Notes Of Cases
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01049.x |
| Date | 01 January 1965 |
| Published date | 01 January 1965 |
NOTES
OF
CASES
TRESPASS
AND
NEGLIGENCE-A
FURTHER
ATTEMPT
TO
BURY
THE
FORMS
OF
ACTION
THE reasoning underlying the Court of Appeal decision in
Letang
v.
Cooper
is considerably strained. Nevertheless, the result is clearly
desirable, for any other decision would have necessitated legislative
intervention.
The problem was quite simple: the plaintiff was sunbathing
on
a piece of grass when the defendant negligently drove his Jaguar
car over her legs and injured her. The plaintiff brought an action
for damages for negligence and trespass to the person, but the writ
was not issued until more than three years after the accident. The
defendant claimed that the action was statute-barred.
Under the Limitation Act,
1939,
the period of limitation was six
years in all actions founded
(‘
on
tort
”
but this period was
reduced to three years in
1954
“
in the case of 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
.
.
.
consist of
or
include damages in respect of
personal injuries to any person.”
At
first instance, Elwes
J.
accepted the plaintiff’s argument that
the three years’ period applied to an action in negligence but did not
apply to an action for trespass to the per~on,~ and he awarded the
plaintiff damages. The decision. and its effect astounded the
insur-
ance world.
It
meant that the same claim given a different name
would extend the limitation period from three to
six
years.
The Court of Appeal refused to allow such a practically absurd
result.
It
would mean, as Lord Denning
M.R.
pointed out, that
the court would have to
go
back to the old forms of action and to
decide this case by reference to them.
The simplest solution, therefore, was to construe the words of
the statute in question
“
with reference to the law of this century
and not of past centuries.” Accordingly, the court displayed con-
siderable flexibility in handling the rules of statutory interpretation
and held that the words
‘‘
breach of duty
”
were wide enough to
comprehend trespass to the person as well as negligence. This,
in
itself, was sufficient to decide the case against the plaintiff.
1
[1964]
3
W.L.R.
573; [1964
2
Limitation Act,
1939,
8.
2 (11.
a
Italics supplied.
4
Law
Reform (Limitation
of
Actions) Act,
1954,
6.
2 (1).
5
[1964]
2
Q.B.
53.
2
All E.R.
929.
92
JAN.
1966
NOTES
OF
CASES
93
However, far more important than the technique of statutory
interpretation, was the opportunity taken by the Court of Appeal
to examine the relationship between the torts
of
trespass to the
person and negligence. The examination produced some novel and
very doubtful conclusions. These are best seen by asking a number
of fundamental questions
:
1.
Does Trespass to the Person Lie at All
for
Unintentional
as Opposed to Intentional Acts?
It
has
for
long been generally accepted that the same fact
situation may give rise to a cause of action in either negligence
or
trespass to the person, although in most cases of negligent injury
the plaintiff is content to sue in the tort of negligence alone. Con-
versely, there is no reason why in cases of intentional injury an
action for negligence should not lie on the grounds that there has
been
a
breach
of
a duty of care, although here again most plaintiffs
would sue in the more obvious tort of trespass.
Diplock
L.J.
accepted that certain unintentional but negligent
acts can be described either as trespass
or
negligence, although
negligence
is
the expression to be preferred. However, in his
opinion, no procedural consequences followed from the choice of
description.
Lord Denning
M.R.,
however, (with whom Danckwerts L.J.
agreed) went much further. In his opinion the two causes of action
are quite distinct. The old forms
of
action are abolished, but we
now have a new division, between intentional and unintentional
conduct.
If
the act is intentional, the cause of action is trespass,
if
unintentional, the cause of action is negligence; there is no overlap
whatsoever. Thus, in his opinion, presumably, all the cases
of
unintentional trespass
in
the past should be read as actions in
negligence.6 This proposition, it is submitted, goes further than any
previous authority and, regardless
of
any desirable consequences
flowing
from
it, is probably wrong; indeed Lord Denning accepted
that he may well be wr0ng.l
2.
Is
it Necessary to Prove Damage in an Action
for
Unintentional Trespass to the Person?
A
basic difference between an action for trespass and one
for
negligence is that while trespass is actionable
per se,
the tort of
negligence
is
not complete until damage occurs. Hitherto there was
no serious suggestion that there was any difference between an
intentional and an unintentional trespass. Occasionally in trespass
there had been an effort to modify the principle that any trespass,
regardless
of
damage, is actionable
per se.
Thus, in two cases
6
See
Fowler
v.
Lanning
[1959]
1
Q.B.
426
and
ca8es
cited therein. See
also
7
[1964]
3
W.L.R.
573
at
p.
577.
note
in
(1959)
22
M.L.R.
538.
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