Letang V Cooper
Letang V Cooper
Before:
Between:
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Crown Copyright ©
THE MASTER OF THE ROLLS: On the 10th July, 1957, Mrs Letang was
on holiday in Cornwall. She was staying at a hotel and thought she would
sunbathe on a piece of grass where cars were parked. While she was lying
there, Mr Cooper came into the car park driving his Jaguar motor-car. He did
not see her. The car went over her legs and she was injured.
On the 2nd February, 1961, more than three years after the accident, Mrs
Letang brought this action against Mr Cooper for damages for loss and
injury caused by (1) the negligence of the Defendant in driving a motor-car
and (2) the commission by the Defendant of a trespass to the person.
The sole question is whether the action is statute-barred. The Plaintiff admits
that the action for negligence is barred after three years, but she claims that
the action for trespass to the person is not barred until six years have
elapsed. The Judge has so held and awarded her £575 damages for trespass
to the person.
Under the Limitation Act, 1939, the period of limitation was six years in all
actions founded "on tort"; but in 1954 Parliament reduced it to three years in
actions for damages for personal injuries, provided that the actions come
within these words of Section 2, sub-section (1), of the Law Reform
(Limitation of Actions) Act, 1954:
The Plaintiff says that these words do not cover an action for trespass to the
person and that therefore the time bar is not the new period of three years,
but the old period of six years.
The argument, as it was developed before us, became a direct invitation to
this Court to go back to the old forms of action and to decide this case by
reference to them. The statute bars an action on the case, it is said, after three
years, whereas trespass to the person is not barred for six years. The
argument was supported by reference to text-writers, such as Salmond on
Torts, 13th Edition at page 790. I must say that if we are, at this distance of
time, to revive the distinction between trespass and case, we should get into
the most utter confusion. The old common lawyers tied themselves in knots
over it, and we should do the same. Let me tell you some of their
contortions. Under the old law, whenever one man injured another by
the direct and immediate application of force, the plaintiff could sue the
defendant in trespass to the person, without alleging negligence (see Leame
v. Bray, in 1803, 3 East, 593), whereas if the injury was only consequential,
he had to sue in case. You will remember the illustration given by Mr Justice
Fortescue in Reynolds v. Clarke, in 1726 (1 Strange, 634):-
"If a man throws a log into the highway and in that act it hits
me, I may maintain trespass because it is an immediate wrong;
but if, as it lies there, I tumble over it and receive an injury, I
must bring an action upon the case because it is only prejudicial
in consequence".
If we were to bring back these subleties into the law of limitation, we should
produce the most absurd anomalies; and all the more so when you bear in
mind that under the Fatal Accidents Act the period of limitation is three
years from the death. The decision of Mr Justice Elwes, if correct, would
produce these results: It would mean that if a motorist ran down two people,
killing one and injuring another, the widow would have to bring her action
within three years, but the injured person would have six years. It would
mean also that if a lorry driver was in collision at a crossroads with an owner
driver, an injured passenger would have to bring his action against the
employer of the lorry driver within three years, but he would have six years
in which to sue the owner-driver. Not least of all the absurdities is a case like
the present. It would mean that the plaintiff could get out of the three-year
limitation by suing in trespass instead of in negligence.
The truth is that the distinction between trespass and case is obsolete. We
have a different sub-division altogether. Instead of dividing actions for
personal injuries into trespass (direct damage) or case (consequential
damage), we divide the causes of action now according as the defendant did
the injury intentionally or unintentionally. If one man intentionally applies
force directly to another, the plaintiff has a cause of action in assault and
battery, or, if you so please to describe it, in trespass to the person. "The
least touching of another in anger is a battery". If he does not inflict injury
intentionally, but only unintentionally, the plaintiff has no cause of action to-
day in trespass. His only cause of action is in negligence, and then only on
proof of want of reasonable care. If the plaintiff cannot prove want of
reasonable care, he may have no cause of action at all. Thus, it is not enough
nowadays for the plaintiff to plead that "the defendant shot the plaintiff". He
must also allege that he did it intentionally or negligently. If intentional, it is
the tort of assault and battery. If negligent and causing damage, it is the tort
of negligence.
