STATUTORY INTERPRETATION AND THE INFLUENCE OF STANDARDS.

The object of this articlc is to draw attention to one or two of the wider problems involved in thc task of statutory interpretation and not simply to assess the merits or deficiencies of those so-called canons of construction which our judges rmploy in their task of interpreting modern legislation.

Many writers1 have already demonstrated that these canons are of limited utility as an indication of the probable answer the courts may give in any particular case; that many of the rules can hardly be justified today; that if certainty is to be regarded as the acme of legal perfection then the lawyer must despair of ever attaining that perfection in thc field of statutory interpretation; and that the judicial attitude towards legislation sometimes reveals a discordant hostility and bias which may result in perverse and "wrecking" interpretation.

Undoubtedly there is much truth in these criticisms and current law reports continue to provide fresh ammunition for the critics. On the other hand the picture has been somewhat overpainted. I n recent years. it is submitted, the judiciary has, in the main, adjusted itself with more equanimity to the task of statutory interpretation. This is particularly noticeable in taxation cases where the courts are now less favourably disposed towards technical "evasions" of income tax dues.

This changing attitude may be partially attributed to the fact that in the modern welfare state more and more of the judges' work requires the interpretation of statutory provisions. Familiarity, in this context, seems to breed understanding. Justice Felix Frankfurter has observed2 that the percentage of cases before the Supreme Court of the United States, which rest on statutes, has increased from about sixty per cent. in 1875 to all but one hundred per cent. at the present time. Likewise Professor W. Friedmann, writing with expert know- ledge of several common law and continental legal systems, states:

1 See, imter alia, John Willie, Statute Interpretation in a Nutshell, (1938) 16 Can. Bar Rev. 1 ; D. J. Llemelyn Davies, T h e Interpretation o f Statutes i n the light of their poliay b y tlw English Cmrts , (1935) 35 C O ~ . UW Rev. 519; J. A. Corry, Administrative Law and the Interpretation o f Statutes, (1935-36) 1 U. o f Toronto L.J. 285; and R. A. Eastwood, A Plea for the Historical Interpretation of Statute Law, C19351 J. Soc. Pub. Teach. Law 1.

2 Some Reflections on the Reading of Statutes, (1947) 47 Col. U w Rev. 527. 3 Legal Theory ( 2 n d ed., 1949), at 335-336.

" . . . the number of decisions based on statutory interpretation, in comparison with common law decisions, increases from month to month. Revenue law, workmen's compensation, transport and traffic regulations, insurance Acts, housing statutes, local govern- ment legislation, not to speak of war legislation, these and other statutory matters provide the majority of decisions: and in criminal law, even if we disregard the fact thai all the main common law crimes are now codified, new statutory offences occupy more and more of the judicial work."

These generalisations may be tested by an examination of any series of law reports. On the assumption that a, law report series will contain most of those decisions which contain some legal develop- ment (progressive or regressive), the present writer made a rough analysis of the three hundred and odd cases reported in the English Weekly Law Reports during the first six months of their existence. The following statistics give some indication of the increasing import- ance of statutory interpretation at the expense of pure common law cases : -+

( a ) Revenue ( 7 ) , Transport ( 3 ) , Rent Restriction ( 5 ) , Work- men's Compensation (5), Administrative Law ( I 2 ) : Total,

32%. (b) Miscellaneous, viz., Arbitration, Damage, Taxation of Costs,

Ecclesiastical Law, Lega,l Aid (2) , Practice (4), Public and Private International La.w ( 2 ) : Total, 2 I %.

(c) Trusts, Succession, Wills, Company and Land Law: Total,

19%. (d) Contract and Tort: Total, 12%.

(e) Criminal Law and Practice: Total, 8%. ( f ) Family Law and Practice: Total, 8%.

No matter how these categories and percentages are adjusted, they still support the general proposition that "almost every case has a statute at its heart or close to itY3

The Judicial Attitude. We have already observed that in the past writers have accused

the judges of having an initial bias in interpreting legislaiion, especially that of a social character. The b2te-noire of these critics was, for example, cases such as Roberts v. H o ~ w o o d , ~ which even

4 Figures in brackets are individual percentages. 5 Frankfurter, loc. cit. For an English judicial dictum to the same effect,

see Lord Simonds at page 530, infra. 6 C19251 A.C. 578.

today is occasionally given an airing like the family skeleton in the cupboard.? I t would be more difficult, however, to find in current decisions any substantive evidence of open hostility towards legislative innovations. Certainly the lawyer's veneration for the common law and his hostility towards legislation is not so marked today as it was when Blackstone made his famous ind i~ tmen t :~

" . . . almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the English, as well as other courts of justice) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament . . ."

