3. The Liability of Carriers

The roots of the modern English law of liability for carriage can be found in the early eighteenth century, when the courts adopted a Romanist framework, the central focus was on the carriage of goods and the typical mode of public transport was stagecoach.¹¹¹ When the railways came in the nineteenth century, this same (p.281) framework was applied, though attempts were made to supplement it so as to reflect the different technical and organisational context.¹¹² By contrast, in the twentieth century air transport and the international transport of passengers were subjected to their own regulatory regimes, reflecting the UK’s adherence to international conventions and EU legislation.¹¹³ As with my treatment of the French law, here I shall look at the law apart from these special areas.

In the course of the nineteenth century and for most of the twentieth century, public bodies were very much involved in the provision of transport by road and rail. This was sometimes local, where a town or county took upon itself the operation of bus or tram services; in the case of the railways, it was national. So while until 1921 there were many small railway companies, each operating their own trains on their own (and other companies’) tracks, in that year these companies were consolidated into four new companies,¹¹⁴ and then in 1948 these were nationalised under a new statutory body, the British Transport Commission, which was also made responsible for the provision of most other major transport operations, such as long-distance road haulage.¹¹⁵ The railways continued in State ownership, though undergoing a number of institutional changes,¹¹⁶ until 1993 when the railways were privatised.¹¹⁷ To do so, the legislation distinguished broadly between three functions: the ownership and responsibility for the track, signals and stations (first Railtrack plc and then Network Rail); the operation of passenger and goods services (the train companies operating under franchises); and the regulatory institutions created to ensure fair competition and the protection of consumers.¹¹⁸ The provision of local and national bus services have followed a similar process of privatisation.¹¹⁹

What is particularly noticeable, though, is that the public involvement and even ownership of transport services has had very little impact on the law governing their operators’ liability. In general the imposition of statutory duties on the public bodies responsible for the provision of these services has not led to a denial of the existence of contracts between them and their customers,¹²⁰ and so the general liability rule has remained a requirement of proof of negligence, whether the liability is classified as contractual or tortious. On the other hand, changes in the organisation of rail transport have affected the way in which the law of contract has applied so as to extend the range of carrier liability.

(A) The general position

The common law distinguishes between ‘common’ or ‘public’ carriers, who by way of trade offer themselves willing to carry any goods or persons on a particular route and (p.282) are therefore bound to accept any would-be customer,¹²¹ and all other carriers, but the importance of this distinction for liability concerned only the carriage of goods. In that context, it was early established that a common carrier is liable for the loss of or damage to the goods, the only defence being ‘act of God’ or of the King’s enemies.¹²² However, English courts refused to extend this ‘insurer’s liability’ to the carriage of passengers, whether by road (and notably by stagecoach) or by rail,¹²³ and here liability was instead based on negligence, whether or not the carrier was a common carrier, whether or not the passenger paid for the journey and whether the claim was brought in contract or in the emerging tort of negligence: the common carrier’s duty to accept goods or passengers was not thought incompatible with the existence of a contract.¹²⁴ Apart from legislative exceptions, it was accepted that any exemption or limitation clause could validly exclude a carrier’s strict liability as common carrier in respect of goods or liability for negligence in respect of passengers.¹²⁵

While the special liability of common carriers of goods has been eclipsed in the modern law,¹²⁶ the wider requirement of proof of negligence established by the nineteenth century remains applicable in the twenty-first, so that in principle a passenger injured during travel must prove the negligence of the carrier in order to establish liability, whether as a matter of contract or tort. So, for example, where a mother bought a ticket for herself and for her child, the latter could not claim damages for breach of contract but could do so in tort subject to a proof of negligence.¹²⁷ This also means that there is no significant distinction between the liability of carriers to their passengers and to bystanders injured by a transport accident¹²⁸ and that a statutory context of carriage inconsistent with contract makes no difference to the basis of liability. For example, in Clarke v West Ham Corporation it was held that where a local authority operated a tram service under statute which gave it the power to levy ‘tolls’ and imposed on it a duty to run a number of services on the lines in question, it was not entitled to exclude its liability for negligence, unless it offered some further consideration for the relinquishment of the passengers’ rights to travel and to compensation for negligence at common law, such as by a reduction in the tariff.¹²⁹ Here, without such a special contract, the relationship of passengers to carrier was clearly seen as non-contractual and liability therefore rested on negligence.

However, there have been two ways in which qualifications have been suggested to this position, the first unsuccessful, the second successful.