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Damages - From: 1980 To: 1984

This page lists 77 cases, and was prepared on 27 May 2018.

 
Gunton v Richmond-upon-Thames London Borough Council [1980] ICR 755; [1981] Ch 448
1980
CA
Buckley, Shaw, Brightman LJJ
Employment, Damages
The plaintiff college registrar had been the subject of disciplinary proceedings, but the defendant had not followed the contractual procedure. The judge had ordered an inquiry as to damages on the basis that the Plaintiff was entitled to remain in the council's employment until retirement age unless in the meantime liable to redundancy or dismissal under the disciplinary procedure, allowance being made for the plaintiff to mitigate his loss. Held: The employee was entitled to damages representing the salary he would have earned if the procedures had been followed and then during the one month's notice period on which the employment could have been terminated. (Shaw LJ dissenting)
Buckley LJ said that the adoption of the disciplinary regulations disenabled the council from dismissing the plaintiff on disciplinary grounds until the procedure prescribed by those regulations had been carried out. However, once that disciplinary process had been completed the council could have given notice and brought the contract of employment to an end.
Brightman LJ accepted that there was no right to sue for wages after the employer's repudiation: "An employee's remedy, if he is unlawfully dismissed by his employer, is damages. He cannot obtain an order for specific performance because it is not available to compel performance of a contract of service against an unwilling employer."
He rationalised the continued existence of the contract, by positing a distinction between Mr Gunton's status as an employee, which was terminated when he was excluded from work, and the contract of employment, which subsisted until it was lawfully terminated, saying: "It is clear beyond argument that a wrongfully dismissed employee cannot sue for his salary or wages as such, but only for damages. It is also, in my view, equally clear that such an employee cannot assert that he still retains his employment under the contract. If a servant is dismissed and excluded from his employment, it is absurd to suppose that he still occupies the status of a servant. Quite plainly he does not. The relationship of master and servant has been broken, albeit wrongfully by one side alone. The same would apply to a contract for services, such as an agency. If a two year agency contract is made between principal and agent, and the principal wrongfully repudiates the contract of agency after only one year, quite plainly the agent cannot hold himself out as still being the agent of the principal. He is not. The relationship of principal and agent has been broken. I do not think it follows, however, from the rupture of the status of master and servant, or principal and agent, that the contract of service, or the contract of agency, has been terminated by the wrongful act of the master or the principal. What has been determined is only the status or relationship. So in the result the servant cannot sue in debt for his wages, which he is wrongfully deprived of the opportunity to earn; or for his fringe benefit, such as the house which the carpenter in Ivory v Palmer [1975] ICR 340 had the right to occupy as part of his emoluments. As the relationship of master and servant is gone, the servant cannot claim the reward for services no longer rendered. But it does not follow that every right and obligation under the contract is extinguished. An obligation which is not of necessity dependent on the existence of the relationship of master and servant may well survive; such as the right of the master in Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227 that the servant should not during the term of the contract deal on his own account with customers of the plaintiff company."
Shaw LJ dissented, on the ground that the continued vestigial existence of an unperformable contract was an artificial fiction devoid of any connection with the true state of affairs: "I cannot see how the undertaking to employ on the one hand, and the undertaking to serve on the other can survive an out-and-out dismissal by the employer or a complete and intended withdrawal of his service by the employee. It has long been recognised that an order for specific performance will not be made in relation to a contract of service. Therefore, as it seems to me, there can be no logical justification for the proposition that a contract of service survives a total repudiation by one side or the other. If the only real redress is damages, how can its measure or scope be affected according to whether the contract is regarded as still subsisting or as at an end? To preserve the bare contractual relationship is an empty formality. The servant who is wrongfully dismissed cannot claim his wage for services he is not given the opportunity of rendering; and the master whose servant refuses to serve him cannot compel that servant to perform his contracted duties. In this context remedies and rights are inextricably bound together. It is meaningless to say that the contract of service differs from other contracts only in relation to the availability of remedies in the event of breach. The difference is fundamental, for there is no legal substitute for voluntary performance."
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 Gammell v Wilson; Furness v Massey; HL 1980 - [1980] 3 WLR 591; (1980) 124 SJ; [1980] All ER 557
 
G W Atkins Ltd v Scott (1980) 7 Const LJ 215
1980
CA
Stephenson LJ, Ackner LJ, Sir David Cairns
Construction, Damages
A building owner complained of defective tiling installed by the appellant. He claimed the cost of retiling the whole roof. The county court judge found that the tiling was defective, but that the defects were mostly cosmetic and of a minor character. He refused to give the plaintiff the cost of reinstatement, but awarded instead the sum of £250 as damages for bad workmanship. The defects as not being very serious, and accordingly that it would be unreasonable to go to the expense of completely stripping the tiles. Held: The appeal failed.
Sir David Cairns said that the judge's finding that it would be unreasonable to award the cost of reinstatement was not open to attack on appeal: "[Counsel for the defendant] accepts that in some cases it would be grossly unreasonable, or capricious, or perverse, to suggest reinstatement and that in such a case some other basis of assessment must be found. I confess that I can see no reason in principle, nor any support in the authorities, for the proposition that the test is other than lack of reasonableness simpliciter . ."
Ackner LJ said: "I accept that the court must have some regard for the predilections of the building owner, but that is only one of the factors. To take a wholly fanciful example; the half round tiles at the edge of the bath . . were white. They did not match the tiles as they should have done. If, for the purpose of this argument, they could only have been removed and replaced by the removal of all the tiles in the bathroom at a cost of several hundred pounds, would it have been reasonable for the plaintiff to have required this to be done? [Counsel for the defendant] contends that his client is entitled to say, "I want what I bargained for. What you have done is unacceptable to me." Such an approach seems to me to make his client the sole arbiter of what is "reasonable.""
Stephenson LJ agreed with both judgments.
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Koch Marine Inc v D'Amica Societa Di Navigazione ARL (The Elena d'Amico) [1980] 1 Lloyd's Rep 75
1980
QBD
Robert Goff J
Damages, Contract
The ship owners wrongfully repudiated a charterparty in March 1973, 14 months after its inception. The charterers did not hire a substitute but claimed damages for the loss of profits they would have made between January and April 1974, during which period there was a substantial rise in market rates. Held: The standard measure in an available market, was for damages to be assessed on the difference between the contract and market rates for the remaining charter period; but a plaintiff could recover damages beyond the normal measure if those damages fell within "the principle in Hadley v Baxendale". In this case there was no causative link between the owners' breach of contract and the charterers' decision not to take advantage of the available market. The owners' decision was independent of the wrongdoing that had taken place, and, for that reason, there was no warrant for departing from the prima facie measure. The court set out three heads of mitigation of damages, namely non-recovery for avoidable loss; recovery for loss incurred in reasonable attempts to avoid loss; and non-recovery for avoided loss.
Goff said: "these three aspects of mitigation are all really aspects of a wider principle which is that, subject to the rules of remoteness, the plaintiff can recover, but can only recover, in respect of damage suffered by him which has been caused by the defendant's legal wrong. In other words, they are aspects of the principle of causation".
1 Citers


 
Page Motors Limited v Epsom and Ewell Borough Council (1980) 78 LGR 505
1980
QBD
Balcombe J
Nuisance, Local Government, Damages
The plaintiff company were tenants of land adjoining land owned by the defendant council. Gypsies came to occupy the defendant's land over several years and in increasing numbers. The Authority had obtained a possession order but had failed to enforce it being concerned that with no proper site elsewhere to move onto further damage would be caused. The plaintiffs claimed for damages in their reduced turnover. Held: The plaintiffs succeeded. The defendants had the power and duty to provide alternative sites, and their delay of five years was unreasonable. The choice not to enforce the possession orders was from the Council's own desire to avoid disturbance elsewhere, and therefore amounted to an adoption of the nuisance. However, the drop in turnover would not necessarily reflect directly in a loss of profit, and the plaintiff's had to give credit for the associated reduction in their rating assessment.
1 Citers



