Doreen Ann Letang (Respondent) Frank Anthony Cooper (Appellant)

JurisdictionEngland & Wales
JudgeThe Master Of The Rolls,Lord Justice Danckwerts,Lord Justice Diplock
Judgment Date15 June 1964
Judgment citation (vLex)[1964] EWCA Civ J0615-2
Date15 June 1964
CourtCourt of Appeal
Doreen Ann Letang
Frank Anthony Cooper

[1964] EWCA Civ J0615-2


The Master of the Rolls (Lord Denning)

Lord Justice Danckwerts and

Lord Justice Diplock

In The Supreme Court of Judicature

Court of Appeal

Mr P. P. Croom-Johnson. Q. C. and Mr Dennis Barker (instructed by Messrs Barlow, Lyde & Gilbert) appeared on behalf of the Appellant (Defendant).

Mr Martin Jukes, Q. C. and Mr Stanley Ibbotson (instructed by Messrs Brown, Turner, Compton Carr & Co., Agents for Messrs R. Lucas & Sons, Harrow, Middlesex) appeared on behalf of the Respondent (Plaintiff).

The Master Of The Rolls

On the 10th July, 1957, Mrs Letang was on holiday in Cornwall. She was staying at a hotel and thought she would sunbathe on a piece of grass where cars were parked. While she was lying there, Mr Cooper came into the car park driving his Jaguar motor-car. He did not see her. The car went over her legs and she was injured.


On the 2nd February, 1961, more than three years after the accident, Mrs Letang brought this action against Mr Cooper for damages for loss and injury caused by (1) the negligence of the Defendant in driving a motor-car and (2) the commission by the Defendant of a trespass to the person.


The sole question is whether the action is statute-barred. The Plaintiff admits that the action for negligence is barred after three years, but she claims that the action for trespass to the person is not barred until six years have elapsed. The Judge has so held and awarded her £575 damages for trespass to the person.


Under the Limitation Act, 1939, the period of limitation was six years in all actions founded "on tort"; but in 1954 Parliament reduced it to three years in actions for damages for personal injuries, provided that the actions come within these words of Section 2, sub-section (1), of the Law Reform (Limitation of Actions) Act, 1954: "Actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal, injuries to any person".


The Plaintiff says that these words do not cover an action for trespass to the person and that therefore the time bar is not the new period of three years, but the old period of six years.


The argument, as it was developed before us, became a direct invitation to this Court to go back to the old forms of action and to decide this case by reference to them. The statute bars an action on the case, it is said, after three years, whereas trespass to the person is not barred for six years. The argument was supported by reference to text-writers, such as Salmond on Torts, 13th Edition at page 790. I must say that if we are, at this distance of time, to revive the distinction between trespass and case, we should get into the most utter confusion. The old common lawyers tied themselves in knots over it, and we should do the same. Let me tell you some of their contortions. Under the old law, whenever one man injured another by the direct and immediate application of force, the plaintiff could sue the defendant in trespass to the person, without alleging negligence (see Leame v. Bray, in 1803, 3 East, 593), whereas if the injury was only consequential, he had to sue in case. You will remember the illustration given by Mr Justice Fortescue in Reynolds v. Clarke in 1726 (1 Strange, 634):- "If a man throws a log into the highway and in that act it hits me, I may maintain trespass because it is an immediate wrong; but if, as it lies there, I tumble over it and receive an injury, I must bring an action upon the case because it is only prejudicial in consequence". Nowadays, if a man carelessly throws a piece of wood from a house into a roadway, then whether it hits the plaintiff or he tumbles over it the next moment, the action would not be trespass or case, but simply negligence. Another distinction the old lawyers drew was this: If the driver of a horse and gig negligently ran down a passer-by, the plaintiff could sue the driver either in trespass or case: (see Williams v. Holland in 1833 (10 Bingham, 112); but if the driver was a servant, the plaintiff could not sue the master in trespass, but only in case: see Sharrod v. London and North Western Railway in 1849 (4 Exchequer, 580). In either case to-day, the actionwould not be trespass or case, but only negligence.


