Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 3. Strict Liability and Negligence
an intentional or willful highway collision, only trespass would be appropriate. And so the
justices of King’s Bench concluded that a plaintiff such as the plaintiff in Leame had to be
allowed to move forward in trespass, even in actions for mere negligence.
The difficulty that soon became apparent is that plaintiffs moving forward in case face the
same risk of surprise: if facts emerged at trial to suggest that the proper writ was trespass, the
same difficulty of surprise would arise once more, which is precisely what happened in Williams
v. Holland:
Williams v. Holland, 131 Eng. Rep. 848 (C.P. 1833)
[John Williams, the son and servant of the plaintiff and Mary Ann Williams, the infant
daughter of the Plaintiff, were riding in horse-drawn cart along a public highway when the
defendant “so carelessly, unskillfully, and improperly drove, governed, and directed” his horsedrawn
gig that “by and through the carelessness, negligence, unskillfulness, and improper conduct
of the Defendant, the said gig and horse of the Defendant then and there ran and struck with great
violence upon and against the cart and horse of the Plaintiff, and thereby then and there crushed,
broke to pieces, and damaged the same,” injuring John and Mary Ann and depriving the plaintiff
of the service of his son and putting him to the expense of doctor’s bills. The defendant pled not
guilty.]
At the trial before Tindal, C. J., it appeared that the Plaintiff’s cart was standing at the side
of a road twenty-four feet wide, with the near wheel on the footway, when the Defendant in a gig,
and, in the act of racing with another gig, drove against the cart, upset and broke it to pieces . . . .
The defence was that the defendant’s horse had run away with him. And the Chief Justice left it
to the jury to say whether the collision was the result of accident, or of negligence and
carelessness in the defendant. The jury found the latter, and gave a verdict with damages for the
Plaintiff. It was also contended, on the part of the Defendant, that the action was misconceived,
and ought to have been trespass instead of case. The Chief Justice having reserved that point for
the consideration of the Court, Bompas Serjt. obtained thereupon, a rule nisi to set aside the
verdict and enter a nonsuit.
Jones Serjt. [for the plaintiff], who shewed cause, contended, that the result of all the cases
on this subject was, that where the act complained of is immediate and wilful, the remedy is only
by action of trespass; where the act is immediate, but occasioned by negligence or carelessness,
the remedy is either by trespass or case; where the act is unimmediate, the remedy is by case only.
[Citing Weaver v. Ward, Reynolds v. Clarke, Scott v. Shepherd, and Leame v. Bray]
Bompas [for the defendant], in support of his rule, insisted, that the effect of all the authorities is,
that when the act complained of is immediate, whether it be willful or the result of negligence, the
remedy is by trespass only.
TINDAL, C.J. . . . [T]he present rule was obtained for setting aside the verdict and
entering a nonsuit, under leave given for that purpose, upon the ground that the injury having
been occasioned by the immediate act of the Defendant himself, the action ought to
have been trespass, and that the case was not maintainable; and amongst other cases cited by
the Defendant’s counsel in support of this objection, that of Leame v. Bray (3 East, 593) was
principally relied upon as an authority in point.
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