“The triumph of negligence is a product of industrialisation; it is a disguised subsidy to business. ” The following report is against the above motion. Before stating why, it is important to explain what the arguments for the motion are. Negligence is a refusal or an omission to take care when performing a task, thus putting people in jeopardy. Manchester, in Modern Legal History (1980) ch. 12 (3), argues that there were various problems involved with negligence cases in the pre-industrial age.
He points to problems encountered in the courts involving the two forms of action that dealt with negligence, (Trespass and Case). He says it was easy for a wrong doer to evade prosecution, for if an action was brought in trespass the defendant would simply state that their servant had committed the act, and that the proper action lay in Case. But the if action was brought in case the master could contest that they had committed the act, and that the proper action lay in trespass.
However, this report will later show that the judiciary were not always ridged to these arguments, and a degree of flexibility was sometimes allowed which helped shape the laws application and restrict the use of these ‘loopholes’. Another point to be noted is that there was also negligence cases brought under the writ of asumpsit, but this report will not digress into this area. (Manchester ch. 12 (3), Baker p. 352).
The second part of the statement; “negligence..is a disguised subsidy to business,” is supported by Populist rguments, stating that the law of negligence in the nineteenth century made industry, farmers, workers, passengers and shippers substitute their accident cost, (presumably through insurance). (Gordon p. 905 HLR). This report, however is less concerned with the above arguments. It will acknowledge that the industrialised period, (late 18th century to the present day) was important to the law of negligence, due to the increased volume of negligence cases dealt with by the courts.
But it will focus on the origins of negligence in the courts and argue that, (as with the vast majority of law today) if has grown and developed over a great many years, with it’s origins well before industrialisation. The law of negligence has it’s origins in Action on the Case and Trespass. Action on the case was used as far back as the mid 1300, (p. 552 1986). According to sources such as Palmer, Baker and other authors on this period one of the earliest reported cases was Navenby v Lassels (1368). Page 2. Between the years of 1500 and 1540 nearly sixty actions for negligence were noted in the rolls of the Kings Bench.
These were mainly concerned where the defendant was alleged to have undertaken to do some specified work, and that it had been performed without care causing harm as a result. At this time the liability was closer to tort than contract, as it was rare for the writ to express and undertaking to use skill or care, (Seldon Soc p. 225 1977 vol. 4). However, an undertaking to take care did exist, and it was often implied that if one undertook to look after good, they thereby undertook the risk and was liable if the goods were damaged or stolen.
In Morse v Slue (1671), an action on the case was brought against a ships captain for ‘negligent keeping and carriage of goods by sea, causing the goods to be lost. ‘ The captain was held liable for the loss of these goods. Amongst the reasons given by the court for this verdict, no. 4 was that “he did not take diligent enough precautions in guarding the ship. ” This case most certainly was a case of negligence, where the defendant was held liable due to his negligent conduct. The process of the law negligence was slow and the areas confusing to both plaintiffs and defendants alike.
Whether to issue a writ in Trespass or Case was the biggest dilemma often encountered by plaintiffs. Milsom (1969) comments that in this blurry period, it was usually to the advantage of the plaintiff to bring proceedings in case when dealing with negligence, as it was the defendants burden of proof to show that they had not been negligent. Although the report so far admits problems with cases involving negligence, as far a court action is concerned, it has, established negligence as an acknowledged wrong in a pre-industrial age.
The evolution of law is slow and we can draw comparisons from the pre-industrial period with problems encountered today in the Equity courts, (of making the wrong fit the writ). This is basically what can be seen from the 1500’s onwards. But it was not easy for defendants to evade justice from their negligent conduct, although negligence had not yet been brought under one heading. As stated above, the remedies were available under the two headings of Trespass and Case.
In 1697 in the case of Turberville v Stamp (p.167) a writ of Trespass upon the Case was brought against John Stamp for not keeping his fire in a safe and controlled manner. The majority opinion of the court was that if the fire was on the defendants land, it was the same as it being in his house, (which was the established rule at this time) and that he owed a duty to take care not to injure his neighbour and not to be negligent. These examples from the late seventeenth century show that the principles that govern us today, in terms of our duty to take care are not a new product but have been applied for a least the last 3 centuries.
