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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> White v Blackmore [1972] EWCA Civ 11 (15 June 1972) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1972/11.html Cite as: [1972] 3 WLR 296, [1972] EWCA Civ 11, [1972] 3 All ER 158, [1972] 2 QB 651

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IN THE SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.
Appeal of plaintiff from judgment of Mr. Justice Lawton
on 18th December, 1969.

		Royal Courts of Justice.
		15th June 1972

THE MASTER OF THE ROLLS: We are here concerned with Jalopy Races. A "jalopy" is the name given to an old car which is made ready for a rough ride. It is bought for a song. All the windows are taken out. Bars are inserted to withstand a roll-over. The battery is encased in a wooden box and bolted down so as to prevent acid going over the driver. The petrol tank mast not contain more than five gallons of petrol, so it is replaced by a drum or can. In short, everything possible is taken out which might do damage to a driver. It is then used for racing on a field.

During the last eight or nine years several jalopy clubs have been formed in the West of England. They hold jalopy races. One of them is the Severn Valley Jalopy Club. On Sunday, 10th September 1967, they held Jalopy Races in a field at Naas Lane, Quedgeley, Gloucester. They arranged it in conjunction with the Royal Air Force for Battle of Britain Week. The competitors came from Jalopy Clubs round about. One of these competitors was Mr. Graham Edward White, who was a member of the Stroud Jalopy Club. He lived with his wife and child at Stroud.

The first race was due to start at 2 o'clock. In the morning Mr. White, soon after breakfast, went and got his jalopy. It was, of course, not fit to drive on the road. He loaded it on to a trailer and took it to the field where the races were to be held. The secretary, Mrs. Lydiatt, was there in a caravan. He went up to her. He gave her his name and car number. She wrote it down on the signing-in sheet. On the table she had an old programme for a former meeting. It was pinned to the signing-in sheets It had on it in small print the rules for jalopy races, and also some warning to the effect that competitors taking part in races did so at their own risk. But she did not draw it to Mr. White's attention: and it has been lost. So we do not know its exact terms. All we know is that his name was entered on the sheet as a competitor.

Having entered his name, Mr. White took his jalopy to the pits and went home to lunch. After lunch, he took his wife and baby and his mother-in-law in his car to Naas Lane. They had to wait in a queue. Not far from the entrance there was exhibited a poster with these words on it:

"WARNING to the PUBLIC: MOTOR RACING IS DANGEROUS.

It is a condition of admission, that all persons having any connection with the promotion and/or organisation and/or conduct of the meeting, including the owners of the land and the drivers and owners of the vehicles and passengers in the vehicles are absolved from all liabilities arising out of accidents causing damage or personal injury (whether fatal or otherwise) howsoever caused to spectators or ticketholders".

The entrance fee was 3/6d. each for adults. Mr. White paid 3/6d. each for his wife and his mother-in-law and was allowed in free himself as he was a competitor. He was dressed in his overalls ready for racing. He was handed three programmes. On each programme the front page simply gave the place, date and time, and said: "Admission by Programme". "Adults 3/6 Children 1/- Car Park Free". It said nothing about conditions. The inner pages gave the list of races and the list of competitors. At the bottom of page 2 there was this notice in small print:

"WARNING

You are present at this meeting entirely at your own risk, and this programme for admission is issued subject to the condition that all persons having any connection with the promotion and/or organisation and/or conduct of the meeting including the owners of the land and the drivers and owners of the vehicles and passengers in the vehicles are absolved from all liability in respect of personal injury (whether fatal or otherwise) to you or damage to your property howsoever caused".

As soon as Mr. White and his family got into the grounds, he drove the car to a place near to the pits and parked his car there, as he was taking part in one of the first races. He picked up his crash helmet and went down to his jalopy in the pits. His wife, baby, and mother-in-law went to the spectators' enclosure and stood just behind the spectators' rope.

Mr White raced and was well-placed. But in between, whilst waiting for his next race, he walked from the pits a cross to the place where his wife and family were standing. They were just inside the spectators' rope. They were not near the racing track itself. They were behind the starting line, and some distance from it. The cars would not come near them. Mr. White went over to the place where they were standing, but he did not actually get under the spectators' rope to join them. He stood by them on the other side of the rope and next to a stake. This was what I may call a master-stake: for to it there were tied four ropes - the spectators' rope, the pit boundary rope, and the two safety ropes.

The race was for powerful cars of 2,500 cc. The commentator announced to all spectators to take care to keep behind the spectators' rope. The race started. One car collided with the ropes a long way off - about one-third of a mile away from where Mr. White and his family were standing. It knocked down a few stakes and pulled down the safety ropes at that point. The engine stalled. The driver restarted his engine to move off. Unfortunately his rear wheel got entangled in the safety ropes (which had come down). The revolving wheel acted as a winch on the safety ropes. It pulled on the ropes fast and tight, so much so that it pulled up all the stakes holding the safety ropes, and right down to the master stake to which all the ropes were tied. It pulled up the master stake and, as the other ropes were tied to it also, they came away rapidly as well. Some people nearby were thrown down. Mr White, standing there, was thrown like a stone out of a catapult. He was thrown through the air about twenty feet. He was very seriously injured. He never regained consciousness. On 4th October 1967, he died from his injuries.

His widow now sues for compensation in respect of his death. She sues Mr. Blackmore, the Chairman of the Severn Valley Jalopy Club, and Mr. Dallimore, the Racing Organiser. She sues them personally and as representing the members of the Club. Those two gentlemen took a prominent part in the laying out of the field for the racing, in putting up the stakes and ropes, and so forth.

The Judge found that there was negligence on the part of the organisers. The ropes were arranged badly. It was quite wrong to tie all the ropes to the one master stake: because that meant that if one rope was caught up in a car wheel, all the other ropes would be pulled out with it. Indeed, on this very day, immediately after this accident, the people on the ground of their own motion put in three stakes and tied the ropes separately, one on to each stake. The Judge found that - "these who were concerned in the organisation of racing in the Severn Valley Club should, by the 10th September 1967, have appreciated (which they did not) that it was not a satisfactory way of erecting the safety rope to attach it to the same stake as the spectators' rope and pit boundary rope were attached......this track was not laid out as well as it should have been, and if the organisers had put their minds on it, they would have been alive to the danger".

