The UK underwent more changes in the twentieth century than in any other; and this was as true of its legal system as it was of any other feature of British society. In a work of huge scholarship and learning, Professor Paul Mitchell has made a splendid start in helping us make sense of the changes in tort law in England and Wales that occurred over the first half of the twentieth century.
The book is split into two, uneven, parts. The first, larger, part deals with developments in tort law in various different areas: (1) academic writing about tort law; (2) the impact of war on the application of tort law, in particular with regard to public body liability for injuries suffered by plaintiffs colliding during blackouts with obstacles placed on the road or pavement by a public body; (3) tort law's treatment of women in first half of the twentieth century, both in allowing their husbands to sue for others seducing them and in allowing women to bring claims for loss of services, or unjust accusations of being raped, or for psychiatric illness; (4) the position of children, again as giving rise to parental claims for seduction, and as plaintiffs bringing claims for injuries suffered on other people's property for loss of expectation of life; (5) the treatment of the media, in particular with regard to their being held strictly liable for publishing articles that might have the effect of blackening a plaintiff's reputation, and the workings of the Porter Committee (1939–48) that made various recommendations for liberalising the law on defamation that eventually underpinned the Defamation Act 1952; (6) the development of tort law to cope with the increasing use of motor cars; and (7) attempts to subvert the doctrine of common employment (under which an employee could not sue his employer in respect of injuries caused by a fellow employee's negligence) by allowing employees to bring claims against their employers for breach of statutory duty or breach of a non-delegable duty of care.
The second part of the book deals with the work done by the Law Revision Committee, which was created in 1933, and which was responsible for the enactment of: (1) the Law Reform (Miscellaneous Provisions) Act 1934, which abolished the actio personalis rule (that tort claims die with the plaintiff); (2) the Law Reform (Married Women and Tortfeasors) Act 1935, which abolished husbands’ vicarious liability for their wives’ torts and allowed tortfeasors who were liable for the same loss to bring claims in contribution against each other; and (3) the Law Reform (Contributory Negligence) Act 1945, under which contributory negligence was made to operate as a partial defence, rather than a complete defence, to claims in tort.
Professor Mitchell's focus is on helping us understand the narrative flow of events as tort law's various tributaries widened and contracted between 1900 and 1950, and to bring to life the individuals involved in those developments. Academics who think of tort law as ascending through a series of incremental improvements to a juristic heaven of pure logic and reason will find little to comfort them here. Instead, Professor Mitchell presents us with a series of memorable and witty vignettes that show the vital importance of personality in shaping the future of tort law. For examples: (1) textbooks swapping positions on the nature of tort law as they changed editors (p. 29); (2) Scott L.J., in thrall to the views of his close friend Oliver Wendell Holmes on the dominance of fault-based liability in tort, refusing in the Court of Appeal to find the defendants strictly liable in Read v J Lyons & Co Ltd. [1945] 1 K.B. 216 (p. 67); (3) the modern-minded McCardie J., seeking to liberate wives from their legal subordination to their husbands, being slapped down by the much more conservative Scrutton L.J. (p. 80); (4) judicial distaste for popular newspapers resulting in the judges’ being happy to make them strictly liable for damaging people's reputations (pp. 151–58); (5) the author EM Forster coaxing his fellow committee members on the Porter Committee to appreciate the damaging effects the law of libel could have on literature and other creative works (p. 173); (6) Lord Wright struggling to preserve employees’ rights to sue their employers for compensation for injuries suffered at work in the face of statutory and judicial inroads on those rights while still trying to stay on the right side of fundamental legal principles in doing so (p. 228); (7) Sir Claud Schuster, the Permanent Secretary of the Lord Chancellor's Office, dismissing suggestions by Donald Somervell M.P. for reform of the civil law in January 1933, and then turning on a sixpence in February 1933 to accept Somervell's call for a committee be set up to examine proposals to reform the civil law (p. 247); (8) the casual appointments of two Cambridge academics who were not specialists in private law (Arnold McNair, an international lawyer; and Harold Gutteridge, a comparative lawyer) to the Law Revision Committee on the basis that they would be good on a committee (p. 250), which appointments resulted in their playing a decisive role in the drafting of the various Acts spawned by the committee; (9) which role that was made even more significant by the failure of Parliament to take much interest in the content of these Acts, with Lord Danesfort, an early committee stage critic of the Law Reform (Miscellaneous Provisions) Bill, being silenced by Lord Hanworth – the chairman of the Law Revision Committee – on the basis that ‘nobody who has not given continuous attention to the problems involved can speak with any authority …. It is not a matter on which you can bring a fresh mind, in the course of the last few minutes to bear’ (p. 265) – an early example of the ‘the man in Whitehall knows best’ (© Douglas Jay 1937) mentality that would figure so large in the second half of the twentieth century, in the legal world as much as anywhere else.
