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Liability for Accidents1

Published online by Cambridge University Press:  16 January 2009

J. A. Jolowicz
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Extract

In the Preface to his recent book, Samples of Lawmaking, Lord Devlin rather sadly doubted “whether judges will now of their own motion contribute much more to the development of the law. Statute,” he said, “is a more powerful and flexible instrument for the alteration of the law than any that a judge can wield.” Since those words were written Lord Devlin has himself contributed to some substantial judicial reforms of the law, notably in Rookes v. Barnard and Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., but it does, of course, remain true that it is very much easier for the legislature than for any court, however strong, to bring changes to the law. It is also true, generally at least, that when we speak of law reform we mean reform by statute and we try to formulate in a draft Bill the rules of law that we should like to see. To my mind, however, it is unfortunate that we so often try to find a formulation which provides in some detail for the particular situations we have in mind and which is designed to give the court the minimum opportunity for what is sometimes called creative interpretation. With a few exceptions—the Contributory Negligence Act and the Occupiers’ Liability Act are examples—we do not legislate in such a way as to give the judges a new principle expressed in general terms and leave it to them to work out the application of that principle in the cases that arise.

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Articles
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The Cambridge Law Journal , Volume 26 , Issue 1 , April 1968 , pp. 50 - 63
Copyright
Copyright © Cambridge Law Journal and Contributors 1968

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References

2 (1962) p. 23.

3 [1964] A.C. 1129.

4 [1964] A.C. 465.

5 See, e.g., Ehrenzweig, “Full Aid” Insurance for the Traffic Victim (1954); Green, Traffic Victims Tort Law and Insurance (1958); Keeton & O'Connell, “Basic Protection—A Proposal for Improving Automobile Claims System” (1964) 78 Harv.L.R. 329 and other authorities cited in Franklin, Chanin & Marks, “Accidents, Money, and the Law” (1961) 61 Col.L.R. 1, 4, n. 21. Cf. Blum & Kalven, “Public Law Perspectives on a Private Law Problem—Auto Compensation Plans” (1964) 31 U.Chi.L.R. 641.

6 Third Commonwealth and Empire Law Conference, Sydney, Australia, 1965. See the Record of the Conference, pp. 166–213, 721–723.

7 “Compensation for Accidents on the Road” (1965) 18 C.L.P. 1, 11.Google Scholar

8 “The Twentieth Century Development and Function of the Law of Tort in England” (1965) 14 I.C.L.Q. 862.Google Scholar

9 [1932] A.C. 562.

10 e.g., A. C. Billings & Sons Ltd. v. Riden [1958] A.C. 240.Google Scholar

11 Bell v. Travco Hotels Ltd. [1953] 1 Q.B. 473, 478.Google Scholar

12 (1866) L.R. 1 Ex. 265; (1868) L.R. 3 H.L. 330.

13 [1947] A.C. 156.

14 [1964] 2 Q.B. 806.

15 Ibid. at p. 831.

16 Read v. J. Lyons & Co. Ltd., supra. Cf. Perry v. Kendricks Tpt. Ltd. [1956] 1 W.L.R. 85, 92Google Scholar, per Parker L.J. In Dunne v. N.W. Gas Board, supra, at 838, Sellers L.J., with evident reluctance, conceded that there were to be found observations which might preclude the Court of Appeal from saying that the rule did not apply in cases of personal injury.

17 [1940] A.C. 880; The Wagon Mound (No. 2) [1967] A.C. 617.Google Scholar

18 [1964] 1 W.L.R. 498; Trevett v. Lee [1955] 1 W.L.R. 113.Google Scholar

19 [1964] 1 W.L.R. 498.

20 [1959] 1 Q.B. 426.

21 [1965] 1 Q.B. 232.

22 Ibid. at p. 240.

23 Report of the Committee on the Law of Civil Liability for Damage done by Animals, 1953, Cmd. 8476. It is recommended in the Report that strict liability should be retained only for damage to land and crops caused by trespassing cattle.

