chapter
Notes and questions 1 Is this case authority for the proposition that English law refuses to recognise a liability for things similar to the principle to be found in the Art 1384 of the Code civil? 2 Does this case destroy the idea that it is the polluter who should pay? 3 Is fault the basis for all non-contractual compensation claims for physical damage? 4 Lord Goff says that ‘inapposite’ conclusions must not be drawn from the cases involving injunctions. Does this once again indicate (cf Miller v Jackson, above, p 51) that it is the remedy and not the right that is the main focal point of English law? 5 Hard cases, it is said, make for bad law. Well, Cambridge Water is a hard case in that the plaintiff is hardly the most deserving of companies (it might be useful to compare the salaries of the directors of CWC with those of the directors of ECL), and it does seem hard that a defendant should be held liable for something that happened way back in the past. Perhaps, then, the key to the decision is to be found under Lord Goff s heading The facts of the present case’. Yet this simply takes us back to the role of a court like the House of Lords (cf Read v J Lyons and Co, above); is it simply to decide particular cases between particular litigants? Was there not here an opportunity to do for strict liability what Donoghue v Stevenson did for fault liability? Lord Goff implied a role for comparative law in his Littlewoods judgment (and see his recent judgment in White v Jones, p 702), was there not the chance for the common law, perhaps in the spirit of harmonisation, to import the symmetry of the French Code civil? No doubt, names at Lloyds might not be so keen on an extension of strict liability, but the ordinary citizen crippled in a road accident and unable to prove fault (see p 760) might appreciate the symmetry of the Jand’heur case in France (Ch réun 13.2.1930; DP 1930.1.57; S 1930.1.121) which brought car accidents within Art 1384 (now mostly covered by separate legislation: loi 5 juillet 1985). The problem with the Cambridge Water case is that it is a case about pollution and the law of tort which does not, in fact, tell us that much about pollution and the law of tort. One can only hope that the ECJ will furnish English lawyers with some new ideas in the new millennium; for English judges seem paralysed when it comes to developing a law of tort in any direction other than fault. 6 Using materials to be found in Chapter 2, can you construct a judgment arriving at the opposite conclusion to Lord Goff s?
Pages 3

By common law, it is an indictable offence for an occupier of premises on a highway to permit them to get into a dangerous condition owing to nonrepair. It was not and is not necessary in an indictment to aver knowledge or means of knowledge…

Mint v Good [1951] 1 KB 517 Court of Appeal

This was an action for damages by a boy against the owner of premises for injury sustained by the boy on a public highway when a wall on the premises collapsed onto him. The trial judge dismissed the action against the owner on the ground that the owner, who had let the premises to tenants, had not reserved the right of entry to make repairs. An appeal to the Court of Appeal was allowed.