Category: Damages

Tracy and others v Crosville Wales Ltd: HL 16 Oct 1997

Damages for unfair dismissal of those not re-engaged after a strike where the employees had been equally blameworthy, were not to be reduced for any contributory fault of the employee in engaging in the strike. The employers had advertised the jobs, but not approached the applicants to offer them new employment, and were liable for unfair dismissal. Any contributory fault lay in the action of striking, but the cause of action arose on the failure to offer re-engagement.

Judges:

Lord Goff of Chieveley Lord Mackay of Clashfern Lord Lloyd of Berwick Lord Nolan Lord Clyde

Citations:

Gazette 29-Oct-1997, Times 20-Oct-1997, [1997] UKHL 42; [1997] 4 All ER 449; [1997] 3 WLR 800

Links:

House of Lords, Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 238, Employment Protection (Consolidation) Act 1978 62

Jurisdiction:

England and Wales

Citing:

Cited – Nelson v British Broadcasting Corporation (No 2 ) CA 1980
Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 31 May 2022; Ref: scu.158917

Fellowes or Herd v Clyde Helicopters Ltd: HL 27 Feb 1997

A Police officer being carried in a force helicopter, and operating within his own force’s area was not on a matter of international carriage, and was not subject to the restrictions on recovery of damages. The helicopter had crashed into a building and he lost his life.
Lord Hope considered the Convention noting the width of article 1(1) which applies ‘to all international carriage of persons, baggage or cargo performed by aircraft for reward’, and said: ‘But the starting point is the generality of effect indicated by the use of the word ‘all’. The nationality or place of business of the carrier is irrelevant, as all carriers who undertake international carriage, as defined in article 1(2), of passengers, baggage or cargo by the aircraft are bound by the Convention. There is nothing in the Convention to indicate that the purpose for which the passenger, baggage or cargo was on the aircraft has any bearing on the question whether the Convention applies.
In my opinion the Convention agreed at Warsaw, as amended at the Hague, was intended to be, and is, capable of accommodating changes in the practice of airlines and aircraft operators with regard to the purposes for which aircraft are used to carry people and goods, and in the contractual arrangements in pursuance of which people and goods are carried by air for reward.’

Judges:

Lord MacKay, Lord Chancellor Lord Nicholls of Birkenhead Lord Hoffmann, Lord Hope of Craighead Lord Clyde

Citations:

Gazette 26-Mar-1997, Times 07-Mar-1997, [1997] 1 All ER 775, [1997] UKHL 6, [1997] AC 534

Links:

House of Lords, Bailii

Statutes:

Carriage by Air (Application of Provisions) Order 1967 (1967 No 480)

Jurisdiction:

England and Wales

Cited by:

Cited – Laroche v Spirit of Adventure (UK) Ltd CA 21-Jan-2009
Hot Air balloon was an aircraft: damages limited
The claimant was injured flying in the defendant’s hot air balloon. The defendant said that the journey was covered by the 1967 Regulations and the damages limited accordingly. The claimant appealed against a decision that the balloon was an . .
Lists of cited by and citing cases may be incomplete.

Transport, Police, Damages, Personal Injury

Updated: 31 May 2022; Ref: scu.158881

Phillips v Holliday and Another: CA 6 Jul 2001

The claimant was injured when scaffolding on which he was working collapsed. The defendants appealed the awards for loss of future earnings. The claimant was self-employed working through a limited company controlled by his wife. His past earnings were challenged.
Held: Though the accounting records were poor, there was some basis for an award. ‘The court is faced with the uncertainty of whether the business will continue when loss of earnings from the business is what the claimant must be compensated for, or whether the business might at some stage collapse, when it is the claimant’s disadvantage in the labour market for which he should receive compensation . . in assessing the reasonableness of the award, and in particular the multiplier used, it is fair to take into account that the claimant will be at a disadvantage in the labour market if the business were to collapse.’ The appeal succeeded to a minor extent.

Judges:

Aldous, Waller, Hale LJJ

Citations:

[2001] EWCA Civ 1074

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Smith v Manchester City Council CA 10-Jun-1974
Damages – earnings loss for persistent disability
The plaintiff, a part time domestic cleaner slipped and injured herself (a frozen shoulder) when working for the defendant. It was accepted that the cause of the slip was the defendant’s negligence. At the time of the claim she was still employed by . .
Cited – Ashcroft v Curtin CA 1971
A plaintiff, injured in a motor accident, was seeking to recover damages for loss of profit.
Held: The court commented adversely on the evidence and stated that no figures were given, and that counsel for the defendant had force in his . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 31 May 2022; Ref: scu.147609

Langford v Hebran and Another: CA 15 Mar 2001

The claimant sought damages for the loss of his chances of pursuing his career as a kick-boxer. The judge considered four different courses of varying success which his career might have taken. He accepted that, whether or not those scenarios had materialised, the claimant would have earned a base level of income from giving kickboxing classes. He then evaluated the percentage chance of each scenario being realised and applied the percentage to the earnings the claimant would have derived on the basis of that scenario.
Held: Though the methodology in general was correct, the particular evaluation used by the judge was illogical. The judge should have applied an overall discount to reflect the many contingencies (including risk of injury) arising in respect of each scenario and the fact that none of them might have been realised. In calculating its own figures, the claimant’s chances of achieving fame and fortune as a kick-boxer at various stages in his career were evaluated on a scale from 80% to 20% and damages for his loss of earnings awarded accordingly.

Citations:

[2001] PIQR Q13, [2001] EWCA Civ 361

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Herring v Ministry of Defence CA 10-Apr-2003
The claimant had suffered serious injury in a parachuting accident which deprived him of the opportunity of pursuing his chosen career in the police force. The judge found ‘to the extent of virtual certainty’ that he would have applied to join the . .
Cited – Dixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Brown v Ministry of Defence CA 10-May-2006
Claim for injury suffered whilst training in Army. The claimant was committed to a career in the Army, and had anticipated promotion. She complained that her loss of pension rights had been calculated at a rate to reflect an average length career. . .
Cited – Collett v Smith and Another QBD 11-Aug-2008
The claimant had been an eighteen year old playing football for Manchester United reserves when he was injured by a foul tackle which ended his football career. The defendant admitted liability, but denied that he would have gone on to be a premier . .
Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Updated: 31 May 2022; Ref: scu.147470

Cerberus Software Ltd v John Anthony Rowley: CA 18 Jan 2001

Where a contract of employment gave the employee a right to six months notice but provided that the employer might pay salary in lieu, and the employee was wrongfully dismissed instantly, but found work within weeks, he was entitled to his full six months pay in lieu of notice, but had to give credit for the sums he earned during that time in reduction of his damages. The choice given to the employer to pay salary in lieu of notice was inconsistent with an unconditional obligation to pay the full sum.
courtcommentary.com Where (i) either party has right to terminate employment contract on six months’ notice and (ii) it is agreed employer ‘may make payment in lieu of notice to the employee’, then employer may elect whether or not to make payment in lieu of notice

Judges:

Lord Justice Ward Lord Justice Sedley and Lord Justice Jonathan Parker

Citations:

Times 20-Feb-2001, [2001] ICR 376, [2001] EWCA Civ 1210, [2001] EWCA Civ 78, [2001] EWCA Civ 497

Links:

Bailii, Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Cerberus Software Ltd v Rowley EAT 29-Sep-1999
Where an employment contract allows the employer to dismiss without notice by the payment of salary in lieu of notice, the employer was bound by that contract and could not rely upon the employee’s duty of mitigation of damages and dismiss without . .

Cited by:

Cited – Langley and Another v Burso EAT 3-Mar-2006
The claimant had been dismissed shortly after becoming unable to work. She sought payment of her normal salary during the period of notice saying this was established good practice.
Held: ‘We are put in the invidious position of being bound by . .
Lists of cited by and citing cases may be incomplete.

Employment, Contract, Damages

Updated: 31 May 2022; Ref: scu.147502

Charles Alexis Beattie – v – Secretary of State for Social Security: CA 9 Apr 2001

Regular payments from a structured settlement which had been awarded as damages in a personal injury action were capital treated as income under the regulations, and the entitlement to income support was to be affected accordingly. The regulations stated that capital payable by installments or income received under an annuity were to be treated as income, and the structured settlement was in the nature of an annuity.

Citations:

Times 03-May-2001, Gazette 01-Jun-2001, [2001] EWCA Civ 498

Links:

Bailii

Statutes:

Income Support (General) Regulations 1987 (1987 No 1967) 41

Jurisdiction:

England and Wales

Benefits, Damages

Updated: 31 May 2022; Ref: scu.147503

Allen and Others v British Rail Engineering Ltd and Another: CA 23 Feb 2001

The claimants suffered vibration white finger working for the defendants with percussive tools over many years to 1987, but then continued in other employments which also involved vibrating tools and which caused further damage. The claimants made claims in negligence against the defendants, in which the judge found that, in the light of their knowledge in 1973, the defendants should have carried out surveys to ascertain the incidence of vibratory white finger and should have warned the claimants of the risk. She also held that by 1976 the defendants should have found alternative less damaging work for the first claimant, or should have reduced the time he spent exposed to vibration. She assessed the appropriate compensation for the whole of the first claimant’s injury at andpound;11,000 but awarded him only andpound;4,000, deducting from the total andpound;1,500 for the period before 1976, andpound;1,500 for the period after 1987, and andpound;4,000, that is half the remaining andpound;8,000, for the period from 1976 to 1987 to take account of the damage already suffered and the fact that, on the evidence, if the defendants had complied with their duty, the claimant’s exposure could have been reduced by half. The first claimant accepted the deductions for damage suffered before 1973 and after 1987, but disputed the further deduction of andpound;4,000.
Held: It was contended for the first claimant that, once it had been shown that the defendants’ negligence made a material contribution to the injury suffered by the claimant, the defendants were liable for the whole of the claimant’s injury except in so far as it was shown or accepted that this had been aggravated by non-negligent exposure before 1973 or after 1987 by the first claimant’s new employers. The defendants argued that an employer was only liable for that part of the harm suffered by the employee which was attributable to the employer’s negligence. Schiemann LJ concluded: ‘In our judgment the case law as it now stands establishes five propositions of which the first is concerned with liability and the others with quantifying damages. (i) The employee will establish liability if he can prove that the employer’s tortious conduct made a material contribution to the employee’s disability. (ii) There can be cases where the state of the evidence is such that it is just to recognise each of two separate tortfeasors as having caused the whole of the damage of which the claimant complains; for instance where a passenger is killed as the result of a head-on collision between two cars each of which was negligently driven and in one of which he was sitting. (iii) However in principle the amount of the employer’s liability will be limited to the extent of the contribution which his tortious conduct made to the employee’s disability. (iv) The court must do the best it can on the evidence to make the apportionment and should not be astute to deny the claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the defendant’s tortious conduct. (v) The amount of evidence which should be called to enable a judge to make a just apportionment must be proportionate to the amount at stake and the uncertainties which are inherent in making any award of damages for personal injury.
The application of those propositions should lead to a just and principled result. We mention by way of coda that this approach seems to accord with the view of the authors of the American Law Institute Restatement of the Law, Torts, 2d (1965), section 433A(e): ‘Apportionment may also be made where a part of the harm caused would clearly have resulted from the innocent conduct of the defendant himself, and the extent of the harm has been aggravated by his tortious conduct.”

Citations:

[2001] EWCA Civ 242, 2001] ICR 942, [2001] PIQR Q10

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Environment Agency v Ellis CA 17-Oct-2008
The claimant was injured working for the appellants. The appellants now appealed the finding that they were responsible saying that other factors contributed to the injury, and in particular that he had fallen at home. The claimant said that that . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 31 May 2022; Ref: scu.147447

Kieth Platt v Colin Platt and Another: CA 13 Dec 2000

The applicant appealed an order setting aside transfers to him of shares in a family company, found to have been made after misrepresentation and a breach of fiduciary duty. Three companies owned by the family had fallen into difficulties, and the shares were transferred for nominal consideration, on the basis of representations made as to the liabilities of the company, and as to their later return. Later the company prospered, and they sought the return of their shares.
Held: The appeal was as to matters of fact. The judgment did not set out clearly the facts found on the issues now tested, but there was evidence upon which his findings could properly be based. There had been misrepresentation by the defendant. The measure of damages for a tortious misrepresentation is the sum necessary to put the claimant in the position he would have been in, if the misrepresentation had not been made. The judge should not have assessed damages on a partial realisation basis without discounting the assets for the value of the directors service contracts, which would have been costs in the realisation of the assets.

Judges:

The Vice-Chancellor Lord Justice Chadwick And Lord Justice Latham

Citations:

[2000] EWCA Civ 322

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Platt v Platt and Another ChD 19-Jul-1999
. .
Cited – Attorney General of Ceylon v Mackie PC 1952
The House considered how to value a company. The possibility that a business might be sold as a going concern for a price equal to the net realisable value of the assets employed was envisaged: ‘If it is proved in a particular case that at the . .
Lists of cited by and citing cases may be incomplete.

Company, Damages, Torts – Other

Updated: 31 May 2022; Ref: scu.147355

J A Pye (Oxford) Limited v South Gloucestershire District Council: CA 26 Oct 2000

The company appealed an award by way of valuation for land which was to valued as if purchased compulsorily. It was argued that they were raising points which should have been litigated before the Lands Tribunal.
Held: The appeal to the court was only on a point of law, and the company should have brought the full elements of its its valuation claim at the tribunal. The tribunal had not erred in law, and the appeal failed.

Judges:

Otton, Ward LJJ, Evans-Lombe J

Citations:

[2000] EWCA Civ 268

Links:

Bailii

Statutes:

Land Consolidation Act 1961

Jurisdiction:

England and Wales

Citing:

Cited – Bradford and Bingley Building Society v Seddon and Hancock; Walsh and Rhodes (Trading As Hancocks (a Firm) CA 11-Mar-1999
There was an unsatisfied judgment on a claim by a defendant in an earlier action against a third party. In a subsequent action against the defendant the latter issued third party proceedings against the original and different third parties.
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Horseferry Road Justices and others v City of Westminster CA 1-Jul-2003
. .
Cited – Barrow v Bankside Members Agency Limited CA 10-Nov-1995
Mr Barrow was a member of an action group which had successfully sued a number of members’ agents for negligent underwriting. Having substantially succeeded, but recovered only a proportion of the damages he had claimed, Mr Barrow issued fresh . .
Cited – Yat Tung Investment Co Ltd v Dao Heng Bank Ltd PC 1975
Restraint of Second Action as Abuse
Hong Kong – A company purchased a property from the defendant bank who had taken it back into possession from a former borrower. The company itself fell into arrears, the property was taken back again and resold. The company sought a declaration . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 31 May 2022; Ref: scu.147301

B S and N Limited (BVI) v Micado Shipping Limited (Malta) (‘The Seaflower’): CA 22 Nov 2000

Citations:

[2000] EWCA Civ 296

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Golden Strait Corporation v Nippon Yusen Kubishika Kaisha; ‘the Golden Victory’ TCC 15-Feb-2005
The parties had agreed a charterparty. The defendant repudiated the charter, but the Gulf War in 2003 meant that the the contract would have been frustrated in any event shortly afterwards.
Held: The assessment of damages for repudiation of a . .
Lists of cited by and citing cases may be incomplete.

