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Motor-cars and the Rule in Rylands v. Fletcher: a Chapter of Accidents in the History of Law and Motoring

Published online by Cambridge University Press:  16 January 2009

J. R. Spencer
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Extract

Readers of A. P. Herbert's Misleading Cases will recall the fictitious decision in Haddock v. Thwaile, where the Court of Appeal extended strict liability under Rylands v. Fletcher to motor-cars on the highway, and—carried away on a tide of Luddite eloquence—revived and extended the law of deodand by ordering the unfortunate motorist's car to be destroyed. Nowadays it is almost forgotten that this story is nearly based on fact. Before the First World War, at the dawn of the motor age, the English courts came within a whisker of imposing strict liability upon the owner of a motor-car for all the damage which it causes in use.

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Articles
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The Cambridge Law Journal , Volume 42 , Issue 1 , April 1983 , pp. 65 - 84
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Copyright © Cambridge Law Journal and Contributors 1983

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References

1 Uncommon Law, 1964 ed., p. 124.Google Scholar

2 Scott, v. Shepherd, (1773) and the Emergence of the Tort of Negligence (Selden Society Lecture 1976), p. 16Google Scholar, referring to Browne, W., Entries, p. 366.Google Scholar

3 (1676) 1 Vent. 295; 3 Keb. 650; 2 Lev. 172

4 See, for example, Pollock, , Law of Torts, 15th ed., Landon, P. A., pp. 128et seq.Google Scholar

5 Baker, J. H., Introduction to Legal History, 2nd ed., pp. 340et seq.Google Scholar

6 Gibbons v. Pepper (1695) 2 Salk. 637; 1 Ld.Raym. 38; 4 Mod. 404.

7 R. v. Feely [1973] Q.B. 530; R. v. Mclvor [1982] 1 All E.R. 491; R. v. Ghosh [1982] 3 W.L.R. 110.

8 (1875) 10 Ex. 261.

9 Priestley, v. Fowler, (1837) 3 M. & W. 1.Google Scholar

10 Thomas, v. Quartermaine, (1887) 18 Q.B.D. 685; in effect reversed in Smith v. Baker [1891]Google Scholar A.C. 325 (Lord Bramwell dissenting).

11 (1860) 3 B. & S. 66, 84.

12 (1868) L.R. 3 H.L. 330.

13 Fletcher v. Rylands (1866) L.R. 1 Ex. 265, 279.

14 Newark (1949) 65 L.Q.R. 480, 487.

15 (1868) L.R. 3 Q.B. 733.

16 The courts made a mess of this. In Vaughan v. Taff Vale Ry. (1860) 5 H. & N. 679 they held that the Taff Vale Railway's enabling statute impliedly negatived their liability for accidental fires, and then reached the opposite conclusion in Jones v. Festiniog Railway by finding that company's statute to be subtly different. The confusion was sorted out by the Railway Fires Acts 1905 and 1923, which imposed strict liability but limited claims to £200.

17 The primary meaning, now largely forgotten, is “personal observation” (Shorter Oxford Dictionary). Presumably it was easier to write “Autopsy” on the side of a coach than “Seeing is Believing,” which was the idea behind the name.

18 And indeed on the rails as well. In 1832 there was a serious attempt to close the recentlyopened Stockton and Darlington Railway by prosecuting the proprietor for the crime of public nuisance because the locomotives scared horses: R. v. Pease (1832) 4 B. & Ad. 30.

19 24 & 25 Viet. c. 70. A speed limit of 5 m.p.h. was imposed.

20 28 & 29 Viet. c. 83.

21 (1861) 2 F. & F. 629.

22 (1880) 5 Q.B.D. 597.

23 Galer v. Rawson (1889) 6 T.L.R. 17 (C.A.): horse frightened by a traction-engine; plaintiff failed, but court said he would have won if he had not limited his arguments to negligence; Bantwick v. Rogers (1891) 7 T.L.R. 542 (D.C.): horse frightened by traction-engine; Jeffrey v. St. Pancras Vestry (1894) 63 L.J.Q.B. 618 (D.C.): horse shied at steam-roller puffing as it went uphill; Chichester Corpn. v. Foster [1906] 1 K.B. 167: crushed water-main; Gunter v. James (1908) 24 T.L.R. 868: sparks from a traction-engine fired a barn.

24 (1919) 88 L.J.K.B. 323.

25 Whether it still applies depends on how far Read v. Lyons [1947] A.C. 156 has affected this and other extensions of Rylands v. Fletcher.