 
 Raineri v Miles; HL 1980 - [1981] AC 1050; [1980] 2 All ER 145

 
 CIA Barca de Panama SA v George Wimpey and Co Ltd; CA 1980 - [1980] 1 Lloyds Rep 598
 
Ross v Caunters (a firm) [1980] Ch 297
1980
ChD
Sir Robert Megarry V-C
Professional Negligence, Wills and Probate, Damages
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
1 Citers


 
F G Minter v Welsh Health Technical Services Organisation (1980) 13 Build LR 1
1980
CA
Ackner LJ
Damages
Where a claim is for a debt incurred by a building contractor to raise the necessary capital which has interest charges as one of its constituents, the loss suffered as a result of the late payment of money was recoverable.
1 Citers



 
 Jobling v Associated Dairies; HL 1980 - [1982] AC 794; [1981] UKHL 3; [1981] 2 All ER 752
 
Adcock v Blue Sky Holidays Ltd Unreported, 13/05/1980
13 May 1980
CA
Bridge LJ, Cumming-Bruce LJ
Damages, Contract
The plaintiffs sought damages after their holiday was disappointing. The cost of the holiday for five people was £98 per person. The county court judge had allowed damages separately for the five holiday makers, having regard to how the breaches of contract affected each of them. He felt inhibited by Jarvis and Jackson and "would have approached the damages on a higher scale than [was] revealed by [those cases] "as appropriate". Held. The Court of Appeal disagreed. Bridge LJ said: "I wholly fail to understand how the learned judge was able to extract anything from either of those case which prevented him from awarding the higher scale of damages which he said he was minded to award."
Cumming-Bruce LJ: "Contracts for holidays vary on their facts very greatly. The facilities offered by the tour company vary enormously from case to case. It would be a grave mistake to look at the facts in, for example, the Jackson case or the Jarvis case and compare those facts with the facts in another case as a means of establishing the measure of damages."
1 Citers



 
 Robert Court and Son Ltd v Charman; EAT 1981 - [1981] IRLR 437

 
 The Pacific Colocotronis; CA 1981 - [1981] 2 Lloyds Rep 40

 
 Milton v Walker and Stanger; 1981 - [1981] 125 SJ 86

 
 Satef-Huttenes Albertus SpA v Paloma Tercera Shipping Co SA (The Pegase); 1981 - [1981] Lloyd's Rep 175
 
The "Pegase" [1981] I Ll Rep 175
1981

Goff J
Contract, Damages
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: "the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single principle – though it is recognised that the application of the principle may depend on the degree of relevant knowledge held by the defendant at the time of the contract in the particular case".
1 Cites

1 Citers


 
Tate and Lyle Food Distribution Ltd v Greater London Council [1981] 3 All ER 716; [1982] 1 WLR 149
1981

Forbes J
Damages
Forbes J considered the principles to be applied when considering the award of interest on damages between the date of the loss and the judgment: "Despite the way in which Lord Herschell LC in London, Chatham and Dover Railway Co v South Eastern Railway Co [1893] AC 429 at 437 stated the principle governing the award of interest on damages, I do not think the modern law is that interest is awarded against the defendant as a punitive measure for having kept the plaintiff out of his money. I think the principle now recognised is that it is all part of the attempt to achieve restitutio in integrum. One looks, therefore, not at the profit which the defendant wrongfully made out of the money he withheld (this would indeed involve a scrutiny of the defendant's financial position) but at the cost to the plaintiff of being deprived of the money which he should have had. I feel satisfied that in commercial cases the interest is intended to reflect the rate at which the plaintiff would have had to borrow money to supply the place of that which was withheld. I am also satisfied that one should not look at any special position in which the plaintiff may have been; one should disregard, for instance, the fact that a particular plaintiff, because of his personal situation, could only borrow money at a very high rate or, on the other hand, was able to borrow at specially favourable rates. The correct thing to do is to take the rate at which plaintiffs in general could borrow money. This does not, however, to my mind, mean that you exclude entirely all attributes of the plaintiff other than that he is a plaintiff. There is evidence here that large public companies of the size and prestige of these plaintiffs could expect to borrow at 1% over MLR, while for smaller and less prestigious concerns the rate might be as high as 3% over MLR. I think it would always be right to look at the rate at which plaintiffs with the general attributes of the actual plaintiff in the case (though not, of course, with any special or peculiar attribute) could borrow money as a guide to the appropriate interest rate. If commercial rates are appropriate I would take 1% over MLR as the proper figure for interest in this case."
1 Cites

1 Citers


 
Wilson v National Coal Board 1981 SC (HL) 9; 1981 SLT 67
1981
HL
Lord Keith of Kinkel
Damages, Employment
A entire colliery closed down and all employees other than the pursuer were offered and accepted alternative employment, thus disqualifying them from receiving redundancy payments. The pursuer, who had been injured by the accident for which the defendants were responsible, was declared redundant and received such a payment. Held: A redundancy payment is not compensation for a loss of future earnings but rather for the loss of a settled job. In calculating damages for his injuries, credit should be given for the redundancy payment on the application of the principles laid down in Parry v Cleaver [1969] UKHL 2; [1970] AC 1 and, in particular, the public policy consideration that otherwise employers would be tempted to dismiss workers on grounds of incapacity rather than redundancy, where those alternatives were open.
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1 Citers



 
 Woodstock Shipping Co v Kyma Compania Naviera SA ("The Wave"); 1981 - [1981] 1 Lloyd's Rep 521

 
 Andrew Master Homes Ltd v Cruikshank and Fairweather; CA 1981 - [1981] RPC 389

 
 Forster v Outred and Co; CA 1981 - [1982] 1 WLR 86

 
 Morton - Norwich Products v Intercen (No 2); ChD 1981 - [1981] FSR 337

 
 Lambert v Lewis; HL 1981 - [1982] AC 225; [1981] 1 All ER 1185; [1981] RTR 346; [1981] 2 Lloyds Rep 17; [1981] 2 WLR 713
 
Habib Bank Ltd v Habib Bank AG Zurich [1981] 1 WLR 1265; [1981] 2 All ER 650
1981
CA
Oliver LJ
Banking, Damages, Equity
A combination of defences based on delay was pleaded in a passing off action objecting to the use of a name which the defendants had been using without objection for many years. A permanent injunction was claimed. Held: Oliver LJ said as to the availability of damages in a case of acquiescence to the breach of a contract: "that the test requires a much broader approach which is directed at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment." The court approved a statement in the court below: "Of course, estoppel by conduct has been a field of the law in which there has been considerable expansion over the years and it appears to me that it is essentially the application of a rule by which justice is done where the circumstances of the conduct and behaviour of the party to an action are such that it would be wholly inequitable that he should be entitled to succeed in the proceeding." The court favoured a broad approach to the problem of inequitable or unconscionable conduct by long delay, rather than one turning on historical distinctions between the assertion of equitable rights and the enforcement rights by equitable means
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 Skyrail Oceanic Ltd v Coleman; CA 1981 - [1981] ICR 864; [1981] IRLR 398

 
 Brandes Goldschmidt and Co Ltd v Western Transport Ltd; CA 1981 - [1981] 1 QB 864
 
Sotiros Shipping Inc v Sameiet: The Solholt [1981] 2 Lloyd's Rep 574
1981

Staughton J
Contract, Damages
The seller did not deliver the vessel by the contractual date for delivery. The buyer exercised his right to cancel and to recover his deposit. He also claimed damages because the vessel was worth $500,000 more on the delivery date than she had been when the contract was made. Held: A reasonable buyer would have offered, after cancellation, to take the vessel after all and that his loss was attributable to his own unreasonable conduct in failing to make such an offer (which would have been accepted by the seller).
The expression that a vessel had been "fixed subject to details" means that "the main terms were agreed, but until the subsidiary terms and the details had also been agreed no contract existed".
1 Citers