Transport, Damages, Contract

Updated: 31 May 2022; Ref: scu.147329

Jackson and Davies (Trading As Samson Lancastrian) v Royal Bank of Scotland: CA 28 Jun 2000

In error, the bank disclosed to one customer, the mark up being taken by another in selling on goods to that first customer. The second customer went to make its purchasers direct, and the first customer sought damages from the bank. The bank appealed an award based upon four years loss of profit.
Held: The bank was not in a position to appreciate the sensitivity of the information, and though in breach could not be held liable for four years loss of profit. The award was reduced to one year’s loss of profit, all other losses being too remote.

Judges:

Potter LJ, Nourse LJ and Ferris J

Citations:

[2000] EWCA Civ 203

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Appealed to – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .

Cited by:

Appeal from – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 31 May 2022; Ref: scu.147236

Western Digital Corporation; Western Digital (Singapore) Ltd and Western Digital Netherlands and British Airways Plc: CA 12 May 2000

The rights to claim for damage to cargo under the Warsaw Convention were not now to be limited to those named as consignor or consignee. A cargo owner might claim even if not strictly a party.

Citations:

Times 28-Jun-2000, [2000] EWCA Civ 153

Links:

Bailii

Statutes:

Warsaw Convention for the Unification of Certain Rules regarding International Air Transport 1929

Jurisdiction:

England and Wales

Transport, Damages

Updated: 31 May 2022; Ref: scu.147186

Robert Mark Gordon v J B Wheatley and Co (a Firm): CA 24 May 2000

The defendant solicitors had negligently advised the claimant in connection with a mortgage scheme he operated for customers. His case was that the defendants had negligently failed to advise him to register under s3 of the 1986 Act. The claimant had to underwrite his customers’ losses because of his failure to register. The SIB began its investigation into the claimant’s business less than six years before he brought his action against the defendants, and its obligation compensate arose within the limitation period. However, his claim against the defendants was held to be time-barred, because the claimant had first suffered actionable loss, and therefore his cause of action had accrued, when the first customer entered into the mortgage scheme. He claimed that ‘. . . actual loss is not the same as a serious risk of loss, and . . that until at the earliest the claimant signed the Deed of Undertaking and Indemnity (which was within the six year period) there was no more than a serious risk of loss.’
Held: Kennedy LJ put the argument: ‘Forster’s case there was immediate damage to a discernible asset, the plaintiff’s equity of redemption, not merely a risk of damage to her assets as a whole.’ and rejected those submissions relyining on Milton -v- Walker and Stanger. ‘ . . it is necessary to identify the loss claimed, and to measure it against the duty allegedly breached. Here the breach of duty relied upon is an alleged failure to advise the claimant how to operate in such a way as not to be likely to attract adverse criticism for the SIB, in consequence of which negligence vulnerable transactions were made which were all completed before the beginning of the six year period, and before the SIB began to investigate.’

Judges:

Kennedy LJ, Kay LJ

Citations:

Times 06-Jun-2000, Gazette 15-Jun-2000, [2000] EWCA Civ 173, [2000] Lloyds LR PN 605

Links:

Bailii

Statutes:

Financial Services Act 1986 3, Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

Cited – Milton v Walker and Stanger 1981
The plaintiff instructed her solicitor to prepare documents and advise on a gift from P’s uncle to P and her cousin W in the proportions 2/3:1/3. P and W agreed that, should the farm be sold, the costs and capital gains tax (CGT) arising there from . .
Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – D W Moore and Co Ltd v Ferrier CA 1988
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied . .

Cited by:

Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Lists of cited by and citing cases may be incomplete.

Damages, Limitation, Financial Services, Professional Negligence

Updated: 31 May 2022; Ref: scu.147206

Casey v Morane Limited: CA 5 May 2000

An employee suffered injuries at work for which he was adjudged 15% responsible and the company 85%. Because of the accident he was demoted and suffered loss of earnings. He claimed that loss of earnings in his action for damages. The court found that the company should pay the damages. The company was itself predominantly responsible for the damage caused, and these losses flowed directly from the accident.

Citations:

Gazette 25-May-2000, Times 10-May-2000, [2000] EWCA Civ 147

Links:

Bailii

Jurisdiction:

England and Wales

Damages, Personal Injury, Health and Safety

Updated: 31 May 2022; Ref: scu.147180

Luke Warren v Northern General Hospital Trust: CA 4 Apr 2000

The court was asked ‘whether the court should alter the discount rate, set by the House of Lords in Wells v Wells [1999] 1 AC 345 (judgment delivered on 16 July 1998), at 3%, and if so to what new rate. A further question also arises whether the impact of taxation on the fund is such that, even if the general rate is not altered, it should be in this case.
The facts’

Judges:

Stuart-Smith, Mummery, Tukey LJJ

Citations:

[2000] EWCA Civ 100

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Damages

Updated: 31 May 2022; Ref: scu.147133

Farley v Skinner: CA 6 Apr 2000

A surveyor was engaged to report on a property, and was specifically requested to advise on the levels of aircraft noise from a nearby airport which might affect the property. He failed to report on the proximity of a navigation beacon.
Held: He was not liable for damages for the non-physical damage for discomfort and disturbance which ensued. For such damages to be awardable, the contract had one for the purposes of provision of leisure, relaxation or peace of mind.

Citations:

Times 14-Apr-2000, Gazette 14-Apr-2000, [2000] EWCA Civ 109

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .

Cited by:

Appeal from – Farley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
Lists of cited by and citing cases may be incomplete.

Damages, Environment, Contract

Updated: 31 May 2022; Ref: scu.147142

Royston Frederick Williams v BOC Gases Ltd: CA 29 Mar 2000

The plaintiff claimed damages from his employer in respect of injuries suffered during the course of his employment. The defendant paid the claimant a sum to which he had no contractual entitlement, saying that it was to be treated as an advance against any damages that he might be awarded against the defendant. The money came from the defendant’s own fund.
Held: ‘In my judgment, the judge was over-influenced by the decision of this court in McCamley which should be treated, until it receives the consideration of the House of Lords, as a case turning on its own particular facts: in other words, for what members of that court, deciding the issue as a jury question, thought was just, reasonable and in accordance with public policy on the facts of that case.’ and ‘The ‘benevolence’ exception is limited in terms to gifts arising from the benevolence of third parties, and does not cover benevolent gifts made by the wrongdoer himself, for which allowance ought prima facie to be made against any compensation he might have to pay. Neither of the justifications for the benevolence exception apply to the tortfeasor. Deductibility will encourage him to make benevolent payments in future to injured employees, rather than the reverse. And it certainly cannot be said that in making the gift, his intention was to benefit the plaintiff rather than to relieve himself of liability pro tanto: he would have been happy to achieve both purposes at once. A fortiori in a case in which he said in terms, at the time he made the gift, that it was to be treated as an advance against any damages he might have to pay.’

Judges:

Brooke LJ, Thorpe LJ

Citations:

[2000] EWCA Civ 95, [2000] ICR 1181

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Doubted – McCamley v Cammell Laird Shipbuilders Limited CA 1990
The plaintiff suffered injury at work and claimed damages. He had received a lump sum under insurance provided by the defendant’s parent company for the benefit of employees injured at work. Did the lump sum payment fall to be deducted from the . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .

Cited by:

Cited – Pirelli General Plc and others v Gaca CA 26-Mar-2004
The claimant was awarded damages from his employers, who claimed that the benefits received by the claimant from an insurance policy to which the defendants had contributed should be set off against the claim.
Held: McCamley was no longer good . .
Lists of cited by and citing cases may be incomplete.

Employment, Personal Injury, Damages

Updated: 31 May 2022; Ref: scu.147128

Kuddus v Chief Constable of Leicestershire: CA 10 Feb 2000

Misfeasance in public office was not a tort in which exemplary damages would be available before 1964, and, following the restriction on such awards in Rookes v Barnard was not now a tort for which such damages night be payable. Kindred torts, which might normally accompany such a claim against the police, might give rise to such a claim however.

Citations:

Times 16-Mar-2000, [2000] EWCA Civ 39

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .

Cited by:

Appeal from – Kuddus v Chief Constable of Leicestershire Constabulary HL 7-Jun-2001
There is no rule of law preventing the award of exemplary damages against police officers. The fact that no case of misfeasance in public office had led to such awards before 1964, did not prevent such an award now. Although damages are generally . .
Lists of cited by and citing cases may be incomplete.

Damages, Torts – Other, Police

Updated: 31 May 2022; Ref: scu.147072

Dickinson (T/a John Dickinson Equipment Finance) v Rushmer (T/a F J Associates): CA 14 Feb 2000

Citations:

[2000] EWCA Civ 42

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Rushmer and Another v Countrywide Surveyors (1994) Ltd and Another TCC 21-Jul-1999
The measure of damages for a negligent survey was either the excess paid, or the diminution of value. The question of the uncertainty of what decisions would have been taken had further surveys been made was of no significance. The wrongly surveyed . .

Cited by:

Appealed to – Rushmer and Another v Countrywide Surveyors (1994) Ltd and Another TCC 21-Jul-1999
The measure of damages for a negligent survey was either the excess paid, or the diminution of value. The question of the uncertainty of what decisions would have been taken had further surveys been made was of no significance. The wrongly surveyed . .
See Also – Dickinson v Rushmer SCCO 21-Dec-2001
CourtService After strenuously contested proceedings in the County Court for an account the claimant recovered some andpound;18,000, and subsequently submitted a bill for andpound;86,000 odd. The indemnity . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 31 May 2022; Ref: scu.147075

Stock and others v London Underground Ltd: CA 30 Jul 1999

The principles for damages over different heads which apply in other areas of law apply also in building disputes. Where there are several heads of damages, claims did not give rise to separate causes of action in respect of each head, and evidence of damage under each head need not necessarily be shown. There were not in this case separate acts or activities giving rise to the separate heads of claim.

Citations:

Times 13-Aug-1999, [1999] EWCA Civ 2058

Links:

Bailii

Jurisdiction:

England and Wales

Construction, Damages

Updated: 31 May 2022; Ref: scu.146973

Skandia Property (UK) Limited Vala Properties Bv v Thames Water Utilities Limited: CA 27 Jul 1999

The defendants were liable after a flood invaded and damaged the plaintiff’s premises. Having been advised professionally that the waterproofing system in the property would need replacing, the plaintiffs so replaced it but, it turned out, unnecessarily. It was held that despite acting on advice that element of damage had not been suffered and the cost could not be recovered. The assumption had been incorrect.

Citations:

Times 02-Sep-1999, [1999] EWCA Civ 1985

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Richardson v Redpath Brown and Co Ltd HL 1944
Viscount Simon LC discussed the role and status of medical assessors, saying: ‘But to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged . .
Appeal from – Skandia Property (Uk) Limited Vala Properties Bv v Thames Water Utilities Limited 1997
The burden of proof in establishing betterment to reduce a damages award is on the defendant. . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 31 May 2022; Ref: scu.146900

Clark v Chief Constable of Cleveland Police: CA 7 May 1999

It was appropriate for courts in all cases to give juries both general guidance on awarding damages and guidance as to the range of awards available in the circumstances. The court aslo set out the proper approach to the award of aggravated damages and exemplary damages against police. The figures the court set out were applicable to what it termed ‘a straightforward case’, and they were not to be used in a ‘mechanistic manner’. Where the defendant is the employer of the police officers involved, exemplary damages are unlikely to have a role, and aggravated damages should be awarded if the aggravating features would result in the claimant not receiving sufficient compensation for his injury. The bad character of the claimant was a factor which made for a ‘discount’ on the damages.

Citations:

[1999] EWCA Civ 1357

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Thompson v Commissioner of Police of Metropolis; Hsu v Same CA 20-Feb-1997
CS Damages of 200,000 pounds by way of exemplary damages had been awarded against the police for unlawful arrest and assault.
Held: The court gave a guideline maximum pounds 50,000 award against police for . .

Cited by:

Cited – Manley v Commissioner of Police for the Metropolis CA 28-Jun-2006
The claimant succeeded in his action against the respondent for assault, false imprisonment and malicious prosecution. He appealed his award of damages for malicious prosecution. He had a bad record, and the essential issue was the extent to which . .
Lists of cited by and citing cases may be incomplete.

Damages, Police, Torts – Other

Updated: 30 May 2022; Ref: scu.146272

Regina (Murphy) v Secretary of State for the Home Department; Regina (Brannan) v Same: Admn 10 Feb 2005

The appellants sought compensation for their imprisonment having been (Mr Brannan’s father) wrongly convicted. They sought to bring in new evidence. The first appellant and the second appellant’s father had been convicted of murder. The second appeal was after the police finally revealed evidence supporting the defendants’ defence that the victim had been armed.
Held: New evidence supported what could properly be described as a new fact could support a claim even if it related to a matter which had been in issue at the trial. However the claim was based upon non-disclosure. That was a matter of a fact not a mater of evidence. The covenant upon from which the section was drawn referred only to facts emerging after the ordinary appellate jurisdiction had been exhausted. A fact disclosed before an appeal within the normal time limit could not generate a claim. The fact must also be more than a contributing factor, it must be the principal if not only reason for the conviction being quashed.

Judges:

Richards, Pitchford JJ

Citations:

Times 28-Feb-2005, [2005] EWHC 140 (Admin), [2005] 2 All ER 763, [2005] 1 WLR 3516

Links:

Bailii

Statutes:

Criminal Justice Act 1988 133(1), International Covenant on Civil and Political Rights 1966

Jurisdiction:

England and Wales

Cited by:

Cited – Clibery, Regina (on the Application of) v Secretary of State for the Home Department Admn 30-Jul-2007
The claimant sought judicial review of a decision of the Home Secretary, to refuse his application for compensation. He had first been convicted and imprisoned and then had his conviction quashed. The respondent did not think that the conviction was . .
Cited – Adams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .
Lists of cited by and citing cases may be incomplete.

