674 TEE MODERN LAW REVIEW VOL. 23

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1 674 TEE MODERN LAW REVIEW VOL. 23 subjects which was how the Master of the Rolls summarised the views of Denning J., as he then was, in Robertson v. Minister of Pensions.? The recognition of a distinction is essential to progress. Equally important is the insistence by Devlin L.J. that the principle does not mean that the Crown can never bind itself in its dealings with the subject in case it might turn out that the fulfilment of the contract was not advantageous. The inconvenient contract, the bad bargain, must be distinguished from that which turns out to be inconsistent with larger public obligations. That distinction is perhaps easier to emphasise than to make, and it remains to be seen how well, granted the present state of public law in this country, the courts will grapple with the difficulties of making it. There will remain many problems, too, which were here avoided by concession; these are problems of agency and the like. Are, for example, the Crown Estate Commissioners, specifically created to have some independent existence, to be regarded simply as the same Crown which acts through a government department? Their history would perhaps require a negative answer. What of a Crown contract which is affected by the actings of a nationalised industry, actings which although agreed to by a Minister are yet those of a distinct body? Certainly this branch of law has not by this decision arrived at a conclusion; it is, though, a decision which enables lawyers to travel hopefully, which, on good authority we are told, is a happier state. J. D. B. MITCHELL. TRESPASS TO THE PERSON MUST INTENTION OR NEGLIGENCE BE PROVED? IN Beals v. Hayward, McGregor J. in the Supreme Court of New Zealand added another chapter to the controversy on the question whether, in an action for trespass to the person, intention or negligence on the part of the defendant must be proved, and, if either must be proved, on whom lies the onus of proof. The rather peculiar facts of the case were that the plaintiff, a boy of sixteen, had, together with some companions of about the same age, caused considerable annoyance to the defendant by trespassing on his land, throwing stones and building forts in trees surrounding the defendant s property. On the day in which the incidents which gave rise to the action occurred, the boys, being asked by the defendant if they were throwing stones, admitted doing so, but not on the defendant s house. Later the defendant went into his house; the boys heard an upstairs window open, there was an explosion from a shotgun. The plaintiff was hit in the eye by a pellet and lost the sight of the eye. He claimed damages for assault. 7 [1949] 1 K.B [1960] N.Z.L.R. 131.

2 Nov NOTES OF CASES 675 The evidence as to the events which resulted in the injury to the plaintiff, came from the plaintiff himself. The defendant did not give evidence. A result of the annoyance to which he had been subjected, was that his mental faculties had become so impaired that, shortly after the events mentioned above, he had to be removed to a mental institution. In answer to issues put by the learned judge, the jury said that the plaintiff was injured by pellets from a gun fired by the defendant, but that the act of the defendant was not an intentional assault. Negligence on the part of the defendant was not pleaded. On this answer, the learned judge, after hearing argument from counsel, gave judgment for the defendant. Though there is some difference of opinion on the part of textbook writers on this question, to which his Honour referred, the latest English decisions, e.g., Morriss v. Marsden and Fowler v. Lan~ting,~ which he followed, favour the view that, in order to succeed in such an action, intention or negligence on the part of the defendant must be proved. His Honour also made reference to certain Canadian authorities. In Eisener v. I(I~xwe11,~ the court reviewed many of the cases dealing with actions for assault; but the purpose of that action was to determine whether such an action would, under the old forms of pleading, have been an action in trespass or in case. Different periods of limitation would have applied, according as the answer was given one way or the other. The decision is not therefore directly relevant to the question in issue in the case under review. More to the point is Walmsley v. H~menick.~ In that case the plaintiff was injured when he was struck in the eye by an arrow fired by another boy aged ten, the defendant. It was held that as the defendant lacked the necessary capacity to form a proper judgment, a cause of action based on negligence failed. It being admitted that there was no intent on the part of the defendant to injure the plaintiff, Clyne J. held that an alternative cause of action in trespass also failed. Again, in Joyce v. Bartlett,6 Williams C.J.Q.B. (Manitoba) followed Stanley v. Po~ell,~ in holding that when a member of a hunting party is injured in a shooting accident, he could not recover against the person who fired the shot unless intention or negligence was proved. McGregor J. did not, however, refer to certain Australian decisions which, though by no means conclusive, do throw some light on the question. In the New South Wales case of Blacker v. 2 [1952] 1 All E.R [1959] 1 Q.B [1951] 1 D.L.R [1954] 2 D.L.R [1955] 1 D.L.R [1891] 1 Q.B. 86.

