seen quite clearly that there was a bend in the road, and not only could he have seen that on the night in question, but, knowing the road, and having professed to be acquainted with the road, it was all the more incumbent on him not to mislead those who were behind him by failing to take the bend which he could have taken if he had exercised reasonable care. What happened then was that, instead of keeping to his proper side of the road and going round the curve, he went straight on. That took him on to a little island of rough ground, which was far beyond his side of the road, and there, with the knowledge that the unfortunate plaintiff and the man who was driving the other motor cycle might be almost immediately behind him within, as I think it was said, half a second, instead of doing what I think he might have done to avoid any possible risk to the people who were following him—namely, turning to the left to go back to his own side of the road—he put on his brakes, with the result that those who were behind him came into collision with his motor cycle, and ultimately were landed in the ditch on the wrong side of the road. It seems to me clear to demonstration that, in those circumstances, there was a lack of reasonable care on the part of the defendant Avery, and that that lack of reasonable care amounted to a breach of his duty to exercise reasonable care towards those who were behind him. If any question arose, it related solely to the man upon the pillion, because the man upon the pillion could say, “It is a matter of indifference to me whether the driver of my vehicle is to blame as well as the driver of the vehicle in front of me,” because he would have been able to proceed against both or either of them.
In those circumstances, I have come to the conclusion that there is no
[1938] 4 All ER 85 at 88
good ground for disturbing the finding of the judge. I am not by that saying that I agree with every word in his judgment, but I think that, upon the true facts of the case, his judgment was sound.
I think that I ought to refer, first of all, to a passage in the evidence of Mr Sharp senior. He was asked this question as to a conversation which took place with Avery and Kerwood:
'Can you remember anything that Avery said on that occasion?—Yes, that Kerwood was leading and Avery suggested he knew the road, and Kerwood was following him when they got to this part [the place where the accident happened].'
In those circumstances, it passes my comprehension to understand why it can be said that there was no duty on the part of Avery, who was leading, and who says that he knew the road, towards those who were immediately behind him. Kerwood was there at the time, and took no exception to the statement which was made by Avery. Later, the judge said to Mr Beyfus:
'There is no disputed fact in this case yet, except as to whether the two vehicles came into collision. That seems the only point in dispute. Is not that so?'
The answer of Mr Beyfus was:
'Yes, my Lord, except possibly as to whether he went over the kerb or not.'
After that answer, it is impossible to say that there was any real case made that Avery was not leading the other two at the place where the accident occurred. That being so, it seems to me to be quite clear that there was a duty on Avery's part to take reasonable care that that which he did would not put in a position of danger the other two, who might be almost within 8 yds of where he was. He found that he was somewhere where he ought not to be, and, instead of getting back to where he ought to be, he put on his brakes, and thereby caused the collision. He had every opportunity, if he had exercised reasonable care at that time, of getting back to his own side of the road. I have not thought it necessary to refer to any further parts of the evidence, although there are here and there passages in the evidence which appear to confirm that view of this case. In my judgment, the appeal must be dismissed, with costs.

SLESSER LJ.
I am of the same opinion. This case is by no means an easy one, and it is necessary, in my opinion, in the first place, in order to arrive at a correct decision as to whether or not this appeal is well-founded, to decide whether there was any duty owed by the defendant Avery to Sharp, the pillion-rider on Kerwood's motor cycle. There is a tendency to dismiss the problem of this class of case by merely investigating whether or not a particular person is careless, and from that it is fatally easy, by transposing the word “careless” into “negligent,” to dismiss from one's mind the essential problem—namely, whether or not there was in any particular case a failure of duty. The way in which failure of duty is put in this case, as I understand it, is this. I shall take,
[1938] 4 All ER 85 at 89
first of all, the case of Kerwood, who was the motor cyclist following Avery. What duty, if any, had Avery to Kerwood not to leave the road and go upon the rough unenclosed patch which caused the accident? In the ordinary course of events, I should be inclined to say that, because a motorist in front of you leaves the road and goes into a private drive, or goes on to a patch which is not upon the highway—assuming that he does that in such a way as not to embarrass you while he is on the highway—there is no duty upon him to have regard to the fact that you may be following him. However, what is said to be the fact that makes this case exceptional is that here there was an arrangement between Avery, the motor cyclist in front, and Kerwood, who was following him, that Kerwood should follow Avery, because he, Avery—the pilot, as he has been called in the case—knew the road, and Kerwood did not. That is substantiated by the evidence of Ernest John Sharp, the father of the pillion-rider, who said in examination-in-chief that Avery stated that he knew the road, and so he was leading and Kerwood was following. He also states in cross-examination that that statement was made in the presence of Kerwood.
In those circumstances, it does appear that the judge perhaps has not wholly based his judgment upon that statement, but rather, as he says, upon the reasonable obligation which he finds to exist in the circumstances, it being admitted that Kerwood was following Avery, and the whole question being whether Avery accepted the responsibility of showing Kerwood which way to go. From this, it would follow that the reasonable assumption is that Kerwood was dependent upon Avery and that Avery ought to be assumed to know that Kerwood was dependent upon him. The judge puts it actually in this way:
'It is quite true that they were both going to Southend and that Mr. Kerwood was following Mr. Avery, and it might reasonably be anticipated that Mr. Avery would guide him in the right course, and that he would expect that Mr. Kerwood would follow close behind him.'