Damages, Criminal Practice

Updated: 30 May 2022; Ref: scu.223478

Homsy v Murphy: CA 27 Feb 1996

The plaintiff held a right of pre-emption over the freehold reversion on the building containing his flat. He appealed the award of andpound;5.00 damages for its breach. The judge had discounted an offer received by the plaintiff of andpound;100,000 for the grant of a lease of another part of the building. The judge had made allowance for the general fall in property prices, but in doing so mis-stated the date of the Gulf War.
Held: The loss had been miscalculated. The loss would be the value at the time, less the price set to be paid on exercise of the right.

Judges:

Beldam, Hobhouse, Aldous LJJ

Citations:

[1996] 73 PandCR 26, (1996) EGCS 43

Jurisdiction:

England and Wales

Cited by:

Cited – Ferrishurst Ltd v Wallcite Ltd CA 30-Nov-1998
A person in actual occupation of registered land at time of transfer can enforce his rights against the transferee. A sub-underlessee in occupation of part could enforce an option to purchase against the freeholder acquiring intermediate registered . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 30 May 2022; Ref: scu.187688

Warriner v Warriner: CA 24 Jan 2002

Where it was proposed to the court to apply a different discount rate when determining investment return on a sum awarded in a personal injury action as damages for future pecuniary loss, as against the rate set under the Lord Chancellor’s guidelines, the court must look at the Lord Chancellor’s reasons for fixing the rate, and depart only where for example the case was in some category, or which had different and special reasons, in either case not considered when setting the rate.

Judges:

Mummery, Latham, Dyson LJJ

Citations:

Times 28-Mar-2002, [2002] EWCA Civ 81, [2003] 3 All ER 447, [2002] 1 WLR 1703

Links:

Bailii

Statutes:

Damages Act 1996 1(2), Damages (Personal Injury) Order 2001 (SI 2001 No 2301)

Jurisdiction:

England and Wales

Damages, Personal Injury

Updated: 30 May 2022; Ref: scu.216757

Patel and Patel v Hooper and Jackson: CA 10 Nov 1998

Dispute about the amount of damages to be awarded against surveyors who made a negligent overvaluation of a house for mortgage purposes on which the purchasers also relied. The surveyors expressed the opinion that the value of the house was in the region of andpound;90,000, whereas its actual value was andpound;65,000. The purchasers say that the house was uninhabitable and, further, that they were unable to resell it.

Judges:

Nourse, Ward,Mantell LJJ

Citations:

[1999] 1 WLR 1792, [1998] EWCA Civ 1734

Links:

Bailii

Jurisdiction:

England and Wales

Damages, Professional Negligence

Updated: 30 May 2022; Ref: scu.145213

Regina v Governor HM Prison Brockhill, ex parte Michelle Carol Evans (No 2): CA 19 Jun 1998

The plaintiff was serving a sentence of imprisonment. Her detention was correctly calculated in accordance with the law as understood. That method was later disapproved when the Divisional Court laid down (everyone has assumed correctly) a different method of calculation. If that new method of calculation was adopted the plaintiff had been detained for 59 days too long. The plaintiff claimed damages for false imprisonment.
Held: The retrospective effect of the change in the law produced by the last Divisional Court decision prevented the Governor from relying as a defence on the law as it had been declared by the earlier Divisional Court decisions which at the time of the 59 days’ detention laid down the relevant law. Court decisions on the application of rules for the calculation of ‘time served’ whilst a prisoner awaited trial are retrospective in effect. Damages for wrongful imprisonment were to be calculated on basis of the decision made subsequent to the prisoner’s release. The idea of the prospective overruling of a judgment has much to commend it.

Judges:

Lord Woolf MR, Judge LJ, Roch LJ (dissenting)

Citations:

Gazette 03-Sep-1998, Times 06-Jul-1998, [1998] EWCA Civ 1042, [1999] QB 1043

Links:

Bailii

Statutes:

Criminal Justice Act 1991 33 41 51

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v Governor of Her Majesty’s Prison Brockhill ex parte Evans (No 2) HL 27-Jul-2000
The release date for a prisoner was calculated correctly according to guidance issued by the Home Office, but case law required the guidance to be altered, and the prisoner had been detained too long. The tort of false imprisonment is one of strict . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Cited – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Cited – AT and others v Dulghieru and Another QBD 19-Feb-2009
The claimants had been subject to unlawful human trafficking. Their abductors had been imprisoned, and they now sought damages. The court was asked now to assess the damages to be awarded for sexual enslavement. Each claimant suffered chronic post . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Criminal Sentencing, Damages

Updated: 30 May 2022; Ref: scu.144521

Sharp By her Next Friend Sharp v Pereira and Motor Insurers’ Bureau: CA 24 Jun 1998

The court considered the arrangement for interim payments of damages awards where the claim was to be made through the Bureau. The agreement between the Bureau and the insurer members predated and did not allow for such payments.
Held: The MIB, seeking clarification, had made no interim payment. They could have made a substantial part payment allowing the plaintiff’s life to proceed, without prejudicing their argument. There is no reason to distinguish between the two situations: one, where the Motor Insurers’ Bureau will be directly responsible for meeting a claim, and the other where a particular insurer will be responsible under the agreement to meet the claim. The amended wording of the subparagraph is not to be construed in a technical manner. That is underlined by the fact that technically there is no ‘Motor Insurers’ Bureau Agreement’. The title which is given to the agreement which was made between the Secretary of State and the Bureau is the Uninsured Drivers Agreement.
The Rules Committee made their intent clear in the language they used but they did not express it helpfully. In future it should be read as applying to both situations: (1) where the liability will be met by the Bureau, and, (2), where the liability will be met by an insurance company because that insurance company was originally the insurer in relation to the driver concerned.

Judges:

Lord Woolf MR, Millett, Pill LJJ

Citations:

[1998] EWCA Civ 1085, [1999] RTR 125, [1998] PIQR Q129, [1999] 1 WLR 195, [1998] 4 All ER 145

Links:

Bailii

Statutes:

Road Traffic Act 1988 151

Jurisdiction:

England and Wales

Citing:

Cited – Powney v Coxage QBD 8-Mar-1988
The court heard a dispute as to whether, when the Motor Insurers’ Bureau had been joined as a defendant to an action, it was possible to obtain an interim payment under the unamended form of the rules.
Held: It was not possible for such an . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 30 May 2022; Ref: scu.144564

Dench v Flynn and Partners (a Firm): CA 9 Jun 1998

The appellant had been dismissed for redundancy. She sought to appeal saying that there had been no redundancy. The tribunal had refused to award damages for the period after she had found alternative employment.
Held: The obtaining of permanent employment at the same or a greater salary will not in all cases break the chain of causation.

Judges:

Beldam, Mummery LJJ, Sir Christopher Staughton

Citations:

[1998] EWCA Civ 934, [1998] IRLR 653

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Dench v Fynn and Partners (A Firm) EAT 26-Feb-1997
Preliminary hearing to see if there is an arguable issue of law arising out of the Tribunal decision. . .
See Also – Dench ex parte v Fynn and Partners (a Firm) CA 25-Jun-1997
Application for leave to appeal – granted. . .
See Also – Dench v Fynn and Partners EAT 30-Oct-1997
. .

Cited by:

See Also – Dench v Fynn and Partners EAT 24-Sep-1999
. .
Cited – Afolayan v MRCS Ltd EAT 23-Aug-2011
EAT UNFAIR DISMISSAL
Where an Employment Tribunal has been directed by the Employment Appeal Tribunal and by a Regional Employment Judge, to consider an application for costs of a hearing before a . .
Cited – Commercial Motors (Wales) Ltd v Howley EAT 6-Aug-2012
commercial_howleyEAT2012
EAT UNFAIR DISMISSAL – Compensation
In a hearing on remedies for unfair dismissal, the Employment Tribunal held that the Respondent employer had to pay compensation for, inter alia, the losses suffered by . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 30 May 2022; Ref: scu.144413

J A Pye (Oxford) Limited v Kingswood Borough Council: CA 6 Apr 1998

The purchase of land which was to form the last part of a development was to be valued without taking account of the enhanced value which would be attributed to the much larger scheme of development. To ascertain what is to be ignored by the valuer it is first necessary to delimit the scope of the scheme. The compulsory acquisition itself cannot be the scheme which underlies it. The fact finding and valuation questions have been entrusted by Parliament to ‘a specialist and expert tribunal, well able to understand the realities of a complicated factual and transactional situation . . a finding by a tribunal . . cannot be shown to be perverse just because a possible alternative was open to the tribunal but not adopted by it.’

Judges:

Buxton LJ, Hobhouse LJ, Swinton-Thomas LJ

Citations:

Gazette 16-Apr-1998, [1998] EWCA Civ 643, [1998] 2 EGLR 159, [2000] RVR 40

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Cited – Wards Construction (Medway) Ltd v Barclays Bank Plc and Another CA 1-Jul-1994
Land with an existing use value of andpound;3,000 had been valued by the Lands Tribunal for purchase at andpound;2.15m.
Held: The ransom value decision by the Lands Tribunal was not wrong in law and was upheld. It was necessary to value the . .
Cited – Wilson v Liverpool Corporation CA 1971
The claimants owned 74 acres of an area of 391 acres in Liverpool which the Corporation wanted to acquire for residential development. The authority acquired the land by agreement and made a compulsory purchase order in respect of the remainder.
Cited – Batchelor v Kent County Council CA 1989
The Council had compulsorily acquired land for highway improvement. It was within an area scheduled for residential development. Outline permission for development of neighbouring land had been granted but the development could not proceed until the . .
Cited – Camrose v Basingstoke Corporation CA 1966
Basingstoke was to be expanded to receive overspill population from London and the corporation contracted to purchase about 550 acres from a landowner on terms that the price would be assessed as though the land had been compulsorily acquired under . .
Cited – Ozanne and Others v Hertfordshire County Council HL 1989
Land was acquired for a new highway. The developer had persuaded or agreed with the public authority that it would exercise its statutory powers to acquire land possessed of ransom value.
Held: What the scheme was which underlined a proposed . .
Cited – Myers v Milton Keynes Development Corporation CA 1974
Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the ‘scheme’ meant that the . .

Cited by:

Cited – Bolton Metropolitan Borough Council v Tudor Properties Ltd and Others CA 19-Apr-2000
The court had to consider the compensation to be awarded on the compulsory purchase of land.
Held: The appeal failed. The tribunal had not erred in ascertaining the extent of the underlying scheme. In deciding that, they were entitled to have . .
Lists of cited by and citing cases may be incomplete.

Land, Damages, Litigation Practice

Updated: 30 May 2022; Ref: scu.144121

Woolley v Essex County Council: CA 17 May 2006

Judges:

Lord Justice Dyson Lord Justice Pill Lady Justice Hallett

Citations:

[2006] EWCA Civ 753

Jurisdiction:

England and Wales

Citing:

Cited – Smith v Manchester City Council CA 10-Jun-1974
Damages – earnings loss for persistent disability
The plaintiff, a part time domestic cleaner slipped and injured herself (a frozen shoulder) when working for the defendant. It was accepted that the cause of the slip was the defendant’s negligence. At the time of the claim she was still employed by . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 29 May 2022; Ref: scu.244382

G and K Ladenbau (UK) Ltd v Crawley and De Reya: QBD 25 Apr 1977

The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when purchasers from their clients later undertook a commons search. In fact the registration was erroneous, but the question took some time to resolve.
Held: In the light of the defendants’ knowledge about the plantiff intending to develop the land, any loss of profits was an appropriate head of damages including the cost of making good the error. Registration of common rights was conclusive evidence of the matters registered. Evidence was admitted from four solicitors as to best conveyancing practice as to whether commons searches were necessary. If the land is open land, a search of the commons registers should normally be undertaken to check that land is not subject to undisclosed rights of common. The fact that the land was vacant, and that it had previously been in the ownership of a lord of the manor should have alerted the defendants. However, a solicitor should not search in every case, but exercise a discretion.

Judges:

Mocatta J

Citations:

[1978] 1 WLR 266, [1977] 2 All ER 118

Links:

lip

Statutes:

Commons Registration Act 1965 10

Jurisdiction:

England and Wales

Citing:

Cited – Attorney-General v Hanmer 1858
Letters patent granted mineral rights in the waste lands.
Held: the term included the lands between the high and low water marks. . .
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – In re Britford Common 1977
. .
Cited – Central Electricity Generating Board v Clwyd County Council 1976
The owner of a farm applied late for the registration of a right of common over the Dee Marsh Saltings which had been provisionally registered as common land. After an inquiry the Commons Commissioner, Hugh Francis QC, confirmed the registration of . .
Cited – In re Chewton Common 1977
. .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – Fletcher and Son v Jubb, Booth and Helliwel CA 1920
Scrutton LJ said: ‘it would be extremely difficult to define the exact limit by which the skill and diligence which a solicitor undertakes to furnish in the conduct of a case is bounded, or to trace precisely the dividing line between that . .
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Cited – New Windsor Corporation v Mellor CA 1975
The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval . .
Cited – Simmons v Pennington and Son CA 1955
Solicitors Followed Historical Practice
Premises owned by the plaintiff were subject to an obsolete covenant restricting their use to that of a private dwelling house. It had in fact been used continuously for many years, both before and after the plaintiff became owner, for business . .
Cited – In re Yateley Common, Hampshire 1977
Rights of common were held to exist in land even though the land had been requisitioned for use as an airfield and had been used for that purpose for over thirty years. . .
Lists of cited by and citing cases may be incomplete.

Land, Professional Negligence, Damages

Updated: 29 May 2022; Ref: scu.178042

International Businesss Machines Corporation and Another v Web-Sphere Ltd and others: ChD 17 Mar 2004

The claimant had registered trade marks under the name websphere, and accused the defendant of infringement using the name with a hyphen.
Held: The claim suceeded. As to the requirement for calculation of damages, ‘the word ‘calculated’ should be interpreted as meaning ‘likely’ or ‘probable’, in an objective sense, rather than something which might well happen or was a possibility.’

