Some Reforms In The Law Of Tort

Publication Date01 Jan 1961
DOIhttp://doi.org/10.1111/j.1468-2230.1961.tb00655.x
AuthorGlanville Williams
SOME REFORMS
IN
THE
LAW
OF
TORT
PERFECTION,
said Arnold Bennett,
is
a
form of death.
If
this is
so,
the law of tort is
a
lusty infant; and
it
is proposed to indicate here
some of the principal ways in which
it
might be helped to decay
into
a
more satisfactory state.
The outstanding anomaly in the law, as it now stands after the
labours of the Law Reforpl Committee,
is
the prohibition of suits
between husband and wife. This matter has already been referred
to the Committee, and
it
urgently needs attention. The rule
operates no longer to preserve domestic amity, but ozlly for the
benefit of insurance companies,
or
to the detriment of third-party
defendants,
or,
in face of all reason, where
a
marriage has broken
down. Actions in tort are supposed
to be inconsistent with the affection that ought to prevail between
husband and wife.
If
a
husband
"
beats up
''
his wife, she cannot sue him, because to
sue him would be unwifely. She can, however, p.rosecute him in
the criminal courts, and have him fined
or
imprisoned; there is
nothing unwifely in these proceedings. Actions in contract are
allowed between spouses, even though the breach of contract is
also
a
tort, and even though the action is fought with bitterness;
but an action in tort for negligence is disallowed, though conducted
by the parties in perfect amity, for the indirect purpose of making
an insurance company contribute to the family exchequer.
Suppose, for example, that
a
husband, taking his family for a
ride in the car, negligently collides with a tree. The husband has
unrestricted third-party cover. He is liable to his injured children,
who can therefore, in effect, obtain damages from his insurance
company. But he is not liable to his injured wife, and she is left
without remedy.
The exception allowing an action for proprietary torts applies
only in favour of the wife.
It
is true that a husband can apply
under section
17
of the Married Women's Property Act,
1882,
for
an order as to the ownership
or
possession of property, but this does
not give him a right to damages
if
his wife wilfully damages
or
destroys his property.
In respect of premarital torts, where the parties marry before
making the insurance company pay, the judges have now found
a
way round for the wife's benefit, treating her premarital right
of
action as her property which survives the marriage.' Unfortun-
ately, owing to the wording of the legislation, this reasoning
Here, briefly, are the arguments.
But observe the limitations upon the rule.
1 Curtis
v.
Wilcos
[1948]
2
K.B.
474
(C.A.).
101

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