Nevertheless the human foibles and eccentricities of the legal mind are more clearly revealed by the task of statutory interpretation than by any other task with which the lawyer is concerned. "Experience shows that the limits of interpretation will be fixed at very different points by different persons; and there is, perhaps, no legal subject which brings out peculiarities of individual bias and disposition more strongly than difficult problems of construction".g

Occasionally a bias of the strongest kind in an inferior court has to be sternly corrected on appeal. A recent caselo of this kind arose under the Leasehold Property (Temporary Provisions) Act, 1951; the Act gives the court power to decide whether it is reasonable to order a new lease to be granted by the landlord to the occupier of a shop.ll Judge Cary Evans, sitting in the Norwich County Court, obviously doubted the merits of the legislative policy involved since he declared, "I cannot think it is reasonable that landlords who like the rest of us have to meet inflated prices for everything which they buy should be restricted to a 1931 rent for their property though this, of course, is the fate of landlords of many rent-controlled dwelling- houses, but I have yet to hear or read any fair argument that this is reasonable". In the Court of Appeal, Sir Raymond Evershed M.R. curtly observed, "I venture to dissociate myself with that (dictum) as tending to criticise the policy of Parliament . . . ."I2

7 Cf. Friedmann, op. cit., at 313, and see also his Laut and Boeial Change, 247. 8 Commentaries (5th ed., 1773), I, 10. 9 F. V. Hawkins, On the Principles of Legal Interpretation; reprinted from

the Juridical Society Papers, ii, 298, in Thayer's Evidence (1898), 557, at 605.

10 J072n Kay, Ltd. v . Kay, C19521 1 All E.R. 813, at 817. 11 A good example of direct legislative interference with common lam

principles. 12 John Ifay, Ltd., v. Eay , [I9521 1 All E.R. 813, at 817.

Such a judicial lapsus l inguae is rare. More important is the ascertainment of the point at which any individual judge or court will draw the "limits of interpreta.tion." The judicial attitude may be generous or parsimonious, strict or liberal, in construing a statutory provision which may have several interpretations of equal linguistic merit but unequal social advantage. As Professor Willis has so succinctly pointed out, a judge may apply the IiteraJ, golden, and mischief rules interchangeably and reach a different conclusion in each case.13 Judges naturally apply those canons of construction which assist them in reaching the conclusion which appears to do justice in the particular case.14 However, the real crux of the matter is not whether the judge will apply this or that rule of construction: it is whet!ler from the outset he approaches his task as one of co-operating with the legislature, i.e., with the intention of choosing an interpretation which, while satisfying the grammatical sense of the words used, also promotes the legislative policy; or whether, as is too often the case, he applies arbitrarily one or more of the canons of construction and perhaps reac!les a result which is an obvious contradiction of what Parliament intended.

Dicta in recent English cases bring this conflict of ideologies clearly into focus and emphasise that the problem just stated is not solely of academic interest.

Denning L.J. in the Court of Appeal has declared himself to be a "co-operator" in t h i ~ context. In Magor and St. Mellons R.D.C. v. Newport Corporation, the learned Lord Justice said:15

"We do not sit here to pick the language of Parliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do, and it 'is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling

13 Willis, lor. cit., a t 16. Very occasionally the more elementary rules of construction are referred to, but they are rarely significant to the main issue. For recent examples see Commissionero of Customs and Excise c. Rensop Drapers Ltd., 119511 1 All E.R. 450, a t 453 (punctuation); R. v. Tronoh Nines Ltd., 119521 1 All E.R. 697, a t 700 (heading to set of sections in Act) ; and Pride of Denbg and Derbyshire Angling Association L t d . v. British Celanese Ltd., [I9531 2 W.L.R. 58, a t 68 (marginal notes).

14 For example, Parker J. in Littlewood v. George Wimpey 4 Co. Ltd., C19531 1 W.L.R. 426, said ( a t 439), "1 feel . . . tha t . . . I am constrainel! to adhere to the plain construction of the section and not to fill gaps jn it." Cf. the same judge in Bullard v. Croydon Hospital Group Manage- ment Committee, 119531 2 W.L.R. 470, where he said ( a t 476), " . . . i t does seem to me that the true view may well be tha t one must read, after "bona fide", the words "and without negligence."

15 119501 2 All E.R. 1226, a t 1236.

in the gaps and making sense of the enactment than by opening it up to destructiva analysis."