Judges:

Lewison J

Citations:

[2004] EWHC 529 (Ch), [2004] FSR 39

Links:

Bailii

Statutes:

Defamation Act 1952 3(1)aq

Jurisdiction:

England and Wales

Cited by:

Cited – Quinton v Peirce and Another QBD 30-Apr-2009
One election candidate said that another had defamed him in an election leaflet. Additional claims were made in injurious falsehood and under the Data Protection Act.
Held: The claim in defamation failed. There were no special privileges in . .
Cited – Gerrard and Another v Eurasian Natural Resources Corporation Ltd and Another QBD 27-Nov-2020
The claimants, a solicitor and his wife, sought damages in harassment and data protection, against a party to proceedings in which he was acting professionally, and against the investigative firm instructed by them. The defendants now requested the . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Updated: 29 May 2022; Ref: scu.194712

Housecroft v Burnett: CA 22 May 1985

The appeal court should not interfere with an award under for pain, suffering and loss of amenity, unless it is manifestly too high or too low or it can be shown that the judge has erred in principle in relation to some element that goes to make up the award. The award of the cost of care is to provide for the reasonable and proper care of the plaintiff or claimant, and the court must consider whether it is sufficient to enable the plaintiff, among other things, to make reasonable recompense to the relative. So, in cases where the relative has given up gainful employment to look after the plaintiff, it is natural that the plaintiff would not wish the relative to lose out and the court would award sufficient to enable the plaintiff to achieve that result. The ceiling would be the commercial rate. The mother was providing care. The court recognises that part of the reasonable and proper cost of providing for the plaintiff’s needs is to enable her to make a present, or series of presents, to her mother.
Lord Justice O’Connor held that: ‘In cases where the relative has given up gainful employment to look after the plaintiff, I would regard it as natural that the plaintiff would not wish the relative to be the loser and the court would award sufficient to allow the plaintiff to achieve that result. The ceiling would be the commercial rate.’

Judges:

Lord Justice O’Connor

Citations:

[1986] 1 All ER 332, [1985] EWCA Civ 18

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Willbye (By Her Mother and Next Friend) v Gibbons CA 19-Mar-2003
Both parties appealed against the lower court’s orders. The claimant, a child was injured by a car driven by the defendant, who had been found 25% responsible. The claimant had suffered head injuries, and subsequently epilepsy.
Held: The award . .
Cited – Giambrone and others v Sunworld Holidays Ltd CA 18-Feb-2004
Many holidaymakers had suffered gastro-enteritis and sued for compensation. They had sought a sum to reflect the value of gratuitous care.
Held: Save in more serious cases, awards for children suffering gastro-enteritis and cared for by their . .
Cited – Mills v British Rail Engineering Ltd CA 1992
Defendants appealed an award of andpound;8,000 to the widow of a man who died of lung cancer, for her caring for him in his last months. She claimed two hours’ services each day for the first two months of his illness, increasing to three hours, and . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 29 May 2022; Ref: scu.262660

Mills v British Rail Engineering Ltd: CA 1992

Defendants appealed an award of andpound;8,000 to the widow of a man who died of lung cancer, for her caring for him in his last months. She claimed two hours’ services each day for the first two months of his illness, increasing to three hours, and then to four hours a day during the next two months up to the time his cancer was diagnosed. For the next six months the claim was elevated to what in essence represented ten hours’ services each day. For the last three months a claim was made for 14 hours’ services each day. Except for this final period, the claim was based on a rate of andpound;3 per hour. For the last three months the rate was andpound;3.25 per hour, the charging rates for carers who were not qualified nurses with caring skills, and the award of andpound;8,000 was based on two-thirds of the full commercial rate for such services, without any extra allowances for agency charges.
Held: ‘there can be no justification in principle for differentiating between full-time care needing really a trained nurse and full-time care needing a carer giving love and affection to the patient, the dying person, to a degree far more than would be expected in any ordinary way of life. In principle it must be, in my judgment, a matter for an award only in recompense for care by the relative well beyond the ordinary call of duty for the special needs of the sufferer. ‘

Judges:

Dillon and Staughton LJJ, Neill LJ

Citations:

[1992] 1 PIQR Q130

Jurisdiction:

England and Wales

Citing:

Cited – Housecroft v Burnett CA 22-May-1985
The appeal court should not interfere with an award under for pain, suffering and loss of amenity, unless it is manifestly too high or too low or it can be shown that the judge has erred in principle in relation to some element that goes to make up . .

Cited by:

Cited – Giambrone and others v Sunworld Holidays Ltd CA 18-Feb-2004
Many holidaymakers had suffered gastro-enteritis and sued for compensation. They had sought a sum to reflect the value of gratuitous care.
Held: Save in more serious cases, awards for children suffering gastro-enteritis and cared for by their . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 29 May 2022; Ref: scu.194258

Giambrone and others v Sunworld Holidays Ltd: CA 18 Feb 2004

Many holidaymakers had suffered gastro-enteritis and sued for compensation. They had sought a sum to reflect the value of gratuitous care.
Held: Save in more serious cases, awards for children suffering gastro-enteritis and cared for by their family should not exceed pounds 50.00. ‘This may well be a situation in which appropriate representatives of claimants and defendants, perhaps under the auspices of the Civil Justice Council, might usefully try to agree a guideline tariff for gastro-enteritis cases generally, depending on the severity of the illness.’ Care should be taken to avoid excess costs where possible.

Judges:

Lord Justice Brooke (Vice-President Of The Court Of Appeal (Civil Division) Lord Justice Mance And Mr Justice Park

Citations:

[2004] EWCA Civ 158, [2004] 2 All ER 891

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Housecroft v Burnett CA 22-May-1985
The appeal court should not interfere with an award under for pain, suffering and loss of amenity, unless it is manifestly too high or too low or it can be shown that the judge has erred in principle in relation to some element that goes to make up . .
Appeal from – Giambrone and others v JMC Holidays Ltd (Formerly Sunworld Holidays Ltd) QBD 20-Dec-2002
. .
Cited – Steven Robert Evans v Pontypridd Roofing Limited CA 9-Nov-2001
The claimant sought as part of his damages the cost of the care provided by family members. Counsel for the defendant raised issues about tax, national insurance and travel and other costs which a professional carer would have to bear, which led the . .
Cited – Hunt v Severs HL 7-Sep-1994
The tortfeasor, a member of the claimant’s family provided her with voluntary nursing care after the injury. The equivalent cost of that care, was recoverable, but would be held on trust for the carer. The underlying rationale of English Law is to . .
Cited – Mills v British Rail Engineering Ltd CA 1992
Defendants appealed an award of andpound;8,000 to the widow of a man who died of lung cancer, for her caring for him in his last months. She claimed two hours’ services each day for the first two months of his illness, increasing to three hours, and . .

Cited by:

Cited – Ross v Stonewood Securities Ltd ChD 7-Oct-2004
The claimant appealed an order reducing his award of costs. . .
Cited – A v The Archbishop of Birmingham QBD 30-Jun-2005
Assessment of damages following child abuse by Catholic priest.
Held: General damages of andpound;50,000 were in line with Coxon and were approved. A had not been shown to be, and is not, incapable of managing his affairs. The court differed . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 29 May 2022; Ref: scu.193624

Willbye (By Her Mother and Next Friend) v Gibbons: CA 19 Mar 2003

Both parties appealed against the lower court’s orders. The claimant, a child was injured by a car driven by the defendant, who had been found 25% responsible. The claimant had suffered head injuries, and subsequently epilepsy.
Held: The award of andpound;80,000 for pain suffering and loss of amenity was not so wrong as to allow interference by the Court (Housecroft). The court increased the award to take into account the need for extra assistance if the appellant has children, or if she finds herself living alone, or even wanting to go on holiday alone, when assessing her need for future care. She should also receive the costs of the receivership at the court of protection.

Judges:

Lord Justice Kennedy Mr Justice Scott Baker

Citations:

[2003] EWCA Civ 372

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Housecroft v Burnett CA 22-May-1985
The appeal court should not interfere with an award under for pain, suffering and loss of amenity, unless it is manifestly too high or too low or it can be shown that the judge has erred in principle in relation to some element that goes to make up . .
Cited – Hunt v Severs HL 7-Sep-1994
The tortfeasor, a member of the claimant’s family provided her with voluntary nursing care after the injury. The equivalent cost of that care, was recoverable, but would be held on trust for the carer. The underlying rationale of English Law is to . .
Cited – Steven Robert Evans v Pontypridd Roofing Limited CA 9-Nov-2001
The claimant sought as part of his damages the cost of the care provided by family members. Counsel for the defendant raised issues about tax, national insurance and travel and other costs which a professional carer would have to bear, which led the . .
See Also – Willbye (By Her Mother and Next Friend) v Gibbons CA 16-Jul-1997
. .
Cited – Cassel v Riverside Health Authority 1994
A person who has been rendered a patient as a result of the actions of a tortfeasor is entitled to require the tortfeasor to bear the costs of the receiver as part of the damages and, as part of the damages, they cannot escape a discount for . .

Cited by:

See Also – Willbye (By Her Mother and Next Friend) v Gibbons CA 16-Jul-1997
. .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 29 May 2022; Ref: scu.179912

Moto Hospitality Ltd v Secretary of State for Transport: CA 26 Jul 2007

The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect of the permanent stopping-up orders.

Judges:

Lord Justice Carnwath

Citations:

[2007] EWCA Civ 764, [2007] NPC 95, [2007] RVR 247, (2007) 157 SJLB 1426, [2008] 1 WLR 2822, [2008] 2 All ER 718

Links:

Bailii

Statutes:

Compulsory Purchase Act 1965 10

Jurisdiction:

England and Wales

Citing:

Cited – Ocean Leisure Ltd v Westminster City Council LT 31-Dec-2003
LT COMPENSATION – injurious affection – hoardings erected in street during construction works outside shop premises – preliminary issue – whether claim under Compulsory Purchase Act 1965 s 10 valid – held . .
Appeal from – Moto Hospitality Ltd v Highways Agency LT 28-Jul-2006
LT COMPENSATION – injurious affection – Compulsory Purchase Act 1965 s 10 – preliminary issue – motorway service area – junction alterations affecting trade – whether damage suffered as result of ‘works’ – . .
Cited – Ricket v Metropolitan Railway Co HL 1867
Lord Cranworth considered the adverse effect of building railways on nearby businesses, and in particular the Pickled Egg public house: ‘The very existence of a railway must cause loss to many persons in its neighbourhood. Every inn or posting-house . .
Cited – Hammersmith and City Railway Co v Brand HL 13-Jul-1869
In the absence of negligence, damage caused by operations authorised by statute is not compensatable unless the statute expressly so provides. The wording of the sections, and in particular section 6 of the Railways etc Act, only entitled a claimant . .
Cited – Benjamin v Storr 1874
The plaintiff’s coffee house was badly affected by the defendant’s wagons standing for long periods in the narrow street outside for the purposes of loading and unloading goods. The wagons blocked his light and the frequent stabling of the horses . .
Cited – Caledonian Railway Co v Walker’s Trustees 1882
The court considered the extent of the duty to compensate for disturbance of a business when land was compulsorily purchased. Lord Selborne LC said: ‘The obstruction by the execution of the work, of a man’s direct access to his house or land, . .
Cited – Harper v GN Haden and Sons CA 1932
The occupier of a ground floor and basement shop sought damages from the tenants of the upper floors. In order to construct an additional storey, they had erected scaffolding and a hoarding which obstructed the highway outside the plaintiff’s . .
Cited – Westminster City Council v Ocean Leisure Limited CA 21-Jul-2004
The claimant company owned property next to land which had been acquired to build a new bridge across the Thames. It sought compensation for disturbance to its business from the works.
Held: The state of the law was complicated and . .
Cited – Edwards v Minister of Transport 1964
The landowner claimed for injurious affection of the remainder of his land after part was acquired by compulsory purchase.
Held: The claim for injurious affection was confined to the effects of works and uses on the land taken. . .
Cited – Jolliffe v Exeter Corporation CA 1967
Mr Joliffe owned a garage on a busy road. Adjoining land was involved in a widening scheme, the result of which was to leave his garage at the end of a cul de sac, though no land was taken from him.
Held: Section 10 gave him no right to . .
Cited – Wildtree Hotels Ltd and others v Harrow London Borough Council HL 22-Jun-2000
The compensation which was payable for disturbance, when works were carried out on land acquired compulsorily, did not extend to the damage caused by noise dust and vibration arising from the works. Where however damage could be brought within the . .
Cited – Wagstaff v Department of Environment Transport and the Regions 1999
. .
Cited – Clift and Another v Welsh Office CA 23-Jul-1998
Whilst it was settled law that no compensation was payable for temporary disturbance to neighbouring land by building works on land compulsorily purchased, as soon as that disturbance came to produce physical damage, compensation became payable. . .
Cited – Vasiliou v Secretary of State for Transport CA 1991
When considering the revocation or modification of a planning consent, any impact on an interested party is a relevant consideration. A planning permission should not have been granted closing a public road without considering its adverse effect on . .
Cited – Wildtree Hotels Ltd And Others v London Borough of Harrow CA 11-Jun-1998
Temporary, if damaging disturbance which fell short of actual damage to a neighbour’s land and which was caused by works executed on land which had been purchased compulsorily, was not normally claimable and not by the owner of only a temporary . .
Cited – Chamberlain v West End of London Railway Co CExC 1862
The court had found that, after railway works cut off highway access, and, notwithstanding the provision of a deviation road, the value of the claimant’s properties as shops had been ‘greatly diminished’ by the reduction in the number of people . .
Cited – Ferrar v City Sewers Commissioners 1868
(Year?) A special Act incorporated the provisions of the 1845 Act other than those related to ‘the taking of land otherwise than by agreement’.
Held: Section 68 was not incorporated, because it was one of a series of clauses headed ‘with . .
Cited – Metropolitan Board of Works v McCarthy HL 1874
Compensation was awarded to the owner of a warehouse near Blackfriars because the construction of the Victoria Embankment cut off his access across the public highway to a dock on the river. Lord Cairns LC quoted Thesiger QC as saying: ‘Where by the . .
Cited – Re 6, 8, 10 and 12 Elm Avenue, New Milton; Ex parte New Forest District Council ChD 1984
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 . .
Cited – Kirby v Harrogate School Board CA 1896
The Board had power under the 1870 Act to acquire land to build school accommodation. The 1845 Act was to apply ‘with respect to the purchase of land’ for the purposes of the 1870 Act. The Board began to erect a school building on a site which they . .
Cited – Harpur v Mayor of Swansea HL 1913
A special Act for waterworks gave power to ‘take or use’ any land for the construction of works, subject to compensation under the 1845 Act. The works involved the laying of pipes in the public road, and the claim was by the authority responsible . .
Cited – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Cited – Director of Buildings and Lands v Shun Fung Ironworks Ltd PC 20-Feb-1995
Compensation is payable for losses properly anticipating resumption of possession of the land. The principle of equivalence gives rise to the statutory right to interest under section 11(1). The council explained the conceptual foundation of the . .
Cited – Horn v Sunderland Corporation CA 1941
Compulsory Purchase Damages limited to Actual Loss
Rule (6) was designed to preserve the effect of the 19th Century case-law under the 1845 Act, by which personal loss caused by the compulsory acquisition was treated as part of the value to the owner of the land: ‘the owner in a proper case – that . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 29 May 2022; Ref: scu.258397

Gage v King: 1960

The issue was as to the recoverability, in personal injury proceedings, of the wife’s medical expenses which had been paid for by the husband out of the joint account. After referring to the findings which a court may be driven to make in relation to a joint account as between husband and wife where the marriage has ended by death or divorce: ‘But what is to happen to the balance in the joint account when the marriage breaks up is a very different question from that of the mutual rights of the parties in relation to the account while the marriage is still subsisting. As I have said, I do not think that such an arrangement between husband and wife is meant to be attended with legal consequences as between the two spouses while the marriage is still subsisting. Mrs Gage’s right to draw upon the joint account was subject to no legal limitation . .