 
 Compania Financiera v Hamoor Tanker Corporation ('the Borag'); CA 1981 - [1981] 1 WLR 274; [1981] 1 All ER 856
 
Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625; [1981] HCA 3
2 Feb 1981

Barwick CJ, Gibbs, Stephen, Mason, Murphy, Aickin, Wilson JJ
Damages
Austlii High Court of Australia - Damages - Calculation - Failure by insurance broker to arrange workers' compensation insurance - Employer liable to make periodic payments of compensation to injured employee - Payments adjusted by reference to average weekly wage - Assessment of damages - Rate of discount for present payment - Significance of monetary inflation - Workers' Compensation Act, 1926(N.S.W.),s. 9A.
Workers' Compensation - Domestic assistance to injured worker - Whether "nursing" - Workers' Compensation Act, 1914 (N.S.W.),s. 10 (1), (2).
[ Austlii ]
 
Bunge Corporation (New York) v Tradax Export Sa (Panama) [1981] UKHL 11; [1981] 2 All ER 513; [1981] 1 WLR 711; [1981] 2 Lloyds Rep 1
25 Feb 1981
HL
Lord Wilberforce, Lord Fraser of Tullybelton, Lord Scarman, Lord Lowry, Lord Roskill
Contract, Damages
The FOB contract for the sale of goods required the buyers to give notice of the probable readiness of the ships on which the goods were to be carried. The notice was given four days too late. The sellers declared the buyers in default and claimed damages for default on the basis that the term as to notice was a condition. The damages claimed were the difference between the contract price and the market price. The sellers did not contend that, if the term was not a condition, the delay of four days amounted to a repudiation. The breach complained of consisted not of giving less than the requisite number of days' notice under the contract, but of giving notice after the last date on which it could legitimately be given because the required 15 days notice would have ended after the last possible date for shipment. The House considered the construction of clause 7 of GAFTA 119, and in particular whether it was a condition or warranty, and whether time was of the essence. Held: Whether a time limit is of the essence of a contractual provision is a question of interpretation.
Lord Wilberforce said: "As to such a clause there is only one kind of breach possible, namely to be late, and the questions to be asked are: first what importance have the parties expressly ascribed to this consequence? And, second, in the absence of expressed agreement, what consequence ought to be attached to it having regard to the contract as a whole?" and "In conclusion, the statement of the law in Halsbury's Laws of England, 4th ed., vol. 9 (1974), paras. 481–482, including the footnotes to paragraph 482 (generally approved in the House in the United Scientific Holdings case), appears to me to be correct, in particular in asserting (1) that the court will require precise compliance with stipulations as to time wherever the circumstances of the case indicate that this would fulfil the intention of the parties, and (2) that broadly speaking time will be considered of the essence in "mercantile" contracts — with footnote reference to authorities which I have mentioned."
Lord Lowry said: "It is by construing a contract (which can be done as soon as the contract is made) that one decides whether a term is, either expressly or by necessary implication, a condition, and not by considering the gravity of the breach of that term (which cannot be done until the breach is imminent or has occurred)."
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[ Bailii ]
 
Lamb v Camden London Borough Council [1981] EWCA Civ 7
18 Mar 1981
CA

Damages
The plaintiff owned a house. While she was away, the defendant negligently allowed a sewer to break causing substantial damage. Whilst the property was awaiting repair, it was invaded, on two occasions, by squatters who caused further damage. She now appealed a refusal of her claim for damages from the council.
1 Cites

[ Bailii ]

 
 Perry v Sidney Phillips and Son; CA 1982 - [1982] 1 WLR 1297; [1982] 3 All ER 705; [1983-84] ANZ Conv R 72
 
Birkitt v Hayes [1982] 1 WLR 816
1982


Personal Injury, Damages
Where a case takes a long time to come on for trial because there has been unjustifiable delay by the plaintiff, he has been kept out of his money by his own default for part of the period. It is a "special reason" for not giving some of the interest.
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 GUS Property Management Ltd v Littlewoods Mail Stores; HL 1982 - 1982 SLT 533
 
Catnic Components Ltd and Another v Hill and Smith Ltd [1983] FSR 512; [1982] RPC 183
1982
HL
Lord Diplock
Intellectual Property, Damages
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The defendants had not been in business in this field at all, entered the market at the expense of the plaintiffs using an infringing version of the plaintiffs' patented construction. Held: The proper damages were on the assumption that the plaintiffs would have made, with their patented lintels, those sales made by the defendants with the infringing lintels save as shown otherwise. An invention involves an inventive step if it is not obvious "to a person skilled in the art" being a person likely to have a practical interest in the subject matter of the invention.
The approach to construction exemplified in Prenn and in Reardon-Smith is to be applied also to the construction of patents claims: "A patent specification should be given a purposive construction rather than a purely literal one derived from applying to it the kind of meticulous verbal analysis in which lawyers are too often tempted by their training to indulge." and "Both parties to this appeal have tended to treat 'textual infringement' and infringement of the 'pith and marrow' of an invention as if they were separate causes of action, the existence of the former to be determined as a matter of construction only and of the latter upon some broader principle of colourable evasion. There is, in my view, no such dichotomy; there is but a single cause of action and to treat it otherwise . . is liable to lead to confusion."
Patents Act 1977 3
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Gammell v Wilson; Furness v Massey [1982] AC 27; [1981] 2 WLR 248; (1981) 125 SJ 116; [1981] 1 All ER 578
1982
HL

Damages
In each case, the deceased, died as a result of the defendants' negligence. The parents claimed damages for themselves as dependants under the 1976 Act, and for the estate under the 1934 Act. The claims under the 1976 Act were held to have been extinguished by the awards under the 1934 Act. Each award included a sum for loss of future earnings. The defendant insurers appealed. Held: The causes of action for both deceased included, immediately before the deaths, a claim for loss of future earnings. Such a claim was not precluded by 1(2)(c) of the 1934 Act. It cannot normally be an abuse of process to enforce an express statutory entitlement. The House recognised the difficulties in awarding damages where a deceased plaintiff's dependents were not his heirs.
Law Reform (Miscellaneous Provisions) Act 1934 1(1) 1(2)(c) - Fatal Accidents Act 1976
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 Croke v Wiseman; CA 1982 - [1982] 1 WLR 71
 
Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204
1982
CA
Cumming-Bruce, Templeman and Brightman LJJ
Company, Damages
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in dividend, because such a 'loss' is merely a reflection of the loss suffered by the company. The shareholder does not suffer any personal loss. His only 'loss' is through the company, in the diminution in the value of the net assets of the company, in which he has (say) a 3 per cent, shareholding. The plaintiff's shares are merely a right of participation in the company on the terms of the articles of association. The shares themselves, his right of participation, are not directly affected by the wrongdoing. The court rejected the notion that there is any general discretion to ignore the "proper plaintiff" rule whenever the justice of the case so requires. "A derivative action is an exception to the elementary principle that A cannot, as a general rule, bring an action against B to recover damages or secure other relief on behalf of C for an injury done by B to C. C is the proper plaintiff because C is the party injured, and, therefore, the person in whom the cause of action is vested."
"What [a shareholder] cannot do is to recover damages merely because the company in which he is interested has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in dividend, because such a "loss" is merely a reflection of the loss suffered by the company. The shareholder does not suffer any personal loss. His only "loss" is through the company, in the diminution in the value of the net assets of the company, in which he has (say) a 3 per cent shareholding."
If the fraud was not admitted by the insiders, how was it to be proved? "It cannot have been right to have subjected the company to a 30-day action (as it was then estimated to be) in order to enable him to decide whether the plaintiffs were entitled in law to subject the company to a 30-day action. Such an approach defeats the whole purpose of the rule in Foss v. Harbottle and sanctions the very mischief that the rule is designed to prevent. By the time a derivative action is concluded, the rule in Foss v. Harbottle can have little, if any, role to play. Either the wrong is proved, thereby establishing conclusively the rights of the company; or the wrong is not proved, so cadit quaestio." and answered: "In our view, whatever may be the properly defined boundaries of the exception to the rule, the plaintiff ought at least to be required before proceeding with his action to establish a prima facie case (i) that the company is entitled to the relief claimed, and (ii) that the action falls within the proper boundaries of the exception to the rule in Foss v. Harbottle."
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Tate and Lyle Distribution v Greater London Council [1982] 1 WLR 149
1982

