426 QUEEN’S BENCH DIVISION. [1959] G. A As I followed the submissions made before us, if it were 1959 thought that the words complained of meant that the defendants Sam were saying that the plaintiffs had in fact been guilty of a con- spiracy to defraud or deprive Onkley of his interests, the defendants are not by their particulars as delivered saying that they justify that meaning, If the words have some other mean- moms. ing, could those particulars as delivered possibly justify some other meaning? It is sufficient at this stage to say that at the trial the issues which have been referred to in the very interesting arguments on both sides will have to be debated, and the judge who tries this case will have to give @ careful direction to the jury. But this is certainly not the time to express any opinion upon those matters that have been debated. It is certainly not a plain and obvious case. In my judgment, it could not be said that these particulars could not justify some conceivable defama- tory meaning that somebody might say was the ordinary meaning of those words. I agree that this appeal fails. Capa . BraveRsroox ‘NEWSPAPERS: Lap, Appeal dismissed. Solicitors: Basil Greenby & Co.; Oswald, Hickson, Collier & Co. M. M. H. 1958 FOWLER »v. LANNING. Dec. 18, 19. 1959 Practice —Pleading—T'respass—Whether plaintiff must plead negligence. Jon. 19. Burden of Proof—Prespass to the person—Negligence—Proof of. Siow a. Trespass—Trespass to the person—Urnintentional act—Shooting accident — —Whether action will lie without proof of negligence—Whether distinction between injury on highway and elsewhere. In an action based on trespass to the person the plaintiff's state- ment of claim alleged simply that on a certain date and at a certain place “ the defendant shot the plaintiff,” and that by reason there- of the plaintiff sustained porsonal injuries, particulars of which were given. The defendant by his defence traversed the allegations of fact and objected that the statement of claim disclosed no cause of action on the ground that the plaintifi did not allege that the shooting was intentional or negligent :— Held, (1) that trespass to the person did not lie if the injury to the plaintiff was caused unintentionally and without negligence on the defendant's part, and this applied whether the injury was caused on the highway or in any other place.1 QB. QUEEN’S BENCH DIVISION. (2) That, if negligence was a necessary ingredient of uninten- tional trespass only where the circumstances showed that the plaintiff had taken upon himself the risk of inevitable injury, the plaintiff today must be considered as taking upon himself such a risk arising from any acts of his neighbour which, in the absence of damage to the plaintiff, would not in themselves be unlawful. (3) That the onus of proving negligence, where the trespass was not intentional, lay upon the plaintiff, who should plead and give particulars of negligence; accordingly, having failed to do so, the plaintiff's statement of claim disclosed no cause of action. Dictum of Blackburn J. in Fletcher v. Iylands (1866) L.R. 1 Ex. 265, 286; Holmes v. Mather (1875) L.R. 10 Ex. 261 and Stanley v. Powell [1891] 1 Q.B. 86 applied. Weaver v. Ward (1617) Hob. 134; Hall v. Fearnley (1842) 3 Q.B. 919; 12 L.J.Q.B. 22; Wakeman v. Robinson (1823) 1 Bing. 213; River Wear Commissioners v. Adamson (1876) 2 [Link]. 743 considered. Quaere, whether, if a statement of claim discloses facts which invoke the doctrine res ipsa loquitur, it is necessary for negligence to be pleaded in terms. PRELOUNARy Pownt or Law under R.8.C., Ord. 25, r. 2. On March 26, 1958, the plaintiff, Thomas Winston Fowler, issued a writ claiming damages from the defendant, William George Lanning, for trespass to the person, By his statement of claim, delivered on March 29, 1958, the plaintiff alleged that “‘on November 19, 1957 at Vinyard Farm, Corfe Castle, in the “county of Dorset the defendant shot the plaintiff. By reason “‘of the premises the plaintiff sustained personal injuries,” particulars of which were given. On May 9, 1958, the defendant delivered a defence traversing the plaintiff's allegations of fact and objecting “‘ that the statement of claim is bad in law and ‘discloses no cause of action against him on the ground that ‘the plaintiff does not allege that the said shooting was either “* intentional or negligent.’’ On July 31, 1958, the Bournemouth District Registrar ordered that the point of law raised by the defendant's objection be tried as a preliminary point of law under the provisions of R.S.C., Ord. 25, r. 2, and the plaintiff’s appeal against this order was dismissed by Pearson J. in chambers on October 2, 1958. Ingram Poole for the applicant (defendant). At one time it was thought that in trespass it was only necessary to prove injury and it then fell to the defendant to justify or excuse his act: see the article by Professors Winfield and Goodhart on Trespass and Negligence, 1933 Law Quarterly Review, vol. 49, p. 359. 