So he found that the defendants were negligent. But he also found that Mr. White was not standing where he should have been. He did not know that it was a particularly dangerous place for him to stand, but he ought not to have been standing there: so to some extent he was at fault on himself. The Judge assessed the degree of his responsibility as one-third.

The Judge rejected the claim. He held that, by reason of the warnings that were given, the organisers were relieved of all liability. He said that "the defence of volenti non fit injuria succeeds in this action.

The widow appeals to this Court.

The discussions before us ranged wide. We even went so far as to consider the law of property concerning licences to go upon land Such considerations are beside the point. I think we should turn to the Occupiers Liability Act 1957 and apply it to this case.

FIRST: THE DUTY OF THE ORGANISERS

Beyond all doubt Mr. White, his wife and mother-in-law were "visitors" to the field on which the races were held. At common law they would be placed as invitees, being ranked among those who come by virtue of a contract entitling them to enter. The contract in each case was contained in the programme. The organisers announced on it -"Admission by Programme". Mr. White paid the entrance money for his wife and mother-in-law. He did not pay entrance money for himself, but he provided most valuable consideration. He had entered his name as a competitor, and thereby was to render services to the organisers -most useful to them - for without competitors there would be no show. In return he was handed three programmes - one for each. Each programme was equivalent to a ticket of admission, such as we are familiar with in the "ticket cases". In those cases the ticket is the contractual document. The terms must be found in it or incorporated in it. That is apparent in all the speeches in McCutcheon v. David MacBrayne (1964) 1 WLR 125. See particularly by Lord Reid at page 128; Lord Hodson at page 130; Lord Guest at page 131; Lord Devlin at page 176; and Lord Pearce at page 117. So here the programme is the contractual document. The terms must be found in it, or incorporated in it.

I will return to the conditions later. But, meanwhile, I would point out that the duty of the organisers to all the "visitors" is the "common duty of care". It is "a duty to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe": see Section 2(1)(2) of the Occupiers Liability Act 1957. The organisers in this case failed to perform that duty. They did not put up the ropes properly, and their failure was such that the visitors were not reasonably safe.

SECOND, VOLENTI NON FIT INJURIA

The Act preserves the doctrine of volenti non fit injuria. It says in Section 2(5) that: "the common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor".

No doubt the visitor takes on himself the risks inherent in motor racing, but he does not take on himself the risk of injury due to the defaults of the organisers. People go to race meetings to enjoy the sport. They like to see the competitors taking risks, but they do not like to take risks on themselves, even though it is a dangerous sport, they expect, and rightly expect, the organisers to erect proper barriers, to provide proper enclosures, and to do all that is reasonable to ensure their safety. If the organisers do everything that is reasonable, they are not liable if a racing car leaps the barriers and crashes into the crowd - see Hall v. Brooklands (1933) 1 K.B. 206. But, if the organisers fail to take reasonable precautions, they cannot excuse themselves from liability by invoking the doctrine of volenti non fit injuria: for the simple reason that the person injured or killed does not willingly accept the risks arising from their want of reasonable care, see Slater v. Clay Cross Co.(1956) 2 Q.B.20B; Wooldridge v. Summef (1963) 2 Q.B. at page 69; Nettleship v. Weston (1971) 2 Q.B. at page 201.

In this case Mr. White was quite unaware that the organisers had been negligent, He never willingly accepted the risk of injury due to this default. They cannot rely on volenti non fit injuria.

THIRD, EXEMPTION BY AGREEMENT

The occupier is still able to exclude, by agreement, the common duty of care. Section 2(1) of the Act says the duty extends to "all his visitors, except in so far as he is free to, and does extend, restrict, modify or exclude his duty to any visitor by agreement or otherwise.

This seems to preserve the previous law about exemptions. If the occupier was free before the Act to exempt himself "by agreement or otherwise", he is still free to do so.

There were three such "agreements or otherwise" canvassed here. The first was when, in the morning, Mr. White entered his name as a competitor. There was an old programme lying on the table. It contained some warning to the effect that competitors taking part in the races did so at their own risk. That was quite insufficient to make it any part of the contract with him. He did not read it, and it was not drawn to his attention. In any ease, such a warning only told him that, if he was hurt during the races, he had to bear the loss himself. It did not in the least exempt the occupiers from liability for their own negligence: see Hollier v. Rambler Motors (1972) 2 WLR 401. The Judge was quite right in dismissing this old programme as of no relevance to this accident.

The second was the condition on the programme. The programme is the equivalent of a ticket. It says on the front page: "Admission by Programme". "Adult 3/6. Children and O.A.P. 1/-. Car Park free". It says nothing on the front page about conditions. On the inside page there is a list of eight races with the prize money and a list of competitors. Then at the foot there is a box headed "Warning" with the condition in small print, that I have read.

Applying the ticket cases, the question is whether reasonable notice was given of that condition. In my opinion it was not. It is settled law that a ticket on its face must say: "For conditions, see back". If it does not say it on the front, it is not sufficient to put a condition on the back. That was decided by the House of Lords in Henderson v. Stevenson (1875) L.R. 2 Sc. Ap. 470, and is so well settled that Anson on Contract says (22nd Edition at page 245):

"It is the practice, for example, always to refer on the face of the ticket to the fact that there are conditions on the back. If this is not done, then following the case of Henderson v. Stevenson (1875) the Courts have consistently held that such a notice is defective".

Applying that here, a person who is admitted by programme sees on the front of it that he is admitted, without any conditions at all. He is entitled to stop at that page and go in to see the races. Afterwards he may look inside to find out about the particular races and the competitors. He may or may not then, see the condition on the inner page. But it is then too late to affect him with it. The contract has already been made without conditions.

