Category: Commonwealth

Walker v Baird and Another: PC 4 Aug 1892

(Newfoundland) A treaty, which does not terminate a state of war, has no legal effect upon the rights and duties of the subjects of the Crown and speaking generally no power resides in the Crown to compel them to obey the provisions of a treaty, or to expel them without supporting legislative authority.

Judges:

Watson, Hobhouse, Herschell, MacNaghten, Morris, Hannen, Shand LL< Sir Richard Couch

Citations:

[1892] UKPC 47, [1892] AC 491

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 19 August 2022; Ref: scu.417688

Black v The Christchurch Finance Company Limited: PC 16 Dec 1893

(New Zealand) Lord Shand, said: ‘The lighting of a fire on open bush land, where it may readily spread to adjoining property and cause serious damage, is an operation necessarily attended with great danger, and a proprietor who executes such an operation is bound to use all reasonable precautions to prevent the fire extending to his neighbour’s property (sic utere tuo at alienum non laedas).’

Judges:

Lord Shand

Citations:

[1893] UKPC 60, [1894] AC 48

Links:

Bailii

Cited by:

Cited – Stannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Nuisance

Updated: 19 August 2022; Ref: scu.417634

Dona Maria Abeyesekera Hamini and Others v Daniel Tillekeratne: PC 26 Feb 1897

Ceylon – The Board considered the validity of a retrospective Order in Council.

Citations:

[1897] AC 277, [1897] UKPC 6

Links:

Bailii

Cited by:

Cited – Liyanage and others v The Queen PC 2-Dec-1965
liyanagePC196502
The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 19 August 2022; Ref: scu.417288

King v The Victoria Insurance Company Limited: PC 20 Mar 1896

Queensland – A cargo of wool was insured ‘at and from Townsville to London’. The lighter carrying the cargo to the ship capsized in the harbour. The insurers paid out and, taking an assignment of the action sued the defendant Government. The latter now replied that the insurer had arguably had no obligation to settle the claim, and the assignment of the action had been invalid. The appellant argued, in part, that the loss sued upon was not within the terms of the insurance policy; that the respondent insurers stood in the position of mere strangers making a voluntary payment to the insured and that they had no title which a court, either of law or equity, would have recognised.
Held: ‘Legal’ choses in action includes both legal and equitable interests in choses in action. The distinction between assignment of an action and subrogation must be kept clear. By subrogation, the insurer stands in the shoes of the insured and enforces its rights in the name of the insured. Subrogation is available if payment has been made honestly and in good faith under a valid policy if intended to be in satisfaction of the obligation to indemnify, notwithstanding that it may subsequently be shown that no such obligation had in fact arisen.
The Board rejected the argument presented. Lord Hobhouse said: ‘it is claimed as a matter of positive law that, in order to sue for damage done to insured goods, insurers must shew that if they had disputed their liability the claim of the insured must have been made good against them. If that be good law, the consequence would be that insurers could never admit a claim on which dispute might be raised except at the risk of finding themselves involved in the very dispute they have tried to avoid, by persons who have no interest in that dispute, but who are sued as being the authors of the loss. The proposition is, as their Lordships believe, as novel as it is startling; . . As regards the question whether the loss was or was not within the terms of the policy, their Lordships will make no observation but this, that whatever might have been the result of a dispute between the parties to it, there is nothing to suggest that the claim was not one which the insured might not honestly and reasonably make, or to which the insurers might not honestly and reasonably accede. They will assume, as the Court below has assumed, that the bank could not by the terms of the policy have compelled the insurers to indemnify them. Still if, on a claim being made, the insurers treat it as within the contract, by what right can a stranger say that it is not so? The payment would not be made if no policy existed; and it seems to their Lordships an extravagant thing to say that a payment made under such circumstances is a voluntary payment made by a stranger, and that it would be at least an excess of refinement to hold that it is not a payment on the policy, carrying with it the legal incidents of such a payment. . honestly made by insurers in consequence of a policy granted by them and in satisfaction of a claim by the insured, is a claim made under the policy, which entitles the insurers to the remedies available to the insured.’