427 1969 Fownan 2. ‘Lannie.428 1969 Fowxsa, a Lanna. QUEEN’S BENCH DIVISION. [1959] In the latter half of the nineteenth century a change occurred, and in Fletcher v. Rylands Blackburn J. first expressed the view that persons who were injured on a highway must prove intention or negligence in order to succeed in an action for tres- pass. See also Lord Blackburn in River Wear Commissioners v. Adamson.? In Gayler & Pope Ltd. v. B. Davies ¢ Son Ltd. McCardie J. held that negligence or wilful intention was an essential ingredient of liability in trespass in highway cases. This principle is now well established: see per Devlin J. in Esso Petroleum Co. Ltd. v. Southport Corporation and per Lord Tucker on appeal in that case to the House of Lords.* Weaver v. Ward,* Underwood v. Hewson’ and Leame v. Bray* were all decided on pleading points and do not determine the law in any general sense. In so far as Leame v. Bray® purported to decide that it was only necessary to prove the act of trespass, it is inconsistent with modern authorities, as it was a highway case: see per Lord Wright in Winnipeg Electric Co. v. Geel.* Even outside the highway, intention or negligence are essen- tial ingredients of trespass to the person: Stanley v. Powell,®® which was approved by the Court of Appeal in National Coal Board v. J. E, Evans & Co. (Cardiff) Ltd.4; see also per Bramwell B. in Holmes v. Mather. There is a distinction between cases involving inevitable accident, where the defen- dant has to show that something happened over which he had no control, and cases where a mere want of care and skill must be established: The Albano '*; Manton v. Brocklebank.’ In tres- pass to the person, negligence or intention must be pleaded and proved by the plaintiff: see per Lord Macmillan and an Simonds in Read v. J. Lyons & Co. Ltd.**; per Stable J. Morriss v. Marsden **; and the decision of the Supreme at of British Columbia in Walmsley v. Humenick.** H. B. Lewis McCreery for the respondent (plaintiff). It is 1 (1866) L.R. 1 Ex. 265, 286. 2 (1876) 2 [Link]. 743, 767. 5 [1924] 2 K.B. 75, 82; 40 TLR. 501. 4 [1953] 3 W.L.R. 778, [1953] 2 All E.R. 1204, 5 [1956] A.C. 218, 244; [1956] 2 [Link]. 81, 93; (1955) 8 All BR. 864. (1617) Hob. 184, 7 (1724) 1 Strange 596, 8 (1803) 3 East 593. © [1982] A.C. 690, 695; 48 T.L.R. 657. m1; 10 [1891] 1 Q.B. 86, 41 [1951] 2 K.B. 861; T.L.R. 415. 42 (1875) L.R. 10 Ex. 261, 268. 43 [1892] P. 419; 8 TLR. 495, M4 [1928] 2 KB. 219; 89 TLR. B44, 15 (1947) A.C. 156, 170; 62 T.L.R. 646; [1946] 2 All E.R, 471. 16 [1952] 1 T.L.R. 947; [1952] 1 All E.R. 925, 927. 1 [1954] 2 D.L.R. 282. (a951] 21 QB. QUEEN’S BENCH DIVISION. difficult to envisage circumstances in which the defendant here could have shot the plaintiff rightfully. This is a classic example of battery vi eb armis. While there might be an alternative cause of action in negligence, the proper cause of action here is trespass: see Holmes v. Mather.¥* Once the plaintiff proves an actual trespass, his cause of action is complete: per Devlin J. in Esso Petroleum Co. Ltd. v. Southport Corporation.° ‘The shooting in the present case was not on or near a highway. It is. conceded that the plaintiff will fail unless the act of trespass was intentional or negligent, but if the defendant fails to prove the lack of such intention or negligence, the plaintiff must succeed. Once the plaintiff has proved the act of trespass, the onus of proof shifts to the defendant: see precedents of statements of claim for trespass to the person in Bullen & Leake’s Precedents of Pleadings, 8rd ed., p. 411; 11th ed., p. 643. No allegation of intention or negligence appears therein: see Wakeman v. Robinson.* I is not suggested that this is a case of absolute liability, but it is the duty of the defendant, once the trespass is admitted or proved, to justify it if he can: Weaver v. Ward*!; Knapp v. Salabury **; Milman v. Dolwell**; Hall v. Fearnley **; Holmes vy. Mather.* (Knapp v. Salsbury? and Gibbons v. Pepper ™ appear to be directly opposed.) See also per Denman J. in Stanley v. Powell **; per Goddard L.J. in Dumbell v. Roberts ®; per Denning L.J. in Hseo Petroleum Co. Ltd. v. Southport Corporation.2° There is no binding authority for the proposition that in an action for trespass off the highway the plaintiff must prove negli- gence or intention. In Stanley v. Powell * the plaintiff put his case in negligence and thus took upon himself the burden of proving it. Stanley v. Powell * is authority for the proposition that if there is no negligence or intention, the plaintift’s claim fails, but it is not an authority on the pleading aspect or on the burden of proof: see per Cohen L.J. in National Coal Board v. J. E. Evans & Co. (Cardiff) Lid.** In Morrise v. Mareden,® 48 LR. 10 Ex. 261, 268. 21 (1695) 1 Ld-Raym. 38. 39 [1953] 8 W.L.R. 778, 781. 28 [1891] 1 Q.B. 86, 90. 20 (1828) 1 Bing. 213. 29 (1944) 60 T.L.R. 281; [1944] 1 21 Hob. 134, All E.R. 826, 991. 22 (1810) 2 Camp. 500. 30 [1954] 2 Q.B, 182, 197, 198; 23 (1810) 2 Camp. 378, [1954] 8 W.L.R. 200, 211, 212, 24 (1842) 8 Q.B. 919. 34 [1891] 1 Q.B. 86. 25 L.R. 10 Ex. 261, 82 [1951] 2 K.B, 861, 874, 26 2 Camp. 500, 88 [1952} 1 T.L.1 . 947. 