3 676 TRE MODERN LAW REVIEW VOL. 23 Waters,8 the plaintiff had been struck in the eye by a fragment of a bullet fired by the defendant at a shooting-gallery. In the District Court, the judge found that though the injury was unintentional on the defendant s part, he was guilty of negligence, as he knew of the risk of damage to others from pieces of metal flying back, but had nevertheless taken that risk. The defendant appealed on the ground that there was no evidence to support the finding of negligence. The Court of Appeal (Street C.J., Ferguson and James JJ.) dismissed the appeal. In the course of his judgment, Street C.J. said (at p. 409): cc The case was conducted on the assumption that in the absence of negligence the defendant was not liable. The trespass to the plaintiff s person was complete on proof that the lead which entered his eye came from the bullet fired by the defendant at the target, and the defence was that it was not actionable as it was neither intentional nor the result of negligence. The learned Chief Justice did not, however, go on to consider the question whether an action would lie merely on proof of the fact of the injury done by the defendant, but dealt with the burden of proof, holding that the burden of proving that the accident was neither intentional nor the result of negligence lay with the defendant. On the question which is the subject of this note the decision is, at best, inconclusive. The question was adverted to by the High Court of Australia in Williams v. Milotin.I0 In this case the question before the court was whether a running-down action, when the defendant was himself driving the vehicle, was an action which would formerly have been brought in trespass, or one which would formerly have been brought in case. Different periods of limitation applied to the two actions. The court held that the action could formerly have been brought either in trespass or in case. But the court (which was presided over by Dixon C.J.) said (at p. 474): cc The essential ingredients in an action of negligence for personal injuries include the special or particular damageit is the gist of the action-and the want of due care. Trespass to the person includes neither. But it does include direct violation of the protection which the law throws round the person. It is true that in the absence of intention of some kind or want of due care, a violation occurring in the course of traffic in a thoroughfare is not actionable as a trespass. It is unnecessary to enquire how that comes about. It is perhaps a modification of the general law of trespass to the person. Though it is not stated directly, the words used might well imply that, in the opinion of the court, an action of trespass to the person not occurring in the course of traffic was actionable ( in the absence of intention of some kind or want of due care. These Australian decisions are of particular interest at the 8 (19%) 28 S.R. (N.S.W.) See Stanley v. Powell [1891] 1 Q.B (1957) 97 C.L.R. 465.