Judges:

Watson, Hobhouse, Davey LL, Sir Richard Couch

Citations:

[1896] UKPC 16, [1896] AC 250, 74 LT 206, 44 WR 592, 65 LJPC 38, 12 TLR 285

Links:

Bailii

Cited by:

Cited – Alliance Bank Jsc v Aquanta Corporation and Others CA 12-Dec-2012
. .
Cited – Law v Liverpool City Council SCCO 10-May-2005
. .
Cited – W v Veolia Environmental Services (UK) Plc QBD 27-Jul-2011
The claimant’s car had been damaged by a lorry operated by the defendant. The claimant hired a replacement car under a credit hire agreement with AE, which he signed at his home when the replacement vehicle was delivered to him. The defendant’s . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insurance

Updated: 19 August 2022; Ref: scu.417351

Beaver v The Master In Equity of The Supreme Court of Victoria: PC 29 Jan 1895

(Victoria) The Board was asked whether a share in a partnership was subject to etsate duties on the death of the partner.

Judges:

Lord Hesrchell LC, Watson, Hobhouse, MacNaghten, Shand LL

Citations:

[1895] UKPC 2, [1895] AC 251

Links:

Bailii

Commonwealth, Taxes – Other, Company, Wills and Probate

Updated: 19 August 2022; Ref: scu.417404

Perpetual Executors and Trustees Association of Australia Limited v Swan and Others: PC 3 Aug 1898

Victoria – The Board was asked wheter within the applicable laws of the Colony of Victoria, the placing of trust funds with banks fulfilling certain conditions was an authorised investment or not.

Judges:

Macnaghton, Morris, James of Hereford, LL, ir Henry Strong

Citations:

[1898] UKPC 53, [1898] AC 763

Links:

Bailii

Commonwealth, Trusts, Banking

Updated: 19 August 2022; Ref: scu.417184

The Prime Minister of Belize, The Attorney General of Belize v Vellos, Dawson and Others: PC 24 Mar 2010

(Belize) Challenge was made to an Act removing certain constititutional rights which Act was passed without a referendum. The Act amending the constitution to require further amendments to follow a referendum did not itself follow the constitutional requirements.
Held: While the obligation to hold a Part II referendum would necessarily be triggered by some stage of the amendment of the Constitution Act, it was possible, as a matter of law, to treat the two processes as independent, so that the process of amending the Constitution Act could proceed in the normal way, whether or not a referendum was held and regardless of its result . . Under the Referendum Act the incentive to comply with the obligation to hold a Part II referendum lay in the political fall-out that would follow disregard of that obligation and the effect of proceedings such as those brought by the respondents in this case. The obligation was, of course, one which in an appropriate case could be enforced by proceedings for judicial review. The obligation did not, however, impose a legal fetter on the legislative process.

Judges:

Lord Phillips, Lady Hale, Lord Mance, Lord Collins, Lord Clarke

Citations:

[2010] UKPC 7

Links:

Bailii

Citing:

Cited – Independent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett and Another PC 3-Feb-2005
(Jamaica) A bill was presented to the Jamaican parliament to transfer the appellate jurisdiction from the Board of the Privy Council to the Caribbean Court of Justice.
Held: Whilst there was a duty to recognise and respect alternate courts, . .

Cited by:

Cited – Marshall and Others v Deputy Governor of Bermuda and Others PC 24-May-2010
marshall_dgPC10
(Bermuda) The claimants challenged their recruitment by conscription to the Bermuda Regiment on several different grounds. The issues now were whether conscription was lawful only where volunters were insufficient, and whether the acceptance of . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 16 August 2022; Ref: scu.406176

Attorney General for Jersey v O’Brien (Jersey): PC 14 Feb 2006

(Court of Appeal of Jersey) The appellant had been convicted of laundering the proceeds of her husband’s drug trafficking. The Attorney-General now appealed against her successful appeal on sentence and confiscation order. Both she and her husband ran legitimate businesses, and she managed the bank accounts. Though the income from the husband’s business increased rapidly, the prosecution’s accountant accepted that she might have believed this was a legitimate improvement in his business. This did not apply to payments into personal accounts, which involved many cash deposits.
Held: The Court of Appeal had been wrong to re-assess the factual basis of the evidence supporting the orders, and had erred in its calculations. The original orders were restored.