429 1959 Fowun480 1959 Fownsr: 0 Lannie, QUEEN’S BENCH DIVISION. [1959] Weaver v. Ward** and Dumbell v. Roberts ** were not cited. In Walmsley v. Humenick** Clynes J. misunderstood the effect of Stanley vy. Powell’ and assumed that because the plaintiff fails if the defendant proves want of intention or negligence the plaintiff must plead intention or negligence. In the present case the allegation of shooting in itself imports negligence because normally one does not shoot another unin- tentionally without negligence. The doctrine res ipsa loquitur applies. Even if negligence or intention has to be averred, it is not necessary to specify one or the other. Where the facts permit, they can be pointed to with the comment “res ipsa loquitur,”” but those words do not have to appear in the pleading. ‘The basis of the rule in highway cases is the principle volenti non fit injuria, and the reason for the rule is the general con- venience of mankind. When one goes on the highway, one is exposed to all kinds of hazard and must be taken to have accepted the risks involved. Bolton v. Stone ** was pleaded in negligence or nuisance. Read v. J. Lyons & Co. Ltd.** does not support the plaintiff here. Poole in reply. The plaintiff must plead the matters on which he relies, in the absence of which he must fail: R.$.C., Ord. 19, tr. 4. He must say whether intention or negligence is alleged, as otherwise the defendant does not know what case he has to meet. A plaintiff cannot today—83 years after the Judicature Act, 1875—alter his position according to whether he alleges trespass or negligence in respect of the same facts. The state- ment of Devlin J. in Esso Petroleum Co. Lid. v. Southport Corporation,*° relied on by the plaintiff, is not binding, while the observations of Denning L.J. in. that case‘? are obiter and depend upon Weaver v. Ward,*? which has never been specifically approved by the Court of Appeal. In the United States of America it has also been held that in trespass to the person the burden of proving intention or negligence lies on the plaintiff: Brown v. Kendall.‘ Cur, adv. vult. January 19. Dirtock J. read the following judgment. “The distinction between actions of trespass on the case 34 Hob. 134. 39 [1947] A.C. 156. 38 60 T.L.R. 231. 40 [1953] 3 W.L.R. 773, 781. 86 [1954] 2 D.L.R, 292, 41 [1954] 2 Q.B. 182, 197, 198, 3 [1891] 1 Q.B, 86, 42 Hob. 134. 38 [1951] A.C. 850; [1951] 1T.L.R. 3 (1850) 6 Cush. 292 (U.9.A.). 977; [1961] 1 All E.R, 1078.1QB. QUEEN’S BENCH DIVISION. «and trespass vi et armis should be most carefully and precisely “observed. Otherwise we shall introduce much confusion “and uncertainty.” So said de Grey O.J. in 1778 in Scott v. Shepherd.t It must gratify the ghosts of generations of special pleaders that today, nearly a century after the passing of the Judicature Act, 1875, I should be invited to decide whether such a distinction still exists where an unintentional injury to the person of the plaintiff arises directly from an act of the defendant, and should be invited to decide this point upon what is the modern equivalent of demurrer. The writ in this case claims damages for trespass to the person committed by the defendant at Corfe Castle, in the county of Dorset, on November 19, 1957. The statement of claim alleges laconically that at that place and on that date “ the defendant “shot the plaintiff,” and that by reason thereof the plaintiff sustained personal injuries and has suffered loss and damage. By his defence the defendant, in addition to traversing the allegations of fact, raises the objection “* that the statement of claim is bad “im law and discloses no cause of action against him on the ground “that the plaintiff does not allege that the said shooting was * either intentional or negligent.” ‘An order has been made that this point of law be disposed of before the trial of the issues of fact in the action. That order is binding upon me, and, in disposing of it, I can look no further than the pleadings. I must confess that at first glance at the pleadings I felt some anxiety lest I was being invited to decide a point which has long puzzled the professors (see the article by Professors Goodhart and Winfield, 1933 Law Quarterly Review, vol. 49, p. 859; Pollock on Torts, 15th ed., p. 128; Salmond on ‘Torts, 12th ed., p. 311; Winfield on Torts, 5th ed., p. 218), only to learn ultimately that, just as in Donoghue v. Stevenson,? there was in fact no snail in the ginger-beer bottle,* so in this case there was in fact no pellet in the defendant's gun. The point of law is not, however, a mere academic one even ‘at the present stage of the action. The alleged injuries were, I am told, sustained at a shooting party; it is not suggested that the shooting was intentional. The practical issue is whether, if ‘the plaintiff was in fact injured by a shot from a gun fired by the defendant, the onus lies upon the plaintiff to prove that the 1 (1773) 3 Wils.K.B. 403, snail was never judicially determined. 