to some of the cases which we believe justify the contrary view.3 We think that it is similar to the opinion of an eminent jurist.1 The mere fact, however, that text-books of great weight are not in agreement implies a certain lack of harmony in the materials with which they have dealt, and this is an unfortunate fact in the law of negligence during the last 100 years. We look upon the cases in Appendix A as tipping the balance in one direction; we should be the last to deny that there is nothing in the other pan of the scales. There are many other cases (some of them recent) which proceed on the tacit assumption that injury to the person or property of a plaintiff is presumptively wrongful and redressible by actions for assault and the like where the injury is wilful, and by an 'action for damages for personal injuries (or injuries to property)' arising from defendant's negligence where the injury is inadvertent.5 Nor have living judges ceased to speak of an action on the case for negligence.' The action on the case has been the life-blood of the English law of torts, but it is calculated to make any professor of jurisprudence desperate. So far as it affects negligence, we can point to several of its loose strands in the nineteenth century, and first of one that trails off into contract. In 1844 the House of Lords held, in an action upon the case for negligence in the performance of a contract, that, wherever something is to be done in the course of the employment which is the subject of the contract, the party injured by a breach of duty in such employment may recover either in contract or in tort. This principle has been followed in later cases. Another aspect of the same matter is the confusion occasioned by allegations of negligence in the manufacture or in the condition of some article which one man has sold to another, who has been injured by a flaw in it. Then, as to nuisance, it might be said until quite recently that there was a hybrid action of nuisance and negligence. Sometimes it looks as if negligence were the substance of the action, and nuisance were an untechnical term 1; sometimes the exact reverse would be the truth, and then, again, negligent' has figured as a persistent

Appendix A, post.

6

Sir F. Pollock, Law of Torts (ed. 12), ch. xi.

E.g. N. E. R. v. Wanless (1874) L. R. 7 H. L. 12.

E.g. Bankes L.J. in Coldman v. Hill [1919] 1 K. B. at p. 449.

Brown v. Boorman (1844) 11 Cl. & Fin. 1.

8

E.g. Hyman v. Nye (1881) 6 Q. B. D. 685, especially Lindley J. at p. 689; Marney v. Scott [1899] 1 Q. B. at p. 989; Columbus Co. v. Clowes [1903] 1 K. B. 244.

4

term in the declaration which the Court persistently ignored in deciding on grounds of nuisance. Finally, there are judgments that must have gone on one ground or the other, but on which must remain a secret. Nowadays, however, judges show a strong tendency to exorcise this ghost of action upon the case, and to insist that nuisance is one tort and negligence another." It is worth while noting here that deceit was disembarrassed of negligence in 1889. What is of much greater interest is that in George v. Skivington' the Court reached exactly the same destination by the route of negligence as had been reached by the route of deceit a generation earlier in Langridge v. Levy. In the earlier case the pleader uses negligence' as a mere make-weight in describing deceit; in the later ideas about negligence as an independent tort are clarifying, and it is impliedly recognized as such by the whole Court. Of the relation of negligence to bailment in earlier times we have already spoken. It survives to the present day, and does not make it the easier to disentangle negligence as a tort from negligence as a mode of breaking some other legal duty. There is not the least reason to suppose that negligence has lost this latter meaning. From mediaeval times negligenter has been a pleader's adverb,' and such it still remains. It had several other masks, such as carelessly,' improperly,' and the like, and so little importance was attached to preference of one of these terms as against the others that case for negligence is discoverable when the declaration does not use that particular word at all. If we might interpret the attitude of our judges towards negligence at the present day, we venture to think that they might say: We recognize a tort of negligence, but we are not going to abandon its other sense of inadvertence as a mental element in many other wrongs civil and criminal.'

Gandy v. Jubber (1864) 5 B. & S. 78; Borough of Bathurst v. Macpherson (1879) 4 App. Cas. 256.

4

E.g. Blackburn J. in Tarry v. Ashton (1876) 1 Q. B. D. 314.

Cf. the judgments of the other L.JJ. with that of Fletcher Moulton L.J. in Wing v. L. G. O. Co. [1909] 2 K. B. 652, at p. 665, and with Gibbons v. Vanguard Motor-bus Co. Lim. (1908) 25 T. L. R. 13, and Parker v. L. G. O. Co. Lim. (1909) 100 L. T. 408; 101 L. T. 623. The current view seems to be established in Latham v. R. Johnson & Nephew [1913] 1 K. B. at p. 413; Wheeler v. Morris (1915) 84 L. J. K. B. at p. 1438; Heath's Garage, Lim, v. Hodges [1916] 2 K. B. at p. 376; and Pritchard v. Peto [1917] 2 K. B. at p. 176.

6

Derry v. Peek, 14 App. Cas. 337.