In my opinion, therefore, the condition on the programme was not sufficient to exclude the common duty of care "by agreement or otherwise". It would not have been sufficient before the Act, and is not sufficient now.

The third was the poster at the entrance headed "Warning to the Public". This was clearly no part of the contract. The contract was contained in the programme, which, as I have said, was the contractual document. This warning notice was not incorporated into the programme by reference, or otherwise. All that happened is that it was displayed somewhere near the entrance. On the Judge's findings Mr. White saw it and appreciated that it was a warning notice with some conditions or other below it, but he did not read it, and he did not know the precise terms of the conditions. Is he then to be bound by these conditions? I think not.

The Courts are very reluctant to hold a person bound by any exemption or condition unless it forms part of the contract between them. If there is a contractual document (as here the programme) the organisers must incorporate it into the document. If there is no contractual document, they must draw the condition specifically to the attention of the plaintiff and get his assent to it. That is shown by the decision of the House of Lords in McCutcheon v. David MacBravne (1964) 1 WLR 125. In that case there were posters displayed outside and inside the office containing exemption conditions, but they were not expressly incorporated into the contract. The plaintiff knew generally that there were conditions, but he did not read the notices and did not know the specific terms of them. It was held that he was not bound by the exemptions contained in the notices. He was even given a receipt which said: "subject to the conditions specified in the notices", but that was held insufficient because it was handed over after the contract was complete: see by Lord Hodson at page 130.

In this case the condition "Warning to Public" was no part of the contract with Mr. White or his wife, or any of the people who paid to go and see the races. The condition was not incorporated in the programme. It was not shown that Mr. White or his wife ever read it or knew its specific terms. It is not binding on them "by agreement".

FOURTH: "OTHERWISE"

If the warning notice was no part of the agreement, the remaining question is: Is it available "otherwise" to the organisers to exempt them from their liability. In my opinion it is not. In the absence of contract, the organisers of a sports meeting cannot get out of their responsibilities by putting up warning notices. It would be intolerable if they could do so. There are no statutory regulations to provide for safety. That was demonstrated by a recent disaster. How then are the people to be safeguarded? The common law gives the answer. It insists that the organisers shall take proper precautions. But that answer would be futile if the law allowed the organisers to avoid it by putting up notices. The organisers could snap their fingers at the law. Take this very race meeting. Suppose the organisers had not taken any safety precautions at all: but had merely put up a single rope to mark out the track. They had taken the entrance money but had not put up any safety ropes or strand bales. And I suppose then that a jalopy left the track and crashed into the spectators -because of the want of safety precautions. Would these warning notices save them from liability? I should think not. If we should permit the organisers to escape by these notices, it would be bringing back Horton's case (1951) A.C. 737, with a vengence. That case has been overruled by Parliament. The Legislature has expressed its views about these warning notices. Section 2(4) of the Occupiers Liability Act 1957 says explicitly:

"When damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe".

During the argument we were not referred to that sub-section: nor was the Judge below. But I think it is decisive. The warning notices in this case do not enable the visitor to be reasonably safe. They do not tell him anything about any danger except that "Motor racing is dangerous. They do not tell him to avoid the danger by going away - for that is the very last thing the organisers want him to do. They want him to come and stay and see the races. By inviting him to come, they are under a duty of care to him: which they cannot avoid by telling him that it is dangerous.

I appreciate, of course, that the warning notices go on to say: "The organisers will not be liable for any accident howsoever caused". But that does not make any difference. Or, at any rate, it ought not to do so. It does no more than underline the warning about danger. It is just another attempt to avoid their responsibilities. Suppose there was a stream running through this field with a rotten footbridge across it. A warning "This bridge is dangerous" would not exempt the occupiers from liability for negligence - see the illustration I gave in Roles v. Nathan (1963) 1 W.L.R. at page 1124. It follows that a warning "Visitors cross this bridge at their own risk" equally does not exempt him. An occupier cannot get round the Statute by such a change of wording. It is a warning still and within the statute.

ASHDOWN v. WILLIAMS

In an effort to show that they are exempt "otherwise", the defendants rely on a case decided shortly before the Act was passed. It is Ashdown v. Williams (1957) 1 Q.B. 409, where people took a short cut over the defendants' land. There was no contract by which they entered. They just walked across the land. The defendants put up notices which were clearly visible to all of them. The notices told these bare licensees that they took the short cut at their own risk. The notices were held to be effective to protect the occupier, They did little more than tell the licensees the position at common law: for, as we all know, a bare licensee came at his own risk. One hundred years earlier, when people took a short cut across a piece of land, the Courts said: "He must take the permission with its concomitant conditions, and, it may be, perils" - see Hornsell v. Smyth (1860) 7 C.B., N.S. 731 at page 743. See also the cases collected in Latham v. Johnson & Nephew. Ltd. (1913) 1 K.B. at page 404/5; and the law summarised by Lord Hailsham, Lord Chancellor, in Addie v. Dumbreck (1929) A.C. at page 365.

That case of Ashdown v. Williams has been vigorously criticised by Professor Gower in the Modern Law Review, Volume 19, at page 532 and volume 20, page 181. He pointed out the consequences of it, if carried to its full length. He gave good reasons for thinking that a licensor could not exempt himself from liability to his licensee except by contract. Unfortunately his criticisms were not brought to our attention. I am disposed to agree with them. But, even accepting the case as rightly decided, it only applies to the case of a bare licensee. Towards an invitee, who entered by virtue of a contract, the occupier could never exempt himself from liability except by a condition contained in the contract or incorporated in it. In every single case when a carrier has sought to rely on conditions to exempt himself from liability to a passenger, the sole question has been; Was the condition part of the contract? As Lord Dunedin said in Hood v. Anchor Line (1918) A.C. at page 846:

"Duty may arise from contract or it may arise from the rules of the common law........The duty of a carrier by sea or land may be ascribed to either of the two. But it is clear that when the carrier alleges an exception to that duty the exception must rest on contract. The question, therefore, always comes to this when such an exception is alleged: Was that the contract between the parties?"