2 [1992] A.C. 562; 48 T.I.R. 494, The action was settled before the * Tho presence or absence of the issues of fact were tried. K. D. 431 1959 ‘FOWLER o. Lawwnva. Diplock J.432 1959 FowLen 2. Lannina. Diplock J. QUEEN’S BENCH DIVISION. [1959] defendant was negligent, in which case, under the modern system of pleading, he must so plead and give particulars of negligence (see B.S.C., Ord. 19, r. 4), or whether it lies upon the defendant to prove that the plaintiff's injuries were not caused by the defendant's negligence, in which case the plaintiff's statement of claim is sufficient and discloses a cause of action (see R.S.C., Ord. 19, r. 25). The issue is thus a neat one of onus of proof. I am much indebted to counsel on both sides for their diligence and erudition in tracing the history of the distinction between trespass vi et armis and trespass on the case before the passing of the Judicature Acts, 1873 and 1875. I do not think it necessary, however, to examine in detail the earlier controversies alluded to by Lord Ellenborough in Covell v. Laming* as to whether trespass lay at all when the injury was unintentional, even although it was direct. That it did must be regarded as settled in 1808 by Leame v. Bray,* which decided that trespass vi et armis could lie wherever the personal injury complained of arose directly from the act of the defendant himself. The converse proposition that trespass on the case did not lie where the injury was direct, even although it was unintentional, which at first sight appeared to be established in 1704 by Day v. Bdwards,§ had been swept away at least by 1888 when the Court of Common Pleas in Williams v. Holland,* distinguishing—if not riding rough-shod over—Day v. Bdwards,” held that an action on the case was an available remedy in such a state of facts. Pausing, therefore, at the convenient date of 1852, when the Common Law Procedure Act was passed, it was well established that where personal injury was caused to the plaintiff by the direct act of the defendant himself, alternative remedies in trespass to the person and in negligence were available. What by that date was the essential difference between the two alternative remedies based on identical facts? It is fashion- able today to regard trespass to the person as representing the historie principle that every man acts at his peril and is liable for all the consequences of his acts; negligence as representing the more modern view that a man’s freedom of action is subject only to the obligation not to infringe any duty of care which he owes to others: see per Lord Macmillan in Read v. J. Lyons & Co. Ltd. 8 (1808) 1 Camp. 497. 1 5 Term Rep. 648, « (1808) 3 Bast 593. 8 [1947] A.C. 166, 170; 62 T.L.R. 5 (1794) 6 Term Rep. 648. 646; [1946] 2 AN E.R. 471. ‘ (1838) 10 Bing. 119.1QB. QUEEN’S BENCH DIVISION. But however true this may have been of trespass in medieval times—and I respectfully doubt whether it ever was—the strict principle that every man acts at his peril was not applied in the case of trespass to the person even as long ago as 1617. It is true that in that year, in the much-cited case of Weaver v. Ward, which arose out of a shooting accident during an exercise of trained bands, the Court of King’s Bench held that a plea that “the defendant casualiter et per infortuniam et contra volun- “‘tatem suam, in discharging of his piece did hurt and wound “the plaintiff ’’ was demurrable. But it would seem that this was because the plea, which was a special plea, was insufficient because, although it denied intention, it did not negative negli- gence on the part of the defendant. It is clear from the report that the court was of opinion that the action of trespass to the person would fail if it should appear that the accident was “inevitable and that the defendant had committed no negligence * to give occasion to the hurt.” This phrase is repeated in many of tho later cases. Where it appears, however, it must be read in its historical context and not as if it were being used by judges to whom modern con- cepts of negligence, contributory negligence and causation were familiar. An examination of the cases up to 1842 in which this or a similar phrase was adopted shows, I think, that the word “inevitable ’ was superfluous, and that the phrase meant no more than that the accident could not have been avoided by the exercise of reasonable care on the part of the defendant. In the difficult case of Hall v. Fearnley ™ in 1842, reported in very different terms in the Queen’s Bench Reports, and in the Law Journal Reports, Lord Denman C.J. and Wightman J. appear to have regarded “‘ inevitable’ as something different from absence of negligence on the part of the defendant, but did not suggest that such absence of negligence was not in itself a defence. In any event, I can find no trace in the cases from the seventeenth century onwards that a defendant, in order to escape liability for unintentional trespass to the person, must comply with any higher standard of care than was needed to escape liability if the action were framed in trespass on the case. So, too, it appears to have been taken for granted by the beginning of the nineteenth century that contributory negligence—although not under that name, which is of more recent origin—disentitled the plaintiff to recover whether the action were framed in case, ® (1617) Hob. 184, 30 (1842) $ Q.B. 919; 12 L.J.Q.B. 22. 