Source 3
Extract adapted from the judgment of Lord Denning MR in Letang v Cooper [1965] 1 QB 232 CA.
A woman was sunbathing in the grounds of a hotel when the defendant negligently drove over her legs. Her complaint was issued more than three years later and so her normal action for personal injury in negligence was time barred under the Limitation Act, so she claimed as an alternative under trespass, for which the general limitation period of six years applied. She succeeded in the High Court but failed in the defendant’s appeal. LORD DENNING MR: The argument, as it was developed before us, became a direct invitation 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 [negligence] after three years, whereas trespass to the person is not barred for six years. The truth is that the distinction between trespass and case is obsolete .… Instead of dividing actions for personal injuries into trespass (direct damage) or case (consequential damage), we divide the causes of action now according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’, per Holt CJ in Cole v Turner [(1704) 90 ER 958], if he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today 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 [has been] well expounded .… 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 today. |