This was "strong language" which could not be dismissed as gn isolated "off the record" dictum, since the Lord Justice was re- affirming his standpoint in Seaford Court Estates Ltd. v. Asher,16 and he later reiterated the dictum in Francis Jackson Developments ~ t d . v. ~ ~ 1 1 . ~ 7

When the Magor case was affirmed by the House of Lords,ls Lord Simonds considered it necessary to comment on the approach of Denning L.J. because, as he put it, "at a time when so large a proportion of the cases that are brought before the courts depend on the construction of modern statutes it would not be right for this House to pass unnoticed the propositions which the learned Lord Justice lays down for the guidance of himself and, presumably, of others."l%ord Simonds then alleged that Denning L.J. had put a wrong construction on the broad rules of interpretation laid down by Sir Edward Coke in Hevdon's Case." The proposition that it is the duty of the court to L'find out the intention of Parliament and not only of Parliament but of Ministers also cannot by any means be supported. The duty of the court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited." This, it is respectfully submitted, is a counsel of perfection which breaks down in practice. If words are ambiguous, one of several meanings must be chosen. A judge should, it is presumed, choose that interpretation which Parlia- ment itself (in reality the Government Department which put forward the bill) had in mind. It is at this stage that the traditional rules of construction break down since, by and large, judges refuse to consult openly the most obvious sources of informa,tion as to Parliament's intention.=

Lord Simonds was even more critical of the suggestion of Den- ning L.J. that the judge should "fill in the gaps." This appeared to

no 119491 2 All E.R. 155, at 164. 17 Cl95ll 2 All E.R. 74, at 78. 18 119511 2 All E.R. 839. 19 Ibid., at 841. 20 (1584) 3 Co. Rep. 7a, 76 E.R. 637. 21 Sir Cecil Can, in a review of Griffith and Street, Principles of Admini-

strative Law, suggests that "(the authors') statement that judges elicit the intention of the legislature by surreptitious perusal of Hansard i s preeumably not serious": (1952-53) 6 Parliamentary Affairs (Journal of Hansard Society) 154, at 156.

be "a naked usurpation of the legislative function under the thin disguise of interpretation, and it is the less justifiable when it is guesswork with what material the legislature would, if it had dis- covered the gap, have filled it in. If a gap is disclosed, the remedy lies in an amending NO doubt Lord Justice Denning's expression of "filling the gaps" was unfortunate in view of the time-honoured legal fiction that judges do not make new law but only declare that which already exists. The fiction is convenient since an open admission that judges do in fact make la,w might be misconstrued by the layman who would not realise within what limited bounds that creative function operates.z8 Yet the process of building from precedent to precedent, the adaptation of old principles to new situations, and the grafting of a judicial commentary on to each new statutory provision, is a, phenomenon in no way surprising to anyone concerned with the operation of the legal system.

It is submitted, however, that all Denning L.J. had in mind when he spoke of "filling the gaps" was that the task of statutory interpretation should be carried out with a modicum of common sense; that judges should act like the reasonable man whom they themselves created for the common la-w. Indeed, as the Lord Chief Justice of England has recently said, "A certain amount of common sense must be applied in construing statute^."^^

Adopting this approach a judge may, on rare occasions, actually fill in a legislative gap where the method of so doing is clear from the context and general policy of the legislation. Thus in British Transport Commission v. London County Councilz6 Romer L.J. said, "I think that, on ordinary canons of construction, without having to resort to the special canons of construction in Maxwell to which we were referred, when we find here that the legislature has expressed it- self elliptically . . . then that is a hiatus which the court is entitled to fill and, in doing that, to have regard to the purpose of the Act as a whole, to the history of the matter, and to the pr~babilities."~~

22 See note 19, swpra. 23 "The main lines are fixed by precedents. New lines may, indeed, be run,

new courses followed, when precedents are lacking. Even then, distance and direction are guided by mingled considerations of logic and analogy and history and tradition which moderate and temper the prompting of policy and justice": Cardozo, A Ministry of Justice, (1921-22) 35 Harv. Law Rev. 113, at 114.

24 Per Goddard C.J., in Barnes 8. Jarvis, [I9531 1 W.L.R. 649, at 652. 25 [I9531 2 W.L.R. 665 (C.A.). 26 Ibid., at 680. It is interesting to note that the other two members of the

court, Evershed M.R. and Jenkins L.J., reach the same ultimate decision but both along different paths-a reflection of the difficulties involved in statutory ~nterpretabon.