Judges:

Lord Hoffmann, Lord Woolf, Lord Steyn, Baroness Hale of Richmond, Lord Mance

Citations:

[2006] UKPC 14, [2006] 1 WLR 1485

Links:

Bailii

Statutes:

Drug Trafficking Offences (Jersey) Law 1988 17(1)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Rex v Hopkins-Husson 1949
Lord Goddard C discussed the ability of the criminal court of appeal to set aside a conviction in exceptional cases where the verdict was ‘one which no reasonable tribunal could have found.’ He said: ‘[T]he fact that some members or all the members . .
Cited – Barlow Clowes International Ltd and Another v Eurotrust International Ltd and others PC 10-Oct-2005
(Court of Appeal of the Isle of Man) Defendants appealed a finding of dishonest assistance in the activities of Barlow Clowes.
Held: The judge had been able to reach the conclusions on the basis of the evidence. The appeal of the deemster . .
Cited – Snooks and Dowse v United Kingdom ECHR 2002
The court described the way that a Jersey Jurat was selected: ‘Jurats are . . elected by a special electoral college whose members include the bailiff, the jurats, advocates and solicitors of the Royal Court and members of Jersey’s legislature, the . .
Cited – Aladesuru v The Queen PC 1956
Directors of the Standard Bank in Nigeria appealed from a conviction for false accounting. They had appealed to the West African Court of Appeal who said referring to the difference between civil and criminal appeals: ‘This difference has been . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 16 August 2022; Ref: scu.239585

Rodriguez v Minister of Housing of The Government and Another: PC 14 Dec 2009

Gibraltar – The claimant challenged a public housing allocation policy which gave preference to married couples and parents of children, excluding same sex and infertile couples.
Held: The aim of discouraging homosexual relationships is equally impermissible under sections 7(1) and 14 of the Constitution of Gibraltar. The suggested aims are incoherent and the means employed are not rationally connected to those aims. The appellant is entitled to a declaration that she has been treated in a discriminatory manner, in contravention of her rights under sections 7 and 14 of the Constitution.
This was not direct discrimination on grounds of sexual orientation, because other unmarried couples suffered the same disadvantage. But it was more severe than most cases of indirect discrimination, because the criterion was one which the couple would never be able to meet: ‘Thus it is a form of indirect discrimination which comes as close as it can to direct discrimination’

Judges:

Lord Phillips, Lady Hale, Lord Collins, Sir Jonathan Parker, Sir Henry Brooke

Citations:

[2009] UKPC 52, [2010] UKHRR 144, 28 BHRC 189

Links:

Bailii

Citing:

Cited – Salgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
Cited – Korelc v Slovenia ECHR 12-May-2009
‘the Court reiterates that according to its established case law discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. . . Such a difference of treatment is . .
Cited – Burden and Burden v The United Kingdom ECHR 29-Apr-2008
(Grand Chamber) The claimants were sisters who had lived together all their lives. They complained of discrimination in their treatment under the Inheritance Tax system as opposed to the treatment of a same sex couple living in a sexual . .
Cited – Thlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The applicant was a Jehovah’s Witness who had been convicted of insubordination under the Military Criminal Code for refusing to wear a military uniform at a time of general mobilisation. He was subsequently refused appointment as a . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Cerisola (A Child) v Attorney General for Gibraltar PC 6-Mar-2008
(Gibraltar) The constitutional protection against discriminatory treatment is free standing, and is not limited to matters of employment. . .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – DH v Czech Repiublic ECHR 7-Feb-2006
The claimants, 18 Roma children complained, saying that they had automatically been placed in schools for children with special needs by virtue of their racial origin. . .
Cited – Serife Yigit v Turkey ECHR 20-Jan-2005
A complaint as to the privileging of civil over religious marriages in Turkey was found admissible.
‘ the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities. There may in addition . .
Cited – EB v France ECHR 14-Mar-2007
A homosexual woman complained that she had not been allowed to adopt a child. Her application was rejected by the French administrative court on grounds based substantially upon her sexual orientation.
Held: The provision was an unlawful . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Lindsay v United Kingdom ECHR 1986
The position of married couples is not comparable with the position of unmarried couples, so that differences in treatment between them do not amount to discrimination within the meaning of article 14 of the convention. . .
Cited – PM v The United Kingdom ECHR 19-Jul-2005
A father complained that tax deductions which were granted to married fathers but not to unmarried fathers were discriminatory. He had paid maintenance for his daughter, but was not allowed to set the payments off against his income tax in the way . .
Cited – Shackell v United Kingdom ECHR 27-Apr-2000
The court held inadmissible a claim by an unmarried woman to widow’s benefit. The parties having chosen not to marry, they could not complain of not having the legal benefits of a marriage. The promotion of marriage by way of limited benefits for . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – McMichael v United Kingdom ECHR 2-Mar-1995
In the course of care proceedings, medical and social services’ reports were disclosed to the courts, but not to the parents involved.
Held: The courts’ failure to show reports to the parents in care proceedings was a breach of the Convention. . .
Cited – Karner v Austria ECHR 24-Jul-2003
A surviving same-sex partner sought a right of succession to a tenancy (of their previously shared flat). Interveners ‘pointed out that a growing number of national courts in European and other democratic societies require equal treatment of . .
Cited – Ghaidan v Godin-Mendoza CA 5-Nov-2002
The applicant sought to succeed to the tenancy of his deceased homosexual partner as his partner rather than as a member of his family.
Held: A court is bound by any decision within the normal hierachy of domestic authority as to the meaning . .

Cited by:

Cited – Bull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Human Rights, Housing, Constitutional, Discrimination

Updated: 11 August 2022; Ref: scu.384074

Ramdass v Bahaw-Nanan: PC 14 Dec 2009

(Trinidad and Tobago)The appellant claimed to have taken possession of land adverse to its paper owner, the respondent. The respondent said that the occupation had been by virtue of a tenancy which she had terminated.

Judges:

Lord Rodger, Lord Walker, Lord Collins, Lord Kerr, Sir Christopher Rose

Citations:

[2009] UKPC 51

Links:

Bailii

Citing:

Cited – Smith v Poulter 1947
The court has a duty to see whether a tenant is entitled to statutory protection, even if the point is not pleaded or raised by the tenant. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land, Limitation

Updated: 11 August 2022; Ref: scu.384073

Yuen v The Royal Hong Kong Golf Club: PC 28 Jul 1997

(Hong Kong) The applicant was dismissed as a golf caddie after nine years. The Club denied that he had ever been an employee. He was issued by the club with a number, a uniform and a locker. Caddying work was allocated to available caddies in strict rotation. They were not obliged to make themselves available for work and received no guarantee of work. The club was not obliged to give them work or to pay anything other than the amount of the fee per round owed by the individual golfer for whom they had caddied. Other caddies had signed a form stating that they worked as independent contractors.
Held: (Majority) The applicant’s appeal was dismissed: ‘the only reasonable view of the facts is that the arrangements between the Club and Mr. Cheng went no further than to amount to a licence by the Club to permit Mr. Cheng to offer himself as a caddie for individual golfers on certain terms dictated by the administrative convenience of the Club and its members.’