Dr. Cheshire and Mr. Fifoot say in their book on Contract (7^th Edition at page 162):

"The Court must be satisfied that the particular document relied on as containing notice of the excluding or nullity term is in truth an integral part of the contract".

So also with every case when an occupier has sought to rely on a condition to exempt himself from liability towards an invitee, at any rate when he enters by contract, exemption must rest on contract. A notice is not enough unless it be incorporated into the contract.

I hold, therefore, the Ashdown v. Williams case is of no application to this ease, when Mr. White came in by virtue of a contract which did not incorporate the exempting condition.

THE CONSTRUCTION OF THE NOTICE

The argument before us was concerned largely with the construction of the notice. It was treated as if it was contractually binding on everyone who went to see the races that day. So we entered into a detailed analysis of the words "spectators" and "ticket-holders"; together with "howsoever caused": and so forth. That discussion throws a vivid light on the whole case. According to it, anyone who enters the ground is bound by a warning notice as if it were a contract by him, even though he never made such a contract, and it was not incorporated into the contract he did make, and his attention was never drawn to this specific exclusion of all liability. That approach seems to me to be plainly contrary to the decision of the House of Lords in McCutcheon v. MacBrayne(1964) 1 WLR 125, which again was never brought before us in argument. But, if the notice is to be considered as if it were a contract, I would construe it as strictly as possible against the organisers: and hold that Mr. White was a competitor and not a spectator or ticket-holder: and so not excluded by it.

CONCLUSION

It was suggested in the argument that, if Mr. White's wife or mother-in-law had been injured, they would have had no remedy. I profoundly disagree. I think that, if any one of the spectators had been injured, he or she would have had an action for damages. They would not be defeated by the warning notice: because it was no part of the contract with them. It was a brutum fulmen. And rightly so. The organisers ought not to be free to abandon all care of their spectators. They ought to take reasonable precautions, and be liable if they do not. I know that this was a charitable organisation. We need not be over-anxious on that account. It was disclosed in evidence that the organisers had insured against accidents such as this: and that the warning notices were put up because the insurance company so required. So the insurance company are behind all this. If their argument is correct, they can take the premiums, and yet exclude their liability by getting the insured to put up these warning notices. It means that no one need take any precautions for the safety of the public. I do not agree with this in the slightest. I do not think these warning notices do exempt the organisers from liability.

I would, therefore, allow the appeal.

LORD JUSTICE BUCKLEY: The learned Judge found the respondents who are sued personally and as representing the members of the Severn Valley Jalopy Club, guilty of negligence as organisers of the jalopy race meeting on account of the way in which the ropes were attached to the post near which the deceased wag standing when the accident happened. Mr. Tudor Evans for the respondents has submitted that the Judge applied too high a standard in arriving at this decision. There was, in my judgment, material before the learned Judge upon which he could properly arrive at this conclusion, which I think should not be disturbed. The Judge went on to hold that the respondents were nevertheless entitled to succeed in their defence on the ground of the doctrine enshrined in the maxim volenti non fit injuria. Strictly, I think that that doctrine is not applicable in the present case, but the somewhat analagous law relating to exclusion of liability.

The doctrine of volenti non fit injuria affords a shield of defence to a party who would otherwise be liable in tort to an opponent who has by his conduct voluntarily encountered a risk which was fully known to him at the time. As Mr. Justice Wills said in Osborne v. London and North Western Railway Co.(1921 Q.B.D. 220, at 223, approved in Letang v. Ottawa Electric Railway Co.(1926 AC 725 at 731): "If the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it", or to use the language employed in Thomas v. Quatermain (18 Q.B.D. 685 at 696), "voluntarily encountered" the risk in question. The learned Judge expressed the view that it might not have been at all obvious to the deceased that he was standing in a particularly dangerous place when the accident occurred. Accepting this, I do not think it can be said in the present case that the deceased had full knowledge of the risk which he was running.

In my judgment the case must turn upon the effect of the various warnings which the deceased saw or had ample opportunity to see. If these warnings were, or any of them was, sufficient to exclude any duty of care on the part of the organisers or the meeting towards the deceased, the respondents were not guilty of negligence and consequently they do not need the shield of the doctrine of volenti. The learned Judge in fact based his decision upon these warnings.

I need not repeat the history of the relevant events on the day of the accident. Mr. Griffiths for the appellants has submitted that when the deceased signed on in the morning of that day he entered into a contractual arrangement with the organisers that he should be permitted to come onto the field for the purpose of competing in the races, and that that contract could not be affected by any of the subsequent events of the day. That contract, he says, was not subject to any limitation of liability except possibly one to the effect that competitors taking part in races did so at their own risk. Consequently Mr. Griffiths submits, the organisers' liability to the deceased when he came onto the field in the afternoon was subject to no relevant limitation. In my judgment, the evidence does not support the suggestion that the parties had any intention of entering into contractual relations when the deceased signed on in the morning. He was thereby indicating to the organisers, as the learned Judge thought and as I think, that he proposed to take part in the racing in the afternoon as a competitor and no more. Accordingly I do not feel able to accept this submission of Mr. Griffiths.

When the deceased returned with his family in the afternoon, the notice to which my Lord has referred was prominently displayed near the entrance to the ground. The learned Judge found as a fact that the deceased saw that notice and appreciated that it was a notice governing the conditions under which people were to be admitted to watch the racing.

No argument was addressed to us based upon the Occupiers Liability Act 1957 Section 3(4). This, I think, was right. To the extent that the notice at the entrance was a warning of danger, I agree with my Lord that it did not enable a visitor to be reasonably safe, but the notice was more than a warning of a danger; it was designed to subject visitors to a condition that the classes of persons mentioned in it should be exempt from liability arising out of accidents. Section 2(4) has, it seems to me, no application to this aspect of the notice.