Forbes J
Damages
The defendants were liable to the claimants for having failed to dredge silt which they had caused to be accumulated when constructing new piers for the Woolwich ferry and which had obstructed the claimants' use of their barge moorings. The result had been that the claimants themselves had had to dredge the silt and, as part of their claim, they claimed managerial and supervisory expenses referable to that operation. Held: The expenditure of management time by a company was a proper head of loss. Although difficult, it was possible to record the expenditure of management time and the court was not prepared to proceed on the basis of allowing 1% of the claim which was "pure speculation". Since no evidence was adduced to quantify the expenditure of management time in that case the claim failed.
Forbes J said: "I have no doubt that the expenditure of managerial time in remedying an actionable wrong done to a trading concern can properly form the subject matter of a head of special damage. In a case such as this it would be wholly unrealistic to assume that no such additional managerial time was in fact expended. I would also accept that it must be extremely difficult to quantify. But modern office arrangements permit of the recording of the time spent by managerial staff on particular projects. I do not believe that it would have been impossible for the plaintiffs in this case to have kept some record to show the extent to which their trading routine was disturbed by the necessity for continual dredging sessions."
The court rejected a submission that, when considering an award of interest under the 1838 Act, the Court should look at what the receiving party would in fact have done with the money if it had been paid earlier. Forbes J said: "I feel satisfied that in commercial cases the interest is intended to reflect the rate at which the plaintiff would have had to borrow money to supply the place of that which was withheld. I am also satisfied that one should not look at any special position in which the plaintiff may have been; one should disregard, for instance, the fact that a particular plaintiff, because of his personal situation, could only borrow money at a very high rate or, on the other hand, was able to borrow at specially favourable rates. The correct thing to do is to take the rate at which plaintiffs in general could borrow money."
The particular Plaintiff's personal situation was irrelevant: "the proper question is: At what rate could the plaintiff borrow the required sum and not what return could the plaintiff have expected if he had invested it? It is immaterial, therefore, to consider, as Mr. Davies [Counsel for the defendant] suggested, whether the plaintiff could have used the money profitably in his own business or what rate of profit he could have expected to achieve by so doing."
Judgments Act 18838
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 Donselaar v Donselaar; 1982 - [1982] 1 NZLR 97
 
Bacon v Cooper (Metals) Ltd [1982] 1 All ER 397
1982

Cantley J
Damages
A machine, a fragmentiser was broken. The defendant had supplied unsuitable scrap to be fed into the machine in breach of contract. The rotor had broken which would normally have had a life of 7 years of which it had nearly four years to run. The defendant said that the claimant should get only a proportion of the cost of a new rotor, reflecting the remaining life of the damaged rotor. Held: The claimant was entitled to the full cost of a new rotor. “In my view the law will not place this burden on the plaintiff to relieve the defendant from some of the unavoidable consequences of their wrong. I consider the plaintiff is entitled to recover the whole cost of the replacement rotor.”
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 My Kinda Town Ltd v Soll; QBD 1982 - [1982] FSR 147; (1983) RPC 15

 
 BP Exploration Co (Libya) Ltd v Hunt (No. 2); 1982 - [1982] 1 All ER 925
 
McLoughlin v O'Brian [1983] 1 AC 410; [1982] 2 All ER 298; [1982] UKHL 3; [1982] 2 WLR 982
6 May 1982
HL
Lord Wilberforce, Lord Bridge, Lord Scarman
Personal Injury, Damages
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had happened. She saw and comforted her injured husband and children, and was told of the death of her youngest child. She brought proceedings for the psychiatric effect of the shock that she sustained as a result. Held: Her appeal was allowed. The House identified the circumstances in which such a claim could succeed:
1. While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for 'nervous shock' caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself.
2. A plaintiff may recover damages for 'nervous shock' brought on by injury caused not to him -- or herself but to a near relative, or by the fear of such injury.
3. Subject to the next paragraph, there is no English case in which a plaintiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff.
4. An exception has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath.
5. A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer of those involved.
Three issues were to be addressed: the class of persons whose claims should be recognised, the proximity of such persons to the accident and the means by which the shock was caused. Foreseeability in any given set of circumstances is ultimately a question of fact.
On the issue of the court's role in developing the law, Lord Scarman: "By concentrating on principle the judges can keep the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are equipped to resolve. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path."
Lord Wilberforce said: "there remains, in my opinion, just because "shock" in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims." and
"As regards proximity to the accident, it is obvious that this must be close in both time and space . . The shock must come through sight or hearing of the event or of its immediate aftermath."
and "Whatever is unknown about the mind body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. Thus there may be produced what is as identifiable an illness as any that may be caused by direct physical impact."
1 Cites

1 Citers

[ Bailii ]
 
Reynolds v Commissioner of Police for the Metropolis [1982] EWCA Civ 7; [1982] Crim LR 600
18 May 1982
CA
Waller, O'Connor LJJ, Sir George Baker
Police, Torts - Other, Damages
The plaintiff had been awarded £12,000 damages for false imprisonment by the Commissiner's officers. Officers had suspected the existence of a repeat arsonist operating an insurance fraud. The plaintiff's husband owned one of the properties. That was the sole ground for her arrest. The judge had found no ground for reasonable suspicion of her. Held: The grounds were not capable of amounting to a proper suspicion. The damages award was higher than might be awarded by others but was within the proper range.
1 Citers

[ Bailii ]
 
Piersack v Belgium 8692/79; 8692/79; [1982] ECHR 6; [1984] ECHR 16; (1984) 7 EHRR 251; (1982) 5 EHRR 169; [1982] ECHR 6; [1984] ECHR 16
1 Oct 1982
ECHR

Human Rights, Damages
Hudoc applicant convicted of murder complained that his right to a fair trial under Article 6(1) had been denied because the trial court had been presided over by a Judge who, when senior deputy procureur, had been in charge of the department which decided to prosecute the applicant. Held: "Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6(1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect." The Court acknowledged the principle of restitutio in integrum.
Hudoc Judgment (Just satisfaction) Costs and expenses award - domestic proceedings; Costs and expenses award - Convention proceedings
European Convention on Human Rights 6
1 Citers

[ Bailii ] - [ Bailii ] - [ Bailii ] - [ Bailii ]
 
Coupland v Arabian Gulf Oil Co [1983] 1 WLR 1136
1983
QBD
Hodgson J
Benefits, International, Damages
The plaintiff employee, injured whilst working for the defendant in Libya, sued in contract and tort. The judge held that Libyan law was the proper law of the contract, but that this was of no relevance to the claim in tort which could proceed here if the plaintiff could satisfy the double actionability rule. The defendant argued that the English double actionability rule should not be applied because there was a Libyan contract.
Hodgson J said: "It is clear that the ordinary rule in tort is that the law of the place where the action is being brought - the lex fori – is the law to be applied. To find an exception to that rule one has to find as issue, which is decided differently by the two jurisprudences, which is capable of being segregated and which can then be decided by an application of what, in effect by the back door, is the proper law of that issue. But before one can do that one has to have some substantial difference between the two systems of law. In this case (as I have demonstrated) the only possible candidate for segregation would be the rule in Libyan law that social security benefits are not deductible from an award of general damages. But that contention is not advanced by Mr Hartley Booth for the plaintiff (and properly so it seems to me), for that rule is, in my judgment, a rule for the quantification of damage and not a rule dealing with a head of damage. And if it is a rule dealing with the quantification of damage, then it is for the law of this country to prevail.”
1 Citers