Judges:

Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Steyn, Lord Hoffmann

Citations:

[1997] UKPC 40, [1998] ICR 131

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Edwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
Cited – Lee Ting Sang v Chung Chi-Keung PC 8-Mar-1990
Deciding Whether person was an employee
(Hong Kong) The Board considered the conclusion that the applicant stone mason was not an employee of the defendant: ‘even if I leaned towards the opposite conclusion, it would nevertheless be quite impossible for me to say that no tribunal . .
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Cited – O’Kelly v Trusthouse Forte plc CA 1984
Workers claimed to be employees.
Held: They were not such. Their contract reserved the right to choose whether or not to work and for the employer not to give them work. The question of whether the facts which are found or admitted, fall one . .
Cited – Market Investigations v Minister of Social Security 1969
One way of deciding whether a person is self employed is to ask whether he can be said to be running a business of his own. Different tests may have to be combined to produce an overall answer.
Cooke J said: ‘The fundamental test to be applied . .

Cited by:

Cited – Quashie v Stringfellows Restaurants Ltd EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, Employee
Illegality
The Employment Judge erred in her conclusion that the Claimant was not an employee on each night she performed work and in the intervening . .
Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
Cited – Khan v Checkers Cars Ltd EAT 16-Dec-2005
EAT The claimant worked as a private hire car driver for the respondent company which operated a taxi service based at Gatwick Airport. The claimant owned and was responsible for his own vehicle. He paid his own . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Cited – Stringfellow Restaurants Ltd v Quashie CA 21-Dec-2012
The company appealed against a decision that the claimant, a lap dancer at their premises, had been an employee. She performed for the entertainment of guests at the respondents’ clubs. She paid the respondent a fee for each night worked. Doing so . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 August 2022; Ref: scu.159253

Higgs v Leshel Maryas Investment Co and Another: PC 26 Nov 2009

(From the Court of Appeal of the Commonwealth of the Bahamas) The court was asked whether the appellant, Mr Kenneth Higgs, has obtained, whether for himself or on behalf of the estate of his late mother, Clotilda Higgs, of which estate he and a brother of his are the executors, a good possessory title to the land in New Providence Island later described to the exclusion of the other tenants-in-common of the land, and, in particular, the respondent.

Judges:

Lord Hope, Lord Scott, Lady Hale, Lord Brown, Lord Mance

Citations:

[2009] UKPC 47

Links:

Bailii

Commonwealth, Land

Updated: 07 August 2022; Ref: scu.381557

In Re Abrahams: PC 14 Jun 1864

The Order in Council of the 12th of April, 1851, restricts the right of appeal to the Queen in Council, to matters where the property, or civil rights, amount to and300.
Application for special leave to appeal from an Order of the Supreme Court of Jamaica, refusing to quash a fiat, or certificate of insolvency, made under the Jamaica Act, 1lth Vict, c. 25, refused, as the question at issue, namely, the validity of the fiat of insolvency, was not an appealable grievance within the Order in Council.

Citations:

[1864] EngR 578, (1864) 2 Moo PC NS 241, (1864) 15 ER 892

Links:

Commonlii

Jurisdiction:

Commonwealth

Litigation Practice, Commonwealth

Updated: 07 August 2022; Ref: scu.282292

Jacobi v Griffiths: 17 Jun 1999

(Canadian Supreme Court) A children’s club was not vicariously liable for the acts of an employee which took place in the employee’s home outside working hours. It was not enough that his employment in the club gave him the opportunity to make friends with the children.
The process for determining when a non-authorised act by an employee is so connected to the employer’s enterprise that liability should be imposed involved two steps: 1. Firstly a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. 2. If prior cases do not clearly suggest a solution the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability. In this case that test was not satisfied.

Citations:

(1999) 174 DLR(4th) 71, [1999] 9 WWR 1, 44 CCEL (2d) 169, 63 BCLR (3d) 1

Links:

Canlii

Jurisdiction:

Canada

Citing:

Criticised – ST v North Yorkshire County Council CA 14-Jul-1998
The court considered the liability of the respondent for sexual assaults committed by an employee teacher when taking students on school trips.
Held: The Local Authority was not vicariously liable for sexual assault committed by employee . .