In my opinion, when the deceased came onto the field in the afternoon, he did so as a gratuitous licences. I have already said that, in my view, no contract was made in the morning. The deceased made no payment for entry in the afternoon. Nothing that occurred in the morning could afford consideration for any contract entered into in the afternoon. In my judgment, no contract between the promoters and the deceased was made in the afternoon. The deceased remained willing to take part in the races and the promoters remained willing to allow him to do so. On the evidence he was not, in my judgment, either bound or entitled contractually to take part in the races. In this state of affairs he was allowed onto the field free of charge.

I think that when the deceased came onto the field in the afternoon he did so in a dual capacity, as a prospective competitor and as a spectator. He was not intending to take part in all the races run on that afternoon, and I can feel no doubt that part of his object in attending the meeting was to enjoy watching those races in which he was not a competitor as well as to compete in those races in which he proposed to compete. There was considerable discussion in the course of the argument as to whether this notice was applicable to the deceased. Mr. Griffiths contended that, if he was wrong about a contract having been entered into in the morning, at least a licence was then granted to the deceased to enter the field in the afternoon for the purpose of competing in the races and Mr. Griffiths contended that such licence was irrevocable until the deceased had completed the purpose for which it was granted, that is to say, until he had completed those races in which he proposed to take part. For my part I think that no licence was granted to the deceased in the morning beyond an implied licence permitting him to leave his jalopy in the pits coupled with a farther implied licence allowing him in due course to remove his jalopy from the field. Whether this be right or not, whatever licence was granted to the deceased by the organisers in the morning was, in my judgment, a gratuitous one. It was not, as was suggested, a licence coupled with an interest. It could consequently be revoked or varied by the organisers at any time subject only to the deceased being given a suitable opportunity to remove his property from the field. In the absence of any express term, a revocable licence can be revoked by whatever notice is reasonable in the circumstances (Winter Garden Theatre (London) Ltd. v. Millenium Productions Ltd....1948 A.C. 173). Since, in my view, the deceased had no legal right to insist upon taking part in the races, there is no reason to regard any licence granted to him in the morning as irrevocable until he had completed those races in which he proposed to take part. In the circumstances of this case I think any licence granted to the deceased in the morning was revocable summarily subject only to his right to recover his jalopy. If it was revocable, it was to a like extent variable.

What then was the effect of the situation which arose when the deceased returned to the field in the afternoon? It is dear that the occupier of land, who permits someone else to enter upon that land as his licencee, can by imposing suitable conditions limit his own liability to the licencee in respect of any risks which may arise while the licencee is on the land (Ashdown v. Samuel Williams & Song Ltd. 1957 1 Q.B. 409). The Occupiers' Liability Act 1957 which in Seetion 2(1) refers to an occupier excluding his duty of care to any visitor "by agreement or otherwise", has not altered the law in this respect. Mr. Griffiths concedes that in the present case the notice displayed at the entrance to the ground was sufficient to exclude liability on the part of the organisers of the meeting to all spectators properly so-called, but he contends that a distinction is to be drawn between competitors and spectators for this purpose. It is common ground that the deceased was not a ticket holder within the meaning of the notice, but, in my judgment, he was a spectator. The learned Judge so held, and I think that he was right in doing so. The notice was, in my opinion, sufficiently explicit in its application to the deceased. I feel unable to accept the suggestion that the heading "Warning to the Public" should be read in a restrictive sense excluding competitors. Reading the document as a whole, I think there can be no doubt that it was addressed to all persons answering the descriptions of spectators or ticket holders. The deceased was not even a member of the Severn Valley Jalopy Club. He was, in my opinion, a member of the public. The organisers are, I think, shown to have taken all reasonable steps to draw the condition contained in the notice to the attention of the deceased. The learned Judge found that warnings of this character were a common feature at jalopy races with which the deceased would have been familiar. He also found, as I have already said, that the deceased saw this particular notice and appreciated its character. He also found that the deceased saw a number of other notices in identical terms posted about the field and that he appreciated what these notices were intended to effect. I think that he came onte the field in the afternoon upon the terms contained in the notice displayed at the entrance to the ground.

The liability of the organisers of the meeting to visitors attending it for the purpose of taking part in some races and watching others was in my opinion limited in two respects. Such a visitor, in my judgment, as a competitor and when engaged in the role of a competitor, accepted all the risks inherent in the sport of jalopy racing. The organisers owed no duty to him to protect him against the risks. The express warning to the effect that competitors took part in the races at their own risk, which may have been attached to the signing-on sheet, is consequently, in my view, of little importance. As a spectator, such a visitor was, I think subject to the condition set out in the warning notice. At the time when the accident occurred the deceased was, in my opinion, a spectator. The limitiation on the liability of the organisers in these circumstances is to be found in the notice. The condition set out in the notice was that they were to be absolved from all liabilities arising out of accidents causing damage or personal injury howsoever caused. The use of the words "howsoever caused" makes clear that the absolution was intended to be of a general character. The effect of the condition mast, in my judgment, amount to the exclusion of liability for accidents arising from the organisers' own negligence. For these reasons consider that the learned Judge was right in dismissing the action. This makes it unnecessary for me to consider the effect of the warning notice which was printed on the inner face of the programme. I would dismiss this appeal.

LORD JUSTICE ROSKILL: Though many matters were canvassed during the argument of this appeal and many authorities cited, the question whether the first and second defendants who alone are the respondents to this appeal are liable to the plaintiff in respect of the tragic death of her husband during a jalopy race meeting at Quedgeley in Gloucestershire on Battle of Britain Sunday, 10th September 1967, depends on the determination of a single issue. Was the dead man present at this jalopy race meeting on terms which preclude his widow from recovering damages from the defendants in the events which occurred. If he was, then the appeal must fail. If he was not, then the appeal must succeed on the issue of liability and she is entitled to recover two-thirds of the sum which the learned trial Judge, Mr. Justice Lawton, as he than was, awarded as damages, since he held that in any event the dead man was responsible to the extent of one-third for the accident which cost him his life that Sunday afternoon. That apportionment by the learned Judge was ultimately not challenged in this Court.