26 Hadwell v. Righton (1907] 2 K.B. 345.

27 A similar question had arisen 20 years earlier in relation to steam and electric trams. These, like railways, were invariably run under statutory authority, and this fact led the courts to assume there was liability for negligence only; but they came near to imposing strict liability in Sadler v. South Staffs. & Birmingham District Steam Tramways (1889) 23 Q.B.D. 17.

28 See counsel's opinion on liability for skidding, quoted in The Autocar, 3 November 1906, p. 605. He said that liability was strict, which the editor said was “regrettable,” and was “a very powerful argument in favour of insurance against such risks.” A late example of a county court judge taking this line is given in The Autocar, 12 March 1910. Judge Lindley said: “In my opinion if a person brings on to the highway a machine worked by a series of explosions of an explosive mixture, and from some cause or other directly connected with the working of the machine, an explosion of this mixture does occur accompanied by a noise calculated to frighten a horse of ordinary nerve, courage, temper and training, to such an extent as to endanger the person riding or driving it, the machine is for the time being a nuisance, and owner responsible for any damage caused thereby.”

29 (1908) 25 T.L.R. 14.

30 The problem was exacerbated by the existence of rival companies, whose drivers used to race and cut each other up. The advent of the motor-bus in London caused such a spate of accidents that the House of Commons appointed a select committee to investigate the matter, which reported in 1913: Report from the Select Committee on Motor Traffic, H.C. 278 (1913). There is a photograph of a London bus in the very act of skidding in The Autocar, 9 February 1907, p. 193.

31 At p. 440.

32 [1909] 2 K.B. 652.

33 (1909) 73 J.P. 283.

34 After the Court of Appeal had reaffirmed strict liability for traction-engines in Mansel v. Webb (1919) 88 L.J.K.B. 323, the plaintiff tried to argue strict liability for motor-lorries in Phillips v. Britannia Hygienic Laundry [1923] 1 K.B. 539. In the King's Bench Division, McCardie J. said “So to hold would be contrary to the express and implied effect of the general body of decisions,” and this argument was not even put to the Court of Appeal.

35 See W. Plowden, The Motor Car and Politics 1896–1970 (1971), p. 63. The Daily Mail led the public outcry. Its staff must have been embarrassed when it later came out that the offending car belonged to Hildebrand Harmsworth, Lord Northcliffe's brother!

36 Bamford v. Turnley, ante, n. 11; Powell v. Fall, n. 22, supra; Hammersmith Railway v. Brand (1869) L.R. 4 H.L. 171, 188.

37 At pp. 9 et seq.

38 Rickards v. Lothian [1913] A.C. 263.

39 Cf. Humphrys v. Cousins (1877) 2 C.P.D. 239 with St. Anne's Well Brewery Co. v. Roberts (1928) 140 L.T. 1.

40 [1947] A.C. 156.

41 [1964] 2 Q.B. 806.

42 [1961] A.C. 388.

43 Galer v. Rawson; Jeffrey v. St. Pancras Vestry, n. 23, supra.

44 Harris v. Mobbs (1878) 3 Ex.D. 268; Wilkins v. Day (1883) 12 Q.B.D. 110.

45 The equivalent section of the Locomotive Act 1861 (s.13) was easier to construe in this way, and may have affected judicial thinking: “Nothing in this Act contained shall authorise any person to use upon a highway a locomotive engine which shall be so constructed or used as to cause a public or private nuisance; and every such person so using such engine shall, notwithstanding this Act, be liable to an indictment or action, as the case may be, for such use, where, but for the passing of this Act, such indictment or action could be maintained.”

46 (1908) 25 T.L.R. 14.

47 (1909) 73 J.P. 283.

48 (1910) 26 L.Q.R. 3–4.

49 He developed his theory further, and faced the objection about the plaintiff's possibly obtaining an injunction, in his dissenting advice to the House of Lords in Hammersmith Railway v. Brand (1869) L.R. 4 H.L. 171, 188.

50 See Stephen Tromans (1982) 41 C.L.J. 87, 105.

51 W. A. Dinsdale, History of Accident Insurance in Great Britain (1954), pp. 179, 202.

52 Dinsdale, op. cit., p. 177, where he cites the views of the Manchester Steam Users' Association, which said that boiler insurance was likely to encourage boiler explosions, and the advice of parliamentary counsel to various railway companies not to arrange accident cover for passengers, as this would arouse the opposition of the Board of Trade.

53 [1921] 3 K.B. 327.

54 On this, see the remarks of the Earl of Plymouth in the debate on the Road Traffic (Compensation for Accidents) Bill 1933, H.L.Deb., Vol. LXXXVI, cols. 1072–1073.