The recent decision in Packer v. Packerz7 provides a good illustration of what may be conveniently described as the narrow and the wide views of statutory interpretation. In her divorce pro- ceedings a wife applied for an order for custody and maintenance of her child. I t was revealed that the child was born at a time when its father was married to another woman. The parents had married shortly after the father's first marriage had been dissolved. According to English law, of course, the child was illegitimate at birth and could not, in the circumstances, be legitimated by the subsequent marriage of its parents.28 In these circumstances the judge at first instance decided that he had no power to grant to the mother the order for custody and maintenance. On appeal, the court (Denning and Morris L.JJ.) had to consider the wording of sec. 26 of the Matrimonial Causes Act, 1950, which is substantially the same as a number of provisions in earlier matrimonial legis!ation dating back to the Matri- monial Causes Act 1857. The relevant portion of sec. 26 reads, "In any proceedings for divorce . . . the court may . . . make such provision as appears just with respect to the custody, maintenance and education of the children the marriage of whose parents is the subject of the proceedings . . . ." The question before the court therefore was whether the illegitimate child came within t l e meaning of the words italicised.

Morris L.J. took the "narrow view" which excluded the illegiti- mate child. He reached this conclusion on the following grounds, viz.:

( i ) The technical rule of law is that prima facie the word 'children' in a statute means only legitimate children though it may include illegitimate children where that meaning is more consonant with the object of the statute.29

(ii) The point had never been raised until comparatively recently.

(iii) Other sections of the same Act speak of "children of the marriage" and they would not have been so limited .of sec. 26 ( I ) had been intended to cover all children of the

parties whether legitimate or not. (iv) The naxrow view is confinned by dicta of cotton L.J. in

Langworthy v. Langworthy30 with reference to similar words ~J-I sec. 35 of the Matrimonial Causes Act 1857.

27 119531 3 W.L.R. 33. 28 Legitimacy Act, 1926 (16 & 17 Geo. 5, c. 60), see. 1 ( 2 ) . 29 The "rule" was expounded by Vaughan Williams L.J. in Woolwich Union

v. Fulham Union, [I9061 2 K.B. 240, at 246-247. 30 (1886) 11 P.D. 85, at 88, 89.

(v) The narrow view of sec. 26 ( I ) had already been taken by Barnard J. in Harrison u. Harrison31 with whose judg- ment Morris L.J. agreed.

On the other hand the learned Lord Justice a.dmitted that "It may well be that it would on occasion be very convenient if on a decree of divorce the court could make orders as tc the custody, maintenance and education of those acknowledged by the parties to be their illegitimate children. But considerations of convenience are for the legislature. The question for the court is one of construction of the ACt.))3:!

Denning L.J. took a wider, and it is respectfully submitted, a more rational view in holding t!lat the section included illegitimate children. He did so on these grounds:

( i ) By its express terms sec. 26 ( I ) applied also to nullity proceedings, for example, on the grouhd of bigamy; and Langworthy u. L a n g ~ o r t h y " ~ showed that the Court can make provision for the children of a bigamous marriage although, of course, such children are illegitimate.

(i i) The test of jurisdiction under sec. 26 ( I ) is parenthood not legitimacy since there can be no justification for applying one test in nullity proceedings and a different one in those for divorce.

(iii) Sec. 26 ( 2 ) which deals with restitution of conjugal rights speaks of "children of the petitioner and respondent" which appears to make parenthood the test in this case also.

'Therefore even on a strict construction of the section Denning L.J. was prepared to hold that the Divorce Court had jurisdiction to make provision for an illegitimate child of the parties provided that they are its parents. He said, "I am not inclined to insist upon a strict construction of an Act of Parliament if reason and good sense point to a different construction; in this case, however, reason and good sense go hand in hand with the strict cons t r~c t ion ."~~

(iv) Dealing with the argument of counsel for the respondent, that only the Chancery Division or the County Court or the magistrates can make provision for illegitimate children under the Guardianship of Infants Acts, 1886 and 1925, Denning L.J. pointed out that if this argument were accepted it might often involve a separate application to

31 [I9511 P. 476. 32 C19531 3 W.L.R. 33, at 38. $3 See note 30, supra. 34 C19331 3 W.L.R. 33, at 36.

the Chancery Division which might equally well have been dealt with by the Divorce judge who has probably already made orders in respect of any legitimate children and has seen and heard all about the parties.

(v ) Finally there was, in his opinion, no validity in the point that no case had been found in which the Divorce Court had made orders in respect of an illegitimate child. "If nothing is ever done which has not been done before, the law will stand still whilst the rest of the world goes on; and that will be bad for both."35

The curiosity of the reader as to the ultimate decision cannot, a t the time of writing, be satisfied because since the two Lords Justices were divided in opinion the decision of the court at first instance had to stand, subject to the possibility of an appeal to the House of Lords. Both the appellant and her legal representatives must have wished for a decision less like the mumblings of the Delphic Oracle.