Judges:

Diplock J

Citations:

[1961] 1 QB 188, [1960] 3 All ER 62

Jurisdiction:

England and Wales

Cited by:

Cited – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 29 May 2022; Ref: scu.194783

Hammersmith and City Railway Co v Brand: HL 13 Jul 1869

In the absence of negligence, damage caused by operations authorised by statute is not compensatable unless the statute expressly so provides. The wording of the sections, and in particular section 6 of the Railways etc Act, only entitled a claimant to compensation for damage suffered as a result of the actual carrying out of, or existence of, the works to construct the railway, and not to compensation for any damage suffered as a result of the consequent use of the railway.
Lord Colonsay said: ‘[T]he right to compensation given by [section 6 of the Railways etc Act] is limited to compensation for the injury done by the construction of the railway. It contains nothing whatever as to compensation for the use to be made of the railway. That is not alluded to. If compensation had been intended to be given for an injury of this kind incident to the subsequent using of the railway . . . I should have expected something to be said with reference to it.’
Lord Chelmsford said: ‘Now, as to the words ‘by the construction thereof,’ it seems to me that it would be doing violence to language . . to extend them to any injury which is not the immediate consequence of the construction of the railway . .
To argue that, as the injury could not have occurred unless the railway had been previously constructed, therefore it was caused ‘by the construction thereof,’ is certainly a strong example of the illogical reasoning of ‘post hoc, ergo propter hoc,’ and would extend to every accident or injury occurring upon the railway after its construction, which, of course, could not have happened if it had not been constructed.’

Judges:

Lord Chelmsford, Lord Colonsay

Citations:

[1869] LR 4 HL 171, [1869] UKLawRpHL 10, (1869-1870) LR 4 HL 171

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Cited – Wildtree Hotels Ltd and others v Harrow London Borough Council HL 22-Jun-2000
The compensation which was payable for disturbance, when works were carried out on land acquired compulsorily, did not extend to the damage caused by noise dust and vibration arising from the works. Where however damage could be brought within the . .
Cited – Wiltshire County Council v Crest Estates Ltd. and others CA 5-Aug-2005
The builders had agreed as part of the planning process to indemnify the council against all claims incidental to the carrying out of the works for which permission was given. The council had to compulsorily purchase land, and sought repayment from . .
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Damages

Updated: 29 May 2022; Ref: scu.188030

Wildtree Hotels Ltd and others v Harrow London Borough Council: HL 22 Jun 2000

The compensation which was payable for disturbance, when works were carried out on land acquired compulsorily, did not extend to the damage caused by noise dust and vibration arising from the works. Where however damage could be brought within the section, it did not cease to be recoverable because the interruption was only temporary. Lord Hoffmann said: ‘the term ‘injuriously affected’, connotes ‘injuria’ that is to say, damage which would have been wrongful but for the protection afforded by statutory powers . . In practice this means that a claimant has to show that but for the statute he would have had an action for damages for public or private nuisance.’ Lord Hoffmann summarised the claim for the effects of obstruction of access due to closing of local roads: ‘The owners of the hotel (‘the claimants’) say that during the period of the works they were subjected to various forms of interference with their use and enjoyment of the hotel. Hoardings were erected which obscured the hotel or prevented or restricted access by themselves and their customers. For long periods the roads and pavements leading to the hotel were totally or partially obstructed or closed. The works caused considerable noise, dust and vibration. All this was very detrimental to business.’
Lord Hoffmann: ‘Section 68 gave compensation for injurious affection caused by the ‘execution’ of the works. In Hammersmith and City Railway Co v Brand LR 4 HL 171 the House of Lords (with Lord Cairns dissenting) decided that this meant that there could be compensation only for the effects of the construction of the railway and not for its operation. If an embankment unreasonably obstructed the claimant’s light or access, he could claim compensation. But he could not claim for what would otherwise have been a nuisance caused by the noise, vibrations or smell of passing trains.’

Judges:

Lord Steyn Browne-Wilkinson Lord Nolan Lord Hoffmann Lord Hobhouse of Woodborough

Citations:

Times 27-Jun-2000, Gazette 13-Jul-2000, [2000] UKHL 70, [2000] 3 All ER 289, [2000] EG 80, [2000] NPC 71, [2000] 2 EGLR 5, [2000] BLGR 547, (2001) 81 P and CR 9, [2001] 2 AC 1, [2000] 3 WLR 165, [2000] RVR 235

Links:

House of Lords, House of Lords, Bailii

Statutes:

Compulsory Purchase Act 1965 10

Jurisdiction:

England and Wales

Citing:

Appeal from – Wildtree Hotels Ltd And Others v London Borough of Harrow CA 11-Jun-1998
Temporary, if damaging disturbance which fell short of actual damage to a neighbour’s land and which was caused by works executed on land which had been purchased compulsorily, was not normally claimable and not by the owner of only a temporary . .
Cited – Andreae v Selfridge and Co Ltd CA 1938
The plaintiff had a hotel. The rest of the island had been acquired by the defendant which was demolishing and rebuilding the other properties. The plaintiff complained, and the judge found, that by reason of the operations, which involved noise and . .
Cited – Hammersmith and City Railway Co v Brand HL 13-Jul-1869
In the absence of negligence, damage caused by operations authorised by statute is not compensatable unless the statute expressly so provides. The wording of the sections, and in particular section 6 of the Railways etc Act, only entitled a claimant . .

Cited by:

Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Cited – Westminster City Council v Ocean Leisure Limited CA 21-Jul-2004
The claimant company owned property next to land which had been acquired to build a new bridge across the Thames. It sought compensation for disturbance to its business from the works.
Held: The state of the law was complicated and . .
Cited – Wiltshire County Council v Crest Estates Ltd. and others CA 5-Aug-2005
The builders had agreed as part of the planning process to indemnify the council against all claims incidental to the carrying out of the works for which permission was given. The council had to compulsorily purchase land, and sought repayment from . .
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 28 May 2022; Ref: scu.90503

Hague v British Telcommunications Plc (Immunotherapy : Reasonableness of Treatment : Private Dictionary Principle): QBD 12 Sep 2018

The parties disputed whether the defendant was liable to pay for private immunotherapy treatment for the plaintiff under the terms of an agreement settling the claimant’s action for damages for having contracted malignant pleural mesothelioma after working for the defendant.

Citations:

[2018] EWHC 2227 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Personal Injury, Damages

Updated: 28 May 2022; Ref: scu.625530

Scholes v Kirklees Council: UTLC 7 Dec 2009

UTLC COMPENSATION – Land Compensation Act 1973, Part 1- residential dwelling injurious affection – effects of noise, dust, fumes and artificial lighting following construction of a highway improvement scheme – compensation nil

Judges:

Francis FRICS

Citations:

[2009] UKUT B2 (LC)

Links:

Bailii

Statutes:

Land Compensation Act 1973

Jurisdiction:

England and Wales

Land, Damages

Updated: 26 May 2022; Ref: scu.415051

Jedynak v Stratford-On-Avon District Council: UTLC 19 Feb 2010

UTLC COMPENSATION – Compulsory purchase of shop and residential accommodation – valuation – basic loss payment – compensation determined at pounds 550,000 – Land Compensation Act 1961 section 5, rule (2)and Land Compensation Act 1973, section 33A

Citations:

[2010] UKUT 46 (LC)

Links:

Bailii

Statutes:

Land Compensation Act 1961 5, Land Compensation Act 1973 33A

Jurisdiction:

England and Wales

Land, Damages

Updated: 26 May 2022; Ref: scu.414995

Azzopardi (T/A Express Homes) and Another v London Development Agency: UTLC 17 Jun 2009

UTLC COMPENSATION – compulsory purchase of shop premises – valuation of occupier’s interest – disturbance – Land Compensation Act 1961 Section 5, rules (2), (5) and (6). Compensation determined at andpound;50,282.82

Judges:

Francis FRICS

Citations:

[2009] UKUT 110 (LC), [2010] RVR 112

Links:

Bailii

Statutes:

Land Compensation Act 1961 5

Jurisdiction:

England and Wales

Land, Damages

Updated: 26 May 2022; Ref: scu.415019

Griffiths v Salford City Council: UTLC 5 Aug 2009

UTLC COMPENSATION – compulsory purchase – dwelling house in a Regeneration Area valuation – methodology – comparables – Land Compensation Act 1961 section 5, rule (2) compensation determined at pounds 52,000

Citations:

[2009] UKUT 154 (LC)

Links:

Bailii

Statutes:

Land Compensation Act 1961 5

Jurisdiction:

England and Wales

Land, Damages

Updated: 26 May 2022; Ref: scu.373423

Grein v Imperial Airways Ltd: CA 1937

A passenger met his death whilst travelling on a return air ticket between London and Antwerp. Belgium was not a state contracting under the Convention.
Held: Belgium was engaged on ‘international carriage’ within the meaning of the Convention. The Convention limiting damages to be awarded for any accident occurring on an airplane is to be construed purposively.

Judges:

Green LJ

Citations:

[1937] 1 KB 50

Jurisdiction:

England and Wales

Cited by:

Cited – Sidhu and Others v British Airways Plc; Abnett (Known as Sykes) v Same HL 13-Dec-1996
The claimants had been air passengers who were unlawfully detained in Kuwait, when their plane was captured whilst on the ground on the invasion of Kuwait. They sought damages for that detention.
Held: There are no exceptions to the Warsaw . .
Lists of cited by and citing cases may be incomplete.

Transport, Damages

Updated: 26 May 2022; Ref: scu.237239

British Telecommunications plc v Reid: CA 6 Oct 2003

The respondent appealed an award of pounds 10.000 for damages for an act of direct race discrimination. The claimant, of Afro-Caribbean origin, had been subjected to a racist comment.
Held: Translating hurt feelings into hard currency will always be an artificial exercise (Vento). The reasons for the award of aggravated damages were apparent from the tribunal’s findings. The transgressor had not been punished, but had even been promoted.

Judges:

Ward LJ, Latham LJ, Keene LJ

Citations:

Times 09-Oct-2003, [2003] EAT 0913 – 02 – 0703, Gazette 16-Oct-2003, [2003] EWCA Civ 1675, [2004] IRLR 327

Links:

Bailii, Bailii

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Citing:

Appeal from – British Telecommunications Plc v Reid EAT 7-Mar-2003
. .
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Cited – Alexander v Home Office CA 1988
Prisoners are a section of the public for the purposes of the 1976 Act. The Court increased an award for injury to feelings awarded for race discrimination by prison officers from pounds 50 to pounds 500. The court considered the appropriate level . .
Cited – Johnson v HM Prison Service and Others EAT 31-Dec-1996
Awards of damages for race discrimination were proper against both the employer, and an individual racist employee. 28k was not too much. Aggravated damages might be appropriate for direct discrimination where a complainant relied upon malice of . .
Cited – Alexander v Home Office CA 1988
Prisoners are a section of the public for the purposes of the 1976 Act. The Court increased an award for injury to feelings awarded for race discrimination by prison officers from pounds 50 to pounds 500. The court considered the appropriate level . .

Cited by:

Appealed to – British Telecommunications Plc v A Reid EAT 7-Mar-2003
EAT Race Discrimination – Direct . .
Lists of cited by and citing cases may be incomplete.

Damages, Discrimination

Updated: 26 May 2022; Ref: scu.186971

Alexander v Home Office: CA 1988

Prisoners are a section of the public for the purposes of the 1976 Act. The Court increased an award for injury to feelings awarded for race discrimination by prison officers from pounds 50 to pounds 500. The court considered the appropriate level of damages to be awarded in race discrimination cases: ‘damages for this relatively new tort of unlawful racial discrimination are at large, that is to say they are not limited to the pecuniary loss that can be specifically proved’. Such awards should not be minimal. It was open to a tribunal to include in appropriate cases ‘an element of aggravated damages where, for example, the defendants may have behaved in a high handed, malicious, insulting or oppressive manner in committing the act of discrimination.’ Aggravated damages are intended to deal with cases where the injury was inflicted by conduct which was ‘high-handed, malicious, insulting or oppressive’.

Judges:

May LJ

Citations:

[1988] ICR 685, [1988] IRLR 190

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Cited by:

Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Considered – Johnson v HM Prison Service and Others EAT 31-Dec-1996
Awards of damages for race discrimination were proper against both the employer, and an individual racist employee. 28k was not too much. Aggravated damages might be appropriate for direct discrimination where a complainant relied upon malice of . .
Cited – British Telecommunications plc v Reid CA 6-Oct-2003
The respondent appealed an award of pounds 10.000 for damages for an act of direct race discrimination. The claimant, of Afro-Caribbean origin, had been subjected to a racist comment.
Held: Translating hurt feelings into hard currency will . .
Cited – Scott v Inland Revenue CA 2-Apr-2004
The employee had claimed damages for unfair dismissal. The Revenue had subsequently changed its policy on retirement, but did not disclose this to the claimant. The change would have altered the calculation of the damages.
Held: A calculation . .
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Cited – British Telecommunications plc v Reid CA 6-Oct-2003
The respondent appealed an award of pounds 10.000 for damages for an act of direct race discrimination. The claimant, of Afro-Caribbean origin, had been subjected to a racist comment.
Held: Translating hurt feelings into hard currency will . .
Cited – Gill, Regina (on The Application of) v Secretary of State for Justice Admn 26-Feb-2010
Failure to provide programme discriminated
The claimant prisoner who had a learning disability said that he had been unable to complete the offending behaviour programmes because of his disability, that he had been kept in prison for much longer than he should have been as a consequence, and . .
Cited – Driskel v Peninsula Business Services Ltd and Another EAT 7-Dec-2001
The claimant sought leave to appeal against a finding that though there had been serious sex discrimination, the affect on her had been low, and the damages for injury to feelings reduced accordingly.
Held: The appeal was dismissed. The . .
Lists of cited by and citing cases may be incomplete.

