Correspondence
| Published date | 01 May 1963 |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00718.x |
| Date | 01 May 1963 |
CORRESPONDENCE
THE
EDITOR,
Sir,
In
(1963) 26
M.L.R.
119
Professor
H.
Street, in his review of
Mr.
Chap-
man’s new book,
Statutes on the Law
of
Torts,
states that the author
:
“has
misunderstood, among others,
Cacalier
v.
Pope,
Wilkinson
v.
Downton,
National Coal Board
v.
Evans
and
Cassidy
v.
Ministry
of
Health.”
I
was
a
little puzzled to find this lnnguage being used of a distinguished
Silk who has been a respected contributor to legal periodicals for thirty
years.
So
I
turned up the references to these cases in my copy of
Mr.
Cliapmnn’s book in order to discover if
I
could where the misunderstandings
lay. First, as authority
for the proposition that “the wife, lodger, guest
or
employee of the tenant
was, where there was no covenant by the landlord to repair, in no better
position than the tenant.” Secondly, as authority for the proposition that
“the wife, lodger, guest
or
employee of the tenant was no better
off
even
if the landlord had entered into
a
covenant to repair and was in breach of
a
proper notice to effect repairs; being
a
stranger to the contract, she
or
he could derive no benefit from it.” Thirdly, as authority for the
proposition that section
4
(1)
of the Occupiers’ Liability Act “is
a
direct
repeal of the decision in
CavaZier
v.
Pope.”
There does not seem to
me to be anything inconsistent with the common understanding of the case
in these statements. They all appear to be borne out by the references
to the case on pages
195-197
of
Btreet on Torts.
Wilkinson
v.
Downton
is cited on page
287
of
Chapman
in an exposition
of the tort of malicious falsehood.
Wilkiirson
v.
Downton
is certainly not
usually regarded as an example of that tort, but
I
would not myself have
concluded that
Mr.
Cfiapman had misunderstood the case. He may under-
stand it perfectly but be making some point about it in an abbreviated way
which is not too clear.
Or
else it might even be a venial error in the first
edition of an entirely new book which cites over
2,600
cases.
It
is interesting
to note that in the second edition of
Btreet on Torts, IVilkinson
v.
Downton
is
the subject of an erroneous page reference in the table of cases.
It
is
a
colourless reference of the
“
see also
”
type, following a sentence which states
that where
a
trespass occurs involuntarily in the sense of being an inevitable
accident this is in itself a defence. On pages
29-30
of
Street
on
Torts
the
case is cited as authority for the proposition
that
there is no liability for an
accidental trespass to goods.
I
wonder in what sense
Mr.
Chapman has
misunderstood this decision. On page
28
it is cited together with five other decisions as authority for the proposition
that “the medical and nursing staff of hospitals are now accepted
[IS
being
under
a
contract of service.” This seems to me to be exactly what Singleton
and Somervell
L.JJ.
said in the
Cassidy
case.
As
is well known Denning
L.J.
put forward a different view:
Mr.
Chapman’s failure to refer to it may
or
may not be criticised but
I
cannot see that it
is
evidence that he has “mis-
understood” the case. On page
416
the
Cnssidy
case is cited to illustrate the
point that in practice plaintiffs disregard the ministerial memorandum asking
that actions should be brought against the hospital authorities and not against
himself.
Pembroke
College,
Oxford.
The Modern Law Review.
Cavalier
v.
Pope
is cited three times on page
69.
National
Coal
Board
v.
Evano
is cited on page
358
of Chapman.
Caaaidy
v.
Ministry
of
Health
is cited on pages
28
and
416.
It is hard to see what is open to criticism in this statement.
R.
F.
V.
HEUSTON.
851
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