I t would appear from the vast literature on statutory interpreta- tion that not enough attention has been paid to the very difficult task which the interpretation of modern legislation often entails; especially is this the casc with legislation such as Income Tax and Rent Restriction statutes.

The interaction between judicial interpretation and amending legislation produces a conglomeration of interlocking Acts, repeals, and amendments which only makes confusion more confounded. The fault lies equally on both parties-judicature and legislature. The judicature, by strict and literal interpretation, compels the legislature to make further attempts to achieve its objects and in doing so the language of legislation is tightened and c o m p l i ~ a t e d . ~ ~ The legislature too often confines its attention to the immediate consequences of some unwelcome decision and thereby creates further future diffi- culties; for example, when a later amending Act is found impliedly to repeal an earlier provision, or casts doubt on the meaning of one which was formerly regarded as certain.

Repeatedly the judges throw up their hands in despair a t the complicated provisions which come before them; for example, "(the

35 [I9531 3 W.L.R. 33, a t 36. 36 TO those who urge legislative draftsmen to use a plain and concise style,

Sir Cecil Carr, speaking with a vast experience of le@~islative drafting, replies, " . . . may we ask if their experience (i.e., tlie experience of modern draftsmen) encourages them to ignore the quibbles of unfair or unreasonable interpretation'?": (1951) 33 Journal of Conaparatilje Legis- lation, xxxvi.

claim) involves the consideration of provisions which are, I think, of unrivalled complexity and difficulty and couched in language so tortuous and obscure that I am tempted to reject them as meaning- less."37 "I propose to walk warily among the intricacies of this puzzling legislation and to decide no more than I need."38

Thc solution of this dilemma is not difficult to enunciate though it is discouraging to concludc, as one must, that it is hardly likely to be reached during our generation. For it amounts to nothing less than the abandonment of the slavish application of arbitrary rules of construction largely originating in the construction of private documents such as wills, where the ascertainment of the author's intentions must inevitably be drawn mainly from the document itself. The substituted approach must be one of ascertaining the policy of the statute both from the statute itself and from that vast reservoir of material which forms the necessary structural basis of modern statutes. This change of approach can only come about with a new generation of lawyers more familiar with social legislation than their predecessors and more conscious of the positive role demanded of the legal system in the welfare state.39

Meanwhile the conflict of approaches persists as may be illustrated by two final examples from the reports, viz.,

"This is the familiar contest between a literal interpretation of an Act of Parliament and a liberal or reasonable interpretation of it . . . I do not think now that we should stick to the letter of the statute when the general intention is clear."40 With this may be compared the following statement: " . . . the primary duty of a tribunal is to construe the section, and if, on the

37 Per Lord Simonds re the Finance Act 1940 ( 3 & 4 Geo. 6, c. 29), see. 46, in St. Aubyn (L.M.) v. Attorney-General, C19511 2 All E.R. 473, a t 484.

38 Per Harman J. re the Town and Country Planning Acts, 1932-1947, ~ I L

Re 42-48 Paddington Street, C19511 2 All E.R. 1025, a t 1028. 39 Commonwealth law reports contain the same crop of cases on statutory

interpretation as the English series. Solnetimes 4he judicial attitude is refreshing; for example, see Associated Dominions As&rance Society Ltd. v. Balntford, (1950) 81 C.L.R. 161, where Latham C.J., who stuck to the ipsissima verba of the statute, was outnumbered by the rest of tbc High Court who considered its policy.

Note also Wolff J. in Anderson v. Lockyer, (1950-51) 52 West. Aust. L.R. 60, who acknowledges that "In a world of rapid sociological change and multitudinous statutory enactments the law is likely t o undergo mu& refinement of development" (at 64), and "The fluctuation of judicial opinion is I consider a reflection of the difficulties imposed on the common law in adjusting itself to the changing circumstances which arise fror!l time to time and the sociological considerations which lead to the passing of particular pieces of legislation" (a t 66).

40 Per Denning L.J. in Franlc v. Prank, C19511 2 All E.R. 503, a t 506.

reading of its terms, it bears in its wording a plain meaning, the fact that an unexpected result is occasioned is no reason for re- jecting the obvious meaning and substituting something which might be conceived to be that which Parliament would be more likely tq intend to bring about."41

T h e influence of "standards."

