REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00311.x |
| Published date | 01 July 1955 |
| Date | 01 July 1955 |
REVIEWS
WINFIELD
ON
TORT.
Sixth Edition.
By
T.
ELLIS
LEWIS.
[London
:
Sweet
&
Maxwell, Ltd.
1954.
xl.
and
836
pp.
(with
Index).
50s.
net.]
DR.
LEWIS’S
task in producing this new edition of Winfield has clearly not
been
a
light one, for apart from the considerable changes made necessary by
developments in
the
law of tort since Winfield’s own last edition, he has had
to reconcile
a
proper respect for a distinguished text with the need for some
overdue revision and expansion. The topics that have undergone most change
are:
volsnti
nam
fit
injuria,
the liability of the Crown and its subordinates,
master and servant, contribution between tortfeasors, death, defamation,
licences, negligence and contributory negligence, dangerous land and
structures, and interference with contract.
For
the most part, Dr. Lewis’s
changes have been worked smoothly into Winfield’s text;
at
only
a
few points
do the editorial insertions read strangely. One of these is the section on the
foundation of tortious liability, where Dr. Lewis’s conclusion that there is
no general principle of liability in English law, though probably correct, is
hardly reconcilable with Winfield’s own view, preserved in the text, that from
the broader aspect there
is
a general principle of tortious liability in English
law. Whereas Winfield was
prepared to accept the full implications of
the
Polemis
rule and suggested
that physical consequences were not too remote if they followed “in accord-
ance with scientific laws known
to
govern the world,” his editor has introduced
passages which suggest that problems of remoteness cannot be solved by any
such mechanical test. Thus he quotes Prosser‘s recent opinion that, all the
suggested tests having been tried and found wanting, there is no substitute
for dealing with the particular facts of each case, while his own conclusion
is that “the solution is based upon some inarticulate idea of policy, some
intuition which comes from long training and
a
comprehensive judgment in
working out rules of law.”
Dr. Lewis differs from Winfield in thinking that liability for nervous shock
is
a
separate tort, though he continues, notwithstanding, to discuss nervous
shock in the section on remoteness of damage.
It
is
a
little difficult
to
under-
stand why he has chosen to differ from Winfield on this point, particularly
since Denning
L.J.
in
Kimg
v.
Phillips
went out of his way to deny the view
he puts forward. The dicta in the cases to the effect that the infliction of
nervous shock is
a
tort were directed to making the point that damages
are recoverable for injury caused by nervous shock alone, and not only when
the shock is coupled with direct physical injury, and
do
not really support
the view that the infliction of injury through shock is
a
separate tort.
Further, it is hardly true to say that
a
macjority of the House of Lords in
Boutrhitl
v.
Young
were of the opinion that only those persons within the
range of foreseeable injury by direct impact could sue for nervous shock, for
a
close reading of the case shows that Lords Thankerton, Porter and Wright
all thought that the duty depended on general foreseeability of harm to the
plaintiff, either by impact or shock. This was the interpretation put upon
the case by the Court of Appeal in
King
v.
Phillips,
and it is further supported
by the decision of Donovan
J.
in
Dooky
v.
Camvmsll
Laird
&
Co.,
Ltd.
([1951]
1
Lloyd’s Rep.
271),
which is not noted in this edition.
The section on master and servant has been expanded and improved.
Dr.
Lewis is of the opinion, despite recent cases, that control over the way
420
Another
is
the topic of remoteness of damage.
JULY
1955
REVIEWS
421
in which work is done is still the most important factor in determining whether
an agent is
or
is not
a
servant for the purposes of vicarious liability. Fuller
and better treatment is given to the problems that arise from lending a
servant. Despite the abolition of the doctrine of common employment, one
still finds the liability of employers
towards
their servants discussed in a
general chapter on capacity, which would seem hardly defensible. The
chapter on negligence would appear to be the proper place for a discussion
of employers’ common law liability, unless indeed the topic be reckoned suffi-
ciently important to merit
a
separate chapter of its own.
It
is also difficult
to appreciate the relevance in
a
general textbook on the law of tort of an
account of the benefits to which employed persons are entitled under the
National Insurance (Industrial Injuries) Acts, since the obligation to pay
compensation in the event of injury is no longer placed on the employer,
but is assumed by the State.
As one would expect, there are considerable changes in the chapter on
negligence. Winfield’s treatment of this topic was inclined to be inadequate
in his later editions. Dr. Lewis recognises, as Winfield did not, the many
difficulties in the way of accepting Lord Atkin’s
“
neighbour
”
principle as
the criterion of whether or not
a
duty of care exists.
He
enumerates many
of the situations and relationships in which the courts have denied the exist-
ence of any duty to take care. His conclusion is that if a situation
or
relation-
ship is not covered by authority the judge’s choice whether to apply the
“neighbour” principle
or
to create some new exception
to
it is not capable
of prediction.
“
The factors which guide the judge in
this
creative process can
only be put broadly
es
the application of theories of justice to negligence
cases by adjusting the relative values of the conflicting interests involved.”
On this view, Lord Atkin’s
“
neighbour
”
dictum is not
so
much a guiding
principle in the decision of cases as
a
safe refuge for a judge wishing to
hold for the plaintiff. Another new and welcome feature is
a
discussion of
some of the more important factors which determine the standard of care
that must be taken, such as the magnitude of the risk and the likelihood of
injury, the importance of the object to be attained, the practicability of
possible precautions, and general and approved practice. The omission of
the factor of profit
or
advantage to the defendant is
a
little surprising.
It
is this factor that turns
a
licensee into an invitee and determines the standard
of care required of the transferor of dangerous chattels. This being
so,
one would expect it
to
be
an
important consideration in determining the
standard of care required of a defendant in the tort of negligence.
Whereas Winfield regarded liability for dangerous structures as
a
species of strict liability, Dr. Lewis prefers to regard it as “a special sub-
head of the general doctrine of negligence,” though the chapter on dangerous
structures is still found in the section of the book devoted to strict liability.
One would like to suggest that both dangerous structures and dangerous
chattels might well be treated immediately after the tort of negligence. In
the section on the duty owed to contractual licensees, Dr. Lewis finds it
difficult to accept the suggestion made in some of the cases that the occupier
merely warrants that he himself has taken reasonable care that the premises
are safe, for, as he points out, even towards an invitee the occupier is
answerable for the negligence of an independent contractor. He is also
critical of the view expressed in
Bell
v.
Travco
Hot&
that a higher duty may
be owed in respect of one part of the premises than in respect of another as
an attempt to erect into
a
distinction of law what is in fact
a
distinction of
fact, the single standard of reasonable care requiring greater precautions to
be taken in respect of one part of premises than in respect of another if, for
example, the one part is more frequented than the other. Some confusion
seems to have crept into the account of the immunity from liability of the
vendor or lessor of
a
house for injuries sustained by those entering it. Dr.
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