During the course of the argument, MacKinnon LJ, asked counsel whether there was any direct evidence, not only that Kerwood was following Avery, but also that Avery knew that Kerwood was following him and was relying upon him, which might impose upon him a duty to take care. There is the evidence of Mr Sharp senior. Mr Kerwood says that he himself is not quite certain, and cannot positively say whether or not Avery was relying upon him, and Avery, it is true, says that it was not so. However, Greer LJ, has drawn attention to the fact that Mr Sharp had given positive evidence that Kerwood had said that Avery knew that he, Kerwood, was relying upon him. Then what is the position? Kerwood is trusting Avery to take him safely to Southend. Avery admittedly, when he gets to a bend in the road, instead of safely following the road to Southend, plunges straight over some rough ground and puts on his brakes, in consequence of which, being on that ground, and the other man being 8 yds or 9 yds behind
[1938] 4 All ER 85 at 90
him, Kerwood runs into him, pitches into the ditch, and throws off the pillion-rider.
I think that, in the exceptional circumstances of this case, although there was no contractual relationship between the parties, yet, on the general principle that, when one person by his conduct invites another to rely upon his skill to do something which he otherwise might not do, after that, he may owe a duty to the person whom he has invited to place reliance upon him, and may be liable if he fails in the skill which he represented that he possessed, and in reliance of which the other man altered his course of conduct. Here Avery represented that he had the skill properly to choose the road to Southend. Kerwood relied upon his representation. It proved that he had not the skill, that he left the road, and so, like a will-of-the-wisp, lured Kerwood to his doom. That is the first question in the case.
The second question which arises is this. Is the pillion-rider, who made no express arrangement, also entitled to complain of that negligence? I think that the answer is in the affirmative. I should have had some doubt about the answer, there being no direct relation between the parties, were it not for the decision of the majority of the House of Lords in M'Alister (or Donoghue) v Stevenson. There Lord Atkin, in a much-quoted passage, says, at p 580:
'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'
Here, these three young men were together. Avery offers to lead Kerwood, the other motor cyclist, safely to Southend. The pillion-rider is present, and mounts the second motor cycle, I think, upon the basis that, with that skill, he is going to be piloted safely by Avery. I think that that is exactly a case where the pillion-rider is so closely and directly affected by the act of Avery that it is reasonable to say that Avery had the pillion-rider as well as the driver (Kerwood) in mind as being affected by his offer.
I would add finally only that the essence of Mr Beyfus' argument was that the pillion-rider could not complain, because the negligent act of his driver, Kerwood, was a novus actus interveniens, and, therefore, that, whatever duty might exist in Avery, that was not the cause of the pillion-rider's action for negligence. I do not agree. I think that there is a continuing negligence if Avery has gone on to that rough ground and invited Kerwood to follow him. If he had not done so, Kerwood would not have followed him. I do not think that this is like that class of case where an entirely new act of negligence happens. This is a case of continuing negligence on the part of Avery, and of possible contributory negligence on the part of Kerwood, but of contributory negligence which would not, there being no identification of
[1938] 4 All ER 85 at 91
Kerwood with the pillion-rider, so identify the pillion-rider as to deprive him of his remedy against the defendant Avery. For these reasons, I agree that this appeal fails.

MACKINNON LJ.
I agree. There is no doubt that, in leaving the road and going off towards the ditch, Avery was careless and unskilful, and there is no doubt that Kerwood was following him, and that Sharp, by reason of being on Kerwood's motor cycle, was injured. However, the question—and the difficult question—in this case follows upon that. There is no legal liability for negligence or carelessness unless the negligence is in breach of a duty of care owed by the negligent person to the plaintiff who is complaining of injury. The real question in this case is whether, in piloting Kerwood's motor cycle, there was any duty of care owed by Avery to Sharp. There was a stage at which I was inclined to think that there was no evidence on which such a duty could be said to be established, but Mr McIntyre's admirable argument has quite convinced me that I was wrong in that view. I do not think that there was any evidence upon which it could be said that there was any agreement by Avery that he would pilot Kerwood. I am not sure that there was evidence that Avery knew, from something Kerwood had said, that he was relying upon his piloting, but I think that there was evidence that, in all the circumstances, Avery, as a reasonable man, knew that Kerwood was trusting to him as pilot, and would follow his lead.
The judge does not discuss the point of law which I think was really involved in this case. That is to say, he does not do so in terms as a point of law. Nevertheless, I think really that that last proposition I was suggesting was the ultimate basis of his judgment, as appears from a passage where, in the course of his judgment, the judge says:
'Mr. Kerwood was following Mr. Avery, and it might reasonably be anticipated by Avery [as I think that it should be] that Avery would guide him in the right course, and that he, Avery, would expect Kerwood would follow close behind him.'
On all the evidence, I think that that is a reasonable inference to draw from the facts, and that from those facts there is established a duty of care on Avery the breach of which, if it resulted in damage to Sharp, renders him liable to a claim by Sharp. That being so, I think that this appeal fails, and should be dismissed.
Appeal dismissed with costs.
Solicitors: Berrymans (for the appellant); A H Hepburn (for the respondent).
E Fuller Briscoe Esq Barrister.