REVIEWS
| Published date | 01 November 1963 |
| Date | 01 November 1963 |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb02237.x |
REVIEWS
THE
PLACE
OF
NEGLIGENCE
IN
THE
LAW
OF
TORTS. By
ABRAHAM
--I,
Y.JUB.
(Hebrew University), Advocate (Israel), Senior
Lecturer
in
Law
in
the University
of
Tasmania. [Australia:
The
Law
Book
Co.
of
Australasia Pty., Ltd. Distributors
for
the United Kingdom and
Europe:
Sweet
&
Maxwell, Ltd.
1962.
194
pp.
€2
10s.
net.]
THIS
is
an
iconoclastic work, written in an eminently readable, but caustic,
polemical and highly critical style. Within its pages
all
or
nearly all the
classical and mddern writers on torts in England, America and the Common-
wealth
are
taken to task, subjected to merciless analysis and, by and large,
exposed,
to
the author’s satisfaction
at
any rate, as inaccurate, woolly, mis-
guided and unscientific. The one work which appears to have the approval of
the
learned author (though even
this
is disagreed
with
from time to time on
certain points)
is
Cawation
in
the
Law
by Professor Hart and
Mr.
Honor&
Indeed, the examination in that book of the problem of causation would appear
to be
fone
et
osigo
of
Mr.
Harari’s
own
efforts to provide
a
logical, scientific,
explicable theory of the interrelation of certain
kinds
of tort liability,
uiz.,
trespass, negligence, and those instances where liability is said to be strict
(with especial reference
to
the doctrine of
Rylands
v.
Fletcher).
To aid him
in
the
achievement of this aim he has devised
a
terminology which is stated
and explained
at
relevant pointa
in
his essay.
Briefly (though to attempt to summarise the contents of this book is in a
way unjust to the learned author, whose
ipsisdm
verba
should be read to cull
their full flavour and meaning), the thesis of
this
work
is
as follows. Causa-
tion
is
the true
test
of liability as regards the
torts
which are the subject
of
discussion, causation, that is, in the sense
in
which that concept
is
analysed and
explained by the learned author. The law of negligence
is
“stood on
its
head,“
as
it were. Instead of seeking to discover (a) whether the defendant
owed the plaintiff
a
duty of care and then (b) whether the defendant broke
that duty and thereby caused injury to the plaintiff, the true test is whether the
defendant caused an injury to the plaintiff. The test of “reasonable foresight”
of harm, which most tort lawyers would expound as the basis of liability in
negligence, is dismissed as verbiage, serving
only
to conceal the true nature of
the liability and
its
basis. Instead the author regards causation as the
explanation of, liability for unintentionally inflicted harm. What his analysis
suggests (he writes
at
p.
56)
is that
“
negligence, in the sense of
a
breach of a
duty
to
take care, is part and parcel of the notion of causation; that the
statement that
a
man has caused damage
always
implies that he was under
a
‘duty of care’ and broke that duty, that is, that he was negligent” (the
italics are those of the author). Negligence, he says later (at
p.
73)
is an
element of causation. The abolition of the requirement of reasonable foresight
as
the test of liability enables the author to reconcile logically, and to inter-
relate theoretically, trespass, negligence, and instances of strict liability. This
is done by the application of his analysis of causation. He distinguishes three
types
of
causal connection: rigid, mechanical and casual (Chapter
7).
The
first takes care of situations in which
A’s
conduct directly brings about
B’s
harm
(;.e.,
trespass). The second refers to situations in which
A’s
conduct
when combined with some natural event which
is
contingent brings about
B’s
harm
(e.g.,
when
A’s
conduct plus an “act of God” produces harm to B).
This can be illustrated by cases of strict liability such as those coming within
722
Nov.
1963
REVIEWS
728
the scope of
Rylanda
v.
Fletcher.
The third type of causal connection is seen
in operation where A’s conduct when combined with some act of a third
person produces harm to
B.
In addition there may be “mixed” connections,
where there is involved not
only
the conduct
of
A
but also some act on the
part of C and some natural event which is contingent and the result
is
harm
to
B.
Non-rigid causal connections
(ie.,
those which are casual
or
mechanical)
give rise to
“
duty
”
problems, which rigid causal connections
do
not. Mechani-
cal causal connections and casual causal connections give rise to distinct duty
problems. The difference between these two forms of non-rigid causal con-
nections is developed by the author in terms
of
co-ordination and adaptation.
Co-ordination is required in order to harmonise one’s conduct with that
of
other human beings. Adaptation, on the other hand,
is
involved where human
conduct must be harmonised with the natural environment of human beings.
Which causal connection goes with which type of situation is obvious. All this
is connected with the issue of duty (which apparently the author does not
discard with the idea of reasonable foresight) by the division of duties into
dominant and subservient duties. The term “dominant duties” refers to
situations where it is assumed that the damage occurring should have been
avoided, that the defendant had no right to cause it, and that but for the
defendant’s conduct it would not have occurred, and the question
is
whether
he has caused it, that is, whether his conduct was
“
unreasrmabre
”
or
abnormal.
Put another way,
a
dominant duty of care exists when the law says
“
you
must
not make
Y
happen
”
:
see pp.
64,
76.
The term
“
subservient duties
”
refers
to situations in which
it
is
usually assumed that the defendant caused the
damage (which implies that his conduct was unreasonable
or
abnormal) and
the question is whether he should have refrained from causing it-whether
the law imposes
a
duty to refrain from causing such damage
to
another. Put
another way, a subservient duty of care exists where the law says
‘‘
you
must
not do
X”
because
if
you
do
X,
Y
will happen and (in accordance
with
the
idea of dominant duties) you must not make
Y
happen: see
ibid.
There
appears to be no di5culty for the author as regards dominant duties
:
it
is in
deciding whether there was
a
subservient duty that the ,problems emerge and
can only be solved, according to the author, by the application of his scheme
of causation. He appears to argue that, in all cases, there is
no
need to
determine whether there was
a
duty not to harm
B:
for he seems to assume
that such duties exist. (On what basis this conclusion is reached does not
seem very clear, unless his answer
is
given
in
Part
I
of
the book
in
which
he
discusses the question of method, including the classification of torts-
incidentally dismissing most
views
on
the subject of ratio decidendi-and
arrives at the conclusion that the correct approach is to pay regard to the
social facts, presumably the values of
our
society as he vaguely
Talls
them,
and the actual decisions, scrapping all preconceptions of the law
ggd
ignoring
all
the conventionally employed categories
of
classifications
:
pp.‘
34,
37-38.)
What must be done in duty cases is to investigate whether there was
a
duty
not to act in a certain way if that way caused harm to
B.
This depends upon
the theory of causation referred to earlier.
The above lengthy description represents an attempt to put succinctly
what the learned author takes
a
go6dly number of pages to expound and
explain. Inevitably it must be
a
very rough and ready guide to the author’s
thoughts and ideas.
It
is hoped, however, that it is accurate even if abbrevi-
ated. From what has been said
it
will be evident that the author’s thesis and
his treatment in detail of the existing law and previous efforts to explain the
nature of negligent liability and its relations with other forms of tortious
liability, provides some very interesting and stimulating reading.
It
is
extremely unlikely, however, that the author’s general
or
particular comments
and suggestions will go without criticism, and meet with general approval and
acceptance. In the first place, he seems to suggest that what he calls dominant
duties are general and categorical, instancing
a
duty not to cause personal
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