 
 Sotiros Shipping Inc v Sameiet; The Solholt; CA 1983 - [1983] 1 Lloyd's Rep 605
 
Stockport Metropolitan Borough Council v Alwiyah Developments [1983] 52 P&CR 278
1983
CA
Denning MR, Stephenson and Geoffrey Lane LJJ
Land, Damages
There was to be a development of six flats on land subject to a restrictive covenant. The developer began without a modification being sought. The benefit of the covenant was attached to adjoining land owned by the local authority, which they intended for a development of accommodation for the aged. The tribunal had refused the application under the limited benefit ground (regarding the impact as less than "serious" but "of real importance"), but allowed it under the public interest ground. Held: The measure of compensation payable on the compulsory acquisition of an easement is the diminution in value of the interest affected and not by reference to a reasonable price that could be extracted for the giving up of the right.
Lord Denning MR said: "So, we come back to the question: what is the basis or proper basis of compensation? It is simply to make up 'for [the] loss or disadvantage suffered' by the borough council. There is no method prescribed by the Act by which it is to be assessed; it is essentially a question of quantum. It is however, to be assessed for loss of amenities, loss of view and so forth, which are things which it is hard to assess in terms of money . . It is similar to compensation for pain and suffering." He referred to the Wrotham Park case and said: "The President looked at it in much the same way. He took a higher percentage. Instead of 5% he took 50%. He took the realisable development value and split it equally. That was, he said, fair to the parties. It was a method by which he was getting at the loss or disadvantage. I see no error of law in it. The loss or disadvantage is an intangible matter which is incapable of exact calculation in money, and he took a fair and sensible way of assessing it."
Stephenson LJ held that the proposed way of calculating compensation was not contrary to the Act or to authority. The modification had resulted in the council losing a benefit of "substantial value or advantage" for which they were entitled to "substantial compensation".
1 Cites

1 Citers


 
Udale v Bloomsbury Area Health Authority [1983] 1 WLR 1098; [1983] 3 All ER 522
1983
QBD
Jupp J
Negligence, Damages
The plaintiff underwent a sterilisation operation. The operation was painful and she later became pregnant. She sought damages for the pain and suffering and the additional costs of caring for the new child. Held: Public policy held fast against awarding damages for the birth of a healthy child, and that element of damages was not recoverable.
1 Citers



 
 Chubb Cash Ltd v John Crilley and Son (a firm); 1983 - [1983] 2 All ER 294
 
The Popi M; Rhesa Shipping Co SA v Edmonds [1983] 2 Lloyd's Rep 235
1983

Bingham J
Damages, Litigation Practice
The parties disputed the cause of the loss of a ship. The experts suggested different but improbably explanations; each supported as the most likely explanation only because any other hypothesis was regarded as almost (if not altogether) impossible. The owners of the ship claimed against underwriters for her total loss which had occurred in calm weather. It became common ground that the vessel had sunk because of an ingress of sea water through a hole in the side plating. Underwriters contended that the vessel had been unseaworthy and that had been the proximate cause of the entry of water. The court made no finding that the vessel was seaworthy or that she was unseaworthy; he was left in doubt. The owners put forward a case that the hole in the side plating had been caused by contact with a submerged and moving submarine by eliminating other possibilities; the judge concluded that contact with a moving submarine was so improbable that if he were to conclude that it was the likely cause of the loss he had to be satisfied that any other explanation for the casualty had to be ruled out. The underwriters put forward a case that the hole had arisen through wear and tear and provided a detailed explanation as to how that had happened. The judge rejected that detailed explanation and was therefore left with a choice between the owner's submarine hypothesis and the possibility that the casualty occurred as a result of wear and tear but by means of a mechanism which remained in doubt. Held: Bingham J referred to the dictum of Sherlock Holmes: "How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" He concluded that, despite the inherent improbability and despite the disbelief with which he had been inclined to regard it, the collision with the submarine had to be accepted on the balance of the probabilities as the explanation of the casualty.
1 Citers


 
Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824
1983
PC

Commonwealth, Damages
Having claimed damages for a personal injury, the plaintiff refused a curative operation. As a diabetic he said he faced additional risks. Held: A plaintiff who rejects medical advice to undergo treatment must discharge a burden of showing that his refusal was reasonable in the light of the duty on him to mitigate his losses. In this case his refusal had been reasonable. The case was remitted to the local court to re-assess the damages.
1 Citers



 
 Wright v British Railways Board; HL 1983 - [1983] 2 AC 773
 
Hollier v Plysu [1983] IRLR 260
1983
CA
Stephenson LJ
Employment, Damages
The Tribunal may reduce any compensatory award by such proportion as it considers just and equitable. A Tribunal's decision on this question is "so obviously a matter of impression, opinion, and discretion, that there must be a plain error of law or perversity before an appellate court can intervene". The tribunal must consider: "what, if any, part the employee's own conduct played in causing or contributing to his or her dismissal and then, in the light of that finding, decide what, if any, reduction should be made in assessment of his or her loss."
1 Citers



 
 Galt v British Railways Board; 1983 - (1983) 133 NLJ 870
 
Heron International v Lord Grade, Associated Communications Corp. Plc. and Others [1983] BCLC 244
1983
CA
Lawton LJ
Company, Damages
In the course of a contested take-over bid, the directors of the target company who owned a majority of the company's voting shares were alleged, in breach of their duties both to the company and to its shareholders, to have accepted proposals which would reduce the value of the company's assets and hence of its shares and induce the shareholders to accept the lower of two rival offers. Held: A breach of a director's fiduciary duties may cause loss to the shareholders because: "they are deprived of the opportunity of realising their shares to greater advantage". Foss v. Harbottle has nothing whatever to do with a shareholder's right of action for a direct loss caused to his own pocket as distinct from a loss caused to the coffers of a company in which he holds shares. The case occurred where, as a result of the breach of the duty of care on the part of directors to advise their shareholders in relation to a prospective takeover bid, the plaintiff (and other shareholders) was induced or compelled to dispose of his shares to a bidder at an under-value. The wrong is done not to the company, but the shareholders. Its assets are not depleted; its coffers remain unaffected. The court distinguished the facts on the bais that the reckless decision of the directors, if implemented, will cause losses in two directions. The company in question will suffer a loss to the extent that its shares in a subsidiary are depreciated in value. That is a loss exclusively to the coffers of ACC. It is not a loss to the pockets of the shareholders in ACC, although it might, in theory, cause the market value of ACC shares to fall. No shareholder in ACC could sue the directors for a diminution in the value. In this case, however the loss which would be suffered is the loss to the pockets of the shareholders because they are deprived of the opportunity of realising their shares to greater advantage. That is a loss suffered exclusively to the pockets of the shareholders, and is in no sense a loss to the coffers of the company, which remain totally unaffected.
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1 Citers


 
Calabar Properties Ltd v Stitcher [1984] 1 WLR 287; [1983] 3 All ER 759
1983
CA
Stephenson LJ
Housing, Damages
The landlord had failed in his duty to repair. One tenant's health suffered because of the damp, and they had to rent other premises. Held: The landlord has only a reasonable time to effect repairs once he has been given notice of the need for them. Damages for breach of a covenant to repair are to compensate the tenant for inconvenience and discomfort of occupying premises in disrepair, not for diminution in rental value.
1 Citers



