REVIEWS
| Date | 01 May 1956 |
| Published date | 01 May 1956 |
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00364.x |
lCEVIEWS
TEE
LAW
OF
TORTS.
By
HARRY
STREET,
LL.M.,
PE.D.
[London:
Butterworth
&
Co.
(Publishers) Ltd.
1055.
lxxxiii
and
555
pp. (with index).
E2
6;s.
net.]
THE
publication of Professor Street’s
Law
of
Torts
raises hopes that the
long reign of Pollock, Salmond and Winfield will draw to
a
close. This
is
no disrespect to those great men
or
to the very able editors who have
produced new editions when the master mind was stilled, but the spectacle
of an old textbook “dolled up” in order to attract the goodwill won by the
original author is not very inspiring. The opinions of Pollock, Salmond and
Winfield will long be held in high regard, but they are best consulted as
they came from the author‘s pen, unqualified by doubts and contradictions
in text, footnote or excursus.
It
can be said at once that Street on
Torts
is
a
good book, and the
second edition (if the author pays attention to his critics!) will probably
be
a
grent book.
It
has two great merits. The
first
is that the presentation
of the subject is orderly, and manifestly orderly: the table of contents shows
at
a
glance how the whole subject
has
been mapped out into parts, chapters
and sections, and the sections themselves are clearly divided into paragraphs
and sub-paragraphs, all clearly numbered and lettered and titled; and
as
these
divisions are prominently visible in the text of the book the reader
is
never
in doubt as to the precise point to which the author
is
directing attention.
The other great merit is that the author fully accepts the view that the law
of torts is the law to be extracted from the cases, and he accordingly uses the
cases
as
materials from which to derive his propositions. Some earlier books
were more given to treating cases
as
if they were happy illustrations of the
principles devised by the author.
Street’s general scheme is, after
a
very few pages of general obsermtions,
to go straight to specific torts, classifying them according to the interest of
the plaintiff which is invaded rather than according to the nature of the
defendant’s conduct.
It
is
a
manner of treatment which those who teach tort
are coming increasingly to adopt, since it
is
a
considerable improvement on
the method adopted by Pollock and those who went wandering
off
with him
in search of the marc’s nest of
a
general principle of tortious liability.
It
has,
moreover, the advantage of bringing together,
as
a
general rule, types of
liability which derive from the same common law origin, for the common law
in its formative period was much more concerned with the protection of the
plaintiffs interest rather than with attempting to correct the defendant
according to some notion of fault.
The onc substantial criticism which may be made is in the trentment
of causation, remoteness of damage and contributory negligence. Notwith-
standing Street’s admission that these topics are relevant to all torts he
has chosen to deal with them in that part concerned with negligence. The
convenience of this is not allowed, for after all the book is primarily
for
students, and one short caveat will not prevent the student linking’ these
matters solely with one specific tort. There are already far too many
students who, in Winfield’s words, regard negligence and contributory ncgli-
gcnce
as
two cards from the same pack with the one trumping the other.
A
less serious grievance is the treatment of the action on the case. Perhaps
it has been assumed that the student knows all about the legal history of
the matter.
If
he does not he will be very mystified. Under the section
“General Considerations” he is told briefly that “the form of action on
81
0
820
TEE
MODERN
LAW
REVIEW
VOL. I0
the case developed separately for indirect injuries” (p.
7).
Later (p.
28)
it is implied that the action on the case was developed for the purpose of
providing
a
remedy to chattel owners not in possession, and the chapter on
damage to chattels ends with
a
section labelled “Case” devoted to this
matter. Thereafter, scattered through the book are
a
number of dark allusions
to the action of case, and when we come to p.
419
there is
a
sectiod boldly
headed “Action on the Case” which contains merely
a
few miscellaneous
out-of-the-way torts such
as
Ashby
v.
White.
It
must be all very perplexing
to
the newcomer.
