The Foundation of Tortious Liability
| Author | A. L. Goodhart |
| Published date | 01 June 1938 |
| DOI | http://doi.org/10.1111/j.1468-2230.1938.tb00388.x |
| Date | 01 June 1938 |
THE
MODERN
LAW
REVIEW
Vol.
I I
JUNE,
1938
No.
I
THE
FOUNDATION OF TORTIOUS
LIABILITY
N
his recent book
The
Law
of
Tort,
Professor Winfield in his
introductory chapter takes the position that
“
all injuries
done to another person are torts, unless there is some justifica-
tion recognised by law.”l This view that the law of tort (or of
torts
as
we prefer to call it) is based on
a
single principle is not
a
novel one and has high authority in its support.
It
was first stated
by Sir Frederick Pollock and has been accepted, although with
some hesitation, by Dr. Stallybrass and Dr. Allen.
It
would
therefore seem to be
a
hazardous undertaking to challenge this
theory at the present time were it not that these four eminent
protagonists do not seem to be in agreement concerning the
nature of this fundamental principle, and are even more divided
as
to the date of its origin. According to Professor Winfield it
has been
a
definite part of English law for over six hundred years,
but Sir Frederick Pollock suggests that it
is
essentially
a
modem
principle: Dr. Allen believes that it is still in the process
of
recognition, while Dr. Stallybrass seems to hesitate between these
three possibilities. There is more agreement on the question of
authority, for the four authors can amongst themselves gather
only five cases8 in which this fundamental principle has been
’
Chapman
v.
Pickersgill
(1761).
2
Wils.
145.
Mogul Steamship Co.
Ltd.
v.
McGregor
(1889).
23
Q.B.D.
598,
613.
Skinner
&
Co.
v.
Shew
&
Co.,
[1893]
I
Ch.
413, 422.
Gardaner
v.
Croasdale
(1760).
2
Burr.
905,
906.
Manlon
v.
Brocklebank,
[I9231
I
K.B.
406, 413.
I
P.
15.
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