 
 Sillitoe v McGraw-Hill Book Co; 1983 - [1983] FSR 545
 
Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) [1983] 2 AC 694; [1983] 2 AC 694; [1983] 2 All ER 763; [1983] 3 WLR 203
1983
HL
Diplock, Keith of Kinkel, Scarman, Roskill and Bridge of Harwick LL
Transport, Damages, Contract, Equity
The House considered giving relief from forfeiture where an owner had justifiably withdrawn his vessel in accordance with the terms of the charter. Held: A withdrawal clause under a time charter, exercised on the ground of the charterer's failure to make punctual payment of an instalment of hire, was not subject to the equitable right to relief against forfeiture, even though it involved the loss of a valuable charter. Such rights of withdrawal are usually exercised where the market rate of hire is substantially above the charter rate. The remedy of relief from forfeiture was unavailable in part because a Court of Equity would not grant specific performance in respect of it.
The House distinguished between merely contractual rights, and contracts concerning the transfer or creation of proprietary or possessory rights. The House warned against the wholesale importation into commercial law of equitable principles inconsistent with the certainty and speed which are essential requirements for the orderly conduct of business affairs.
An injunction restraining the ship owner from exercising his right of withdrawal of the vessel (a contractual right given to him under the charter) was to be equated with an order for specific performance.
Lord Diplock said: "A time charter, unless it is a charter by demise, with which your Lordships are not here concerned, transfers to the charterer no interest in or right to possession of the vessel; it is a contract for services to be rendered to the charterer by the shipowner through the use of the vessel by the shipowner's own servants, the master and the crew, acting in accordance with such directions as to the cargoes to be loaded and the voyages to be undertaken as by the terms of the charterparty the charterer is entitled to give to them. Being a contract for services it is thus the very prototype of a contract of which before the fusion of law and equity a court would never grant specific performance: Clarke v Price (1819) 2 Wils. 157; Lumley v Wagner (1852) 1 De G.M & G. 604. In the event of failure to render the promised services, the party to whom they were to be rendered would be left to pursue such remedies in damages for breach of contract as he might have at law. But as an unbroken line of uniform authority in this House, from Tankexpress [1949] A.C. 76 to A/S Awilco of Oslo v Fulvia S.p.A. di Navigazione of Cagliari (The Chikuma) [1981] 1 WLR 314, has held, if the withdrawal clause so provides, the shipowner is entitled to withdraw the services of the vessel from the charterer if the latter fails to pay an instalment of hire in precise compliance with the provisions of the charter. So the shipowner commits no breach of contract if he does so; and the charterer has no remedy in damages against him. To grant an injunction restraining the shipowner from exercising his right of withdrawal of the vessel from the service of the charterer, though negative in form, is pregnant with an affirmative order to the shipowner to perform the contract; juristically it is indistinguishable from a decree for specific performance of a contract to render services; and in respect of that category of contracts, even in the event of breach, this is a remedy that English courts have always disclaimed any jurisdiction to grant. This is, in my view, sufficient reason in itself to compel rejection of the suggestion that the equitable principle of relief from forfeiture is juristically capable of extension so as to grant to the court a discretion to prevent a shipowner from exercising his strict contractual rights under a withdrawal clause in a time charter which is not a charter by demise."
Lord Diplock said that his judgment was concerned only with time charters that were not by demise: "the reasoning in my speech has been directed exclusively to time charters that are not by demise. Identical considerations would not be applicable to bareboat charters and it would in my view be unwise for your Lordships to express any views about them."
. . And: "The classic form of penalty clause is one which provides that upon breach of a primary obligation under the contract a secondary obligation shall arise on the part of the party in breach to pay to the other party a sum of money which does not represent a genuine pre-estimate of any loss likely to be sustained by him as the result of the breach of primary obligation but is substantially in excess of that sum. The classic form of relief against such a penalty clause has been to refuse to give effect to it, but to award the common law measure of damages for the breach of primary obligation instead."
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1 Citers



 
 The Alikamon; 1983 - [1983] 1 Lloyd's Rep.203
 
Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) [1983] QB 529
1983
CA
Robert Goff LJ
Damages, Contract
Charterers of a ship sought refielf from forfeiture of the charterparty on equitable grounds. Held: No jurisdiction existed to grant such a rlief. In a commercial agreement between commercial parties, the court had no jurisdiction to relieve a party of the consequences of failure to pay or duly to perform some other contractual obligation.
Robert Goff LJ said that “It is of the utmost importance in commercial transactions that, if any particular event occurs which may affect the parties’ respective rights under a commercial contract, they should know where they stand. The court should so far as possible desist from placing obstacles in the way of either party ascertaining his legal position, if necessary with the aid of advice from a qualified lawyer, because it may be commercially desirable for action to be taken without delay, action which may be irrevocable and which may have far reaching consequences. It is for this reason, of course, that the English courts have time and again asserted the need for certainty in commercial transactions - for the simple reason that parties to such transactions are entitled to know where they stand, and to act accordingly. In particular, when a ship owner becomes entitled under the terms of his contract, to withdraw a ship from the service of a time charterer, he may well wish to act swiftly and irrevocably. True, his problem may, in a particular case, prove to be capable of solution by entering into a without prejudice agreement with the original time charterer, under which the rate of hire will be made to depend upon a decision, by arbitrators or by a court, whether he was in law entitled to determine the charter. But this is not always possible. He may wish to refix his ship elsewhere as soon as possible, to take advantage of a favourable market. It is no answer to this difficulty that the ship may have cargo aboard at the time, so that her services cannot immediately be made available to another charterer"
Robert Goff LJ continued: "For one thing, the ship may not have cargo on board, and for another she can be refixed immediately under a charter to commence at the end of her laden voyage. Nor is it an answer that the parties can immediately apply to arbitrators, or to a court, for a decision, and that both maritime arbitrators and the Commercial Court in this country are prepared to act very quickly at very short notice. For, quite apart from the fact that some delay is inherent in any legal process, if the question to be decided is whether the tribunal is to grant equitable relief, investigation of the relevant circumstances, and the collection of evidence for that purpose, cannot ordinarily be carried out in a very short period of time." and "The policy which favours certainty in commercial transactions is so antipathetic to the form of equitable intervention invoked by the charterers in the present case that we do not think it would be right to extend the jurisdiction to relieve charterers from the consequences of withdrawal. We consider that the mere existence of such a jurisdiction would constitute an undesirable fetter upon the exercise by parties of their contractual rights under a commercial transaction of this kind. It is not enough to say it will only be exercised in rare cases. For the mere possibility that it may be exercised can produce uncertainty, disputes and litigation, and so prevent parties from knowing where they stand, particularly as the jurisdiction, if available, would be discretionary and there may be doubt whether it could be successfully invoked in any particular case.
For these reasons we hold that we have no equitable jurisidiction to grant equitable relief of the kind asked for by the charterers.”
1 Citers


