Letang -v- Cooper; CA 15 Jun 1964

References: [1965] 1 QB 232, [1964] EWCA Civ 5, [1964] 2 Lloyd’s Rep 339, [1964] 2 All ER 929, [1964] 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 ([1963] 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 ([1945] 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: . .

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