References:  1 QB 232,  EWCA Civ 5,  2 Lloyd’s Rep 339,  2 All ER 929,  3 WLR 573
Links: Hamlyn, Bailii
Coram: Diplock LJ, Lord Denning MR, Danckwerts LJ
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking not a cause of action but a form of action. It was the form anciently used for a variety of different kinds of claim which had as their common element the fact that the damage was caused directly rather than indirectly; if the damage was indirect, the appropriate form of action was the action on the case. A negligent trespass to the person could only be pursued in negligence and not in trespass. A cause of action was defined: ‘a cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.’ (Diplock LJ)
Lord Denning MR said that the cause of action of trespass to the person was limited to intended acts, and that when the act was not intended the plaintiff’s cause of action lay in negligence. He referred to the Tucker report which parliament had not adopted: ‘In this very case, Parliament did not reduce the period to two years. It made it three years. It did not make any exception of ‘trespass to the person’ or the rest. It used words of general import; and it is those words we have to construe, without reference to the words of the Committee.’ ‘Breach of duty’ in the section meant any breach of duty: ‘Our whole law of tort today proceeds on the footing that there is a duty owed by every man not to injure his neighbour in a way forbidden by law. Negligence is a breach of such a duty. So is nuisance. So is trespass to the person. So is false imprisonment, malicious prosecution or defamation of character.’
Diplock LJ said that the cause of action in trespass included both intended and unintended acts. The expression ‘breach of duty’ in section 2 of the 1939 Act, as amended, included both intended and unintended trespass. ‘A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.’
Statutes: Personal Injuries (Emergency Provisions) Act 19392
This case cites:
- Adopted – Kruber -v- Grzesiak ( VR 621)
The plaintiff had issued a writ claiming damages for personal injuries caused by negligent driving more than three years after the accident, and now wanted to amend the writ by adding a claim for trespass to the person based on the same facts. The . .
- Applied – Billings -v- Reed CA ( KB 11)
The plaintiff’s wife had been killed by a negligently piloted RAF aeroplane. It was argued that, although this was a war injury, the language of section 3(1) did not exclude a claim based on trespass to the person.
Held: Lord Greene MR said: . .
This case is cited by:
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The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
- Cited – Bici and Bici -v- Ministry of Defence QBD ( EWHC 786(QB), Bailii, Times 11-Jun-04)
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
- Cited – A -v- Hoare QBD (Bailii,  EWHC 2161 (QB), Times 27-Oct-05,  ACD 12)
The defendant had been convicted and sentenced for the attempted rape of the claimant. He had subsequently won a substantial sum on the lottery, and she now sought damages. He replied that the action was statute barred being now 16 years old. The . .
- Cited – Stubbings -v- Webb and Another HL (Gazette 10-Feb-93,  AC 498,  2 WLR 120, Times 17-Dec-92)
In claims for damages for child abuse at a children’s home made out of the six year time limit time were effectively time barred, with no discretion for the court to extend that limit. The damage occurred at the time when the child left the home. A . .
- Cited – Harb -v- King Fahd Bin Abdul Aziz and Another CA (Times 21-Nov-05, Bailii,  EWCA Civ 1324)
The wife sought to continue her claim for ancillary relief despite the death of her husband, the former King of Saudi Arabia.
Held: The court’s jurisdiction over the King had been challenged. However the claimants claim now abated on the death . .
- Cited – A -v- Hoare; H -v- Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y -v- London Borough of Wandsworth CA ( Fam Law 533,  2 FLR 727,  1 WLR 2320,  3 FCR 673, Bailii,  EWCA Civ 395, Times 28-Apr-06,  1 WLR 2320)
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
- Cited – Hill (As Trustee In Bankruptcy of Nurkowski) -v- Spread Trustee Company Ltd and Another CA (Bailii, Times 10-Jul-06,  EWCA Civ 542,  1 BCLC 450,  1 WLR 2404)
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
- Cited – A -v- Hoare HL (Bailii,  UKHL 6, Times 31-Jan-08,  2 WLR 311, Gazette 14-Feb-08,  1 AC 844, (2008) 11 CCL Rep 249,  1 FCR 507,  Fam Law 402,  1 FLR 771, (2008) 100 BMLR 1,  2 All ER 1)
Each of six claimants sought to pursue claims for damages for sexual assaults which would otherwise be time barred under the 1980 Act after six years. They sought to have the House depart from Stubbings and allow a discretion to the court to extend . .
- Cited – Nolan -v- Wright ChD (Bailii,  EWHC 305 (Ch))
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
- Cited – Roberts -v- Gill & Co Solicitors and Others SC ( WLR (D) 130, WLRD, Bailii,  UKSC 22, SC, SC Summ, Bailii Summ,  PNLR 30,  WTLR 1223,  2 WLR 1227,  AC 240)
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
- Cited – Sarwar -v- The Royal Bank of Scotland Plc (Rev 1) ChD (Bailii,  EWHC 2233 (Ch))
The claimant appealed against a finding of indebtedness to the bank. He had said at trial that the bank had been charging interest at 25%. The bank denied this, but after trial it became clear that he had been correct. The bank argued for abuse of . .