 
Graham v Dodds [1983] 1 WLR 808; [1983] NI 22; [1983] 2 All ER 953
1983
HL
Lord Bridge
Personal Injury, Damages
A court dealing with personal injury claims normally makes a discount in respect of damages for the future loss of earnings
Lord Bridge said "The only issue arising in this appeal which is strictly one of law is whether, in assessing damages for loss of dependency arising from a fatal accident, the multiplier or number of years purchase should be calculated from the date of death or from the date of trial. Counsel for the defendant has contended for the former. Counsel for the plaintiff has throughout contended for the latter and this view prevailed with the learned Lord Chief Justice and the majority of the Court of Appeal. The judge, in a short note appended to the transcript in his report of the trial, said:
'I took the view that there is no legal principle that the number of years of purchase (in this case I suggest 11 to 14) should be automatically reduced having regard to the number of years special damage since the death of the deceased and that the contrast sometimes made with personal injury cases is not a sound one".
On this issue the majority of the Court of Appeal examined the speeches in your Lordships' house in Cookson v Knowles [1979] AC 556 and reached the conclusion that Lord Diplock and Lord Fraser of Tullybelton had expressed opposite and irreconcilable opinions. Gibson L.J. illustrated his understanding of the supposedly conflicting doctrines by indicating how they would apply in assessing the dependency of the widow of a young man killed at the age of 21, in the following terms:
'Should the action not come to hearing until five years had elapsed Lord Fraser of Tullybelton would assess at death the multiplier, which I take at say 18, and he would then allow five years' special damage and 13 years as the multiplier of future loss. Lord Diplock, on the other hand, would also give five years' special damage and then fix the multiplier on the assumption of the death of the deceased at the age of 26 years, which Mr. Hill conceded would not be appreciably less than the original figure of 18'.
On the basis of such a conflict, Gibson and O'Donnell L.JJ. held themselves free to choose which of the two doctrines they preferred and both came down in favour of the view they attributed to Lord Diplock.
It is to be observed that in Cookson v. Knowles Viscount Dilhorne, Lord Salmon and Lord Scarman all expressed their agreement with the speeches of both Lord Diplock and Lord Fraser of Tullybelton. Gibson L.J. recognised this and described it as a 'confusing feature' of the case. It would indeed be astonishing that such a radical conflict should have escaped the attention of the three concurring members of your Lordships' House, but still more astonishing that neither Lord Diplock nor Lord Fraser of Tullybelton should have said a word to indicate any awareness that they were disagreeing with each other on a matter of fundamental principle.
My Lords, I have to say, with respect, that the majority of the Court of Appeal based their decision in this case on a misunderstanding of the decision in Cookson v. Knowles [1979] AC 556. In that case the widow's claim under the Fatal Accidents Acts arose from the death of her husband at the age of 49. The trial judge took 11 years' purchase from the date of death as the appropriate multiplier. But he applied it to the estimated annual dependency at the date of trial, 2 1/2 years after the date of death, to arrive at a single capital sum of damages on which he awarded interest at 9 per cent from the date of death to the date of trial. The Court of Appeal reduced the capital award by estimating the dependency in two parts: (a) from the date of death to the date of trial, (b) from the date of trial onwards and allowed interest on the first part of the award only at a reduced rate. For the purpose of the capital assessment, the trial judge's figure of 11 years purchase from the date of death had to be divided; 2 1/2 was applied in calculating the pre-trial loss, 8 1/2 in calculating the future loss. But the propriety of calculating the overall multiplier from the date of death was not questioned. In the unanimous decision of this House affirming the Court of Appeal, Lord Fraser of Tullybelton dealt with the last point expressly in the following passage, at pp. 575-576:
'In the present case the deceased was aged 49 at the date of his death and the trial judge and the Court of Appeal used a multiplier of 11. That figure was not seriously criticised by counsel as having been inappropriate as at the date of death, although I think it is probably generous to the appellant. From that figure of 11, the Court of Appeal deducted 2 1/2 in respect of the 2 1/2 years from the date of death to the date of trial, and they used the resulting figure of 8 1/2 as the multiplier for the damages after the date of trial. In so doing they departed from the method that would have been appropriate in a personal injury case and counsel for the appellant criticised the departure as being unfair to the appellant. The argument was that if the deceased man had had a twin brother who had been injured at the same time as the deceased man was killed, and whose claim for damages for personal injury had come to trial on the same day as the dependant's claim under the Fatal Accidents Acts* the appropriate multiplier for his loss after the date of trial would have been higher than 8 1/2. On the assumption, which is probably correct, that that would have been so, it does not in my opinion follow that the multiplier of 8 1/2 is too low in the present claim under the Fatal Accidents Acts where different considerations apply. In a personal injury case, if the injured person has survived until the date of trial, that is a known fact and the multiplier appropriate to the length of his future working life has to be ascertained as at the date of trial. But in a fatal accident case the multiplier must be selected once and for all as at the date of death, because everything that might have happened to the deceased after that date remains uncertain. Accordingly having taken a multiplier of 11 as at the date of death and having used 2 1/2 in respect of the period up to the trial, it is in my opinion correct to take 8 1/2 for the period after the date of trial. That is what the Court of Appeal did in this case/ If I may say so, respectfully, I find the reasoning in this passage as cogent as it is clear. But, what is perhaps more important, I can find nothing in the speech of Lord Diplock which conflicts in any way with Lord Fraser of Tullybelton's reasoning or with his conclusion. The two passages cited by Gibson L.J. from Lord Diplock's speech dealing with the assessment of the dependants' future loss from date of trial are not directed to the question of the appropriate multiplier and certainly lend no support to the doctrine that this can be calculated on the assumption that the deceased, if he had survived the accident, would certainly have remained alive and well and in the same employment up to the date of trial. Such a doctrine, ignoring the uncertainty which, as Lord Fraser of Tullybelton pointed out, affects everything that might have happened to the deceased after the date of his death, is clearly contrary to principle and would lead to the highly undesirable anomaly that in fatal accident cases the longer the trial of the dependants' claims could be delayed the more they would eventually recover.
Accordingly, in so far as the learned Lord Chief Justice based his directions to the jury with respect to the multiplier to be applied in assessing future loss on the considerations appropriate in awarding damages for future loss of earnings to a surviving plaintiff in a personal injury case aged 4 5 (the age the plaintiff's husband would have attained at the date of trial if he had survived) and treated the pre-trial loss as 'special damage,' and in so far as the majority of the Court of Appeal approved the directions given on that basis, they erred in law".
Fatal Accidents (Northern Ireland) Order 1977
1 Citers


 
Silver And Others v The United Kingdom 6205/73; [1983] 6 EHHR 62; [1983] 5 EHRR 347; [1983] ECHR 5; [1983] ECHR 11; 7052/75; 5947/72
25 Mar 1983
ECHR

Human Rights, Damages, Prisons
There had been interference with prisoners' letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were restrictive. Held: "it is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage." Restrictions were however justifiable so long as the law was sufficiently precise to enable the individual to regulate his conduct, and that orders and instructions could be properly taken into account. " and "a law which confers a discretion must indicate the scope of that discretion." though "the Court has already recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity . . [T]he Court points out once more that 'many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice." As to the rule prohibiting "letters which discuss crime in general or the crime of others': "The Commission considers that this restriction is also an obvious requirement of imprisonment and although it is not specified in the Prison Rules 1964, as amended, the Commission is of the opinion that it is a reasonable and foreseeable consequence of the Home Secretary's power under rule 33(1) of the Prison Rules 1964 to impose restrictions on prisoners' correspondence in the interests of good order, the prevention of crime or the interests of any persons. Prison security is, in the Commission's opinion, an essential part of such interest. The prohibition on prisoners' letters which discuss crime in general or the crime of others can, accordingly, be said to be 'in accordance with the law' within the meaning of Article 8(2). . . . On the justification issue, the Commission considers that a prohibition on prisoners' letters which discuss crime in general or the crime of others is, in principle, an ordinary and reasonable requirement of imprisonment, 'necessary in a democratic society … for the prevention of disorder or crime' within the meaning of Article 8(2)."
ECHR Judgment (Just Satisfaction) - Non-pecuniary damage - finding of violation sufficient; Costs and expenses award - Convention proceedings.
European Convention on Human Rights 6-1 8 13
1 Cites

1 Citers

[ Bailii ] - [ Bailii ]
 
Van Droogenbroeck v Belgium 7906/77; (1991) 13 EHRR 546; [1983] ECHR 7
25 Apr 1983
ECHR
G Wiarda P
Human Rights, Damages
Hudoc Judgment (Just satisfaction) Non-pecuniary damage - financial award; Pecuniary damage - claim rejected; Costs and expenses - claim rejected
For an imprisonment to be lawful, the 'detention' must result from, 'follow and depend upon' or occur 'by virtue of' the 'conviction.
European Convention on Human Rights 5
1 Cites

