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“As a matter of fact …”
Published online by Cambridge University Press: 16 January 2009
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“Now what I want is Facts. … Facts alone are wanted in life. Plant nothing else, and root out everything else. … Stick to facts, Sir!” Dickens's Mr. Gradgrind was, perhaps, a county court judge manqué. There is a clear echo of his voice in a story told—and told superbly—by Mr. Justice Mars-Jones of a judge in a rural county court who found himself bemused by a claim to an easement based on the doctrine of lost modern grant. “What's that? What's that?” he declaimed. “A lost grant? That's a very serious matter! Who lost it, and when? Was it your instructing solicitors? Let me see the affidavit of documents. …” And, on being assured that “lost grant” was a matter of legal fiction, demurred with vigour. “Fiction, is it? Fiction!? It's not fictions we want in this court, it's facts!” Whether he had Thomas Gradgrind in mind or not, His Honour was among the prophets, for over the last fifty years facts have largely replaced fictions and, in the law of tort in particular, dogmatic rules of lawyers' law, most of them prohibitory, have been rooted out. It is true that some old plantings survive, and that some strange and undesired off-shoots have appeared, but in general the process has been successful. It has certainly been welcomed by all save a few ageing academics who year by year have lamented the disappearance of much long-cherished and well-cultivated material. It is the removal of the law's negatives, leaving liability in an increasing number of cases to be determined as an issue of fact, that is perhaps the outstanding development in the law of tort since 1921.
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References
1 [1932] A.C. 562.
2 Compulsory third-party insurance for motorists was introduced in 1930, but where the defendant killed himself in the accident or died before judgment the plaintiff was deprived of all benefit until the abolition of the rule in 1934. Cmd. 4540 (March 1934), para. 5.
3 “The decent obscurity of a learned language” had uses other than Gibbon's, despite Lord Shaw's dictum that the day for canonising Latin phrases had gone past. ( Ballard v. North British Railway Co., 1923Google Scholar S.C.(H.L.) 43, 56.)
4 Salmond, Torts, 6th ed. (1924), p. 78.
5 Claims for wrongful appropriation of property and actions for injury to real or personal estate survived in some circumstances. (Phillips v. Homfray (1883) 24 Ch.D. 439; Administration of Estates Act 1925, s. 26.)
6 Law Reform (Miscellaneous Provisions) Act 1934.
7 (1872) L.R. 7 C.P. 547.
8 (1799) 8 T.R. 186.
9 [1894] A.C. 324.
10 Law Reform (Married Women and Tortfeasors) Act 1935.
11 Cuenod v. Leslie [1909] 1 K.B. 880, 889.Google Scholar
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13 Ibid., p. 38, Lord Sumner. In 1933, Swift J. had occasion to point out: “… this Gilbertian situation: a woman who is sued because it is said she has seduced another woman's husband; if she has done that in fact she has done her husband the greatest wrong that a wife can possibly do … but, according to our law, he has to pay for that—he has to pay!” ( Newton v. Hardy (1933) 149 L.T. 165Google Scholar, 166.) Fortunately the action against the allegedly enticing wife failed on the facts.
14 Married Women's Property Act 1882, s. 12.
15 Unless, perhaps, the libel affected her character or credit in her trade. An imputation of unchastity to a wife who was a garage proprietor was held insufficient in 1929 as “it cannot be said that chastity is a necessary qualification for the management or ownership of a garage,” per Macnaghten, J., Ralston v. Ralston [1930] 2 K.B. 238, 245.Google Scholar
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21 Priestly v. Fowler (1837) 3 M. & W. 1; Hutchinson v. York & Newcastle Ry. (1850) 5 Ex. 343.
22 Law Reform (Personal Injuries) Act 1948.
23 Bartonshill Coal Co. v. Reid (1858) 3 Macq. 266, per Lord Cranworth at p. 295.
24 Unger (1949) 12 M.L.R. 347.
25 (1788) 2 T.R. 667.
26 Highways (Miscellaneous Provisions) Act 1961, s. 1—not in force until 1964.
27 Cowley v. Newmarket Local Board [1892] A.C. 345.
28 In 1967, Professor Millner, with his usual felicity, could still write of this “survival of fossils”: “certain immunities are due to the petrification of rules of non-liability originating in very different social conditions and before the negligence concept had gained stature. These now constitute irrational deviations from the law, out of harmony with contemporary requirements.” (Millner, Negligence in Modern Law, p. 45.)