433 1959 Fowim 2 Lanwina, Diplock J.434 1959 Fowier °. ‘Lamina. Diplock J. QUEEN’S BENCH DIVISION. [1959] as in Butterfield v. Forrester,* or in trespass to the person, as in Knapp v. Salsbury.™? ‘Apart from the question of onus of proof, which I must now examine, there does not appear by 1852 to have been any differ- ence between the substantive law applicable whether the action were framed in trespass on the case or trespass to the person. Differences as regards pleading were, of course, in those days, vital, but are not relevant for the purposes of the present case in 1959, except in so far as they throw any light upon where the onus of proof lay. In trespass on the case the onus of proof of the defendant's negligence undoubtedly lay upon the plaintiff. Where it lay in trespass is much more difficult to determine. The defence that the accident “was inevitable and that the defendant had com- “mitted no negligence to give occasion to the hurt” was available to the defendant upon a plea to the general issue by the end of the seventeenth century: see Gibbons v. Peppor®; and this appears to have been accepted by the Court of Common Pleas as late as 1823: see Wakeman v. Robinson *—a case still cited as authority in the third edition of Bullen & Leake in 1868. Since the plea to the general issue merely denied the existence of the necessary ingredients of the tort, this would suggest that in the case of trespass to the person the onus lay upon the plaintiff to show that the defendant's act was either intentional or negligent. Lord Ellenborough, on the other hand, sitting at nisi prius in 1810, had already decided in Knapp v. Salsbury that such a defence must be specially pleaded, and the Court of King’s Bench in 1842 in Hall v. Fearnley * appears to have come down on the pleading point on the side of Lord Ellenborough, although the differences between the two reports of this case make it difficult to elicit the ratio decidendi. But although the two last-cited cases destroy the force of any inference as to onus of proof which might be drawn from Gibbons v. Pepper,” they do not themselves give rise to the contrary inference. With the growth of special pleading, and in particular after the ‘‘ general “rules” of Hil. Term, 1834, there were many matters the onus of proof of which, if disputed, lay upon the plaintiff, which were not regarded as traversed by a plea to the genoral issue: see Bullen & Leake, 8rd od., pp. 699-704. 14 (1809) 11 East 60. 15 2 Camp, 500. 42 (1810) 2 Camp. 500. 18 3 Q.B. 919. 18 (1694) 1 [Link], 88, 171 [Link]. 98. 44 (1823) 1 Bing, 213.1Q3B. QUEEN’S BENCH DIVISION. I do not find the pre-Common Law Procedure Act, 1852, cases conclusive or, indeed, helpful as to where the onus of proof of the defendant's negligence or absence of negligence lay where the action was founded upon trespass to the person and not on trespass on the case. The reported cases turn upon points of pleading, a science upon which the legal mind was then wonder- fully concentrated, and when, in any particular case, that science had achieved its object in arriving at an issue of fact for the jury in an action of trespass to the person, it could only be very rarely that the question of onus of proof was crucial. Since trespass to the person only lay where the injury to the plaintiff was the direct consequence of the personal act of the defendant, proof that the defendant did the act and that the plaintiff was thereby injured would normally be prima facie evidence of the defendant's negligence sufficient also to sustain an action on the case in accordance with the commén-sense view applied at nisi prius long before Pollock C.B. in Byrne v. Boadle ** trans- lated it into Latin as res ipsa loquitur. At the time the case came before the jury, therefore, there can have been little prac- tical difference between trespass and case, even if in the former the onus of negativing negligence did lie upon the defendant, while in the latter the onus of proving negligence lay upon the plaintiff. But whatever the reason, I can find no trace in the reports that the possibility that the onus of proof might be different in the two classes of cases was a question which ever occurred to the judges of those days, or that their charge to the jury differed according to whether the action were framed in trespass or in case. The mojority of pre-Common Law Procedure Act cases in which the question of unintentional trespass to the person or to goods was discussed were, it is true, cases of collision on the high- way either on land or on water. There is, however, no suggestion that I can find in any of the judgments that this was a relevant consideration, or that the law as to trespass vi et armis to the person or to goods was different according to whether the injury took place on a highway or not. Prima facie, therefore, one would suppose that the onus of proof lay upon the same party to the action in either case. If, then, it is conceded—as all agree that it must be at any rate today—that in the case of an involun- tary trespass to the person on a highway the onus of proving negligence lies on the plaintiff, why should it be otherwise when 18 (1863) 2 H. & C. 122. 