Cited by:

Approved – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
Cited – Gravil v Carroll and Another CA 18-Jun-2008
The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed from a finding that they were not vicariously liable. The defendant player’s . .
Applied – Maga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA 16-Mar-2010
The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
Cited – Graham v Commercial Bodyworks Ltd CA 5-Feb-2015
The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .
Cited – Chell v Tarmac Cement and Lime Ltd CA 12-Jan-2022
Explosive Pellet Use Not Within Employee’s Role.
The claimant worked on a site operated by the respondent. One of the respondent’s employees exploded two pellet targets injuring the claimant’s hearing. He asserted vicarious liability in the respondent. There had been tensions between the claimant . .
Cited – Barclays Bank Plc v Various Claimants SC 1-Apr-2020
The Bank had employed a doctor to provide medical assessments as necessary. The doctor had used the opportunities presented to assault sexually many patients. The court was now asked whether the Bank was vicariously liable for the acts of this . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability

Updated: 07 August 2022; Ref: scu.214670

Attorney General of Hong Kong v Lee Kwong-Kut: PC 1993

(Hong Kong) In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature’s attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime. It must be remembered that questions of policy remain primarily the responsibility of the legislature. It would not assist the individuals who are charged with offences if, because of the approach adopted to ‘statutory defences’ by the courts, the legislature, in order to avoid the risk of legislation being successfully challenged, did not include in the legislation a statutory defence to a charge.
Lord Woolf set down a test for when a reverse of the burden of proof would be acceptable: ‘Whether they are justifiable will in the end depend upon whether it remains primarily the responsibility of the prosecution to prove the guilt of the accused to the required standard and whether the exception is reasonably imposed, notwithstanding the importance of maintaining the principle [of the presumption of innocence] . . If the exception requires certain matters to be presumed until the contrary is shown, then it will be difficult to justify that presumption unless, as was pointed out by the United States Supreme Court in Leary v United States [1969] 23 L Ed 2d 57, 82, ‘it can be at least said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.’

Judges:

Lord Woolf

Citations:

[1993] AC 951

Jurisdiction:

England and Wales

Cited by:

Cited – Drummond v Regina CACD 7-Mar-2002
The appellant had been convicted of causing death by careless driving with excess alcohol. He said that he had taken alcohol after stopping driving but before being tested. He challenged the weight of the burden of proof ascribed by the statute. The . .
Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited – Lynch v Director of Public Prosecutions Admn 8-Nov-2001
The defendant challenged a conviction for having a locked bladed article in his possession in a public place, on the basis that it placed on him a burden of proof contrary to the convention.
Held: Salabiaku permits a reverse onus but requires . .
Cited – Webster v Regina CACD 1-Dec-2010
The defendant appealed against his conviction under the 1889 Act for making a corrupt gift to a local government officer. He said that the 1916 Act placed an unfair burden on him to prove that the gift was not corruptly given.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 07 August 2022; Ref: scu.180563

Lincoln Anthony Guerra v Cipriani Baptiste and others (No 2): PC 6 Nov 1995

(Trinidad and Tobago) The execution of a prisoner after a substantial delay of 5 years was a breach of his constitutional rights, constituting cruel and unusual punishment.

Citations:

Times 08-Nov-1995, Independent 15-Nov-1995, [1995] UKPC 3, Appeal No 11 of 1995, [1996] 1 AC 397

Links:

Bailii, PC

Jurisdiction:

England and Wales

Citing:

Cited – Pratt and Morgan v The Attorney General for Jamaica and Another PC 2-Nov-1993
(Jamaica) A five year delay in execution is excessive, and can itself amount to inhuman or degrading punishment. ‘There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. . .
See Also – Lincoln Anthony Guerra and Another v Cipriani Baptiste and others PC 29-Jul-1994
(Trinidad and Tobago) A conservatory order could be made by the committee in order to prevent a prisoner being executed before his appeal could be heard by them. . .

