#1678 - The Tort Of Negligence History - History of English Law

The Tort of Negligence

Liability for Unintentional Harm in the 15^th/16^th centuries:

15^th c/16^th: In 15^th/16^th c. do not want to punish. Focuses on the forcefulness of the conduct and the need to compensate C’s damage: Lack of intent to cause damage held to be irrelevant:

• Hulle v. Orynge – The Case of Thorns (1466); Move to strict liability

Facts: H brought trespass against O for cutting/taking trees valued at 5, and trampling on grass, valued at 5 marks.

O’s defence: He owned land adjoining H’s so was cutting a thorn hedge that was growing on his land. The thorns fell ‘against his will’ onto H’s land so he immediately went onto H’s land and threw the thorns back onto his own land.

Opinion favouring O:

• + Catesby argued: ‘If a man does something lawful whereby damage befalls another, against his will, he shall not be punished’. Cutting was lawful, and the falling of the thorns onto H’s land was against O’s will, so the taking back was permissible.

Opinions favouring H:

• + Bryan argued: ‘When someone does something he is bound to do it in such a way that no prejudice or damage is done to others by his action.

• + Littleton J: ‘If a man suffers damage it is right that he should be compensated’. Men have responsibility for their wandering cattle. ‘The law is the same in great things as in small’.

• + Choke LJ: ‘As to the point that they fell against his will, that is no plea; but he must say that he could not have acted in any other way, or that he did all he could to keep them out, or else he shall answer for the damage’. Case would be different if ‘the falling was not his act but was caused by the wind’.

Decision: Judgment given for H.

• Weaver v. Ward (1616);

Facts: C brought trespass against D and counted that D beat, wounded and ill-treated him with force and arms. D contended the he accidently, by misfortune and against his will injured C whilst discharging his musket.

Decision: Held for C. ‘No man shall be excused of trespass (for this is in the nature of an excuse, and no of a justification) except it may be adjudged utterly without his fault.’

• Gibbon v Pepper (1695);

Facts: C complained that Pepper (D) made assault upon him. D argued that his horse became terrified and ran away with him, and he warned passersby to look out.

Decision: Found in favour of P.

Reasoning: P was the cause of the accident. ‘In the same manner, if A takes the hand of B, and with it strikes C, A is the trespasser and not B’. Liability is to do with the nature of the act, not D’s intention.

Ways to avoid liability for trespass vi et armis:

• Break of causation argument – There was an intervening act of nature, an animal or a third party, so the trespass was not my fault.

• Carefulness argument – C might argue that he has been as careful as he could have been, but the harm happened anyway.

There was competition between the action on the case and trespass vi et armis.

17^th c: First signs of a tort of negligence, encompassing direct and indirect injuries, were found in a long series of cases. There were many disadvantages to bringing a trespass action:

• Accident may be the fault of the horse, or wind, so the jury might declare D not guilty of trespass.

• Jury might reduce damages if battery unintended (Angell v Satterton 1663).

On the other hand a declaration in case had benefits:

• Could focus the jury’s attention on the fault rather than the force, i.e. on D’s failing to anticipate or deal with those extrinsic forces.

• Vicarious liability could only be imposed by an action on the case. A master was liable for a servant’s act if he commanded them – although was no general concept of vicarious liability until late 17^th c.

• After 1670 there was a serious practical danger that recovery of nominal damages in trespass vi et armis carried only nominal costs, unless the judge was persuaded to certify that the trespass was both wilful and malicious (Statute 8 & 9 Will. III c.11).

• In case there was a longer limitation period.

= Pleaders began to contemplate the conversion of trespass actions into actions on the case.

Breakthrough in 1676 (only significant to later eyes): At time was just another case that did not quite fit formula

• Mitchell v. Allestry (1676);

Facts: An action against a master and servant who had broken in unruly horses in Little Lincoln’s Inn Fields and M was kicked and injured. This was not an action for negligent control of horses because evidence showed that had done all they reasonably could to prevent accident. The essence of the wrong was bringing the horses into a London square for breaking in ‘improvidently’, rashly and without due consideration of the unsuitability of the place’.

+ Baker: Suggests liability in such a case may have been allowed earlier, but this case makes the decision clear.

Change: Medieval times: D in trespass vi et armis might say, ‘I’m not liable as the conduct by me was not forceful’ e.g. the harm occurred during a relationship so C consented to the conduct; or, because the harm is indirect and causation was broken. Needed a custom of the realm in trespass on the case or scienter.

After Mitchell C does not need an undertaking or a custom of the realm. It is the first example of a general duty owed to others. Liability is imposed in an action on the case. This fills any Medieval gaps.

+ Baker: Thinks was no gaps as trespass vi et armis and trespass of relationship covered most things, except water.

By 1700: Lawyers were beginning to perceive a new general principle: that a man was ‘answerable for all mischief proceeding from his neglect or his actions, unless they were of...