The modern law on this subject was well expounded by my brother Diplock
in Fowler v. Lanning, in 1959 1 Queen's Bench, with which I fully agree.
But I would go this one step further: When the injury is not inflicted
intentionally, but negligently, I would say that the only cause of action is
negligence and not trespass. If it were trespass, it would be actionable
without proof of damage; and that is not the law to-day.
In case I am wrong about this, and the Plaintiff has a cause of action for
trespass to the person, I must deal with a further argument which was based
on the opinion of text-writers, who in turn based themselves on a Report of
the Committee which preceded the legislation. This was a Committee over
which Lord Tucker presided. They reported in 1949. They Recommended
that, in actions for damages for personal injuries, the period of limitation
should be reduced to two years; but they said:
I come, therefore, to the clear conclusion that the Plaintiff's cause of action
here is barred by the Statute of Limitations. Her only cause of action here, in
my judgment (where the damage was unintentional), was negligence and not
trespass to the person. It is therefore barred by the word "negligence" in the
statute. But even if it was trespass to the person, it was an action for "breach
of duty" and is barred on that ground also.
The terms of this provision are very wide, and, in my opinion, cover the case
of a claim for damages for trespass to the person of the Plaintiff. It may be
true that the statute is limiting rights which a person might possess at
common law, but this argument cannot prevail if the meaning of the words
of the statute is plain; and, in my view, the words of the statute are plain in
their meaning.
I find support for this conclusion in the statement of Lord Greene in Billings
v. Reed, 1945 1 King's Bench, page 11, notwithstanding that the similar
words there under consideration were in a wartime statute, and no very
effective contention seems to have been put forward for a different
construction.
I agree also with the other grounds for allowing the appeal discussed by the
Master of the Rolls in the earlier part of his Judgment.
In the Judgment under appeal, Mr Justice Elwes has held that the Law
Reform (Limitation of Actions) Act 1954 has, by Section 2(1) created an
important difference in the remedy to which B. is entitled in the factual
situation postulated according to whether he chooses to describe it as
negligence or as trespass to the person. If he selects the former description,
the limitation period is three years; if he selects the latter, the limitation
period is six years. The terms of the sub-section have already been cited, and
I need not repeat them.
The factual situation upon which the Plaintiff's action was founded is set out
in the Statement of Claim. It was that the Defendant, by failing to exercise
reasonable care (of which failure particulars were given), drove his motor-
car over the Plaintiff's legs and so inflicted upon her direct personal injuries
in respect of which the Plaintiff claimed damages. That factual situation was
the Plaintiff's cause of action. It was the cause of action "for" which the
Plaintiff claimed damages in respect of the personal injuries which she
sustained. That cause of action or factual situation falls within the
description of the tort of "negligence" and an action founded on it, that is,
brought to obtain the remedy to which the existence of that factual situation
entitles the Plaintiff, falls within the description of an "action for
negligence". The description "negligence" was in fact used by the Plaintiff's
pleader; but this cannot be decisive, for we are concerned not with the
description applied by the pleader to the factual situation and the action
founded on it, but with the description applied to it by Parliament in the
enactment to be construed. It is true that that factual situation also falls
within the description of the tort of "trespass to the person". But that, as I
have endeavoured to show, does not mean that there are two causes of
action. It merely means that there are two apt descriptions of the same cause
of action. It does not cease to be the tort of "negligence" because it can also
be called by another name. An action founded upon it is none the less an
"action for negligence" because it can also be called an "action for trespass
to the person".
I am therefore of opinion that the facts pleaded in the present action make it
an "action fop negligence ... where the damages claimed by the plaintiff for
the negligence ... consist of or include damages in respect of personal
injuries to" the plaintiff, within the meaning of the sub-section, and that the
limitation period was three years.