(1837) 2 M. & W. 519.

' (1869) L. R. 5 Ex. 1.

E.g. in escape of fire. See L. Q. R. vol. xlii, 46-50. Cf. Y.B. Mich. 12 Edw. IV, f. 13. Nineteenth-century books of pleading show both meanings of negligence. See Chitty Junior, Precedents in Pleading (ed. 1868), Negligence," Mischievous animals,' Mines,' &c.

1 Dixon v. Bell (1816) 5 M. & S. 198.

One final point. We have seen that, special cases apart, there was little liability in tort for mere omission down to the end of the eighteenth century. That century made a great change in this respect-so great, indeed, that we think that whether a man's negligence consist of an act or of an omission he is equally liable for that tort, provided its other requisites are satisfied. This view is wider than that of an eminent legal historian, and we have, therefore, been obliged to support it by the references contained in Appendix B.3

It is suggested that this outline of the history of negligence has, with a certain amount of qualification and addition, made good the predictions of a brilliant American writer as to its probable course.4 PERCY H. WINFIELD.

APPENDIX A.

The following judicial dicta indicate the existence of an independent tort of negligence:

Aston v. Heaven (1797) 2 Esp. at p. 535 (This action is founded entirely on negligence'); Laugher v. Pointer (1826) 5 B. & C. at p. 553 (Every man is answerable for injuries occasioned by his own personal negligence'); Lynch v. Nurdin (1841) 4 P. & D. at p. 674 (It was an action of tort for negligence'); Winterbottom v. Wright (1842) 10 M. & W. at p. 115 (Action for negligence in effect described as an 'action of tort'); Swan v. N. B. Australian Co. (1862) 7 H. & N. at p. 636 (The action for negligence '); Hammack v. White (1862) 11 C. B. (N.s.) 588 (The action is brought for damage caused by the negligence of the defendant '); Ford v. L. & S. W. R. Co. (1862) 2 F. & F. at p. 732 (The action is grounded on negligence'); Fletcher v. Rylands (1865) 3 H. & C. at pp. 789-790 (Negligence impliedly recognized as a tort); Lee v. Riley (1865) 18 C. B. (N.s.) at p. 735 (The foundation of the action is negligence'); Walton v. L. B. & S. C. R. Co. (1866) 1 H. & R. at p. 429 (Actions for negligence, which are of frequent occurrence both in the superior and in the County Courts'); Gautret v. Egerton (1867) L. R. 2 C. P. at p. 375 (Actionable negligence'); George v. Skivington (1869) L. R. 5 Ex. 1 (practically the whole Court impliedly recognized it as a tort); Burrows v. March Gas and Coke Co. (1872) L. R. 7 Ex. at p. 96 ('The action is not for negligence in its ordinary sense'); Radley v. L. & N. W. R. Co. (1876) 46 L. J. (N.s.) Ex. at p. 575 (An action for negligence'); Dublin, &c. R. Co. v. Slattery (1878) L. R. 3 App. Cas. at p. 1162 (Action . . . to

2 Jenks, History of English Law, p. 320.

Post.

Wigmore in Harvard Law Review, vii, at pp. 453-454. See also Holdsworth, History of English Law, viii, 449-459.

.

recover damages for their negligence '); Heaven v. Pender (1883) 11 Q. B. D. at p. 510 ( And for a neglect of such ordinary care or skill whereby injury happens a legal liability arises to be enforced by an action for negligence'); Tolhausen v. Davies (1888) 57 L. J. (N.s.) Q. B. at p. 394 (What is commonly called an action for negligence'); The Calliope (1889) 14 P. D. at p. 139 ( This action must be considered as an action of negligence '); Coupé Co. v. Maddick [1891] 2 Q. B. at p. 415 (Negligence impliedly recognized as a tort); Dulieu v. White & Sons [1901] 2 K. B. at pp. 671, 673 (An action on the case for negligence,' 'Action for negligence'); Jones v. Lee (1912) 106 L. T. at p. 125 (The plaintiffs' cause of action clearly was negligence and nothing else,' and later, What is called an action for damages for negligence'); Rickards v. Lothian [1913] A. C. at p. 273 (An ordinary action for negligence'); Latham v. R. Johnson & Nephew [1913] 1 K. B. at p 413 (The difference between cases of nuisance and cases of negligence must never be lost sight of '); Wheeler v. Morris (1915) 84 L. J. K. B. at p. 1438 (same effect as last case); Heath's Garage, Lim. v. Hodges [1916] 2 K. B. at p. 376 (same effect); Pritchard v. Peto [1917] 2 K. B. at p. 176 (same effect); Cheater v. Cater [1917] 2 K. B. at p. 521 (How does the plaintiff lay his action? Not in negligence '); Banbury v. Bank of Montreal [1918] A. C. at p. 710 (It is an action for negligence and breach of duty'); Coldman v. Hill [1919] 1 K. B. at p. 449 (Action on the case for negligence '); Grayson, Lim. v. Ellerman Line, Lim. [1920] A. C. 466 (Negligence impliedly recognized as a tort); Att.-Gen. v. Cory Brothers & Co. [1921] 1 A. C. 521 (same effect).