435 1959 ‘Fowtrr o Lanna. Diplock J.436 1959 Power e ‘Lannrna. Diptock J. QUEEN’S BENCH DIVISION. [1959] the involuntary trespass to the person is not committed on a highway? There is, nevertheless, a formidable body of academic opinion—but not, I think, any binding judicial authority—that highway cases have in the last 100 years become an excep- tion to a previously existing general rule that the onus of proof of absence of negligence on the part of a defendant in a case founded on trespass to the person lies upon the defendant himself. As I have already said, I do not think that the cases prior to the Common Law Procedure Act, 1852, establish that there ever was such a general rule, nor do I think that the subsequent cases, on analysis, suggest that those judges who were familiar with the procedure before 1852 took the view that there ever had been such a rule. The dictum of Blackburn J. in Fletcher v. Rylands* is generally regarded as the origin of some modern rule special to highways. But what he said in a case which, after all, was about the flooding of coal mines, was not limited to accidents on highways or to trespass to the person.?” ‘* Traflic “‘ on highways, whether by land or sea, cannot be conducted with- “‘ out exposing those whose persons or property are near it to “* gome inevitable risk; and that being so, those who go on the “highway, or have their property adjacent to it, may well be “‘held to do so subject to their taking upon themselves the “‘risk of injury from that inevitable danger.” So far he is dealing with highway accidents and with trespass to land as well as with trespass to the person. But he goes on: “. . . and “‘ persons who by the licence of the owner pass near to ware- “‘houses where goods are being raised or lowered, certainly do “0 subject to the inevitable risk of accident. In neither case, “‘ therefore, can they recover without proof of want of care or “' gkill occasioning the accident; and it is believed that all the “‘ cases in which inevitable accident has been held an excuse for “‘ what prima facie was a trespass, can be explained on the same ‘principle, viz., that the circumstances were such as to show “that the plaintiff had taken that risk upon himself.”” Here is no sudden emergence of a rule peculiar to highways, but a rationalisation of what appeared to Blackburn J. to be well-settled law by explaining it on the basis—of which there is no trace to be found in the cases to which he refers—of the voluntary acceptance of risk by the plaintiff. It is to be noted that he refers specifically to warehouse cases, which are not highway cases, and among the other cases alluded to in which 18 (1866) L.R. 1 Ex, 265. 20 Thid. 286, 287.1QB. QUEEN’S BENCH DIVISION. “inevitable accident has been held an excuse for what prima facie “‘was a trespass '’?! must be included, although it was not expressly cited, Weaver v. Ward ?*—the trained band shooting accident—in which the Court of Common Pleas expressed that view. But what is even more germane to the matter which 1 have to decide is that that great lawyer, who, having been called to the Bar in 1888 and to the Bench in 1859, must have been very familiar with the practice at nisi prius, appears in the passage italicised to have regarded it as a commonplace that, in all cases in which inevitable accident is an excuse for what, prima facie, was a trespass, the onus of proving negligence lies upon the plaintiff. Nine years later, in Holmes v. Mather, an equally great common lawyer, Bramwell B., stated the same proposition “The result of the cases is this, and it is intel- : if the act that does an injury is an act of “' direct force vi et armis, trespass is the proper remedy (if there “ig any remedy) where the act is wrongful either as being wilful “or as being the result of negligence. Where the act is not “‘ wrongful for either of those reasons no action is maintainable, “though trespass would be the proper form of action if it were “wrongful.” I am aware of the textual criticism to which this passage has been subjected by the learned editor of the current edition of Pollock on Torts. But the Law Reports version was, I suspect, then, as now, corrected by the judge. Furthermore, the conclusion stated by Bramwell B. to be the result of the cases up to 1875 accords not only with what my own examination of them suggests, but also with what Blackburn J. had said in 1866. Two years later, in 1877, the speech of Lord Blackburn in River Wear Commissioners v. Adamson ** applied to trespass to property adjoining a navigable water the principle which he had adumbrated obiter in Fletcher v. Rylands** in relation to trespass to property adjacent to a highway. This speech, since it is directed to trespass to land and not to trespass to the person, would, strictly speaking, be irrelevant to the present case were it not for the fact that it seems to have been regarded as authority for the proposition that in all cases of trespass to the person, to goods, or to land, there is a special rule peculiar to highways: see per McCardie J. in Gayler & Pope Ltd. v. B. Davies & Son Ltd.?* No doubt there is a special rule as respects trespass to land 21 LR. 1 Ex. 265, 287. 