55 According to Plowden, op. cit., n. 35. the same attitude was widespread 20 years later. “When compulsory insurance became a major issue at the end of the 1920s, the implicit view of the motoring interests was still that so much—in their view, too much—having been done to control the use made of the motor car. any injury it might do to third parties must be their fault, and that there was no case for compensating them—and least of all for requiring motorists to guarantee compensation by taking out an insurance policy” (p. 242).

56 The Autocar, 25 February 1905.

57 Ibid. These examples could be multiplied many times. Cf R. T. Sloss, The Book of the Automobile (New York 1905), p. 215, who advises motorists not to run over dogs because the impact is capable of breaking a wheel!

58 Keir and Morgan, eds. Golden Milestone, 50 Years of the A.A., p. 35.

59 Ibid., at pp. 1–50.

60 Plowden, op. cit., n. 35, Chap. 4.

61 The Autocar, 18 March 1905.

62 Plowden, loc. cit., n. 60.

63 From the list of members published in the R.A.C. Handbook for 1911. In fairness to the judiciary, it must be mentioned that Lord Alverstone, who favoured strict liability in Gibbons v. Vanguard Motorbus Co. (ante, n. 29) was also a member of the A.A. and of the R.A.C.

64 The Times, 31 July 1975; cf. Davies v. Journeaux [1975] 1 Lloyd's Rep. 483.

65 [1971) 2 Q.B. 691.

66 [1973] A.C. 127.

67 [1970] A.C. 282.

68 Hunter v. Wright [1938] 2 All E.R. 621, 625.

69 Report of the Pearson Commission, Cmnd. 7054, Vol. I, p. 209.

70 Ante, n. 64.

71 Pearson Commission Report, Vol. I, p. 225.

72 What Next in the Law (1982), p. 128.

73 See the table in the Pearson Commission Report, Vol. Ill, Annex 1.

74 Gesetz über den Verkehr mil Kraftfahrzeugen (1909) Reichsgesetzblatt, 437.

75 1853–1935; as John Butcher, he was successively a Fellow of Trinity College, Cambridge, and Conservative M.P. for York. As Lord Danesfort from 1924, he was a well-known Tory peer with a gift for unsuccessful causes.

76 Reports by the Select Committee of the House of Lords on the Road Traffic (Compensation for Accidents) Bill [H.L.] and the Road Traffic (Emergency Treatment) BUI [H.L.]; H.M.S.O. 1933.

77 H.L.Deb., Vol. XCIII, col. 150 (26 June 1934).

78 Lord Halsbury, H.L.Deb., Vol. LXXXIV, col. 561 (2 June 1932).

79 Earl Howe, H.L.Deb., Vol. LXXXIV, col. 573 (2 June 1932).

80 Lord Sandhurst, H.L.Deb., Vol. XCIII, col. 160 (26 June 1934). At the time he said this, third-party insurance cover for a 12 h.p. car cost £6 per annum, for a cyclist 4½ per annum: see the evidence of the Cyclists' Touring Club to the House of Lords Select Committee (n. 75, supra).

81 Lord Mount Temple, H.L.Deb., Vol. LXXXIV, col. 566 (2 June 1932); cf. Lord Halsbury, ibid., col. 559. In its evidence to the House of Lords Select Committee, Sir Stenson Cooke, Secretary of the A.A., said “We have always been very proud of our British justice. We rather put on side about it when talking to our friends, of whom we have many, all over Europe.” Evidently he had forgotten that the A.A. was founded to frustrate British justice in the matter of speed limits!

82 Lord Halsbury, H.L.Deb., Vol. LXXXIV, col. 561 (2 June 1932); Lord Mount Temple, ibid., col. 566.

83 Lord Darling, H.L.Deb., Vol. XCIII, col. 151 (26 June 1934).

84 Lord Halsbury, H.L.Deb., Vol. LXXXVIII, col. 1041 (25 July 1933).

85 Lord Halsbury, H.L.Deb., Vol. LXXXIX, col. 150 (9 November 1933); cf. Lord Halsbury, H.L.Deb., Vol. LXXXVIII, col. 1059 (25 July 1933).

86 Plowden, op. cit., n. 35, pp. 270–271; H.L.Deb., Vol. XCH, cols. 944–945 (7 June 1934).

87 Road Accident (Compensation) Bill; printed as 1976 Bill No. 41. The proposal was wider than Lord Danesfort's proposal, and would have covered injury to other car users as well.

88 H.C.Deb., Vol. XCII, col. 1932 (19 December 1975); Vol. CXVII, cols. 882 et seq. (12 March 1976).