Damages, Discrimination

Updated: 26 May 2022; Ref: scu.183845

Abu v MGN Ltd: QBD 2003

There should be nothing in any sense ‘rough and ready’ about the assessment of the claimant’s reputation under the offer of amends procedure in the 1996 Act. If compensation is not agreed it should be determined by the court on the same principles as in defamation proceedings. The court will take account of a range of factors similar to those in a full action, such as the gravity of the allegations, the scale of publication and any relevant aggravating or mitigating factors particular to the case.
Eady J said: ‘The Neill Committee recommendation was primarily directed towards providing a fair and reasonable exit route for defendants confronted with unreasonable demands from such manipulative or powerful claimants, who felt no doubt sometimes that they had them ‘over a barrel’. Yet it was naturally hoped that the ‘offer of amends’ would help to focus minds on achieving realistic compromise, and thus reduce the cost, for a much wider range of litigants. Whether any such reform will succeed, however, must depend on whether the statutory provisions as drafted are attractive to use. In this instance, it must provide an incentive to defendants to make the offer and to claimants to accept. In either case, a rational decision can only be made if it is possible within reasonable limits to predict the range of outcomes to which one is committing oneself. For example, before making an offer a defendant needs to be able to assess the gravity of the impact of the libel upon the complainant’s reputation and feelings, and this will generally have to be done in the light of the particulars of claim and/or letter before action. It would not seem fair if an offer is made and accepted on one basis, and the complainant then reveals for the first time elements of pleadable damage not previously mentioned, such as for example that his marriage has broken down or that he has lost his employment.
It would only accord with most people’s sense of justice if the offer of amends is construed as relating to the complaint as notified. Such an approach would also accord with the modern ‘cards on the table’ approach to litigation generally and, more specifically, with the thinking behind the Defamation Pre-Action Protocol.’

Judges:

Eady J

Citations:

[2003] 1 WLR 2001

Statutes:

Defamation Act 1996 3(5)

Jurisdiction:

England and Wales

Cited by:

See Also – Abu v MGN Ltd SCCO 19-Jul-2004
. .
Cited – Nail and Another v News Group Newspapers Ltd and others CA 20-Dec-2004
The claimant appealed the award of damages in his claim for defamation. The defendants had variously issued apologies. The claimant had not complained initially as to one publication.
Held: In defamation proceedings the damage to feelings is . .
Cited – Bowman v MGN Ltd QBD 26-Apr-2010
The claimant complained of an article on the defendant’s web-site. The defendant offered an unqualified offer of amends. The court was asked to settle an amount of compensation. Though the article was removed within a few hours and upon receipt of . .
Cited – Thornton v Telegraph Media Group Ltd QBD 26-Jul-2011
The claimant alleged defamation and malicious falsehood in an article published and written by the defendants. She complained that she was said to have fabricated an interview with the second defendant for her book. An interview of sorts had now . .
Lists of cited by and citing cases may be incomplete.

Defamation, Damages

Updated: 26 May 2022; Ref: scu.220496

Badger v The Ministry of Defence: QBD 16 Dec 2005

The widow of the deceased sought damages after his exposure to asbestos whilst working for the defendant. He had contracted lung cancer. The defendant argued that the deceased had continued to smoke knowing of the risks, and that he had made a significant contribution to his getting lung cancer.
Held: The damages should be reduced by 20% to allow for the deceased’s contribution to his condition. Though smoking increased by a factor of ten the chances of getting lung cancer, as opposed to the factor of five from exposure to asbestos, the latter gave rise to other doiseases, including asbestosis which was contracted by the claimant. Foreseeability of injury from smoking can be inferred from the general knowledge of the risks associated with smoking, particularly since the introduction of health warnings on cigarette packets in 1971. The apportionment of damages if necessary after finding that contributory negligence was established, was to be approached on the ‘broad jury like and commonsense way.’

Judges:

Stanley Burnton J

Citations:

Times 28-Dec-2005, [2005] EWHC 2941 (QB), [2006] 3 All ER 173

Links:

Bailii

Statutes:

Law Reform (Contributory Neglience) Act 1945 1

Jurisdiction:

England and Wales

Citing:

Cited – Froom v Butcher CA 21-Jul-1975
The court asked what reduction if any should be made to a plaintiff’s damages where injuries were caused not only by the defendant’s negligent driving but also by the failure of the plaintiff to wear a seat belt. It had been submitted that, since . .
Cited – Jones v Livox Quarries CA 25-Apr-1952
The plaintiff had ridden on the back of a kind of tractor in a quarry and in defiance of his employer’s instructions, risking being thrown off and injured. Another vehicle ran into the back of the first vehicle, injuring the plaintiff. He contended . .
Cited – O’Connell v Jackson CA 7-Jul-1971
Motorcyclist negligent without helmet
The plaintiff sought damages after an accident. The defendant car driver had negligently moved forward into the path of the plaintiff motor cyclist who was injured. The defendant argued that the plaintiff, a motorcyclist, was contributorily . .
Cited – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
Cited – Stapley v Gypsum Mines Ltd HL 25-Jun-1953
Plaintiff to take own responsibility for damage
The question was whether the fault of the deceased’s fellow workman, they both having disobeyed their foreman’s instructions, was to be regarded as having contributed to the accident.
Held: A plaintiff must ‘share in the responsibility for the . .
Cited – Boothman v British Northrop Ltd CA 1972
Once relevant fault on the part of the plaintiff has been established, a reduction on account of his fault in the damages recoverable is obligatory Stephenson LJ: ‘Speaking for myself, I do not find that the words of section 1(1) of the Law Reform . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .

Cited by:

Cited – St George v The Home Office CA 8-Oct-2008
The claimant was taken into prison. He was known to be subject to epilepsy, with high risks on withdrawal from drugs, but was allocated a high bunk. He had a seizure and fell, suffering head injuries. He sought damages in negligence. The defendant . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 25 May 2022; Ref: scu.236705

Patterson v Ministry of Defence: QBD 29 Jul 1986

The plaintiff had been exposed to asbestos when working for the defendant. X-rays revealed development of pleural plaques, but these would remain asymptomatic.
Held: Material damage sufficient to set time running was the same as damage necessary to complete a claimant’s cause of action in negligence. The court rejected arguments that this was yet insufficient damage: ‘I have no doubt whatever that the Plaintiff has suffered material damage. It consists of the symptom – free pleural changes, the risk of pleural thickening deteriorating with the consequences I have indicated, the risk of mesothelioma developing and the understandable worry attendant upon these matters.’ A provisional award was made: ‘I therefore have to value in combination (a) the present symptom-free pleural changes; (b) the 5%-odd risk of further diffuse changes developing so as to aggravate the plaintiff’s breathlessness, and (c) the anxiety which the plaintiff entirely understandably, and in my judgment reasonably, has hitherto suffered, in particular over the last two years, and to a far more limited degree, the worry he may still experience in the future, even though, as I have sought to emphasize, these future risks are really very small. Doing my best to arrive at a figure which accords reasonably with the scale established by Church and Sykes, both now 2 years old, and with my own views upon the particular facts of the instant case, I assess such damages in the sum of andpound;1,250. There will accordingly be judgment for the plaintiff for damages in that sum assessed on the assumption that the plaintiff will not develop mesothelioma at any future stage.’
‘[S]ymptom-free pleural changes’ could not, of themselves, constitute significant damage for the purpose of founding a cause of action but ‘In deciding whether material damage has been caused it is appropriate to have regard not merely to actual physical manifestation of injury, but also to whatever risks consequent upon the original injury may exist of future symptoms becoming manifest’

Judges:

Simon Brown J

Citations:

Unreported 29 July 1986, [1987] CLY 1194

Jurisdiction:

England and Wales

Citing:

Cited – Darley Main Colliery Co v Mitchell HL 1886
The owner of land whose land was affected by subsidence in 1868 and who received compensation from those who had worked coal and caused the subsidence, was able, in 1882 when further subsidence took place causing further injury, to bring a fresh . .
Cited – Pirelli General Cable Works v Oscar Faber and Partners HL 2-Jan-1983
The plaintiff asked the defendant consulting engineer to design an extension to their factory in 1969. Not later than in April 1970, cracks developed in the chimney. In 1977 the cause of the damage was discovered. It arose from design faults in the . .

Cited by:

Cited – Rothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation, Damages

Updated: 25 May 2022; Ref: scu.238189

Dimond v Lovell: CA 29 Apr 1999

Mrs Dimond had a car accident as a result of Mr Lovell’s negligence and sought to recover from him the cost of the hire of a replacement vehicle while her car was being repaired. Under clause 5 of the hire agreement the hire company had the conduct of any claim necessary to recover damages, and the payment of the hire charge was postponed until after its conclusion. Mr Lovell’s insurance company refused to pay the cost of the replacement vehicle on the basis that the agreement under which Mrs Diamond had hired it was a regulated agreement within the meaning of the CCA and did not contain the particulars that the Act required. Consequently the agreement was unenforceable, and Mrs Dimond could not be required to pay for the hired vehicle and had therefore suffered no loss. Resolution of this issue turned on whether the hire company had provided Mrs Dimond with credit.
Held: An arrangement loaning a car and postponing payment of hire charges until settlement of a damages claim was a consumer hire agreement. If made by unregulated person, it was unlawful, and the cost of hire was irrecoverable.

Judges:

The Vice-Chancellor: The Rt Hon Sir Richard Scott, Lord Justice Thorpe, And Lord Justice Judge

Citations:

Times 03-May-1999, Gazette 26-May-1999, [1999] EWCA Civ 1311, [2000] QB 216, [1999] RTR 297, [1999] 3 WLR 561, [1999] 3 All ER 1, [1999] CCLR 46

Links:

Bailii

Statutes:

Consumer Credit Act 1974, Consumer Credit (Exempt Agreements) Order 1989 3(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Miller CACD 1977
. .
Cited – Hussain v New Taplow Paper Mills Ltd HL 1988
The plaintiff was injured in an accident at work. His employer was partly responsible. For 13 weeks he received full sick pay in accordance with his contract. He then received half his pre-accident earnings under the permanent health insurance . .
Cited – Hodgson v Trapp HL 10-Nov-1988
The question was whether the attendance and mobility allowances which were payable to the plaintiff pursuant to statute should be deducted from damages she had received for personal injury.
Held: They should be. Damages for negligence are . .

Cited by:

Appeal from – Dimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
Cited – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
Lists of cited by and citing cases may be incomplete.

Consumer, Damages, Road Traffic

Updated: 23 May 2022; Ref: scu.136044

Cape Distribution Ltd v Aine O’Loughlin: CA 8 Feb 2001

The company appealed the calculation of an award of damages to the respondent following the death of her husband, a former employee. The deceased had operated a company in Ireland as a property developer. The company alleged that the earnings were not directly dependent upon his input, but upon capital and otherwise.
Held: Such assessments were notoriously dependent upon the particular facts of the case. Here the judge had correctly looked at the cost of buying in professional services to replace those of the deceased and otherwise.

Judges:

Lord Justice Schiemann, Lord Justice Judge, And Lord Justice Latham

Citations:

[2001] EWCA Civ 178

Links:

Bailii

Statutes:

Fatal Accidents Act 1976 3(1), Law Reform (Miscellaneous Provisions) Act 1934

Jurisdiction:

England and Wales

Citing:

Cited – Wood v Bentall Simplex Ltd CA 1992
No aspect of the law of damages has been found in practice to be more dependent on the facts of each particular case than the assessment of loss of pecuniary benefit to dependants under the Fatal Accidents Act . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 23 May 2022; Ref: scu.135583

Pugh v Cantor Fitzgerald International: CA 7 Mar 2001

Where judgment had been entered with damages to be assessed, the issues which could be raised on the assessment of damages were any directly affecting that assessment, but the defendant could not raise an issue which would impugn the judgement leading to the assessment. It was not always however clear that an issue had been settled by the judgment in such a way as to create an estoppel.

Citations:

Times 20-Mar-2001, Gazette 03-May-2001, [2001] EWCA Civ 307

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Lunnon v Singh CA 1-Jul-1999
Once judgment has been given, whether after a contested hearing or in default, for damages to be assessed, the defendant cannot dispute liability at the assessment hearing. . .

Cited by:

Cited – Strachan v The Gleaner Company Limited and Stokes PC 25-Jul-2005
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Damages

Updated: 23 May 2022; Ref: scu.135543

O’Donoghue v Redcar and Cleveland Borough Council: CA 17 May 2001

The Tribunal had been entitled to find on the evidence that an employee unfairly dismissed by reason of sex would have been fairly dismissed for misconduct six months later in any event because of her antagonistic and intransigent attitude. The court considered whether damages for unfair dismissal could include an element of compensation for injured feelings: ‘Compensation for unfair dismissal is provided for in Chapter II of the Employment Rights Act 1996. Section 112 provides that compensation should be calculated according to ss118-127A. There is no compensation for injury to feelings or the manner or dismissal, unless that gives rise to financial loss.’
Potter LJ said: ‘An Industrial Tribunal must award such compensation as is ‘just and equitable’. If the facts are such that an Industrial Tribunal, while finding that an employee/applicant has been dismissed unfairly (whether substantively or procedurally), concludes that, but for the dismissal, the applicant would have been bound soon thereafter to be dismissed (fairly) by reason of some course of conduct or characteristic attitude which the employer reasonably regards as unacceptable but which the employee cannot or will not moderate, then it is just and equitable that compensation for the unfair dismissal should be awarded on that basis.’

Judges:

Potter LJ

Citations:

[2001] EWCA Civ 701, [2001] IRLR 615, [2001] Emp LR 711

Links:

Bailii

Statutes:

Employment Rights Act 1996 112

Jurisdiction:

England and Wales

Citing:

Cited – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful . .
Appeal from – Redcar and Cleveland Borough Council v O’Donoghue EAT 20-Apr-1999
. .
Mentioned – British Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .
See Also – Redcar and Cleveland Borough Council v O’Donoghue EAT 21-Jan-2000
. .
See Also – O’Donoghue v Redcar and Cleveland Borough Council EAT 17-May-2000
. .

