Wie v Lidv Polakow - Willams - [1942] HCA 35 - HCA 1942 case summary

Wie v Lidv Polakow - Willams - [1942] HCA 35 - HCA 1942 case summary — Zoe

[22]

Barwick K.C. (with him Kinsella), for the respondent. For the purpose of this part of our argument it is conceded that Lord Campbell's Act only applies to extend the area of the action of tort. The cause of action on which the respondent succeeded is now, and was at the time of the passing of that Act, tortious. The essence of the present right, that is to say the right that arises under sec. 19 (1) and (2) of the Sale of Goods Act 1923-1937, involves two factors, (a) a trader who is dealing in the goods, and (6) the reliance of the purchaser upon the judgment of the trader with the knowledge of the latter. Those two factors existed prior to 1846 and have sur- vived to the present time. Those factors gave rise to a duty in the first place sounding in tort, though later sounding in contract. Though ultimately it has become solely a matter of contract, there is still a duty not to sell goods that are unfit (Holdsworth, History of English Law, 4th ed. (1935), vol. 3, pp. 385, 386, 430, 432; vol. 8, pp. 68, 70; Williamson v. Allison (2); Stuart v. Wilkins (3); Brown v. Edgington (4)). The precise counterpart of the statutory duty appears in the last-mentioned case. It is implied from the transac- tion, just as the present condition is implied. A warranty count to the effect of the form shown in the 3rd schedule to the Common Law Procedure Act 1899, as it appears in Betts, Louat and Hammond's Supreme Court Practice (N.S.W.), 3rd ed. (1939), p. 237, was con- sidered in Cutts v. Buckley (5). It is sufficient to show that even as late as 1852, when the original Common Law Procedure Act was framed, the purely and exclusively contractual nature of express warranty was not in mind; that it had not emerged clearly, and, in point of fact, did not emerge clearly until Heilbut, Symons & Co. vy. Buckleton (6). '"' Wrongful" does not merely mean tortious ; it must include any act which might have given rise to an action on the case in 1846. Heilbut, Symons & Co. v. Buckleton (6) shows that in 1846 it would have been proper in the present matter to have declared on the case. There is a large area, a nebulous area, where tort or contract might both have been brought in 1846. The framers of the Act had not in mind the distinction which is now in mind between tort and contract (Marzetti v. Williams (7); Brown v.

[26]

see also Brown v. Holloway (4). The respondent's right does not arise out of an express contract between the parties, as in Jarvis v. Moy, Davies, Snuth, Vandervell & Co. (5). The preamble to the English Act was discussed in Osborn v. Gillett (6). The title and verbiage of the Compensation to Relatives Act 1897 show that the Act has regard only to the event and not to the source of the possible liability in the defendant towards the deceased. The meaning of the words " wrongs" and " wrongful" is dealt with in Holland on Jurisprudence, 13th ed. (1924), pp. 256, 330-334. Breaches of contract have been referred to as wrongs (South Wales Miners' Federation v. Glamorgan Coal Co. Ltd. (7) ; British Homophone Ltd. v. Kunz and Crystallate Gramophone Record Manufacturing Co. Ltd. (8); Grein v. Imperial Airways Ltd. (9); Bradshaw v. Lancashire and Yorkshire Railway Co. (10); Jury v. Commissioner for Rail- ways (N.S.W.) (11)). Lord Campbell's Act and the Compensation to Relatives Act 1897-1928 give a right of action in every case where death is caused by an act, neglect, or default, which at the instance of the deceased would have been actionable irrespective of the nature of the action he would have been able or bound to bring. The matter is primarily one of construction. The Act is remedial (Craies on Statute Law, 4th ed. (1936), pp. 175-178; Charlesworth, Law of _ Negligence, (1938), p. 486; Leggott v. Great Northern Railway Co. (12) ). An action in contract will survive to the extent, but only to the extent, that damage is done to the estate of a deceased person (Finlay v. Chirney (13); Quirk v. Thomas (14); Salmond on Torts, 7th ed. (1928), p. 92). Those authorities show that although the cause of action might survive damages for the personal injury of the deceased could not be obtained. That result was obtained by a gloss on the actio personalis rule. The rule in Baker v. Bolton (15) in application becomes complicated. The idea of damages surviving as distinct from the cause of action surviving has not been clearly held. The cause of action under the Act is neither tortious nor contractual ; it does not bear any relation to the cause of action the deceased might have had.

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I do not think that much if any help towards the solution of the question is to be gained by exploring the dusty recesses of black- letter law to see how far assumpsit and case (in its ordinary sense) were once associated, or by speculating whether in the minds of legislators in the year of grace 1846 the action of assumpsit still had a delictual smack about it. The question is one of construction and it is not, I think, necessary to appeal to legal history. Without in any way detracting from the industry of counsel in their researches, T am not unmindful of " the dangers of hastily acquiring " (historical) "|mowledge for a special occasion" (Sir William Holdsworth, History of English Law, 4th ed. (1935), vol. 3, p. 336). Lord Campbell's Act was a remedial Act. From its preamble it was evidently designed to meet and remedy a class of case of special hardship caused by the operation of the rule actio personalis moritur cum persona in preventing the recovery of damages for injury arising from death. The rule had this effect whether death had been caused by tort or breach of contract. The language of the statute, which by its express terms is designed to remedy this defect of the common law, is large enough to embrace death arising from either type of default. In Doe d. Dacre v. Dacre (1) Eyre C.J. said: "I do not know a larger or looser word than 'default' . . . In its largest and most general sense it seems to mean, failing." It is a relative term and takes its colour from the context. For instance, in the case of an absolute sale of goods the failure on the part of a vendor to perform what he had to perform constitutes default (In re Woods and Lewis' Contract (2)). "Default"? means not doing something which you ought to do, having regard to the relations which you occupy towards the other persons interested in the transaction (In re Bayley-Worthington and Cohen's Contract (3) ). Similarly, in Grein v. Imperial Airways Ltd. (4), Greene MLR. says: "The word 'default' is a word of wide signification and in its ordinary use does, J think, include a breach of contract." This dictum, together with

Wie v Lidv Polakow - Willams

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