I n a classical article entitled C o m m o n Law and Legislation4* Roscoe Pound has stated that there are four ways in which the courts may deal with legislative innovations. The most restrictive method is to give them a strict and narrow interpretation, holding them down rigidly to those cases which they expressly cover. On the other hand the courts may interpret the legislation in a liberal manner so that it is applied to the whole field it was intended to cover. He describes the first method as that representing the orthodox common law attitude towards legislativc innovations, while the second method represents "the attitude toward which we are tending." He foresaw that the third and fourth methods would appear absurd to the common lawyer but, hc argued, the course of legal development upon which we have entered already must lead us in the future to adopt first one and eventually the other.

The first development will occur when a legislative innovation is fully received into the body of the law and is reasoned from by analogy the same as any other rule of law while being regarded as of equal or co-ordinate authority with judge-made rules upon the same subject. Finally, legislative innovations may come to be regarded not only as principles from which analogies may be drawn to cover cases not expressly governed by the statute, but also as a later and more direct expression of the general will, of superior authority to judge-made rules and to be used as analogies in preference to them.

The first approach-that of strict and narrow interpretation-is, of course, familiar to all students of legislation. Moreover, as we have already seen, the second approach-that of liberal interpretation-is by no means firmly established in our system. I t may seem, therefore, rather premature to look for any signs of development towards the more. advanced stages. Yet. so great has been the .impact of modern legisla'tian an the common .law that.there are already 'some-indications that Roscoe Pound's prognostications will one day materiaiise.

4 1 Per Lord Porter in East End Dwellings Co. Ltd. v. Finsbury Borough Council, [I9511 2 All E.R. 587, at 592.

42 (1908) 21 Harv. Law Rev. 383, especially at 385.

The scanty evidence so far available suggests that this develop- ment will, to some extent, emergc from the interaction between standards which have germinated in the common law and those which ha.ve been introduced by statutory provisions and regulations. One of the greatest weaknesses of the common law as a regulator of modern human affairs in complex societies is undoubtedly its individualism. Another American writer has stated,43

"Most of the common law has developed in that atmosphere of indifferent neutrality which has enabled courts to be impartial but also keeps them out of touch with vital needs. When interests are litigated in particular cases, they not only appear as scattered and isolated interests, but their social incidence is obscured by the adventitious personal factor which colours every controversy. If policy means the conscious favouring of social above particular interests, the common law must be charged with having too much justice and too little policy. I t has fallen to the task of modern legislation to iedress the balance."

One of the methods by which the balance has been redressed is by the introduction of statutory standards which either oust or sup- ~ l e m e n t ~ ~ the few fairly simple standards of the common la,w. Professor W. A. Robson regards these standards as a phenomenon of modern times in that ". . . greater reliance upon standards and less reliance upon rules marks the transformation which is taking place in society, from a condition in which contract45 and property

43 Ernest Freuncl, Standurds of A?neriean Legislation (1917), 48. 44 < ' I f an Act or regulation has, for example, prescribed in detail a system

of work for a particular type of operation, it is difficult, though not legally impossible, to establish that an employer who has carried out the statutory provisions has failed, for example, to have a reasonably safe system. The reasonable employer is entitled to assume, prima facie, t k a ~ the dangers which would occur to a reasonable man have occurred to parliament or the framers of the regulations"; per Somerville L.J. in England w. National Coal Board, C19531 2 W.L.R. 1059, a t 1064.

45 Even in the field of contract, standardised conditions are largely replacing the individualism of offeror and offeree; see Denning L.J. in Corn missioners of Customs and Excise w. Pools Finance (1937) Ltd.,C19521 1 All E.R. 755, a t 780, and H. B. Sales, Standard Form Contracts, (1953) 16- Mod: Law Rev. 318. The building contractor who contracted to build

. . a jetty for 'the Admiralty never contemphted that he would have to pay the cost of repairing damage caused t o the half-fininshed jetty by a negli- gent vessel owned by the Admiralty itself; Parker J. held, however, that this was the effect of the construction he felt constrained to place on the General Conditions of Government Contracts for Building and Civil En- gineering Works: see A. E. Fa r r Ltd. w. Admiralty, C19531 1 W.L.R. 965.

were of supreme importance, to one in which the administration of services in the public interest is of a t least equal i m p o r t a n ~ e . ~ ~

Legislative standards are to be found in almost every modern statute; standards of medical treatment, education, working con- ditions, property rents, building materials, vehicle structure, amenities, food purity, and safety precautions-to mention only a few typical cxamples. The application of these new standards has, by and large, been entrusted to administrative trib~nals,.'~ but in some cases the work has been a.llocated to the ordinary common law courts. Hence48 the common law judges are becoming familiar with standards other than those of their own creation, and it is conceivable that this acquaintance must eventually have some effect on the common law itself.