4 Nov NOTES OF CASES 677 present time, in view of the fact that there is pending before the Full Court of the Supreme Court of New South Wales, an action which raises the issue in a very practical form. A plaintiff who complained of the manner in which an operation had been performed on his ear, sued his doctor and (as recorded in 33 Aust. L.J. 322) included in his declaration an economically worded count in trespass to the person, thereby seeking to cast upon the defendant the burden of proving that he was in no way negligent. The defendant moved to have the count struck out on the ground that to sustain it the plaintiff must plead facts involving either intentional or negligent conduct on his part. In view of the importance of the question, the trial judge referred it to the Full Court. The decision of that body will be awaited with interest. Having decided, in Beak v. Hayward, that in an action for trespass to the person it was necessary or intention or negligence on the part of the defendant to be proved, McGregor J. turned to the question of onus of proof. He held that the onus lay on the plaintiff. In this he followed the decisions of Stable J. in Morriss v. Marsden l1 and of Diplock J. in Fowler v. Lanning,12 and rejected the contrary view expressed by Cartwright J. in the Supreme Court of Canada in Cook v. Lewis.ls This was a shooting case in which there were two defendants. The jury were unable to decide which of the two defendants fired the shot which injured the plaintiff, though they did find that one of the defendants did so. They also found that neither defendant was negligent. The British Columbia Court of Appeal ordered a new trial on the ground that the jury acted perversely in finding that neither of the defendants was negligent. One of the defendants appealed. Cartwright J. in a judgment dismissing the appeal said (at p. 14): " While it is true that the plaintiff pleaded negligence on the part of the defendants he also pleaded that he was shot by them and in my opinion the action under the old form of pleading would properly be one of trespass and not of case. In my view, the cases collected and discussed by Denman J. in Stanley v. Pc,~ell,~~ establish the rule (which is subject to an exception in the case of highway accidents with which we are not concerned in the case at bar) that where the plaintiff is injured by force applied directly to him by the defendant his case is made by proving this fact and the onus falls upon the defendant to prove ' that such trespass was entirely without his fault.' In my opinion Stanley v. Powell rightly decides that the defendant in such an action is entitled to judgment if he satisfies the onus of establishing the absence of both intention and negligence on his part." But, as McGregor J. pointed out in the case under review, the 11 [1952] 1 All E.R [1959] 1 Q.B [1952] 1 D.L.R [l89l] 1 Q.B. 86.

5 678 THE MODERN LAW REVIEW VOL. 23 Court of Appeal in National Coal Board v. J. E. Evans 4 Co. (Cardiff), Ltd.,15 rejected the view that, in this matter, there was any distinction in the law applicable to accidents on the highway and those on private property. The National Coal Board case was not referred to in the judgments in Cook v. Lewis. This is not a matter for surprise as the former case was reported only a few weeks before the decision was given in Cook v. Lewis. Distance can still be a hindrance, despite air travel, and English reports take time to cross the Atlantic. But, on this issue, Cook v. Lewis loses much of its force by reason of the fact that the National Coal Board case was not considered in that decision. Beals v. Hayward is thus another authority in favour of the view that, in an action of trespass to the person, the plaintiff must prove either intention or negligence on the part of the defendant; and the onus of proof is on the plaintiff. A. G. DAVIS. INTENT TO DEFRAUD IN the present year there have been two appeals to the House of Lords from decisions of the Court of Criminal Appeal. In the fist, Welham v. Director of Public Prosecutions,' the decision of the Court of Criminal Appeal was upheld; in the second, Director of Public Prosecutions v. Smithy2 it was reversed. In both, the House of Lords found for the prosecution and appeared to adopt what is sometimes, somewhat naively, thought ol as the 66 practical yy (as opposed to the " academic ") approach. Yet, in reality, the two cases provide an interesting contrast for, whilst Welham is as least compatible with precedent, Smith runs counter to what one had hoped were some of the most basic principles of criminal liability. Quite apart from the outcome of the cases and making due allowance for the processes of the common law, it is a poor reflection on our criminal law and administration that there should still in 1960 have been uncertainty surrounding the basic mental element required by such offences as forgery and murder. Welham was the sales manager of a company dealing in motor lorries. He had witnessed the execution of hire-purchase agreements which he had known were forged and which resulted in large advances being made to tilt: company by two finance companies. He was convicted of uttering forged (private) documents contrary to section 6 of the Forgery Act, 1913, an offence which, in view of section 4 (l), required proof of an intent to defraud. His conviction was upheld by both appeal courts on substantially the same grounds. It was argued on his behalf that he had believed that the forged documents were designed to enable the finance companies to lend 15 [1951] 2 E.B L All E.R Also reported at [1960] 2 W.L.R [1960] 3 All E.R This case is discussed at pp , ante.