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32 [1905] 1 K.B. 253.
33 [1905] A.C. 428.
34 (1842) 10 M. & W. 109, per Alderson B. at p. 115. This fear of “chain reaction or infinity of claims” is found today in the economic loss cases; see Symmons, C. R., “The Duty of Care in Negligence” (1971) 34 M.L.R. 394, 402.Google Scholar
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43 Ibid., see infra, p. 187.
44 (1889) 14 App.Cas. 337; Le Lievre v. Gould [1893] 1 Q.B. 491; and cases down to Candler v. Crane, Christmas & Co. [1951] 2 K.B. 164.Google Scholar
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49 Occupiers' Liability Act 1957. Lord Denning had laboured mightily to rationalise the rules before the Act: see, e.g., Hawkins v. Coulsdon & Purley U.D.C. [1954] 1 Q.B. 319Google Scholar; Greene v. Chelsea B.C. [1954] 2 Q.B. 127Google Scholar; Dunster v. Abbott [1954] 1 W.L.R. 58.Google Scholar
50 Salmond, Torts, 6th ed. (1924) Preface, p. ix. If excuse is necessary for more than one reference to this edition, the writer of this note takes leave to mention that it was the current edition when he began to read about the law.
51 Infra, p. 187.
52 Heath's Garages Ltd. v. Hodges [1916] 2 K.B. 370Google Scholar; and down through a series of decisions to Searle v. Wallbank [1947] A.C. 341Google Scholar; Brock v. Richards [1951] 1 K.B. 529Google Scholar; Ellis v. Johnstone [1963] 2 Q.B. 8.Google Scholar
53 Byrne v. Boadle (1863) 2 H. & C. 722.
54 Carmarthenshire C.C. v. Lewis [1955] A.C. 549.Google Scholar
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56 Microcosmographia Academica, p. 15.
57 Animals Act 1971, s. 8. Brave efforts to avoid the rigidity of the rule had been made by the Court of Appeal in Deen v. Davies [1935] 2 K.B. 282Google Scholar, by Denning, L.J. dissenting in Wright v. Callwood [1950] 2 K.B. 515Google Scholar, and most enterprisingly by Bridge, J. in Bativala v. West [1970] 1 Q.B. 716.Google Scholar
58 (1842) 10 M. & W. 546.
59 [1916] 1 A.C. 719.
60 Millner, Negligence in Modern Law, p. 115.
61 Salmond, Torts, 6th ed. (1924), Preface, p. viii.
62 Winfield, Tort, 3rd ed. (1946), p. 415.Google Scholar
63 Salmond, Torts, 10th ed. (1945), Preface, p. viii.
64 Professor Millner's phrase: op. cit., p. 118.
65 Salmond, op. cit., p. ix.
66 63 L.Q.R. at pp. 517–518.
67 Now Lord Justice Edmund Davies.
68 [1949] 2 K.B. 291, 299, 300.
69 Ibid., p. 321. Some writers have taken this to heart—others have not.
70 (1969) 6 K.I.R. 456, 459.
71 Stapley v. Gypsum Mines Ltd. [1953] A.C. 663Google Scholar; I.C.I. v. Shatwell [1965] A.C. 656Google Scholar; Sigurdson v. British Columbia Electric Ry Co. Ltd. [1953] A.C. 291Google Scholar, for example.
72 Millner, Negligence in Modern Law, p. 117, 118.
73 Winfield and Jolowicz, Tort, 9th ed., p. 113.
74 Law Reform (Miscellaneous Provisions) Act 1934.
75 Law Reform (Married Women and Tortfeasors) Act 1935.
76 Crown Proceedings Act 1947.
77 Law Reform (Personal Injuries) Act 1948.
78 Law Reform (Husband and Wife) Act 1962.
79 Highways (Miscellaneous Provisions) Act 1961, s. 1 not in force until 1964. The interpretation and application of the statutory provisions are not free from doubt: Griffiths v. Liverpool Corporation [1967] 1 Q.B. 374Google Scholar (C.A.); Meggs v. Liverpool Corporation [1968] 1 All E.R. 1137Google Scholar; Littler v. Liverpool Corporation [1968] 1 All E.R. 343.Google Scholar
80 Law Reform (Contributory Negligence) Act 1945.
81 But subject to the restrictions now proclaimed by a majority of three to two in Mutual Life and Citizens' Assurance Co. v. Evatt [1971] 2 W.L.R. 23Google Scholar (P.C.).