In stating that in that event the appeal must succeed to that extent, I have not overlooked Mr. Tudor-Evans' final submission that the learned Judge was in any event wrong in holding (transcript page 18 C-D) that the defendants were liable on the ground that they had failed to erect the track in a reasonably safe way and to take all reasonable precautions to make the track as safe as it could be. Mr. Tudor-Evans complained that the learned Judge required too high a standard of care of the defendants and that his conclusion in this respect was not justified by the evidence given at the trial. I do not agree. Suffice it to say that the evidence and especially the evidence of Mr. Walker who, ironically enough, was called to give evidence on behalf of the defendants and not on behalf of the plaintiff, well justified the learned Judge's conclusion in this respect. I agree with that conclusion and I say no more about that issue.

Can the defendants escape liability? They can only do so if they can show clearly (and the burden is on them to do so) that the dead man's presence at the time when and at the place where he was killed was on the terms that they should be either under no duty of care to him or at least under no liability for the consequences of any breach of any duty of care. It was the defendants' contention that he was present on such terms. This contention was principally based upon the fact that there had been exhibited at the entrance to the track and in many places around the track a large number of notices in identical terms, those terms being contained in document 11 of the documents before the Court. It was not seriously challenged that if the dead man were present on the terms contained in those notices and if those terms on their true construction properly protected the defendants, the defendants had taken all reasonable steps to bring those terms to the dead man's notice. The main argument before this Court was whether his presence was on those terms and if it were, whether those terms on their true construction protected the defendants.

Mr. Tudor-Evans also sought to argue that even if the terms of the notices did not protect the defendants they were entitled to protection by reason of the terms of a warning printed on the inside of a programme handed to the dead man on the afternoon of the 10th September 1967.

Before considering these contentions in detail it is I think necessary to state certain facts upon the foundation of which I have reached my conclusion.

1. The dead man was an experienced jalopy racing driver and was a member of the Stroud Jalopy Club.
2. He intended to take part in the Severn Valley Club meeting on that Sunday afternoon and to that end went to the site at Quedgeley on that Sunday morning with his jalopy in a trailer attached to his car. His purpose in doing so was to enter that vehicle for one or more of the races. He authorised the secretary of the meeting to sign his name on the list of competitors. He left his jalopy on the site and returned home to his family. Though the evidence wag confused it would seem that under the racing rules attached to the signing-in form was a warning to the effect that all competitors were competing at their own risk. (Transcript page 9-F).
3. The precise terms of that warning were not proved and the learned Judge (rightly as I think) thought them irrelevant. (Transcript page 10-B and C).
4. There was no evidence that at the time the dead man entered for the races or indeed before he returned home there were any notices in the form of document 11 in position or that if they were then in position their existence or contents were ever brought to his notice at that time.
5. In the afternoon the dead man returned by car to the track at Quedgeley with the plaintiff, his mother-in-law and his small child. He paid for the plaintiff's admission and for that of his mother-in-law. The entrance fee was 3/6d each. He did not pay for the child. He was handed three programmes. One was for the plaintiff. One was for his mother-in-law. The third which was not paid for was for himself. The programme contained the warning on the inside to which I have already referred. There was no reference on the cover of the programme to the presence of a warning inside.
6. The dead man must on his return to the track that afternoon have seen the warning notices to which I have already referred and appreciated their contents. The learned Judge was clearly right in so holding. (Transcript 13-A).
7. The dead man left his wife, his mother-in-law and his child in the spectators' enclosure and went to the pits. He engaged in at least one race or heat. Having done so he very understandably walked across to his family to a position near the single post to which all three ropes - the double safety rope, the spectator rope and the pit boundary rope - had been attached. This he ought not to have done.
8. He remained on the track side of the post and ropes. Another car a good many yards away became entangled in the safety rope. The driver tried to free his car, but the entanglement of the rope around the wheels of that car produced a winching effect which, since all the ropes were attached to the single post, had a disastrous effect on the whole rope safety structure in this area.

Several posts were pulled out of the ground and the dead man was catapulted some considerable distance by the combined force of these posts and ropes. He was seriously injured and died some weeks later.

9. The accident did not occur while the dead man wag taking part as a competitor in a race. It occurred because of defects in the safety arrangements while he was watching the race talking to his family from a position in which he ought not to have been, before returning to compete again.

The learned Judge rejected the plaintiff's claim on the ground that the maxim volenti non fit injuria applied. (Transcript page 20-E). Mr. Griffiths contended that this conclusion could not be justified because, whether or not the dead man could be said voluntarily to have accepted the risks of injury from actual participation in jalopy racing, he could not possibly be said voluntarily to have accepted the risks of injury from defects in the safety precautions of which he could know and did know nothing. There was, Mr Griffiths forcibly argued, no contractual acceptance of this latter risk and no evidence of his knowing, let alone accepting the nature and extent of the risks which unknown to him existed owing to the fault of the defendants.

Reliance was placed on Osborne v. L.N.W.R. (1888) 21 Q.B.D. 220; Dann v. Hamilton (1939) 1 K.B. 509; Slater v. Clay Cross Ltd.(1956) 2 Q.B. 264; Woolridge v. Sumner (1963) 2 QB 43, and other well known cases in this field. I do not find it necessary to consider these cases in detail nor the question of the extent to which at the present day the maxim volenti non fit injuria may still afford an otherwise negligent defendant an escape route to freedom from liability. See for example the speech of Lord Reid in Imperial Chemical Industries v. Shatwell (1965) AC 656 at pages 672/3, a case in which it should be noted the appellant employers were entirely free from all blame. With all respect I find myself unable to agree with this part of the learned Judge's judgment or with this reason for rejecting the plaintiff's claim. I am unable to see how this maxim has any application to a case where the relevant risk did not arise from the dead man's participation in the dangerous sport of jalopy racing but from the defendants' failure properly to lay out the safety arrangements, a failure of which the dead man was not and could not be aware in the circumstances of this ease.