Tort lawyers worldwide are in Professor Mitchell's debt for his having worked so hard to remind them of the twists and turns of recent legal history, many of them accidental, by which we have arrived where we are now. However, there are some omissions that I think will prevent this book being regarded as giving us the definitive history of tort law in England and Wales in the first half of the twentieth century.
In the chapter on ‘Workmen’, the Act that finally did for the doctrine of common employment – the Law Reform (Personal Injuries) Act 1948 – is only mentioned in a footnote (p. 210, n. 3) and readers wanting an account of the genesis of the Act are referred to an article on the subject. More seriously, no account is given of the line of cases on the economic torts – from Taff Vale Railway Company v Amalgamated Society of Railway Servants [1901] AC 426 and Quinn v Leathem [1901] AC 495 (and the parliamentary reaction to those decisions in the Trade Disputes Act 1906) to Crofter Hand Woven Harris Tweed Co Ltd. v Veitch [1942] AC 435 – that emerged out of the courts’ attempts to grapple with the twin inheritance of Mogul Steamship Co Ltd. v McGregor [1892] AC 25 and Allen v Flood [1898] AC 1. There is no mention either of East Suffolk Rivers Catchment Board v Kent [1941] AC 421, a decision that is still of huge significance, as the recent decision of the UK Supreme Court in Michael v Chief Constable of South Wales [2015] UKSC 2 shows.
Readers will be surprised by the fact that Donoghue v Stevenson [1932] AC 562 is only mentioned in passing in the book. Professor Mitchell explains this on the basis that it was only in the 1960s and 1970s that Lord Atkin's approach to determining whether or not a defendant owed a plaintiff a duty of care was regarded as significant – within the time frame he is concerned with ‘The case's iconic status was all in the future’ (p. 5). Against this, it can be observed that: (1) the impact of the Porter Committee's deliberations on the law of defamation would only be felt after 1950 but they are still dealt with in depth in Professor Mitchell's book; (2) the fact that a dog does not bark may be an event worthy of note, and it would have been interesting to know why Lord Atkin's speech in Donoghue did not have more of an impact before 1950; (3) Professor Mitchell's approach has the potential to drop Donoghue v Stevenson into a legal historical black hole – which potential will be realised if authors of histories of tort law from 1950 onwards do not feel the need to deal with the genesis of Donoghue v Stevenson as that case was decided before 1950.
Professor Mitchell's detailed narrative approach to setting out the history of tort law also means that we only occasionally get a sense of extra-legal social developments and events having an impact on the development of tort law – as we do, for example, in his rationalisation of the Court of Appeal's decision in Fisher v Ruislip-Northwood UDC [1945] 1 K.B. 584 (recognising that local authorities owe pedestrians and road users a duty of care to protect them from obstructions that they have created) as being a ‘decision emphasising good citizenship and communal responsibility for individual misfortunes [that] was very much in tune with the times’ – that is, ‘a time [July 1945] when Britain was congratulating itself on having stood united against a technically superior enemy, and would soon be creating the institutions of the welfare state’ (p. 60). I would have welcomed more explanations of the development of tort law from 1900 onwards along those lines. For example, given Andrew Tettenborn's brilliant analysis of Donoghue v Stevenson as re-characterising the right that a manufacturer take care to see that you are not injured by his goods from being a right that you have to pay for to being a right that you get for free (see his ‘Professional Negligence: Free Riders and Others’ in Economides et al. (eds.), Fundamental Values (Hart, 2000), p. 295, n. 12), it is legitimate to wonder whether there were any links between that decision and the creation of a welfare state in the UK from 1906 onwards. I was also left wondering whether the devastating impact of World War I on British society – both at a personal and a social level – had more ramifications for tort law than Professor Mitchell's narrative tells us it did. For example, at the personal level, Lord Atkin's eldest son, Dickie, died in World War I – one wonders whether an experience like that marks you in a way that affects how you approach personal injury claims. At the social level, one wonders whether the recognition of the phenomenon of shell shock in the aftermath of World War I – a phenomenon that the courts were having to deal with in cases such as DPP v Beard [1920] AC 479 – accounts for why the courts began to be more willing to allow claims for nervous shock in the twentieth century. It would have also been interesting to know, at a time when we are supposed to labouring under a new age of austerity with very real consequences for access to civil justice, what impact the Great Depression had on people's abilities to take advantage of tort law from 1930 onwards.
Professor Mitchell's book does not provide us with answers to these questions (if, indeed, it is possible to know at this stage what those answers are); but this is not in any way to denigrate the considerable importance of his book, which should be regarded as essential reading for anyone interested in understanding why tort law in England and Wales takes the shape it does nowadays.