Cited by:

Cited – Scott v London Borough of Hillingdon CA 18-Dec-2001
The claimant’s claim for race discrimination had been dismissed on appeal by the EAT. He now appealed to restore the judgement of the employment tribunal. He had begun an action against his employer, and then unsuccessfully applied for employment . .
Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Cited – Ward v Ashkenazi CA 2-Feb-2011
The claimant had been awarded damages after being found to have been unfairly dismissed for an automatically unfair reason in requesting written particulars of her employment. The EAT had awarded a 50% uplift for non-compliance with statutory . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 23 May 2022; Ref: scu.135456

Sheridan v News Group Newspapers Limited: SCS 11 Dec 2018

The pursuer had succeeded in his defamation claim with an award of substantial damages. The defender then failed in an application for a retrial, despite evidence undermining the award. The pursuer obtained an order for interest to be payable from the time it would have been calculated but for the appeal. The defender appealed.

Citations:

[2018] ScotCS CSIH – 76

Links:

Bailii

Jurisdiction:

Scotland

Defamation, Damages

Updated: 21 May 2022; Ref: scu.634462

Kuchenmeister v Home Office: QBD 1958

The plaintiff, a German national landed at Heathrow airport en route to Dublin. The immigration officers, instead of refusing him leave to land (as they had been instructed to do), detained him at the airport until it was too late for him to catch the Dublin flight. They might have had other powers to detain him, but had wrongly acted under the 1953 Order which gave no such power.
Held: He had been wrongfully imprisoned. The immigration officers had no power to detain the claimant in such a way as to prevent his transiting from one aircraft to another The right of liberty is a precious right entitled to protection. Barry J said: ‘His liberty was restricted to a greater degree than the immigration authorities were entitled to restrict it under [the particular power they sought to rely upon]. The fact that they might have restricted his mobility by employing the powers conferred upon them by other articles of the Order seems to me to be immaterial. It is no answer, when a man says ‘I have been unlawfully arrested without a warrant,’ to say ‘Well, had I (the person making the arrest) taken the trouble to go and ask for a warrant, I would undoubtedly have got it.’ That would be no answer to a claim for unlawful arrest. Similarly here, although the [immigration officers] could have detained the plaintiff by refusing him leave to land, that does not entitle them to detain him on the grounds on which they did.’
The judge awarded damages of andpound;150 even though ‘no pecuniary damage [had] been suffered’ on the basis that it was ‘a fair figure which will vindicate the plaintiff’s rights without amounting to a vindictive award’.

Judges:

Barry J

Citations:

[1958] 1 QB 496

Statutes:

Aliens Order 1953 2(1)(b)

Jurisdiction:

England and Wales

Cited by:

Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Bostridge v Oxleas NHS Foundation Trust CA 10-Feb-2015
The claimant had been detained as a mental patient, but it was accepted that that detention had been unlawful as to over 400 days. The respondent argued that since he might have been detained in any event under other powers, he should receive only . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages

Updated: 21 May 2022; Ref: scu.431210

Cameron and others v Network Rail Infrastructure Ltd: QBD 18 May 2006

The claimant sought damages from the defendant after the death of her father in the Potters Bar rail crash. The defendant applied for summary judgment saying that English law did not recognise a claim by a family member of a deceased save through the claim of the estate itself. The claimant said that this would deny her human rights, and sought a declaration of incompatibility with regard to s1A of the 1976 Act.
Held: ‘It is within the reasonable margin of appreciation of the State to limit those who are entitled to claim compensation to those who are financially dependent on the deceased. Who otherwise should say where the line should be drawn between those who may claim from those who may not? ‘ The claimants had also lost any possibility of a claim through limitation.

Citations:

Times 14-Jun-2006, [2006] EWHC 1133 (QB)

Links:

Bailii

Statutes:

Railways (Safety Case) Regulations 2000, Human Rights Act 1998, Fatal Accidents Act 1976 1A, Railways Act 1993

Jurisdiction:

England and Wales

Citing:

Cited – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited – Foster and others v British Gas plc ECJ 12-Jul-1990
The defendants (BGC) were nationalised suppliers of gas. BGC was by statute a body with a legal persona operating under the supervision of the authorities. Its members were appointed by the Secretary of State, who also determined their remuneration. . .
Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Lists of cited by and citing cases may be incomplete.

Damages, Human Rights, Personal Injury, Transport, Health and Safety

Updated: 21 May 2022; Ref: scu.242210

Aerospace Publishing Ltd and Another v Thames Water Utilities Ltd: QBD 13 Jan 2006

Whether respondents liable for damage from leak from mains water pipe – calculation of damages.

Judges:

Holland J

Citations:

[2005] EWHC 2987 (QB)

Links:

Bailii

Statutes:

Water Industry Act 1991

Jurisdiction:

England and Wales

Cited by:

Appeal from – Aerospace Publishing Ltd and Another v Thames Water Utilities Ltd CA 11-Jan-2007
A substantial private archive of valuable books had been damaged when the defendant’s water mains burst. The court was asked to assess the value.
Held: The water company’s appeal failed save to a small extent. The articles were of substantial . .
Lists of cited by and citing cases may be incomplete.

Utilities, Torts – Other, Damages

Updated: 21 May 2022; Ref: scu.238319

The Kate: 1899

The Kate was totally lost in a collision with the defendants’ ship, whilst on the ballast leg of a charterparty. The issue was whether in a case of total loss as opposed to partial loss of a ship without a cargo, the plaintiffs could recover only the market value of the ship at the time of the loss (as the defendants contended) or the profit lost under the charterparty as well (as the plaintiffs contended).
Sir Francis Jeune P laid it down that the general principle which governs the assessment of damage is ‘restitutio in integrum qualified by the condition that the damage sought to be recovered must not be too remote.’ and also said: ‘Sir Robert Phillimore states that the value should be taken as at the end of the voyage, and therefore lets in freight or interest as an additional compensation . . The present case, which is that of a vessel without cargo, but under charter, being totally lost, is not exactly that contemplated by Sir Robert Phillimore; but it appears to me to follow from his judgment that the value of the vessel may in such case be taken as at the end of her voyage, and something allowed in respect of the period between the time of collision and the end of the voyage . . the profits under the charterparty should take the place of interest, as more accurately representing the loss to the owner, and may fairly be considered to be the equivalent of freight when a cargo is on board. Indeed I can see no distinction in principle between the case of freight when a cargo is on board and . . a charterparty under which cargo is to be taken.’

Citations:

[1899] P 165

Jurisdiction:

England and Wales

Citing:

Cited – The ‘Columbus’ 9-Mar-1849
Where a vessel is sunk in a collision, and compensation is awarded by the Court of Admiralty to the full value of the vessel as for a total loss, the plaintiff will not be able to recover anything in the nature of a demurrage for loss of the . .

Cited by:

Cited – Mitsui Sumitomo Insurance Co (Europe) Ltd and Another v The Mayor’s Office for Policing and Crime ComC 12-Sep-2013
In the lead case, Sony’s warehouse at Enfield had been severely damaged in what were said to be riots in August 2011. The court considered preliminary issues as to whether the events constituted a riot within the 1886 Act, and the extent of damages . .
Cited – Mitsui Sumitomo Insurance Co (Europe) Ltd and Others v Mayor’s Office for Policing and Crime CA 20-May-2014
The appellant had suffered damage in a riot, and, under the 1886 Act, the respondent was liable to pay compensation.
Held: The MOPC was liable to pay compensation by way of indemnity. Analysis of section 2(1) suggested compensation for loss . .
Cited – The Mayor’s Office for Policing and Crime v Mitsui Sumitomo Insurance Co (Europe) Ltd and Others SC 20-Apr-2016
The Court considered the quantification of damages to be awarded to a business suffering under riots under the 1886 Act, and in particular whether such recoverable losses included compensation for consequential losses, including loss of profits and . .
Lists of cited by and citing cases may be incomplete.

Transport, Damages

Updated: 20 May 2022; Ref: scu.608294

Wallace and others v Manchester City Council: CA 23 Jul 1998

Damages payable to a tenant for a landlord’s failure to repair whilst the tenant remained in the property were not separate damages for discomfort and diminution in rental value since these amounted to the same thing: ‘for periods when the tenant remains in occupation of the property, notwithstanding the breach of the obligation to repair, the loss to him requiring compensation is a loss of comfort and convenience that results from living in a property that was not in the state of repair it ought to have been in if the landlord had performed his obligation’ and ‘Thus the question to be answered is what sum is required to compensate the tenant for the distress and inconvenience experienced because of the landlord’s failure to perform his obligation to repair? Such sum may be ascertained in a number of different ways, including, but not limited to a notional reduction in the rent. Some Judges may prefer to use that method alone (McCoy v Clarke), some may prefer a global award for discomfort and inconvenience (Calabar and Chiodi), and others prefer a mixture of the two (Sturoloson v Mauroux and Brent LBC v Carmel). But in my judgment they are not bound to assess damages separately under heads of both diminution in value and discomfort. Whilst in cases within the third proposition these heads are alternative ways of expressing the same concept.’
The essence of calculating of quantum is that it is a contractual claim, not one in tort. The court sets out to quantify the difference in value between the disprepaired property and the property as it would be if the landlord had fulfilled the repairing obligation. Discomfort and inconvenience for the tenant are a part of this head, not a separate, tortious, head of damages.

Judges:

Morritt LJ

Citations:

Times 23-Jul-1998, [1998] EWCA Civ 1166, [1998] 3 EGLR 38, [1998] 30 HLR 1111

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Calabar Properties Ltd v Stitcher CA 1983
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 . .

Cited by:

Cited – Niazi Services Ltd v Johannes Marinus Henricus Van Der Loo CA 10-Feb-2004
The tenant counterclaimed an action by the landlord for rent saying the property had not been repaired under the landlord’s covenant. The water supply had for 33 months been weak, leading to only a trickle of water being available, and there had . .
Cited – English Churches Housing Group v Shine CA 7-Apr-2004
The claimant was a secure tenant of English Churches Housing Group. He was unemployed and lived on benefits. He claimed damages against his landlord for breaches of the repairing covenants implied by section 11. The court considerd the appropriate . .
Cited – Regus (UK) Ltd v Epcot Solutions Ltd CA 15-Apr-2008
The appellant had contracted to provide office accomodation to the defendant. The air conditioning did not work and there were other defects. The appellant now challenged a finding of liability and that its contract terms which were said to totally . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Damages

Updated: 20 May 2022; Ref: scu.90262

UYB Ltd v British Railways Board: CA 15 Nov 2000

When disallowing interest on a claim, the judge refused to allow the admission of the plaintiff’s expert report on quantum, dated two years before the writ, in rebuttal of the respondent’s assertion, that they had not known of the amount claimed until immediately before the action.
Held: The draft had been marked without prejudice, and it was against public policy to discourage attempts to settle actions without litigation by allowing reference to such documents. The draft remained a draft, and the figures were in fact different from those ultimately disclosed. The judge was correct not to allow the report to be admitted.

Citations:

Times 15-Nov-2000, Gazette 02-Nov-2000, Gazette 09-Nov-2000, [2000] EWCA Civ 265

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Damages

Updated: 20 May 2022; Ref: scu.90095

Van Oudenhoven v Griffin Inns Ltd: CA 4 Apr 2000

When awarding damages to a claimant who lived abroad, it would not be correct to apply a lower discount rate, so as to award a higher level of damages to reflect the different taxation regime in that country which would take a greater share of the damages. This was not an exceptional circumstance which would allow departure from the rule.

Judges:

Lord Justice Tuckey, Lord Justice Mummery Lord Justice Stuart-Smith

Citations:

Times 10-Apr-2000, [2000] EWCA Civ 102, [2000] All ER (D) 463

Links:

Gazette, Bailii

Jurisdiction:

England and Wales

Damages, Personal Injury, Damages

Updated: 20 May 2022; Ref: scu.90121

Steadman v Scholfield and Another: QBD 6 May 1992

A jet ski is neither a boat nor a vessel. The maritime limitation rules did not therefore apply to an accident involving a jet ski. The applicant could therefore claim full damages.

Citations:

Gazette 06-May-1992

Statutes:

Marine Conventions Act 1911

Jurisdiction:

England and Wales

Personal Injury, Damages, Transport

Updated: 20 May 2022; Ref: scu.89518

Southampton Container Terminals Ltd v Hansa Schiffahrts GmbH (The Maersk Colombo): CA 3 May 2001

The claimants operated the container terminal in Southampton. A crane was struck and damaged beyond repair by the defendants’ vessel. The crane was not replaced because before the casualty the claimants had ordered two new cranes. Loss of use of the damaged crane before the new cranes were delivered had caused some inconvenience, but no measurable financial loss. Nevertheless, the claimants asked for the replacement loss of the damaged crane (andpound;2.395 million) being the agreed cost of buying, modifying and transporting a second-hand crane from the United States. The judge only awarded the agreed resale value of the crane in Southampton (andpound;665,000).
Held: Unless compelled by authority to do so, the cost of reinstatement by reference to transportation and modification costs, which had not and would never be incurred and which it would be unreasonable to incur, could not fairly be regarded as caused by the defendants’ tort The court reviewed the authorities and accepted the following (1) On proof of the tortious destruction of a chattel, the owner is prima facie entitled to damages reflecting the market value of the chattel ‘as is’. (2) He is so entitled whether or not he intends to obtain a replacement. (3) The market or resale value is to be assessed on the evidence, there being no standard measure applicable to all circumstances.

