Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - TORTS
TORTS by G. H. L. Fridman, Q.C., M.A., B.C.L., Ll.M., Barrister (M.T.), Professor of Law, University of Western Ontario. Waterlow, London (1990, xc and 592 pp., plus 15 pp. Index). Hardback £85.
In several respects Fridman on Torts is much to be commended. For example, the writer’s exposition of some of the difficult areas of the substantive law is clear, concise and illuminating. This reader has met few better explanations of the long-running debate over the effect of the doctrine of res ipsa loquitur (pp. 322–327) and Chapter 19 on privacy contains a masterly drawing together of the various ways in which individual privacy is protected at common law. Furthermore, anyone with an appreciation of the importance of the historical development of the modern law of torts clearly has an ally in Professor Fridman. Thus, Chapter 6 on trespass to the person exhibits a steely determination not to let the modern predominance of the fault principle obscure the historic distinction between trespass to the person and negligence.
Moreover, there are many points where the writer makes effective use of comparative material (largely but not exclusively from Canada). English readers will be stimulated to learn that in Coughlin v. Kuntz (1987) 42 C.C.L.T. 142 a Canadian court awarded exemplary damages against a doctor held liable in negligence for having prescribed a course of treatment for the plaintiff in order to promote his own research. As Professor Fridman notes, it is highly unlikely that an English court would take the same view. Finally, one cannot but be struck and impressed by the thought that this is a book written by a scholar of the common law with a real love for his subject. To give but one example, the section on the tort of false imprisonment (paras. 6.18–6.22) includes discussion of the proposition that the tort cannot be committed by omission. Professor Fridman establishes this by reference to Herd v. Weardale Steel Coal & Coke Co. [1913] 3 K.B. 771. There, we are told, the plaintiff sued for false imprisonment when the defendants, who were his employers, left him stranded at a coal face upon his own repudiatory breach of contract. And, though the House of Lords decided the case on different grounds, the Court of Appeal found against him on the ground that no act of imprisonment had occurred. Here then we have a discussion of the distinction between acts and omissions, illustrated with a colourful example discovered in the course of a painstaking study of the case law. Is not this the stuff of common law legal scholarship?
However, there are also some very serious questions to be asked about this book. The first and most fundamental is: for whom and for what purposes has it been written? At various points in the journey through the book the following possibilities came to mind: (1) that it was written as a reference work for practitioners; such an answer is suggested by the writer’s obvious determination to set out the present-day “black letter” law, together with voluminous footnotes; as a consequence, little time is spent on contextual issues such as the role of negligence actions in accident compensation. (2) that it was written as an introductory work for students; this is in turn suggested by the fact that certain topics such as privacy, defamation and breach of confidence are covered in a depth which is appropriate for students but not for practitioners. (3) that it was written as a reference work for fellow academics, particularly those interested in comparative issues or in the historical development of the modern law.
Unfortunately, there are aspects of the book which make it inadequate for each of these purposes. Practitioners will be disappointed by some aspects of the author’s selection of
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