In this respect I agree with the Judgment of Mr Justice Adam in the only
direct authority on this point, the Victorian case of Kruber v. Grzesiak (1963
2 V.L.R,, 621). To his lucid reasoning I am much indebted. This is yet
another illustration of the assistance to be obtained from the citation of
relevant decisions of Courts in other parts of the Commonwealth, and I am
particularly grateful to Counsel for the Appellant and those instructing him
for drawing our attention to this case. But I agree with my brethren and with
Mr Justice Adam that this action also falls within the words "action .. for
breach of duty (whether the duty exists by virtue of a contract or of a
provision made by or under a statute or independently of any contract or any
such provision)". I say "also falls", for in the absence of the word "other"
before "breach of duty" that expression as explained by the words in
parenthesis is itself wide enough to include "negligence" and "nuisance".
Counsel for the Plaintiff has, however, submitted that an action for trespass
to the person is not an action for "breach of duty" at all. It is, he contends, an
action for the infringement by the Defendant of a general right of the
Plaintiff; there is no concomitant duty upon the Defendant to avoid
infringing the Plaintiff's general right. This argument or something like it,
for I do not find it easy to formulate, found favour with the learned Judge.
He drew a distinction between what he described as a "particular duty" owed
by a particular defendant to a particular plaintiff which he said, no doubt
with Bowhill v. Young in mind, was an essential element in the cause of
action in negligence, and a "general duty" not to inflict injury on anyone; but
to describe the latter, which is merely the obverse of the Plaintiff's cause of
action in trespass to the person, as a "duty" was, he thought, not to use the
language of precision as known to the law.
I would observe in passing that a duty not to inflict direct injury to the
person of anyone is by its very nature owed only to those who are within
range - a narrower circle of Atkinsonian neighbours than in the tort of
negligence. But in any event this distinction between a duty which is
"particular" because it is owed to a particular plaintiff and a duty which is
"general" because the duty owed to the plaintiff is similar to that owed to
everyone else is fallacious in relation to civil actions. A. has a cause of
action against B. for any infringement by B. of a right of A. which is
recognised by law. Ubi jus,ibi remedium. B. has a corresponding duty owed
to A. not to infringe any right of A. which is recognised by law. A. has no
cause of action against B. for an infringement by B. of a right of C. which is
recognised by law. B. has no duty owed to A. not to infringe a right of C.,
although he has a duty owed to C. not to do so. The number of other people
to whom B. owes a similar duty cannot affect the nature of the duty which
he owes to A. which is simply a duty not to infringe any of A.'s rights. In the
context of civil actions a duty is merely the obverse of a right recognised by
law. The fact that in the earlier cases the emphasis tended to be upon the
right and in more modern cases the emphasis tends to be upon the duty
merely reflects changing fashions in approach to juristic as to other social
problems, and must not be allowed to disguise the fact that right and duty are
but two sides of a single medal.
Really, the only argument for cutting down the plain and wide meaning of
the words "breach of duty" is that to do so renders the inclusion of the
specific torts of negligence and nuisance unnecessary. But economy of
language is not invariably the badge of parliamentary draftsmanship.
Negligence and nuisance are the commonest causes of action which give rise
to claims for damages in respect of personal injuries. To mention them
specifically without adding the word "other" before "breach of duty" is not
in itself sufficient to give rise to any inference that the wide general words
were not intended to cover all causes of action which give rise to claims for
damages in respect of personal injuries; particularly when the same
combination of expressions in a similar context had already been given a
very wide interpretation by the Court of Appeal.
On these grounds I would hold that the limitation period for this action was
three years and would allow the appeal.
Order:- Appeal allowed; Judgment entered for the Defendant, with costs in
the Court of Appeal and in the Court below, the Order for costs not to be
executed except on further application to the Court of Appeal. Payment out
to the Defendant of the £575 in Court. Legal Aid taxation on behalf of the
Plaintiff. Leave to appeal to the House of Lords refused.