I did not understand Mr. Tudor Evans to support this part of the learned Judge's judgment. The manner in which the defendants' case was put before this Court was not it would seem argued before the learned Judge and he did not therefore have the benefit of the careful arguments to which we have listened.

At the beginning of his submissions Mr. Tudor Evans pointed out, correctly as I think, that any duty of care owed by the defendants to the dead man was that imposed by section 2(2) of the Occupiers Liability Act 1957. Prima facie on the learned Judge's findings, the defendants were guilty of a breach of that duty. But section 2(1) of that Act permits an occupier, to the extent that he is otherwise free so to do, to extend, restrict, modify or exclude a duty of care "by agreement or otherwise", while section 2(5) excludes that duty of care "in respect of the risks willingly accepted as his by a visitor". The Act became law shortly after the decision of this Court in Ashdown v. Samuel Williams & Sons Ltd.(1957) 1 Q.B. 409. Parliament must be taken to have known the law as there laid down and to have decided as a matter of policy not to alter it, but on the contrary to preserve and continue any pre-existing rights possessed by an occupier to extend restrict, modify or exclude his duty by agreement or other wise, as well as to preserve the doctrine of volenti non fit injuria to the extent that it might in any particular case afford an occupier a defence to a claim against him. Like my Lord, Lord Justice Buckley, and for the reasons which he has given I do not think that the plaintiff can derive any help from section 2(4) of the Act upon which no argument was addressed to us.

I therefore approach the problem on the footing that the defendants were entitled as a matter of law to regulate the terms upon which the dead man came upon the field at Quedgeley that Sunday afternoon so as to exclude all liability to him. The crucial question is whether they successfully did so.

There can I think be no doubt that it was the defendants' intention so to exclude all liability. The present case is not a case of a negligent defendant belatedly seeking to escape from the consequences of his negligence by adroit reliance upon ingenious legal defences. It is a case of defendants in a comparatively simple way of life organizing a popular sport for deserving charitable purposes on Battle of Britain Sunday in the simplest and least expensive way. Jalopy racing was described by a witness as the poor man's motor racing. The charity was appropriately enough on that Sunday a Royal Air Force charity. Jalopy racing is a risky sport and the risks are both obvious and well known. Generally speaking those in peril will be those partaking and those watching. I say nothing of those such as policemen or ambulancemen whose duties might require them to be present.

The learned Judge at page 9-B and C of his judgment said that he was satisfied that before the 10th September 1967, the organisers of nearly all jalopy race meetings exhibited notices which they hoped would be sufficient to relieve them of liability in the event of accidents and that such notices had long been a common feature of such meetings. He went on to say that the dead man would have been familiar with and would have expected to find such notices whenever he went to such meetings whether to compete or to watch.

The learned Judge also found that on the occasion when the dead man entered as a competitor on the Sunday morning there would have been a notice warning him that all competitors competed at their own risk, even though he was unable to find precisely what the terms of such a warning were. Like my Lord, Lord Justice Buckley, I do not regard the inability of the defendants to prove what those terms were as of importance; for as a competitor in jalopy racing, I think the dead man must be taken to have accepted all the risks inherent in taking part in that sport. At page 13-A the learned Judge said that he bad no difficulty in inferring that the dead man must have seen a number of the warnings around the track on that Sunday afternoon and would quickly have appreciated and in fact did appreciate what those warnings intended to effect.

Those findings of the learned Judge seem to me justified by the evidence to which I need not allude in detail. Accordingly if the plaintiff is now to recover, it mast be because as a matter of law the defendants have failed to achieve that which they plainly set out to achieve.

At the outset of his speech in Imperial Chemical Industries v. Shatwell to which I have already referred, Viscount Radcliffe at page 575 observed,

"My Lords, it helps sometimes to assess the merits of a decision if one starts by noticing its results and only

after doing that allots to it the legal principles upon which it is said to depend."

The legal principles upon which the plaintiff's case is put are these - first: that once the defendants accepted the dead man's entry on that Sunday morning without attaching any relevant exemptive conditions to that entry, they were no longer free subsequently on that day to alter those conditions to his disadvantage; and, secondly, that if, contrary to the first submission they remained free to do so their attempts so to alter those conditions to his disadvantage by notices in the terms of document 11,did not upon the true construction of those notices achieve the desired result.

Much argument took place before us as to the terms upon which the dead man caused his name to be entered for jalopy racing when he first went to the track on that Sunday morning and left his jalopy there. It was accepted by the defendants that he was then granted a licence to compete, to leave his jalopy in the pits and (implicitly) to remove his jalopy from the field at the end of the meeting. It was contended for the plaintiff that such a licence was irrevocable and its terms thus unalterable at least until the conclusion of the race meeting. Reliance wag placed on the plaintiff's behalf on a passage in the speech of Viscount Simon in Winter Garden Theatre {London) Ltd. v. Millenium Productions Ltd. (1948) A.C. 173 at page 189. It was said that the present case was analogous to the sale of a theatre ticket, so that the licence to enter and compete included permission to remain, subject to good behaviour, until the purpose for which such permission had been granted had been finally fulfilled. It was also sought to say that the licence granted in the morning was irrevocable as being a licence coupled with an interest, the interest being the right to take part in the races and to seek to win prizes. In my view even if that submission were otherwise well founded and such terms could be attached, that would not create a licence coupled with an interest in the sense in which that phrase has come to be used down the years in the reported cases so as to make the licence irrevocable. At beat for the plaintiff there would be attached to the licence a term that it should not be withdrawn until its purpose had been fulfilled. But as Lord Porter pointed out in his speech in the same case at page 195, prima facie licences are revocable and I see nothing in the evidence in this case to prevent the licence which was granted in the morning being revocable. The question is whether it was revocable without notice before the end of the race meeting. It was a gratuitous licence - there was no evidence that any money was paid in the morning; but even if money were then paid, I cannot think that there arose from the mere fact of payment a binding promise by the defendants that the licence should remain in force unaltered for the rest of the day. Like my Lord, Lord Justice Buckley, I do not think that in the morning the parties had any intention of entering into a binding contractual relationship.