The statutory standard is not usually an arbitrary or vague measure of conduct or quality." On the contrary it is almost invariably the final product of prolonged negotiation and investigation by experts in the particular field and by the relevant government departments. For example, a t a recent national conference of the Royal Sanitary Institute in England, the difficulties of drawing up and maintaining bacteriological standards for perishable foods were discussed. I t was stated that before any proposed standard became legal there would need to be extensive preliminary consultation between trade labora- tories, research organisations, professional bodies, and the government departments concerned. In some cases it would also be highly desirable to ca.rry out an experimental trial in several parts of the country hnder as nearly as possible the conditions which would apply if the standards were written into legislation.

One of the most vague standards in the common law is that of "reasonable care" in actions of negligence. In Donaldson v. McNiven," the father of a, boy was sued for negligence in allowing

46 W. A. Robson, Justice and Administrative Law (3rd ed., 1951), a t 554, citing Roscoe Pound on The Administrative Application of Legal Standards in 44 American Bar Association Reports 446.

47 Robson, op. cit., regards the unsuitability of the ordinary courts for this work a s one of the main reasons for the growth of administrative tribunal%

48 For example, under the Leasehold Property (Temporary Provisions) Act, 1961 (14 & 15 Geo. 6, c. 38), cited on page 528, supra.

49 Cf. the typical common law standard of "reasonableness." "I have referred to the conception of reasonableness, and he would, indeed, be a bold judge who tried to formulate with precision the significance that the wording implies": per Evershed M.R. in John Kay, Ltd. v. Kay, 119521 1 All E.R. 813, a t 816. Note also Freund, op. cit. a t 5, ' [ the criterion of reasonableness may be the only one avaiIable; but if so, it means that adequate scientific or conventional tests have not yet been developed."

50 119521 1 All E.R. 1213.

his son to have an air rifle in a crowded neighbourhood with the result that another child was blinded. Pearson J. was satisfied that the father had made it clear to his son that the rifle should only be fired in the cellar of the house and that this precaution would have been sufficient but for the son's disobedience which could not reasonably have been foreseen or contemplated by the father. I t had been argued on behalf of the plaintiff, however, that the father had been prima facie negligent in allowing his son to have an air rifle in any circumstances and in considering this point the learned judge sought guidance in legislation which, although having no direct bearing on the case before him, was nevertheless of assistance. In the course of his judgment Pearson J. thought it right to consider the provisions of the Firearms Act, 1937, to see whether they would give any guidance as to the status of an air rifle in relation to the requirements of public safety . . . The Act is concerned with criminal liability and is not concerned with civil liability for negli- gence. Nevertheless, I think its provisions ought to be taken into account in considering the legal requirements of air rifles and the standard of care in relation to them. The legislature in 1937, when dealing comprehensively with the subject of the acquisition and possession of firearms, did not consider it necessary to put ordinary firearms out of the reach of boys under seventeen." Pearson J. there- fore held that the father was not negligent. The case is not intrinsic- ally irnportant but it does provide a clear example of how a judge may apply even a legislative penal standard of care in a civil action and thereby indirectly mould the common law by following a statutory precedent.

Likewise in Thomas Stone Shipping L td . v. A d m i ~ a l t y ~ ~ the Court of Appeal looked at the Regulations for Preventing Collisionsl a t Sea as indicating the standard of care to which persons in charge of a ship should have conformed. The regulations did not directly apply to the particular ship since she was owned by the Crown.5a

Sometimes common law standards are moulded by non-statutory sources. An example of this occurred in Clifford v. Charles H. Challen and Son Ltd.54 An employer was held liable to his servant who had contracted dermatitis in using synthetic glue. The employer had taken nq effective steps to provide or enforce the use of washing facilities or of a prophylactic suc' h as a barrier cream. In the course

51 Ibid., at 1215. 62 [I9531 2 W.L.R. 807. 53 Ibid., at 813. 54 ~19511 L ~ i i E.R. 72 (c.A.).

of his judgment Denning L.J. observedj5"'. . . . ip 1943 a notice was issued by His Majesty's Stationery Office about the danger of dermatitis from synthetic glue. I do not know that the notice has any statutory effect . . . but the notice has since been recognised, both by the manufacturers of the glue and by outside employers who use it, as laying down the proper precautions which ought to be taken when synthetic glue is used. I t affords, therefore, a safe basis on which the common law can build, because the courts will certainly have regard to any failure to take those precaution^."^^ Clearly the reasonable man of the twentieth century is governed by a new maxim, "Ignorantia ministri libelli neminem excusat."