The book is not entirely devoid of minor heresies. For example, on p.
11
we are told that
“a
master cannot be sued in trespass for the tort of his
servant,” and
Sharrod
v.
L.N.W.Ry.
(1860) 4
Exch.
600
is cited in support of
this proposition in
a
footnote where the author suggests that the point escaped
notice in
National
Coal
Board
v.
Bvam
[196l]
2
K.B.
861.
It
is
true thnt
as
long
as
the
forms
of action survived an action of trespass could not be
maintained against
a
master for the trespass of the servant, as
Sharrod’r
case lays down clearly.
It
is equally true that
at
that time neither could
a
case be maintained against
a
master for the trespass.of the servant, for the
not very satisfying reason that
a
servant’s trespass was regnrded
as
a
deliberate act which must lie outside liis authority
(McManw
v.
Cricket6
(1800)
1
East
106).
But any formal objection vanished with the abolition
of the forms of action, and the other objection became valueless after such
decisions as
Seymour
v.
Ureenwood
(1861) 6
H.
&
N.
869,
and
Limpvs
v.
L.U.O.C.
(1862)
1
H.
&
C.
626
made it clear that
a
master could be liable
for the wilful acts of the servant in the scope of his employment. From
that
time onward the idea that
a
master could not be sued for trespass of
the servant disappeared, and when Pollock and Salmond came to write their
books they failed to notice the’present existence of any such doctrine. We
should probably have heard nothing more
of
the matter had not Winfield
and Goodhart revived it (without citing any authority) in an article in
49
Law
Quarterly Review
at
p.
866
in
a
passage which is reproduced virtually
identically in Winfield’s
Tort,
1st ed., p.
m.
It
is
sufficient answer to this
heresy to say, firstly, that
it
was refuted by the Privy Council in
Uoh
Choon
Seng
v.
Lee
Zlim
Boo
[192K]
A.C.
KKO,
and secondly, that if the proposition
contended for
is
true then not only was
National Coal
Board
v.
Evans
(arpm)
wrongly decided, but
so
also were
a
number of other cases such as
Konukier
v.
Uoodman
(19281
1
K.B.
421
and
U.W.K.
Ltd.
v.
Dunlop
Rubber
CO.
Ltd.
(1926) 42
T.L.R.
876,
not to mention
a
whole host of cases such
as
Warren
v.
Redys
Ltd.
[1948]
2
All E.R.
934
Delaney
v.
r9mith
[1946]
K.B.
898,
Owen Smith
v.
Reo
Motors
(1934)
1/51
L.T.
274
where
a
lot of time was
spent in discussing matters which were irrelevant since the action must in
any event have failed
on
this ground.
Another heresy is that the common law recognises
a
defence of necessity
in the case of an intentional tort. This runs
so
counter to the only discernible
general principle of tortious liability, namely that the law of torts exists
to compensate an injured plaintiff rather than to mulct a guilty defendant,
that
it
cannot be accepted as correct.
Nor
is
there any evident reason in
point of justice why
a
person who finds himself in
a
perilous position should
be permitted
to
extricate himself gratis
at
someone else’s expense. If,
defending myself against
a
murderer,
I
save myself
by
throwing my
neighbour‘s valuaU’e Dresden china in the murderer’s face, ought
I
not to
pay for my salvation?
No
one would dream of applying the defence of
necessity in the realm of contract. If
I
save myself from
a
pursuing murderer
by taking
a
taxi, of course
I
must pay
for
the taxi. Direct authority on
the point is negligible. Once we discount mere dicta, cases which are really
eases of abatement of nuisance, cases which are rcally self-dcfencc (for
obviously one can plead necessary self-defence against
a
wrongdoer), and
cases dependent on prerogative, we are left with
MouJe’s
Cace
(1608)
12
Co.Rep.
83.
Mouse’s
Case
certainly held that
a
passenger in
a
sinking ferry
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