24 (1876) 2 [Link]. 748, 767. 22 Hob. 134, 23 L.R. 1 Ex, 265, 286, 287. 23 (1875) L.R. 10 Ex. 261, 268. 26 [1924] 2 K.B. 75, 82. 437 1959 ‘FowrEs, ® Lanxra. Diplock J.438 1959 FOowLeR v, ‘Lannie. Diplock J. QUEEN'S BENCH DIVISION. [1959] adjoining a highway; but there is no reason to suppose that Lord Blackburn in River Wear Commissionors v. Adamson ** was deal- ing with any other tort than trespass to land, or seeking to modify in relation to trespass to the person the generality of his observa- tions in Fletcher v. Rylands,** or those of Bramwell B. in Holmes v. Mather.” This brings me to Stanley v. Powell,? a case of a shooting accident, not on a highway, in which Denman J. held that trespass to the person would not lie in the absence of negligence by the defendant. ‘The action was originally pleaded in negli- gence, the onus of proof of which undoubtedly lay upon the plaintiff, and the jury had found that there was no negligence— or, I suppose, more acourately, that the plaintiff had not proved any negligence on the part of the defendant. There are phrases in the judgment of Denman J. which can be read as suggesting that his view was that, had the action been framed in trespass to the person, the onus of negativing negligence would have lain upon the defendant. But this can hardly have been present to his mind or he would presumably have ordered a new trial. I regard the decision as neutral on the question of onus of proof. Stanley v. Powell,®* although assailed by some textbook writers, has stood for nearly 70 years. It was approved by all members of the Court of Appeal in National Coal Board v. Evans ** —an approval which, it may be, was obiter. I have, however, no doubt that the decision in Stanley v. Powell ** is good law. Little assistance is to be obtained from any later cases. Since Stanley v. Powell,3? and perhaps as a result of that decision, there appears to be no case in the reports where unintentional trespass to the person has been relied upon as distinct from negligence, despite the encouragement of the learned authors of the article on Trespass and Negligence in the Law Quarterly Review in 1933 (45 Law Quarterly Review 859), and the con- tinued appearance in successive editions of Bullen & Leake of a precedent of a pleading in trespass to the person in which neither intention nor negligence is alleged. No doubt in many cases it is the master who is sued for the act of his servant, and here tres- pass as opposed to case would never lie; but in the 68 years which have passed since Stanley v. Powell *? there must have been many cases where the injury to the plaintiff was the direct consequence of the act of the defendant himself. But no practitioner seems 27 9 [Link], 743. 31 [1951] 2 K.B. 861; [1951] 2 28 L.R. 1 Ex. 265, 286, 287. [Link]. 415. 29 LR. 10 Ex. 261, 268. 32 [1891] 1 Q.B. 86, 9° (1891) 1 Q.B, 86.1QB. QUEEN’S BENCH DIVISION. to have thought, and certainly no court has decided, that to do 80 would affect the onus of proof. I think that what appears to have been the practice of the profession during the present century is sound in law. I can summarise the law as I understand it from my examination of the cases as follows: (1) Trespass to the person does not lie if the injury to the plaintiff, although the direct consequence of the act of the defen- dant, was caused unintentionally and without negligence on the defendant’s part. (2) Trespass to the person on the highway does not differ in this respect from trespass to the person committed in any other place. (8) If it were right to say with Blackburn J. in 1866 that negligence is a necessary ingredient of unintentional trespass only where the circumstances are such as to show that the plaintiff had taken upon himself the risk of inevitable injury (i.e., injury which is the result of neither intention nor carelessness on the part of the defendant), the plaintiff must today in this crowded world be considered as taking upon himself the risk of inevitable injury from any acts of his neighbour which, in the absence of damage to the plaintiff, would not in themselves be unlawful—of which discharging a gun at a shooting party in 1957 or a trained band exercise in 1617 are obvious examples. For Blackburn J., in the passage I have quoted from Fletcher v. Rylands,®* was in truth doing no more than stating the converse of the principle referred to by Lord Macmillan in Read v. J. Lyons & Co. Ltd.,** that a man’s freedom of action is subject only to the obligation not to infringe any duty of care which he owes to others. (4) The onus of proving negligence, where the trespass is not intentional, lies upon the plaintiff, whether the action be framed jn trespass or in negligence. This has been unquestioned law in highway cases ever since Holmes v. Mather,®* and there is no reason in principle, nor any suggestion in the decided authorities, why it should be any different in other cases. It is, indeed, but an illustration of the rule that he who affirms must prove, which lies at the root of our law of evidence. I am glad to be able to reach this conclusion, and to know that the Supreme Court of British Columbia has recently done the same (Walmsley v. Humenick **), for ‘‘ while admiring the “‘subtlety of the old special pleaders our courts are primarily 33 LR, 1 Ex, 265, 986, 287. 