24 Read v. Lyons & Co. Ltd., supra; Beckett v. Newalls Insulation Co. Ltd. [1953] 1 W.L.R. 8.Google Scholar

25 Cf. Voli v. Inglewood Shire Council [1963] Qd.R. 256 (H.Ct. of Australia).Google Scholar

26 Conversion and, perhaps, defamation may still be regarded as torts of strict liability but they have no relevance to cases of physical damage.

27 In his concluding remarks in Sydney Lord McDermott paid tribute to the deterrent function of the law of negligence as applicable in motoring cases: Record, pp. 721–722.

28 Lunstedt, Jurisprudence, 5th ed., pp. 468 et seq. Cited by Williams, Glanville, “The Aims of the Law of Tort” (1951) 4 C.L.P. at p. 157.Google Scholar

29 Ubi supra.

30 See, e.g., James & Dickinson, “Accident Proneness and Accident Law” (1950) Harv.L.R. 769; Harper & James, The Law of Torts (1956), pp. 734 et seq.

31 [1956] A.C. 185.

32 [1963] 1 Q.B. 750; Parsons v. B.N.M. Laboratories Ltd. [1964] 1 Q.B. 95Google Scholar; Cooper v. Firth Brown Ltd. [1963] 1 W.L.R. 421Google Scholar; Parry v. Cleaver [1967] 3 W.L.R. 739.Google ScholarCf. Eldridge v. Videtta (1964) 108 S.J. 137Google Scholar; Foxley v. Olton [1965] 2 Q.B. 305.Google Scholar

33 [1963] 1 Q.B. at p. 758. Italics added.

34 [1963] 1 Q.B. at pp. 762–763. See also the judgment of Sellers, L.J. in Parsons v. B.N.M. Laboratories Ltd., supra, at p. 111.Google Scholar

35 [1964] A.C. 1129. Cf. Australian Consolidated Press Ltd. v. Uren [1967] 3 W.L.R. 1338.Google Scholar

36 Ibid, at p. 1221. Italics added.

37 (1951) 4 C.L.P. 137, 140–144.

38 [1932] A.C. 567.

39 [1958] A.C. 240.

40 [1963] 1 W.L.R. 665.

41 [1964] A.C. 465.

42 [1957] A.C. 555.

43 H.C.Deb. 5th series, Vol. 657, cols. 89 et seq. (written answers, 24 June 1964).

44 A person compensated under the scheme is required to undertake that he will repay what he receives out of any damages he may recover through a common law claim.

45 See, e.g., Ehrenzweig, Negligence without Fault (1951).

46 Cf. Payne, “Compensating the Accident Victim” (1960) 13 C.L.P. 85, 89–93.

47 [1964] 2 Q.B. 806.

48 Fowler v. Lanning [1959] 1 Q.B. 426.Google Scholar It is true that in this situation res ipsa loquitur will often apply.

49 Roe v. Minister of Health [1954] 2 Q.B. 66.Google Scholar See also Cassidy v. Ministry of Health [1951] 2 Q.B. 343.Google Scholar There would seem to be a clear distinction between treatment which fails to cure and treatment which proves to be positively harmful.

50 See, e.g., per Simonds, Lord in Davie v. New Merton Board Mills Ltd. [1959] A.C. 604, 626–627.Google Scholar

51 The point is not that the law should seek to promote a policy of loss distribution, but that loss distribution actually takes place today in most cases where liability is imposed.

52 This objection to the Board's liability seems to have been influential in the case itself: see per Sellers L.J. [1964] 2 Q.B. at p. 832.

53 See Salmond, Torts, 10th ed., 540–543, written before the full impact of Read v. J. Lyons & Co. [1947] A.C. 156 had been felt.Google Scholar

54 See Mason v. Levy Auto Parts of England Ltd. [1967] 2 Q.B. 530.Google Scholar

55 This is certainly the policy and the result of the Nuclear Installations Acts 1959 and 1965.

56 Proof of “novus actus interveniens,” in so far as it amounted to proof that the risk was not the defendant's but a third party's, would be admissible. This is the same as saying that as between the plaintiff and the defendant the risk was the plaintiff's.

57 But legislation designed to introduce a general principle might allocate certain specific risks by way of examples of the working of the principle.