Winfield and Jolowicz on Tort (Classics)

1822 Pages·2014·9.51 MB·English

by  James Goudkamp

2014
WINFIELD AND JOLOWICZ ON
TORT
NINETEENTH EDITION
2014
WINFIELD AND JOLOWICZ ON
TORT
NINETEENTH EDITION
EDWIN PEEL
Fellow of Keble College and Professor of Law, Oxford University
JAMES GOUDKAMP
Fellow of Keble College and Associate Professor of Law,
Oxford University
First Edition (1937) The Author
Second (1943) The Author
Edition
Third Edition (1946) The Author
Fourth Edition (1948) The Author
Fifth Edition (1950) The Author
Sixth Edition (1954) T. Ellis Lewis
Seventh (1963) J.A. Jolowicz and T. Ellis Lewis
edition
Eighth Edition (1967) J.A. Jolowicz with T. Ellis Lewis
Ninth Edition (1971) J.A. Jolowicz with T. Ellis Lewis and D.M. Harris Tenth Edition
(1975) W.V.H. Rogers
Eleventh (1979) W.V.H. Rogers
Edition
Twelfth (1984) W.V.H. Rogers
Edition
Thirteenth (1989) W.V.H. Rogers
Edition
Fourteenth (1994) W.V.H. Rogers
Edition
Fifteenth (1998) W.V.H. Rogers
Edition
Sixteenth (2002) W.V.H. Rogers
Edition
Seventeenth (2006) W.V.H. Rogers
Edition
Eighteenth (2010) W.V.H. Rogers
Edition
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Preface to the Nineteenth Edition
We begin this preface by paying tribute to our predecessor as author, Horton
Rogers. One of us had the good fortune to know Horton Rogers as mentor
and colleague, albeit briefly, and that has been acknowledged elsewhere. On
this occasion, we confine ourselves to recognising his work on this book,
which has spanned 40 years. In that time he has been responsible for nine
editions, which is the same as the combined output of all of the previous
authors. It is typical of his modesty that we received no request that he should
be added as an eponymous author; we would not have demurred.
The first edition of this book appeared shortly after the momentous
decision in Donoghue v Stevenson and, by the time that Horton Rogers took
over its authorship in 1975, the law of negligence, and of many other torts,
had undergone rapid development. The rate of change continued to accelerate
in the decades immediately following 1975 (in the preface to the eighteenth
edition Home Office v Dorset Yacht Co Ltd was singled out as the first
engagement in a 40-year “Duty of Care War”), due partly to major
developments in the field of human rights. The fact that Horton was writing
about a rapidly moving target, coupled with a tremendous increase in the
volume of case law over the period of his authorship, must have made the
process of updating this book a monumental task.
Nevertheless, all of the changes were woven expertly and deftly into the text
without sacrificing the clarity and insightful analysis for which Horton
Rogers was well known, as a result of his work on this book and by his many
other publications.
Our predecessor would be the first to admit that for several editions under
his watch the law had the irritating habit of undergoing major development
shortly after the text had been submitted, but before publication. This was
often too much to cater for at the proofs stage. As a result, the prefaces of
several editions became masterfully concise mini-chapters regarding the way
in which parts of the book should be read in the light of such developments.
Mercifully, we have been spared the need to deal with any major
development in this preface. However, this is not to say that the law has stood
still since the eighteenth edition; it has, rather, conveniently chosen to move
on in the period prior to submission of the text.
In terms of legislation, the most significant developments have been the
coming into force of the Defamation Act 2013 and an amendment to s.47(2)
of the Health and Safety at Work etc. Act 1974. The former has been much
heralded and has required a major rewriting of the chapter on Defamation
(Ch.13). The latter is, arguably, of much greater practical significance leading
as it does to a reversal in the presumption of actionability for breach of health
and safety regulations. The potential significance of this still very recent
development is considered in Chs 8 and 9.
Over 250 new cases are referred to in this edition and many more than that
were read. In some of the decisions that have been incorporated into the book
the courts have continued to explore the limits of liability in negligence and,
in particular, the law relating to causation. One significant development in