36 L.R. 10 Bx, 261, 268. 34 [1947] A.C. 156, 170. 36 [1954] 2 D.L.R. 232, 439 1959 Fownmn 2 ‘Lannina. Diptock J.440 1959 Fowner °. Lanna. Diploek 5. QUEEN’S BENCH DIVISION. [1959] “* concerned to see that rules of law and procedure should serve “to secure justice between the parties”: per Lord Simon in United Australia Ltd, v. Barclays Bank Ltd.** If, as I have held, the onus of proof of intention or negligence on the part of the defendant lies upon the plaintiff, then, under the modern rules of pleading, he must allege either intention on the part of the defendant, or, if he relies upon negligence, he must state the facts which he alleges constitute negligence. Without either of such allegations the bald statement that the defendant shot the plaintiff in unspecified circumstances with an unspecified weapon in my view discloses no cause of action. This is no academic pleading point. It serves to secure justice between the parties. If it is open to the plaintifias Mr. MeCreery must, I think, contend—on the pleadings as they at present stand to prove that the defendant shot him deliberately, failure to allege such intention deprives the defendant of his right to apply to stay the action pending prosecution for the felony: Smith v. Selwyn.** I should repeat that there is, of course, in fact no suggestion that the shooting here was intentional, and thus felonious. But if Mr. McCreery be right, proof of intention would be open upon the pleading in its present form. Turning next to the alternative of negligent trespass to the person, there is here the bare allegation that on a particular day at a particular place ‘‘ the defendant shot the plaintiff.” In what circumstances, indeed with what weapon, from bow and arrow to atomic warhead, is not stated. So bare an allegation is con- sistent with the defendant’s having exercised reasonable care. It may be—I know not—that, had the circumstances been set out with greater particularity, there would have been disclosed facts which themselves shouted negligence, so that the doctrine of res ipsa loquitur would have applied. In such a form the state- ment of claim might have disclosed a cause of action even although the word “' negligence "’ itself had not been used, and the plaintiff in that event would have been limited to relying for proof of negligence upon the facts which he had alleged. But I have today to deal with the pleading as it stands, As it stands, it neither alleges negligence in terms nor alleges facts which, if true, would of themselves constitute negligence. If Mr. McCreery is right, he would be entitled to prove that the defendant's gun was to his knowledge defective or even that he was short-sighted and had left his spectacles at home, nor would the plaintiff be 2; [1914] 8 K.B, 98, 37 (1941) A.C, 1, 92; 87 TL! [1940] 4 All E.R, 20.1Q8B. QUEEN’S BENCH DIVISION. 441 bound at any time before the trial to disclose to the defendant —_1959 what facts he relies upon as constituting negligence. ae I do not see how the plaintiff will be harmed by alleging now the facts upon which he ultimately intends to rely. On the contrary, for him to do so will serve to secure justice between the DiPlock J. parties. It offends the underlying purpose of the modern system of pleading that a plaintiff, by calling his grievance ‘' trespass to “‘ the person ”” instead of “‘ negligence,” should force a defendant to come to trial blindfold; and I am glad to find nothing in the authorities which compels justice in this case to refrain from stripping the bandage at least from the defendant’s eyes. Thold that the statement of claim in its present form discloses no cause of action. Leave to make immediate amendments to statement of claim granted. Consequential amendments to defence within 14 days. °. Lannina. Solicitors: Barnes & Butler for J. W. Miller & Son, Poole; Peacock & Goddard for Trevanion, Curtis & Walker, Bourne- mouth. De BAXTER v. STOCKTON-ON-TEES CORPORATION GA. AND ANOTHER. 1988 May 16, 19, [1956 B. 1596.] rane Highway —Non-feasance of local authority —New road — Statutory Waku, vesting in local authority —Aocident caused by projecting kerb of Peares i. island adjacent to roundabout—Negligence—Highway constructed = —— by county council and subsequently vesting in local authority— Liability of local authority in claim for damages—Development and Road Improvement Funds Act, 1909 (9 Edw. 7, ¢. 47), s. 10 —Local Government Act, 1929 (19 & 20 Geo. 5, c. 17), s. 32. The plaintifi’s husband was killed when a motor-cycle which he was riding at night on a highway collided with the kerb of an approach island adjacent to a roundabout. In her action for damages in respect of the death of her husband against the defen- dants, as the authority responsible for the highway in question at the date of the accident, the plaintiff claimed, in effect, that the accident was brought about by the negligence of the defendants as highway authority, in that the approach island was so shaped and 1 QB. 1959. 29 (1)