82 The negative is simply rooted out: “So much of the rules of the common law relating to liability for negligence as excludes or restricts the duty which a person might owe to others to take such care as is reasonable to see that damage is not causal by animals straying on to a highway is hereby abolished”—with an exception for common land, customary land and town or village greens.
83 Supra, p. 181.
83a Unless the resounding dicta of Lord, Denning M.R. and Sachs, L.J. in Dutton v. Bognor Regis U.D.C. [1972] 2 W.L.R. 299Google Scholar, 308–310, 316–317, can be said to have rooted it out without the aid of the House of Lords or statute.
84 Law Com. No. 40, 15 December 1970.
85 Ibid., para. 46.
86 Ibid., para. 47. Cf. the “rooting-out” in s. 8 of the Animals Act 1971.
87 For criticism of the drafting, albeit approval of the intent, see Winfield & Jolowicz, Tort, 9th ed., p. 206.
88 e.g., a duty in respect of new dwellings to see that work is done in a workman-like or professional manner with proper materials and so that the dwelling will be fit for habitation; a duty on a vendor or lessor in respect of defects actually known to him; and amendments to the Occupiers' Liability Act 1957, s. 4.
89 e.g., Winfield & Jolowicz, Tort, 9th ed., pp. 189–195; Salmond, Torts, 15th ed., pp. 358–366; Clerk & Lindsell, Torts, 13th ed., pp. 623–632; Millner, Negligence in Modern Law, pp. 47–54; Atiyah, Vicarious Liability, pp. 248–251; Hughes (1959) 68 Yale Law Journal, No. 4, p. 633; W. O. Hart (1931) 47 L.Q.R. 92; Goodhart (1963) 79 L.Q.R. 586 and (1964) 80 L.Q.R. 559; Samuels (1964) 27 M.L.R. 88, 464; Atiyah (1965) 81 L.Q.R. 186; Fleming (1966) 82 L.Q.R. 25; North, Occupiers' Liability, pp. 162–203.
90 Clerk & Lindsell, Torts, 13th ed., pp. 623–624.
91 Ibid. pp. 627–629.
92 e.g., Thompson v. Bankstown Corp. (1953) 87 C.L.R. 619.Google ScholarRich v. Commissioner for Railways (N.S.W.) (1959) 101 C.L.R. 135Google Scholar; Commissioner for Railways (N.S.W.) v. Quinlan (1960) S.R.(N.S.W.) 629.Google Scholar
93 [1963] 2 Q.B. 650, particularly Lord Denning's exposition of a test of foreseeability and absence of reasonable care, pp. 665–667; Clerk & Lindsell, Torts, 13th ed., p. 627.
94 [1964] A.C. 1054 (P.C.).
95 [1913] 1 K.B. 398.
96 [1929] A.C. 358.
97 As always, Professor Millner had the telling phrase. The Quinlan formula was “sadly retrogressive” and “scholastic and retrograde.” Negligence in Modern Law, pp. 53, 178.
98 [1971] 2 Q.B. 107.
98a The House of Lords has affirmed the decision in Herrington, “The Times”, 17 February 1972. No full report is available at the time of going to press but it seems that an occupier's duty to trespassers is to vary according to his knowledge, ability and resources. Liability would depend on whether a conscientious humane man with his knowledge, skill and resources could reasonably have been expected to have done or refrained from doing before the accident something which would have avoided it. An impecunious occupier with little assistance at hand would often be excused from doing something which a large organisation would be expected to do (per Lord Reid). An occupier's conduct must be “humane” or “decent.” A compromise must be reached between the demands of humanity and the need to avoid placing undue burdens on occupiers (per Lord Wilberforce). It may be that the Addie rules are “drastically modified,” or that they are “developed but not denied.” We can only “cultivate the faculty of patient expectancy” (per Mr. Asquith).