By the events of the morning the dead man was permitted to be a competitor in the races to be held in the afternoon to leave the jalopy for that purpose and to collect it later. In the afternoon he returned with his family for a Sunday afternoon family outing as well as to compete. His family were admitted by programme and on payment save in the case of the child. The dead man was re-admitted without payment but was given a programme. To my mind the realistic view is that he was re-admitted both to compete and to spend the afternoon with his family watching the races when he was not competing. With all respect to the contrary view taken by my Lord, the Master of the Rolls, I think that his family were bound both by the notices and by the warning in the programme. But it is said that he is not even bound by the notices which had by the time of his return been erected because, owing to the terms upon which his licence had been issued in the morning, the defendants were no longer free in the afternoon to seek to regulate the terms of his presence by the notices.

Reliance was placed upon a passage in the opinion of the Judicial Committee in Canadian Pacific Railway v. The King (1931) AC 414, delivered by Lord Russell of Killowen to the effect that a licencee whose licence is revocable is entitled to reasonable notice of revocation. At page 432 Lord Russell of Killowen said: "when the exercise of the rights conferred by the licence involves nothing beyond, there can be no reason to urge against the existence of a power to determine the licence brevi manu at the will of the licensor. But the exercise of the rights may have involved the licensee in obligations in other directions which the determination of the licence would disable him from fulfilling unless the licence were determined after a notice sufficient in point of time for the making of substituted arrangements. In such circumstances the licensee would in their Lordships' opinion be entitled to breathing space sufficient for the purpose".

For my part I think the licence granted to the dead man in the morning was a gratuitous licence to compete, to leave his jalopy there and later to collect it, and no more. Such a licence was in my judgment revocable at will. Further, I am unable to see how its implied revocation and the substitution on re-entry in the afternoon of a new licence including the terms of the notices can be said to have disabled him from fulfilling obligations (if any) he had earlier made on the strength of the original licence. He was still free to compete as before. His opportunity to win prizes remained as before. There was no need for him to make substituted arrangements in the place of those which had been made in the morning. The new licence sought to regulate the terms upon which those intending to watch the racing would be admitted to the ground.

Accordingly, I think the defendants were as a matter of law entitled to revoke the initial gratuitous licence and to seek to regulate the terms of the dead man's re-entry that afternoon by the terms of the notices. The first ground upon which the plaintiff sought to challenge the defendants' right to rely upon the terms of the notices therefore fails.

I turn to consider the second point - namely that on the true construction of the notices, they do not protect the defendants from liability. I fully accept, as I have already said, that it is for the defendants to show clearly that these notices were sufficient to exclude liability.

Mr. Griffiths' principal submission was that the dead man was not clearly within the class of person to whom the notices were addressed. He was, it was said, a competitor. Thus he was not a member of the public to whom alone the notices were addressed; nor was he a spectator or a ticket holder liability to whom was alone sought to be excluded by reason of the last four words of the notices - the notices being in this last respect different from the warning contained in the programme. It was also said that the opening words of the notices "it is a condition of admission" showed that the warning and any consequent exemption from liability was directed only to those admitted as spectators and was inapplicable to the dead man who was a competitor.

It will be observed that the exclusion is of "all liabilities arising out of accidents causing damage or personal injury (whether fatal or otherwise) howsoever caused". Wider words of exemption are difficult to conceive. Indeed the words "howsoever caused" have become in the last half century and more the classic phrase whereby to exclude liability for negligence. Those in whose favour the exemption is sought include "all persons having any connection with the promotion and/or organisation of the meeting". But it is said that the dead man is not bound by the terms of the notices because, although on the Judge's finding he was on notice of these conditions, they have no application to him because he was a competitor.

For my part I do not read the words at the beginning of the notices "to the public" as restrictive of the class of persons to whom "the warning" is addressed. I think those three words were intended to make the effect as far reaching as they could be. Whether an ambulance driver or a policeman would be within its scope it is not necessary to determine. But its scope plainly includes anyone who can fairly be said to be a member of the public and who is watching. It seems to me clear, however, that the last four words are words of limitation - the exclusion is directed to members of the public who are watching the races whether as spectators or ticket holders -in other words whether they are watching as the result of gaining admission by ticket or otherwise.

I am unable to see why when the dead man was watching the races with his family he was not a spectator even though he was not strictly a ticket holder but was there having initially lawfully gained admission primarily as a competitor. As I have already said, on that afternoon he was there in a dual capacity. He was there to compete when appropriate. He was there to join his family and to watch the races when he was not competing. At the time of the tragedy he was watching the races with his family. He was then a spectator and as such in my judgment was within the language of the notices. Accordingly in my judgment the notices protect, and the second ground on which the plaintiff relied also fails.

Mr Griffiths faintly argued that since Mr. Dallimore was a defendant in his personal as well as in his representative capacity and unlike Mr. Blackmore had been found by the learned Judge to have been negligent in his personal as well as in his representative capacity, he was net protected by the notices. The short answer is that (as the back of the programme - document 9 shows), Mr. Dallimore was the "racing organiser". As such he was plainly one of the "persons having a connection with the promotion and/or organisation and/or conduct of the meeting", and as such, in my view, equally plainly within the clause, though identified by description or class and not by name. In these circumstances, I find it unnecessary finally to determine whether if I were wrong in the conclusion which I have reached, Mr. Tudor-Evans' alternative argument based on the warning in the programme is well founded. As at present advised, I think on the true construction of that warning there are difficulties in the way of that alternative argument succeeding. In the result much as I sympathise with the plaintiff in the tragedy which has befallen her, I cannot carry that sympathy to the extent of holding her entitled to recover, for to do so would in my judgment do an injustice to the defendants who quite clearly sought to exclude all liability to persons such as the dead man and in my judgment have succeeded in doing so.

I would dismiss this appeal.

Appeal dismissed. No order as to costs. Leave to appeal to the House of Lords.