REVIEWS
| Date | 01 March 1967 |
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb01148.x |
| Published date | 01 March 1967 |
DELICT.
By
D.
M.
W-a.
[Edinburgh:
W.
M.
Green
8z
Son.
THEBE
is
a
remarkable dearth of up-to-date textbooks on Scots law
in
the
field of reparation or “tort” to the English lawyer. There has been
a
blank since Sheriff Duncan’s edition of
Ulegg
on
Reparation
which was
publishedin
1966.
In view of the development of the law on the subject this
work has been for some time out
of
date and knowledge of the subject has
to be supplemented by reference to Scots cases and English textbooks and
authorities. Thus
Walker
on
Delict
in
two
volumes will be welcomed by
practitioners and students alike. Volume
I,
“
The General Part,” is
a
state-
ment of the general and fundamental principles of the law of delict. The
derivation of these principles from the institutional writers and decided cases
is clearly expounded by the author
in
a
full and lucid treatment of
the
subject. The historical aspect of delict
in
its
relation to Roman law
is
carefully explained. There
is
also
a
chapter on “Jurisdiction and Choice
of Law” where incidentally it
is
pointed out that the law of delict on
aircraft
is
said to be speculative. The procedural aspect, including parties
and title
to
sue is also dealt with. Perhaps the
two
most vexed questions in
the law of negligence, causation and remoteness, receive
a
chapter to them-
selves. The learned author devotes
a
considerable portion of this chapter
to an examination of the impact of
The
Wagon
Momd
(19611
A.C.
888
on
the law.
The distinction between remoteness of injury and remoteness of damage
is properly stressed. Remoteness of injury is concerned with the existence of
liability; remoteness of damage with the extent
of
liability.
The
Wagon
Mound
is popularly supposed to have reversed in effect the decision in
Re
PolW
and
Fume88
Withy Ltd.
[1921]
8
K.B.
660
where it was held that
glrm
the breach which constitutes negligence and given the damage as a
direct result of that negligence, the anticipation of the person whose negligent
act has produced the damage is irrelevant. In
The Wagon
Momd
the
test
of foreseeability was applied
so
as to defeat the appellant’s claim. The
author comes
to
the conclusion that the judgment of the Privy Council was
right, but for the wrong reasons in that they equiparated the test of foresee-
ability to both injury and damage, whereas foreseeability should only be
considered
as
a
test
in
question of culpability and not compensation. Not-
withstanding the author’s criticism the Privy Council has recently affirmed
the grounds of
The
Wagon
Moun&
decision in
Oversea8
Tankship
(U.K.)
Ltd.
v.
The Miller Btemship
Co.
Pty. Ltd.
[1966]
3
W.L.R.
498.
Volume
I1
of the work is concerned with examining the detailed application
of the general principles discussed in Volume
I
to particular circumstances
and the way in which the general principles have been developed and worked
out and are applied
to
particular contexts and
sets
of circumstances. The
classification is
that
of
8tair
with minor modifications,
a
remarkable tribute
to Stair who wrote his
Institutes
in
1681.
The most thumbed pages
will
be those containing Chapter
16
“Liability
for Negligently Causing Physical Injury or Death.” The quotation from
Bell’s
Principles,
para.
2080,
“The law protects personal safety against
negligence and gross disregard of the safety and interest of others”
epito-
mises the subject of this chapter which contains
a
full citation of the typical
cases where negligence
is
alleged.
It
is also convenient to find in this volume
a
very full statement of the law of defamation or libel or slandelcfor which
222
1968.
2.~018.
Cxxxvii
and
1108
pp.
El2 12s.
net.]
MAR.
1967
REVIEWS
2’28
reliance
is
placed very largely on English authorities-a subject on which
Scots authority is sadly lacking. The chapter on
“
Statutory Liability”
is
perhaps understandably rather too short to be of any practical value and
indeed could not be expected to cover the ground of Redgrave’s
Factories
Act.
Of particular interest is the chapter on “Persons Professing Special
Skills” in view of the recent decision in
Hedley Byrne and
Co.
v.
Heller
and
Partners
[1964]
A.C.
466.
The effect of this decision on the liability of
advocates and barristers is not yet determined finally.
Of not less interest is the portion dealing with the liability of physicians
and surgeons in view of the number of actions directed against regional
hospital boards as vicariously responsible for the doctor’s negligence. Finally
the Appendix notes the compensation payable
BZ
gratia
for victims
of
crimes
of violence. The Board
is
now only in its infancy, but the subject will
obviously gain considerably in importance.
Professor Walker is to be congratulated on what is certain to be the
standard textbook on
“
Delict
”
for many years to come.
Its
comprehensive-
ness and clarity of expression will be much admired. The type of index
deserves special mention for
its
succinct reference to subjects. The work
which has gone into the prepgration of these Volumes will be readily appre-
ciated when it is found that no less than
118
pages of cases are to be found
in the preface
“
Index of Cases
”.
GUEST.
THE
A.
G.
DAVIS ESSAYS
IN
LAW.
Edited
by
J.
F.
NORTHEY.
[London:
Butterworth
&
Co.
(Publishers)
Ltd.
1965.
xii
and
250
pp.
E2
10s.l
THE
many friends of the late Professor A. G. Davis in England, and, indeed, in
other parts of the world, will be grateful to the group of his old students in
Auckland University Law School who, under the leadership of Professor
J.
F.
Northey, decided to mark the occasion of his retirement from his
Chair and Deanship of the Law Faculty
in
that university by the production
of
a
volume of essays in his honour.
It
is di5cult for the writer of this
notice, under whom Professor Davis held his
first
university post, to realise
that he was in charge of the Auckland Law School for close on
a
quarter of
a
century. During this time he built it up from
a
somewhat undistinguished
Faculty to one which holds its head high among the Law Schools of the
Commonwealth
:
the excellence of his work being testified by this collection
of
essays,
all
of them by lawyers who passed through the School during this period.
This achievement is, no doubt,
as
much,
or
more, due to his qualities
as
a
man, and
a
leader of men, as
to
his capacity as
a
teacher. Perhaps
I
may
at this point be allowed
a
personal recollection. When
I
succeeded the
late
Professor Gutteridge in the Cassel Chair
at
London University, Davis was
the ody one
of
his postgraduate students (at that time we had very few
of
these), whom he expressly recommended to my attention.
I
well remember
that in doing
so
he emphasised not only his ability
as
a
lawyer but his moral
qualities as
a
man. As his doctoral thesis on Commercial Credits took shape,
I
appreciated the justness of Gutteridge’s encomium. The quality of that
work-it has been through several editions-is some indication of what legal
scholarship lost through Davis’ absorption in building up a Law School; for,
apart from periodical articles, it has remained his one substantial literary
achievement.
A first glance
at
the titles of these essays might convey the impression
that their main, if not their entire interest, is for New Zealand lawyers.
That would no doubt be true of one
or
two of them, such as that on the
future of the Torrens system’ in New Zealand by G.
W.
Hinde. But of others
where the New Zealand aspect is no doubt dominant, as with the “Matri-
monial Proceedings Act
1963,”
and the “Conflict of Laws” by
B.
C.
Gould,
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