99 Ibid. pp. 119, 120.
1 Contrast Quinlan: “it matters not whether the trespasser fills the unsympathetic part of the burglar or the sympathetic part of the traveller who has lost his way” ([1964] A.C. 1054, 1074).
2 Salmond's comment that “a burglar who breaks his leg by falling down the stairs cannot complain that they were insecure” will remain as true as it was in 1923.
3 1966 S.L.T. 2, 7, affirmed by the House of Lords, ibid. p. 8.
4 Italics added. Cf. Samuels (1964) 27 M.L.R. 464, 468; Clerk & Lindsell, Torts, 13th ed., p. 624.
5 Herrington v. B.R. Board [1971] 2 Q.B. 107, 123, 124.Google Scholar
6 1966 S.L.T. at p. 8.
7 See (1971) 87 L.Q.R. 168–172; (1971) 34 M.L.R. 458–461.
8 It might be thought fit to make special statutory provision in relation to users of rights of way. In rejecting an amendment to the Occupiers' Liability Bill designed to include “all persons lawfully on the premises” the then Solicitor-General (Sir Harry Hylton-Foster) said: “…if we did that we would necessarily include all categories of people whom nobody wants to include. We should necessarily include the users of public rights of way” (Standing Committee A, 26 March 1957, column 6). The Law Reform Committee had excluded such persons from its recommendations (Cmd. 9305, para. 33). The ground for the Court of Appeal's decision in Greenhalgh v. British Railways Board [1969] 2 Q.B. 286Google Scholar that users of public rights of way were not “visitors” within the Act was that only “persons who would at common law be treated as… invitees or licensees” are “visitors” within the Act (s. 1 (2)). This is indisputable but they are “persons entering on the premises” within the Scottish formula and the issue of “reasonable care if any…” would, in the absence of special provision, have to be faced, for they could hardly be in a worse position than trespassers.
9 Cmd. 4540; 7 March 1934.
10 Apart from the rules as to time limits which produced a sequence of nonsenses until the Law Reform (Limitation of Actions) Act 1954, s. 4 and the Proceedings against Estates Act 1970 repealed them. There were originally five exceptions to survival: libel, slander, seduction, enticement of a spouse and damages for adultery. The last three have ceased to have any significance as the causes of action themselves (and the action for breach of promise of marriage) were abolished on 1 January 1971 by the Law Reform (Miscellaneous Provisions) Act 1970, ss. 1, 4, 5. But defamation remains an exception and, incomprehensibly, the estate of a wealthy libeller, whose publications have admittedly caused substantial loss to his victim, continues to escape all liability. Contrast the action for slander of goods. (Hatchard v. Mège (1887) 18 Q.B.D. 771).
11 Cmd. 4540, para. 15 (c) (d). Winfield had already written ((1929) Col.L.R. pp. 249–50). “Where, however, it is the injured party who has died, different considerations arise. It does not seem advisable that the remedy for a personal injury should survive. If his successors argue that they are so much the worse off in pocket, unless they can sue, they assume that what the deceased would have recovered must have remained part of his estate until his death, and this is by no means certain; and they seek to set up a principle consonant neither with abstract justice nor with the law of torts,—that they shall profit by a wrong which in origin did not harm them.” In 1934 Stallybrass accepted that the Law Revision Committee had “substantially adopted Winfield's view by in effect recommending…that plaintiff executors should only be able to recover for loss to the estate…” (Salmond, Torts, 8th ed. (1934), p. 77.)
12 Except funeral expenses, s. 1 (2) (c).
13 The general damages were £4,000 but these covered the plaintiff's grave personal injuries—“the wreck of his physical life”—as well as the accepted reduction of his expectation of life to something under a year. In the Court of Appeal, Roche L.J. would have reduced the overall figure to £3,000.
14 Flint v. Lovell [1935] 1 K.B. 354Google Scholar, decided after the Act had come into force.
15 Rose v. Ford [1937]Google Scholar A.C. 286. It is accepted that claims for personal injury and shortened expectation of life were not in the contemplation of the Law Revision Committee and were in effect contrary to their recommendations; Foster, John, Law Revision (1938) 2 M.L.R. 14, 15.Google Scholar
16 Judges and juries rode a crazy steeplechase throughout 1938: £90 was awarded by a common jury for a boy of three years, the Court of Appeal ordering a new trial on the ground of inadequacy; £1,000 for a girl of three, again by a common jury, the judge stating that he himself would have awarded £150; £1,500 for a girl of eight, by a judge; £2,000 for a man of twenty-one by a special jury; £1,000 for a man of twenty-three, by a judge; £400 for each of three seamen aged twenty-three to twenty-six, £350 for each of two seamen aged thirty-five to thirty-seven, £300 for each of three seamen aged forty-one to forty-four (all being engaged in a “dangerous trade”) all by a judge; £600 for a man of forty, by a jury; £600 for a woman of seventy-one, by a judge.