If we ware to bring back these subtleties into the law of limitation, we should produce the most absurd anomalies; and all the more so when you bear in mind that under the Fatal Accidents Act the period of limitation is three years from the death. The decision of Mr Justice Elwes, if correct, would produce these results: It would mean that if a motorist ran down two people, killing one and injuring another, the widow would have to bring her action within three years, but the injured person would have six years. It would mean also that if a lorry driver was in collision at a crossroads with an owner driver, an injured passenger would have to bring his action against the employer of the lorry driver within three years, but he would have six years in which to sue the owner-driver. Not least of all the absurdities is a case like the present. It would mean that the plaintiff could get out of the three-year limitation by suing in trespass instead of in negligence.


I must decline, therefore, to go back to the old forms of action in order to construe this statute. I know that in the last century Maitland said "the forms of action we have buried but they still rule us from their graves". But we have in this century shaken off their trammels. These forms of action have served their day. They did at one time form a guide to substantive rights; but they do so no longer. Lord Atkin told us what to do about them: "When these ghosts of the past stand in the path of justice, clanking their mediaeval chains, the proper course for the Judge is to pass through them undeterred": see United Australia v. Barclays Bank 1941 Appeal Cases.


The truth is that the distinction between trespass and case is obsolete. We have a different sub-division altogether. Instead of dividing actions for personal injuries into trespass (direct damage) or case (consequential damage),we divide the causes of action row according as the defendant did the injury intentionally or unintentionally. If one man intentionally applies force directly to another, the plaintiff has a cause of action in assault and battery, or, if you so please to describe it, in trespass to the person. "The least touching of another in anger is a battery". If he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action to-day in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care. If the plaintiff cannot prove want of reasonable care, he may have no cause of action at all. Thus, it is not enough nowadays for the plaintiff to plead that "the defendant shot the plaintiff". He must also allege that he did it intentionally or negligently. If intentional, it is the tort of assault and battery. If negligent and causing damage, it is the tort of negligence.


The modern law on this subject was well expounded by my brother Diplock in Fowler v. Lanning in 1959 1 Queen's Bench, with which I fully agree. But I would go this one step further: When the injury is not Inflicted intentionally, but negligently, I would say that the only cause of action is negligence and not trespass. If it were trespass, it would be actionable without proof of damage; and that is not the law to-day.


In my judgment, therefore, the only cause of action in the present case (where the injury was unintentional) is negligence and is barred by reason of the express provision of the statute.


In case I am wrong about this, and the Plaintiff has a cause of action for trespass to the person, I must deal with a further argument which was based on the opinion of text-writers, who in turn based themselves on a Report of the Committee which preceded the legislation. This was a Committee over which Lord Tucker presided. They reported in 1949. They recommended that, in actions for damages for personal injuries,the period of limitation should be reduced to two years; but they said: "We wish, however, to make it clear that we do not include in that category actions for trespass to the person, false imprisonment, malicious prosecution or defamation of character, but we do include such actions as claims for negligence against doctors". I think the text-writers have bean in error in being influenced by the recommendations of the Committee it is legitimate to look at the Report of such a Committee, so as to see what was the mischief at which the Act was directed. You can get the facts and surrounding circumstances from the Report, so as to see the background against which the legislation was enacted. This is always a great help in interpreting it. But you cannot look at what the Committee recommended, or at least, if you do look at it, you should not be unduly influenced by it. It does not help you much, for the simple reason that Parliament may, and often does, decide to do something different to cure the mischief. You must interpret the words of Parliament as they stand, without too much regard to the recommendations of the Committee: see Assam Railway v. Commissioners of Inland Revenue 1935 Appeal Cases at pages 458-9. In this very case, Parliament did not reduce the period to two years. It made it three years. It did not make any exception of "trespass to the person" or the rest. It used words of general import; and it is those words which we have to construe, without...

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