this regard is the decision of the Supreme Court in Sienkiewicz v Greif (UK)
Ltd, but perhaps less so for its confirmation of the approach to mesothelioma
claims than for the observations of the Justices on other ways of resolving the
question of causation in different types of claims based on epidemiological or
statistical evidence. Sienkiewicz may, however, be overshadowed by the
anticipated decision of the Supreme Court in International Energy Group Ltd
v Zurich Insurance Plc UK Branch. For now, this edition takes note of the
decision of the Court of Appeal, itself based on observations made by the
Supreme Court in Durham v BAI (Run Off) Ltd v Independent Insurance Co
Ltdconcerning the correct interpretation of Barker v Corus UK Ltd. These
decisions and several others have necessitated a significant rewriting of parts
of the chapter on causation and remoteness (Ch.7).
One area of law which has certainly been “on the move” since the last
edition is vicarious liability. This is precisely the phrase used by Lord Phillips
in Child Catholic Welfare Society v Institute of the Brothers of the Christian
Schools to describe the developments that have taken the doctrine beyond the
traditional employment context. That case was shortly followed by the
decision of the Supreme Court in Woodland v Essex CC to extend the scope
of non-delegable duties of care. These decisions and others that have
reassessed the scope of liability for the wrongs of others required that
significant revisions be made to the chapter on Vicarious Liability (Ch.21).
Relatively late on in the process of writing this edition the Supreme Court
delivered its decision in Coventry v Lawrence, a case which raised many
contentious issues in the law of nuisance. The chapter on Nuisance (Ch.15)
has been rewritten to reflect that decision (some consequential changes were
also made to the chapter on Remedies (Ch.23), but given the radical nature of
some of the solutions adopted, and suggested for the future (most notably, the
appropriate remedy), further decisions in this area are very likely).
Other decisions of note at the highest level and the chapters which have
been partially rewritten as a result are: Jones v Kaney, removing the
immunity in negligence of expert witnesses (Duty of Care, Ch.5); Baker v
Quantum Clothing Group Ltd (Breach of Duty, Ch.6, and Breach of Statutory
Duty, Ch.8); Smith v Ministry of Defence on the liability of the government to
members of the armed forces injured while on duty (Duty of Care, Ch.5);
Rabone v Pennine Care NHS Trust (Duty of Care, Ch.5); AB v Ministry of
Defence on limitation (Defences, Ch.26); Hayes v Willoughby, R (Lumba) v
Secretary of State for the Home Department and R (Kambadzi) v Secretary of
State for the Home Department (Trespass to the Person and Related Matters,
Ch.4); Bocardo SA v Star Energy
UK Onshore Ltd(Trespass to Land, Ch.14); and Crawford Adjusters Ltd v
Sagicor Insurance Ltd on the tort of malicious prosecution (Abuse of Legal
Procedure, Ch.20).
In relation to the Court of Appeal, the decision in International Energy
Group Ltd v Zurich Insurance Plc UK Branchhas already been noted. Others
of note include Chandler v Cape Plc on the duties of care that a parent
company may owe to those affected by the conduct of a subsidiary (Duty of
Care, Ch.5; Capacity, Ch.25); Everett v Comojo (UK) Ltd on liability for
third parties (Duty of Care, Ch.5); E v English Province of Our Lady of
Charity (Vicarious Liability, Ch.20); Delaney v Pickett and Joyce v O’Brien
on illegality (Defences, Ch.26); Goldsmith v Patchcott and Turnbull v
Warrener (Animals, Ch.17); Gore v Stannard on liability for fire (Rylands v
Fletcher, Ch.16); Hide v Steeplechase Co (Cheltenham) Ltd (Breach of
Statutory Duty, Ch.8); Scullion v Bank of Scotland Plc (Liability for
Statements, Ch.12); Tamiz v Google Inc (Defamation, Privacy and Related
Matters, Ch.13); and Swift v Secretary of State for Justice and Haxton v
Philips Electronics UK Ltd (Death in Relation to Tort, Ch.24).
As authors, we have our own personal favourites. Geary v JD Wetherspoon
Plc (Liability for Land and Structures, Ch.10) is notable for making real the
well-known dictum of Scrutton LJ in The Carlgarth that “[w]hen you invite a
person into your house to use the staircase you do not invite him to slide
down the bannisters”. Although it was not necessary to include it in the text,
one of the authors welcomed the nostalgia of Scout Association v Barnes in