1 Citers

[ Bailii ] - [ Bailii ] - [ Bailii ]
 
McAll v Brooks [1984] RTR 99
1984
CA
Lawton LJ
Damages
After a road accident the plaintiff hired a car. His insurance brokers provided the car under an arrangement that was alleged to be illegal insurance business and would have prevented them from being subrogated to the plaintiff's claim for damages in respect of the loss of the use of his car. Held: Applying Donnelly, the relationship between the plaintiff and his insurance company was irrelevant: "It is admitted by the defendant that the plaintiff had a need for a replacement car. Lords Insurance Brokers Ltd. satisfied that need. It is accepted that the charge of £328 was a reasonable charge having regard to all the circumstances. On the authority of Donnelly's case that need had to be paid for by the defendant as the wrongdoer."
1 Cites

1 Citers


 
Dexter v Courtaulds Ltd [1984] 1 WLR 372; [1984] 1 All ER 70
1984
CA
Lawton LJ
Personal Injury, Damages
The plaintiff had been injured at work, and awarded damages, including for loss of wages. The parties disputed the method of calculation of interest on the damages. Held: To avoid the laborious detailed calaculations of interest from day to day, it was proper in the general run of cases to award interest on the full amount but at half the rate. Lawton LJ said that the court Jefford v Gee clearly intended to lay down general principles for application in personal injury cases. He said that they should be departed from only in unusual circumstances.
1 Cites

1 Citers



 
 Harris v Empress Motors; CA 1984 - [1984] 1 WLR 212
 
Shove v Downs Surgical plc [1984] IRLR 17; [1984] ICR 532
1984


Employment, Damages
The court considered the correct approach to calculating damages for breach of an employment contract, and in particular in the context of income tax on any award over the £30,000 limit, and the need to gross up any award.
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 Garden Cottage Foods Ltd v Milk Marketing Board; HL 1984 - [1984] AC 130
 
CCC Films (London) Ltd v Impact Quadrant Films Ltd [1985] 1 QB 16; [1984] 3 WLR 245
1984

Hutchison J
Contract, Damages
The claimants purchased a licence to promote three films, but the defendant lost the film prints and CCC could not therefore promote them. After their claim for loss of profit failed in the absence of evidence, they claimed for the expenditure they had wasted. Held. The plaintiff has a full discretion to pursue either a loss of profit or for wasted expenditure after a breach of contract by the defendant. He need not provide evidence before making that election. Where the defendant prevented the fulfilment of the contract the onus lay on him to prove it if he asserted that the plaintiff would not have managed to recoup at least his expenditure from profits. It would be fair to impose the onus of proof on the defendant at least in the following cases: "where the plaintiff's decision to base his claim on abortive expenditure was dictated by the practical impossibility of proving loss of profit rather than by unfettered choice, any other rule would largely, if not entirely, defeat the object of allowing this alternative method of formulating the claim. This is because, notwithstanding the distinction to which I have drawn attention between proving a loss of net profit and proving in general terms the probability of sufficient returns to cover expenditure, in the majority of contested cases impossibility of proof of the first would probably involve like impossibility in the case of the second. It appears to me to be eminently fair that in such cases where the plaintiff has by the defendant's breach been prevented from exploiting the chattel or the right contracted for and, therefore, putting to the test the question of whether he would have recouped his expenditure, the general rule as to the onus of proof of damage should be modified in this manner".
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Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] 1 QB 405; [1984] 1 All ER 881
1984
QBD
Mustill J
Damages, Negligence
The test to be applied in determining the time at which an employer's failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not extraordinarily solicitous for his workers' safety in the light of what he knew or ought to have known at the time. Lord Devlin's statement of the law as to concurrent tortfeasors "does not . . demand the conclusion that where the court knows that the initial stage of the damage was caused by A (and not B) and that the latter stage was caused by B (and not A), it is obliged by law to proceed (contrary to the true facts) on the assumption that the faults of each had caused the whole damage." and "I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault. What justice does demand, to my mind, is that the court should make the best estimate it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment."
Mustill J adopted and developed the statement of Swanwick J: "I shall direct myself in accordance with this succinct and helpful statement of the law, and will make only one additional comment. In the passage just cited, Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive: as the present actions demonstrate. The practice of leaving employees unprotected against excessive noise had never been followed 'without mishap.' Yet even the plaintiffs have not suggested that it was 'clearly bad,' in the sense of creating a potential liability in negligence, at any time before the mid-1930s. Between the two extremes is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. It is unnecessary, and perhaps impossible, to give a comprehensive formula for identifying the line between the acceptable and the unacceptable. Nevertheless, the line does exist, and was clearly recognised in Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552. The speeches in that case show, not that one employer is exonerated simply by proving that other employers are just as negligent, but that the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole. In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow."
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Thompson v Smith Repairers [1984] QB 405
1984


Damages
The court should not become involved in an assessment of damages so vague that it is shot through with imprecision.
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Archer v Brown [1985] QB 401; [1984] 2 All ER 267
1984

Peter Pain J
Contract, Damages, Torts - Other
The defendant sold shares in his company to the plaintiff. He had however already sold them elsewhere. The plaintiff sought both rescission and damages. The defendant argued that he could not be entitled to both. Held: The misrepresentation had been fraudulent and both rescission and damages might be available. In this case the loss, the cost of borrowing flowed directly from the fraud perpetrated by the defendant. Aggravated but not exemplary damages might also be awarded. Peter Pain J said: "But what seems to put the claim under this head out of court is the fact that exemplary damages are meant to punish and the defendant has been punished. Even if he wins his appeal he will have spent a considerable time in gaol. It is not surprising that there is no authority as to whether this provides a defence, since there is no direct authority as to whether exemplary damages can be given in deceit. I rest my decision on the basic principle that a man should not be punished twice for the same offence. Since he has undoubtedly been punished, I should not enrich the plaintiff by punishing the defendant again."
Prevention of Fraud (Investments) Act 1958
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Re 6, 8, 10 and 12 Elm Avenue, New Milton; Ex parte New Forest District Council [1984] 1 WLR 1398; [1984] 3 All ER 632
1984
ChD
Scott J
Land, Damages
Scott J accepted Kirby as authority for the application of section 10 to works on land acquired by agreement. In an application for a declaration that land is not restricted by a covenant, the onus is on the plaintiff to prove that it is not so affected. It is not on the defendant to prove that it is affected.
Land Compensation Act 1965 10
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McGriel v Wake [1984] 13 HLR 134
1984
CA

Housing, Damages

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Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] 1 QB 1012; [1984] 3 All ER 1044
1 Jul 1984
CA
Waller LJ
Damages, Contract, Professional Negligence
A sterilisation operation had been performed negligently and failed and the claimant was born. Held: The birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon's careless failure to clip a fallopian tube effectively. The authority could not expect her to terminate the pregnancy. The mother was entitled to recover damages, including damages for her future loss of earnings, following the birth of a child with congenital abnormalities who required constant medical and parental supervision.
Waller LJ said: "In my view it is trite to say that if a woman becomes pregnant, it is certainly foreseeable that she will have a baby, but in my judgment, having regard to the fact that in a proportion of all births - between one in 200 and one in 400 were the figures given at the trial - congenital abnormalities might arise, makes the risk clearly one that is foreseeable, as the law of negligence understands it."
On a claim in contract the court held that there was no rule of public policy which precluded recovery of damages for pain and suffering and for maintaining the child. The court took a multiplier of 8 for a child 5 years old at the time of the appeal. The total award in respect of pain, suffering and loss of amenities was £13,000.
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