In Christmas v. General Cleaning Contractors, Ltd.,57 the same Lord Justicc applied similar reasoning in another common la,w action. In this case a window cleaner sued his employers and the owners of the premises on which he was working when he fell off a window ledgr. His fall was caused by a faulty window-sash which allowed the upper part of the window to crash down on the hand by which he was supporting himself on the ledge. In so far as the employers were concerned, he alleged that they had failed to provide a safe system of work. The employers, on the other hand, argued that it was impossible to provide safety belts or similar arrangements since these required some sort of fitting in the outer walls of buildings and, the installation of such fittings would be economically impracticable. Denning L.J. rejected this contention and in doing so paid. regard to regulations made by the London County Council, which did not dircctly govern the instant case. He "If they (the employers) cannot afford to provide adequate safeguards, then they should not ask them (the employees) to do it (the work) at all. I t is not worth the risk. That seems to be the view of the London County Council, for thcy havr made regulations forbidding a man to stand or kneel on a sill adjoining a highway unless he is hooked on by a safety belt."

The House of Lords later affirmed the decision of the Court of Appeal in favour of the workman against his employer although they did so on slightly different grounds. Lord Jowitt, however,

65 Ibid., at 73; italics supplied. 56 In. determining. .whethe?..? covenant against reselling a motor car for a ' pe.riod o f two..years was. a reasonable .restraint of traze, regaid..was paid

to the fact that the scheme under which such covenants were demanded from purchasers by motor car dealers had been "sponsored" by the government; see Danckwerts J. in British Hotor Trade Association W .

Gilbert, 119511 2 All E.R. 641, at 644. 57 C19521 1 K.B. 141 (C.A.). 5s Ibid., at 149.

quoted the above passage from the judgment of Denning L.J. without challenging his reference to the London County Council regulations as a guide in ascertaining what would constitute a reasonably safe system of

These are examples of the influence of statutory and "quasi" statutory provisions on the common law. Yet the common law has still sufficient vitality to furnish examples of the reverse process.

In Scott v. ScottJGO the court was asked to determine the mean- ing of "reasonable maintenance" in sec. 5 ( I ) of the Law Reform (Miscellaneous Provisions) Act, 1 9 4 9 . ~ ~ Hodson J., as he then was, looked to the common law for his guidance. "In my view, the question what is reasonable maintenance for the wife and children has to be considered with reference to the husband's common law liability to maintain his wife and children, and, no doubt, the word "reasonable" has to bc interpreted a.gainst the background of the standard of life which he previously has maintained."62

Again, in Alford v. National Coal a mining regulation was under consideration. The regula,tion provided that "No person employed in or about the mine shall negligently or wilfully do any- thing likely~ to endanger life or limb in the mine . . ." I t was argued that the regulation must impose something greater than the common law duty of care since otherwise the regulation would be superfluous. This argument was rejected by the House of Lords on the grounds that "To give statutory sanction to the common law obligation is by no means an otiose procedure . . ." since "the formulation of a common law duty as a statutory regulation has the formidable effect of subjecting those who infringe it to penal consequences. I t also has the effect in a civil action of depriving the infringer of the benefit of the plea of volenti non fit i n i~ r i a .~ '~ "

Conclusion.

An intelligent marksman does not expect to hit a moving target with a rifle whose sight he is not certain is accurate. Nor will a writer on the subject of statutory interpretation be accounted wise if he attaches too much importance to an occasional ripple on the ocean

59 General Cleaning Contractors Ltd. v. Christmas, [I9531 2 W.L.R. 6, at 10. 60 C19511 1 All E.R. 216. 61 12, 13, & 14 Geo. 6, c. 100; sec. 5 is now re-enacted by see. 23 of the

Matrimonial Causes Act, 1950 (14 Geo. 6, c. 25). 62 C19511 1 All E.R. 216, at 217. 63 C19521 1 All E.R. 754. a Abid., per Lord Normand at 757.

of judicial activity. Nevertheless it is submitted that the problems arising from the impact of the common law and lcgislation, of which only one has been considered here, deserve closer attention than they have hithcrto received.

Such closer study ma,y not only result in greater understanding and a happier relationship between the two major sources of law but also promote more vigorously that improvement in general welfare which is the function of all government in the democratic state.

ERIC C. E. TODD*

* LL.13. 1949, LL.M. 1951 (Manch.); Barrister-at-lam, Lincoln's Inn, 1956; Dauntesey Senior Legal Scholar, 1949; Warburton Saholar-in Local Govern- ment, 1949; Ma?lcllester Law Society Prize i n Equity, 1949. Assistant Lecturer i n Law at the London School of Economics and Political Science, University of London, 1950-. Visiting Lecturer i n Law, University o f British CoB~~mbia, 1955-54.