Acts Speak Louder than Statements, or Nine into One Will Go
| Published date | 01 July 1995 |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02033.x |
| Author | Tim Kaye |
| Date | 01 July 1995 |
The
Modem
Law Review
[Vol.
58
However, law alone cannot remedy the inherent labour market disadvantages for
women. This decision is unlikely to help women to overcome the continued
stereotyping and expectation that they will adopt the carer’s role.
As
a precedent
for deciding on the issue of objective justification, it may well be weak. However,
the decision is still a step in the right direction, though the vulnerable position of
part-time workers means that they need special protection rights from issues of sex
discrimination. The work of the European Action Programme may pave the way
with the plans it has for part-time workers.85
Acts Speak Louder than Statements, or Nine into One
Will
Go
Tim
Kaye”
It has become the received wisdom in at least the last ten years or
so
that the law of
negligence does not operate some blanket coverage of
all
situations where the law
of contract fails to provide a remedy, but proceeds instead on an ‘incremental’’
basis. It has even been suggested that
this
effectively puts the law of negligence
back into the position which obtained before Lord
Atkin
uttered his famous
‘neighbour principle,’
so
that in order for any new case to be said to found an
action in negligence, it has to be established not that the facts fit some general
pattern or formula, but that they are closely analogous to a set of facts which have
been held in the past to give rise to such liability.
Leading judges have taken up enormous space in the law reports in recent years
telling us some such story, but only the most naive student of the law can fail to
see
through such apparently authoritative declarations. Is it not ironic, for example,
that
so
much time and effort should have been spent by the House of Lords in
Murphy
v
Brentwood District Council2
in confirming the new orthodoxy
of
incrementalism? After all, the case most analogous to
Murphy
was
Anns
v
Merton
London Borough Council3
and yet their Lordships decided unanimously to reach
the opposite conclusion to that reached in
Anns!
Marc Rich
&
Co
AG
v
Bishop Rock Marine
Co
Ltd: The Nicholas
H4
is another
case
in
point. It concerned a ship, the
Nicholas
H,
which had developed a large
crack in the hull while sailing to San Juan in Puerto Rico. The
Nicholas
H
was
classed with a body called Nippon Kaiji Kyokai (NKK), which was a classification
society. Such societies exist to ensure that vessels classed with them
are
built,
85
See
eg the proposals on atypical work set out
in
OJ
1990 C224, the health and safety provisions
of
which have been adopted (D91/383/EEC). Part-time work remains on the agenda
of
the Social Action
Programme as was expressed
in
the EC White Paper, ‘European Social Policy: A Way
Forward
for
the Union,’ COM (94) 333.
*Faculty of Law, University of Birmingham.
I
should like to thank Roger Brownsword and especially my wife, Jan, for their comments and suggestions
on this article.
See
eg
Murphy
v
Brentwood District Council
[1990]
2
All
ER
908,
at p 915
per
Lord Keith;
Caparo
Industriesplc
v
Dich
[1990]
1
All ER 568, at p 582
per
Lord
Roskill;
Curran
v
Northern
Irelarrd
&-ownership Housing Association
Ltd
[1987] 2
All
ER 13, at p 18
per
Lord
Bridge.
2 [1990] 2
All
ER
908.
3 [1978] AC 728.
4
[1994]
3
All
ER
686
(CA).
574
1
0
The
Modem
Law
Review
Limited
1995
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