APPENDIX B.

Omission appears to ground liability for the tort of negligence just as much as an act of commission. Proof of this is found: (i) In Baron Alderson's definition in Blyth v. Birmingham W. W. Co. (1856) 11 Ex. at p. 784; adopted or paraphrased by Brett J. in Smith v. L. & S. W. R. Co. (1870) L. R. 5 C. P. at p. 502; Bridges v. N. L. R. Co. (1874) L. R. 7 H. L. at p. 232; Wakelin v. L. & S. W. R. Co. [1896] 1 Q. B. at p. 191; and by Mathew and Smith JJ. in Tolhausen v. Davies (1888) 57 L. J. (N.S.) Q. B. at p. 394. (ii) In most cases dependent on res ipsa loquitur, for, as the cause of the accident is unexplained, it may be omission just as well as an act; see Kelly C.B. in Kearney v. L. B. & S. C. R. Co. (1871) 40 L. J. (N.s.) Q. B. at p. 286. (iii) In the following cases generally: Harmond v. Pearson (1808) 1 Camp. 515; Coupland v. Hardingham (1813) 3 Camp. 398; Lynch v. Nurdin (1841) 4 P. & D. 672; Clayards v. Dethick (1848) 12 Q. B. (N.s.) 439; Marfell v. S. Wales R.

Co. (1860) 8 C. B. (N.s.) 525; Pickard v. Smith (1861) 10 C. B. (N.S.) 470; Groucott v. Williams (1863) 52 L. J. (N.S.) Q. B. 236; Mersey Docks Trustees v. Gibbs (1864) 11 H. L. C. 686; Mose v. Hastings Gas Co. (1864) 4 F. & F. 324; Lee v. Riley (1865) 18 C. B. (N.s.) 722; Stapley v. L. B. & S. C. R. Co. (1865) L. R. 1 Ex. 21; Bilbee v. L. B. & S. C. R. Co. (1865) 18 C. B. (N.S.) 584; Gautret v. Egerton (1867) L. R. 2 C. P. at p. 375; Welfare v. L. & B. R. Co. (1869) 38 L. J. (N.s.) Q. B. 241; Cliff v. M. R. Co. (1870) L. R. 5 Q. B. 258; Foreman v. Mayor of Canterbury (1871) L. R. 6 Q. B. 214; Tarry v. Ashton (1876) 1 Q. B. D. 314; Lay v. M. R. Co. (1876) 34 L. T. 30; Dublin, &c. R. Co. v. Slattery, L. R. 3 App. Cas. 1155; NitroPhosphate, &c. Co. v. London and St. Katharine's Dock Co. (1878) 9 Ch. D. 503; Gray v. N. E. R. Co. (1883) 48 L. T. 904; Hurst v. Taylor (1885) 14 Q. B. D. 918; Wakelin v. L. & S. W. R. Co. (1886) 12 App. Cas. at p. 44, and [1896] 1 Q. B. at pp. 191, 193; Simkin v. L. & N. W. R. Co. (1888) 21 Q. B. D. at p. 456; Hawker v. Shearer (1887) 56 L. J. (N.S.) Q. B. 284; Crisp v. Thomas (1890) 63 L. T. 756; Smith v. S. E. R. Co. [1896] 1 Q. B. 178; Jackson v. L. C. C. (1912) 10 L. G. R. 348; London, Tilbury, &c. R. Co. v. Paterson (1913) 29 T. L. R. 413; Wintle v. Bristol Tramways, Lim. (1917) 86 L. J. K. B. 240, 936; Morrison v. Sheffield Corporation [1917] 2 K. B. 866; Baldock v. Westminster City Council (1919) 88 L. J. K. B. 502; Abbot v. Isham (1921) 90 L. J. K. B. 309; Jones v. G. W. R. Co. (undated) L. R. 2 C. P. at p. 634, n. (3). Note that in several of these cases, especially before the Judicature Act, the pleader combined allegations of positive acts with allegations of omissions, no doubt to stop up every bolt-hole of procedural evasion. It was certainly not because omission by itself grounded no liability, for the Bench repeatedly negatived any such idea. Cliff v. M. R. Co. (1870) L. R. 5 Q. B. 258, is a good example of the pleader's seizing on every conceivable act and omission in the history of the accident and linking them up in the declaration.

14

VOL. XLII.