17 [1941] A.C. 157.
18 [1968] A.C. 529.
19 Their Lordships clung desperately to this figure and rejected the Court of Appeal's majority view that for a normal adult in 1967 it should be £1,000 ([1967] 1 Q.B. 244). For a professional criminal half-price has been held proper ( Burns v. Edman [1970] 2 Q.B. 541Google Scholar ) despite the nineteenth century suggestion by the most widely known member of the Inner Temple that “his capacity for innocent enjoyment is just as great as any honest man's.”
20 [1968] A.C. 529, 550.
21 If the estate goes to the dependants claiming under the Fatal Accidents Acts, the £500 is taken into account in assessing the damages for pecuniary loss ( Davies v. Powell Duffryn Collieries Ltd. [1942] A.C. 601Google Scholar )—it is given with one hand and taken away with the other. In the case of parents who have lost a young child it may be effective in practice as solatium for grief, which is, of course, not recognised by English law. If solatium is desirable it should be allowed explicitly by statute, not as a bit of accidental humbug.
22 Per Salmon, L.J. [1967] 1 Q.B. at p. 259.Google ScholarCf. James, General Principles of the Law of Torts, 3rd ed., pp. 408–409; Winfield, Tort, 8th ed., pp. 682–684.
23 10 January to 7 March.
24 (1938) 57 Law Notes 260, 291. Australian and some of the Canadian survival statutes contain similar provisions.
25 [1964] A.C. 326.
26 [1962] 1 Q.B. 638.
27 [1967] 1 Q.B. at p. 259.
28 This note about damages for shortened expectation of life was written early in 1971. Many of the points mentioned have since been considered in Law Commission Published Working Paper no. 41—Personal Injury Litigation, Assessment of Damages—dated 18 October 1971, to which reference should be made.
29 SCM (U.K.) Ltd. v. W. J. Whittall & Son Ltd. [1971] 1 Q.B. 337Google Scholar; Weller & Co. v. Foot & Mouth Disease Research Institute [1966] 1 Q.B. 569Google Scholar; Electrochrome Ltd. v. Welsh Plastics Ltd. [1968] 2 All E.R. 205Google Scholar; British Celanese Ltd. v. A. H. Hunt (Capacitors) Ltd. [1969] 1 W.L.R. 959Google Scholar; Margarine Union G.m.b.H. v. Cambay Prince Steamship Co. Ltd. [1969] 1 Q.B. 219Google Scholar; Atiyah, “Negligence and Economic Loss” (1967) 83 L.Q.R. 248; Symmons, C. R., “The Duty of Care in Negligence” (1971) 34 M.L.R. 394.Google Scholar
30 A paper will appear in J.S.P.T.L.
31 Cmnd. 4774. 18th Report (Conversion and Detinue), September 1971.
32 Samuels (1971) 121 New L.J. 610.
33 Law.Com. No. 21, The Interpretation of Statutes, June 1969Google Scholar, para. 38; Appendix A (4).
34 (1866) L.R. 1 Ex. 265; (1868) L.R. 3 H.L. 330.
35 Law.Com. No. 32, Civil Liability for Dangerous Things and Activities, November 1970.Google Scholar
36 Harvey, C. (1970) 120 New L.J. 1155Google Scholar: “Negligent statements—the wilderness revisited.”
37 [1969] 1 A.C. 191.
38 [1961] A.C. 388.
39 [1921] 3 K.B. 560.
40 (1961) 6 J.S.P.T.L. 26, 33.
41 See Atiyah, Accidents, Compensation and the Law; Elliott and Street, Road Accidents; (1969) 119 New L.J. 653; Fitzgerald and West (1969) 119 New L.J. 727; Atiyah (1969) 119 New L.J. 863.