Cited by:

Cited – Trevor Nathaniel Fisher v The Minister of Public Safety and Immigration and Others PC 16-Dec-1997
(The Bahamas) The extent of a delay before a trial is not relevant when considering whether a subsequent delay in carrying out an execution is cruel and inhuman punishment . .
Cited – Reyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
Cited – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing, Constitutional

Updated: 07 August 2022; Ref: scu.81077

Pratt and Morgan v The Attorney General for Jamaica and Another: PC 2 Nov 1993

(Jamaica) A five year delay in execution is excessive, and can itself amount to inhuman or degrading punishment. ‘There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time.’

Citations:

Independent 03-Nov-1993, Gazette 19-Jan-1994, Times 04-Nov-1993, [1993] UKPC 1, [1994] 2 AC 1, Appeal No 10 of 1993, [1993] UKPC 37

Links:

Bailii, PC, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Turnbull and Another etc CCA 9-Jun-1976
The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of . .

Cited by:

Cited – Trevor Nathaniel Fisher v The Minister of Public Safety and Immigration and Others (No 2) PC 5-Oct-1998
PC (The Bahamas) The applicant had been convicted of murder and sentenced to death. His case was pending before the Inter-American Commission on Human Rights. He appealed a second time to the board, saying the . .
Cited – Trevor Nathaniel Fisher v The Minister of Public Safety and Immigration and Others PC 16-Dec-1997
(The Bahamas) The extent of a delay before a trial is not relevant when considering whether a subsequent delay in carrying out an execution is cruel and inhuman punishment . .
Cited – Lincoln Anthony Guerra v Cipriani Baptiste and others (No 2) PC 6-Nov-1995
(Trinidad and Tobago) The execution of a prisoner after a substantial delay of 5 years was a breach of his constitutional rights, constituting cruel and unusual punishment. . .
Cited – Henfield v The Attorney General of the Commonwealth of The Bahamas (Appeal No 26 of 1996) and Farrington v The Attorney General of the Commonwealth of The Bahamas PC 14-Oct-1996
(The Bahamas) A delay in carrying out an execution for 3.5 years, where the target delay had been set at 2 years, was inhuman treatment, and the execution should be set aside. The essential question in Pratt was whether the execution of a man . .
Cited – Farrington v The Queen PC 17-Jun-1996
(Bahamas) The applicant sought leave to appeal as a poor person. He had been convicted of murder and sentenced to death. He had sought to argue that the delay in his execution had contravened his right not to be subjected to unusual and cruel . .
Cited – Kumar Ali v The State (Appeal 56 of 2004) and Leslie Tiwari v The State PC 2-Nov-2005
PC (Trinidad and Tobago) The Board was asked to determine the date from which an unsuccessful appellant’s sentence should run. Pending an appeal or whilst on remand, a prisoner would be held in less demanding . .
Cited – Adolphus Campbell v The State PC 20-Aug-1999
PC (Trinidad and Tobago) The defendant appealed his conviction for murder. The Board considered whether the Court of Appeal should consider additional medical evidence. He was said to have attacked the deceased, . .
Cited – Wellington Regina, (on the Application of) v Secretary of State for the Home Department HL 10-Dec-2008
It was sought to extradite the defendant to face trial for two alleged murders. He now challenged the order for his extradition saying that his treatment in Missouri would amount to inhuman or degrading punishment in that if convicted he would face . .
Cited – Zagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
Cited – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing

Updated: 07 August 2022; Ref: scu.159152

Lincoln Anthony Guerra and Another v Cipriani Baptiste and others: PC 29 Jul 1994

(Trinidad and Tobago) A conservatory order could be made by the committee in order to prevent a prisoner being executed before his appeal could be heard by them.

Citations:

Independent 29-Sep-1994, Times 29-Jul-1994

Links:

PC

Jurisdiction:

England and Wales

Cited by:

See Also – Lincoln Anthony Guerra v Cipriani Baptiste and others (No 2) PC 6-Nov-1995
(Trinidad and Tobago) The execution of a prisoner after a substantial delay of 5 years was a breach of his constitutional rights, constituting cruel and unusual punishment. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing

Updated: 07 August 2022; Ref: scu.81074