Judges:

Clarke, Thorpe LJJ and Holland J

Citations:

Times 13-Jun-2001, Gazette 14-Jun-2001, [2001] 2 Lloyd’s Rep 275, [2001] EWCA Civ 717

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Ali Reza-Delta Transport Co Ltd v United Arab Shipping Co Sag CA 2-May-2003
Substantial items of equipment had been destroyed in Saudi Arabia, and needed to be valued.
Held: The valuation had to include the time and place of its destruction. Accordingly the valuation correctly calculated the loss by asking for the . .
Cited – Crouch v King’s Healthcare NHS Trust CA 15-Oct-2004
The defendants sought approval of their practice of making a written offer to the claimants rather than making a payment into court. The offer had been accepted but only after the defendant had purported to withdraw it.
Held: ‘it certainly is . .
Cited – Aerospace Publishing Ltd and Another v Thames Water Utilities Ltd CA 11-Jan-2007
A substantial private archive of valuable books had been damaged when the defendant’s water mains burst. The court was asked to assess the value.
Held: The water company’s appeal failed save to a small extent. The articles were of substantial . .
Cited – R+V Versicherung Ag v Risk Insurance and Reinsurance Solutions Sa and others ComC 27-Jan-2006
It had held that the defendant insurance intermediaries were liable to the claimants, a German reinsurance company, because of a conspiracy to defraud the claimants on the part of one of the defendants’ employees. The court had to decide issues of . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 20 May 2022; Ref: scu.89419

Lambert v Lewis: HL 1981

A farmer was sued when a towing hitch on his Landrover came loose, releasing the trailer which then caused a serious accident. When sued for the damage, the farmer brought proceedings against the garage proprietor who supplied the towing hitch, relying on the warranty. By the time the accident occurred, the farmer had been aware that the locking mechanism on the towing hitch was faulty, but he had continued to use it.
Held: The farmer’s claim against the garage was rejected.
Lord Diplock said: ‘I would accept that in the case of the coupling the warranty was still continuing up to the date, some three to six months before the accident, when it first became known to the farmer that the handle of the locking mechanism was missing. Up to that time the farmer would have had a right to rely upon the dealers warranty as excusing him from making his own examination of the coupling to see if it were safe . . After it had become apparent to the farmer that the locking mechanism of the coupling was broken, and consequently that it was no longer in the same state as when it was delivered, the only implied warranty which could justify his failure to take the precaution either to get it mended or at least to find out whether it was safe to continue to use it in that condition, would be a warranty that the coupling could continue to be safely used to tow a trailer on a public highway notwithstanding that it was in an obviously damaged state. My Lords, any implication of a warranty in these terms needs only to be stated, to be rejected . . In the state in which the farmer knew the coupling to be at the time of the accident, there was no longer any warranty by the dealers of its continued safety in use on which the farmer was entitled to rely.
. . The farmer’s liability arose, not from the defective design of the coupling but from his own negligence in failing, when he knew that the coupling was damaged, to have it repaired or to ascertain if it was still safe to use. The issue of causation, therefore, on which the farmer’s claim against the dealers depended, was whether his negligence resulted directly and naturally, in the ordinary course of events from the dealer’s breach of warranty. Manifestly it did not.’

Judges:

Lord Diplock

Citations:

[1982] AC 225, [1981] 1 All ER 1185, [1981] RTR 346, [1981] 2 Lloyds Rep 17, [1981] 2 WLR 713

Jurisdiction:

England and Wales

Cited by:

Cited – Borealis Ab v Geogas Trading Sa ComC 9-Nov-2010
The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 20 May 2022; Ref: scu.425893

Smoker v London Fire and Civil Defence Authority: HL 1991

Pension benefits were held to be the fruits through insurance of moneys set aside in the past in respect of past work and could not be appropriated by a tortfeasor so as to reduce its liability to compensate the victim.

Citations:

[1991] 2 AC 502

Jurisdiction:

England and Wales

Cited by:

Cited – Longden v British Coal Corporation HL 13-Mar-1997
The plaintiff was injured whilst at work in one of the defendant’s collieries. The House considered the deductibility from damages awarded for personal injury of a collateral benefit.
Held: The issue of deductibility where the claim is for . .
Cited – Knapton and others v ECC Card Clothing Ltd EAT 7-Mar-2006
EAT Unfair Dismissal: Compensation
Reversing the Employment Tribunal, in the assessment of compensation for unfair dismissal under Employment Rights Act 1996 section 123, an employee who took early receipt . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 19 May 2022; Ref: scu.237502

Personal Representatives of Tang Man Sit v Capacious Investments Ltd: PC 18 Dec 1995

The claimant, Capacious Investments Ltd, brought proceedings against Tang’s estate for damages for the loss of use and occupation, and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with leases. It obtained an account of profits and an award of compensatory damages as a result of the same breach of trust. The PRs appealed.
Held: The claimant could elect to receive the higher award to which it was entitled but it had to give credit against the damages for loss of use and occupation for the sums received pursuant to the account of profits. Moreover, there was nothing inconsistent between the claim for damage to the property and the claim for damages for loss of use. These were in effect cumulative remedies claimed on a basis which was consistent between themselves.
An action for account is an alternative claim, and is not cumulative to a claim for damages. Courts should distinguish election between remedies from election between rights.
Lord Nicholls of Birkenhead ex plained the nature of alternative and cumulative damages awards: ‘The law frequently affords an injured person more than one remedy for the wrong he has suffered. Sometimes the two remedies are alternative and inconsistent. The classic example, indeed, is (1) an account of the profits made by a defendant in breach of his fiduciary obligations and (2) damages for the loss suffered by the plaintiff by reason of the same breach. The former is measured by the wrongdoer’s gain, the latter by the injured party’s loss.
Sometimes the two remedies are cumulative. Cumulative remedies may lie against one person. A person fraudulently induced to enter into a contract may have the contract set aside and also sue for damages. Or there may be cumulative remedies against more than one person. A plaintiff may have a cause of action in negligence against two persons in respect of the same loss.
Alternative remedies
Faced with alternative and inconsistent remedies a plaintiff must choose, or elect, between them. He cannot have both. The basic principle governing when a plaintiff must make his choice is simple and clear. He is required to choose when, but not before, judgment is given in his favour and the judge is asked to make orders against the defendant. A plaintiff is not required to make his choice when he launches his proceedings. He may claim one remedy initially, and then by amendment of his writ and his pleadings abandon that claim in favour of the other. He may claim both remedies, as alternatives. But he must make up his mind when judgment is being entered against the defendant. Court orders are intended to be obeyed. In the nature of things, therefore, the court should not make orders which would afford a plaintiff both of two alternative remedies.
In the ordinary course, by the time the trial is concluded a plaintiff will know which remedy is more advantageous to him. By then, if not before, he will know enough of the facts to assess where his best interests lie. There will be nothing unfair in requiring him to elect at that stage. Occasionally this may not be so. This is more likely to happen when the judgment is a default judgment or a summary judgment than at the conclusion of a trial. A plaintiff may not know how much money the defendant has made from the wrongful use of his property. It may be unreasonable to require the plaintiff to make his choice without further information. To meet this difficulty, the court may make discovery and other orders designed to give the plaintiff the information he needs, and which in fairness he ought to have, before deciding upon his remedy. A recent instance where this was done is the decision of Lightman J. in Island Records Ltd. v. Tring International Plc. [1995] 3 All E.R. 444. The court will take care to ensure that such an order is not oppressive to a defendant.
In the ordinary course the decision made when judgment is entered is made once and for all. That is the normal rule. The order is a final order, and the interests of the parties and the public interest alike dictate that there should be finality. The principle, however, is not rigid and unbending. Like all procedural principles, the established principles regarding election between alternative remedies are not fixed and unyielding rules. These principles are the means to an end, not the end in themselves. They are no more than practical applications of a general and overriding principle governing the conduct of legal proceedings, namely, that proceedings should be conducted in a manner which strikes a fair and reasonable balance between the interests of the parties, having proper regard also to the wider public interest in the conduct of court proceedings. Thus in Johnson v. Agnew [1980] A.C. 367 the House of Lords held that when specific performance fails to be realised, an order for specific performance may subsequently be discharged and an inquiry as to damages ordered. Lord Wilberforce observed, at p. 398: ‘Election, though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity.
Cumulative remedies
The procedural principles applicable to cumulative remedies are necessarily different. Faced with alternative and inconsistent remedies a plaintiff must choose between them. Faced with cumulative remedies a plaintiff is not required to choose. He may have both remedies. He may pursue one remedy or the other remedy or both remedies, just as he wishes. It is a matter for him. He may obtain judgment for both remedies and enforce both judgments. When the remedies are against two different people, he may sue both persons. He may do so concurrently, and obtain judgment against both. Damages to the full value of goods which have been converted may be awarded against two persons for successive conversions of the same goods. Or the plaintiff may sue the two persons successively. He may obtain judgment against one, and take steps to enforce the judgment. This does not preclude him from then suing the other. There are limitations to this freedom. One limitation is the so called rule in Henderson v. Henderson (1843) 3 Hare 100. In the interests of fairness and finality a plaintiff is required to bring forward his whole case against a defendant in one action. Another limitation is that the court has power to ensure that, when fairness so requires, claims against more than one person shall all be tried and decided together. A third limitation is that a plaintiff cannot recover in the aggregate from one or more defendants an amount in excess of his loss. Part satisfaction of a judgment against one person does not operate as a bar to the plaintiff thereafter bringing an action against another who is also liable, but it does operate to reduce the amount recoverable in the second action. However, once a plaintiff has fully recouped his loss, of necessity he cannot thereafter pursue any other remedy he might have and which he might have pursued earlier. Having recouped the whole of his loss, any further proceedings would lack a subject matter. This principle of full satisfaction prevents double recovery.’

Judges:

Lord Nicholls of Birkenhead

Citations:

Gazette 07-Feb-1996, Times 26-Dec-1995, [1996] AC 514, [1995] UKPC 54, [1996] 1 All ER 193, [1996] 2 WLR 192

Links:

Bailii

Citing:

Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Johnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Cited – Island Records Ltd v Tring International Plc and Another ChD 12-Apr-1995
A copyright plaintiff may delay the choice of his remedy between damages and account of profits until information was available from the defendant which would allow him to gauge which remedy suited him best. The court may make the orders necessary . .

Cited by:

Cited – Westminster City Council v Porter and Another ChD 30-Jul-2002
The claimant authority sought compensation from the respondents for acts committed whilst she had been a councillor. The auditor had certified that the respondents had caused losses amounting to 31 million pounds.
Held: Summary judgement was . .
Cited – Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
Cited – Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Cited – Ramzan v Brookwide Ltd CA 19-Aug-2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
Lists of cited by and citing cases may be incomplete.

Damages, Commonwealth

Updated: 19 May 2022; Ref: scu.84679

Murrell v Healy and Another: CA 5 Apr 2001

Documents held by an insurance company after settling a personal injuries claim by the same claimant but as regards a later unconnected claim were admissible, since they went to an issue in the later case, namely the nature and extent of the injury from the first occasion. They were admissible even though they had been used as part of without prejudice negotiations.

Judges:

Waller, Dyson LJJ

Citations:

Times 01-May-2001, [2001] EWCA Civ 486, [2001] 4 All ER 345, [2002] RTR 2

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Personal Injury, Damages

Updated: 19 May 2022; Ref: scu.84140

Jones (A Minor) v Wilkins (Wynn and Another, Third Parties): CA 6 Feb 2001

Where a child had not been properly restrained by a seat belt, the damages should be reduced but not by a great percentage. Here, although the child was partially restrained by sharing her mother’s lap belt, in fact this had made the injuries worse. Nevertheless, the genuine cause of the accident was the defendant’s driving, and the damages should not be reduced by more than 25%. Froom v Butcher remained valuable guidance. Although it was decided under the earlier Act, the wording in the new Act was strikingly similar.

Citations:

Gazette 15-Feb-2001, Times 06-Feb-2001, [2000] EWCA Civ 3024, [2001] PIQR P12, [2001] RTR 19

Links:

Bailii

Statutes:

Civil Liability (Contributions) Act 1978 2(1)

Jurisdiction:

England and Wales

Citing:

Cited – Froom v Butcher CA 21-Jul-1975
The court asked what reduction if any should be made to a plaintiff’s damages where injuries were caused not only by the defendant’s negligent driving but also by the failure of the plaintiff to wear a seat belt. It had been submitted that, since . .

Cited by:

Cited – Williams v Williams (The Estate of) CA 30-Apr-2013
A child aged three had been injured as a passenger in her mother’s car when it was hit by another negligently driven vehicle. The mother appealed against a finding that she was 25% contributorily negligent in that the child seat used had been . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 19 May 2022; Ref: scu.82585

In Re Park Air Services Plc; Christopher Moran Holdings Ltd v Bairstow and Another: HL 4 Feb 1999

The tenant company went into liquidation, the receiver disclaimed the lease, and the landlord claimed compensation under the Act. The question concerned how the compensation was to be calculated.
Held: Where a solvent tenant under an onerous lease goes into voluntary liquidation, and the liquidator disclaims the lease, the right to payment of rent disappears, and the landlord is entitled to compensation only, by payment discounted for acceleration.
The court had to calculate the compensation according to general principles. It was a statutory right where any common law or contractual rights were extinguished by the disclaimer. The right replaced any rights which would have arisen under the lease. The receiver said that the damages should be reduced to allow for the fact of the acceleration of the receipts. He was correct. The Court of Appeal had been wrong to treat the freeholder as a secured creditor making a voluntary proof. His claim was for the statutory right of compensation, not any made under the lease itself. The common law right to damages was lost on the disclaimer. Appeal allowed, but with a discount of 5.5% to the accelerated rent.

Judges:

Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Hope of Craighead Lord Hobhouse of Woodborough, Lord Millett

Citations:

Times 05-Feb-1999, [1999] UKHL 2, [2000] 2 AC 172, [1999] 1 All ER 673, [1999] 2 WLR 396, [2000] ANZ Conv R 174, [1999] 1 EGLR 1, [1999] 1 BCLC 155

Links:

House of Lords, Bailii

Statutes:

Insolvency Act 1986 178(6), Insolvency Act 1986 178, Insolvency Rules 1986 4.88(2)

Jurisdiction:

England and Wales

Citing:

Cited – Hindcastle Ltd v Barbara Attenborough Associates Ltd and Others HL 22-Feb-1996
The guarantor of an original tenant under the lease remains liable after the disclaimer the lease on insolvency. The disclaimer operates to determine the lease altogether with the result that the landlord’s reversion is accelerated. ‘In order to . .
Appeal from – Park Air Services Plc; Christopher Moran Holdings Limited v Bairstow and Ruddock CA 1-May-1997
If a lease is determined or treated as determined in a winding up or in a bankruptcy, the landlord is entitled to prove in principle for all the rent and other payments which he would have been entitled to recover from the tenant for the residue of . .
Cited – Ex parte Llynvi Coal and Iron Co; In re Hide 1871
The trustee in bankruptcy disclaimed an agreement for a lease under Section 23. The landlord claimed to prove as creditor under the section.
Held: Where one party has repudiated a contract and the other party has accepted that repudiation as . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Cited – Overstone Ltd v Shipway 1962
Where a claimed loss will be suffered over a period in the future, the computation will have to make allowance for any advancement that has occurred. . .
Cited – In re London and Colonial Co.; Horsey’s claim 1868
. .
Cited – In re New Oriental Bank Corporation (No.2) 1895
Where a tenancy continues after the insolvency of the tenant, the landlord is entitled (i) to prove for all the arrears of rent; (ii) to enter a claim for all future rent; and (iii) as rent accrues due, to submit proofs in the liquidation from time . .
Cited – Hardy v Fothergill 1888
Rent falling due after a winding up of the tenant was a future debt for which the landlord could have proved in the tenant’s liquidation. . .
Cited – In re Metropolis Estates Co Ltd CA 1940
. .
Cited – Oppenheimer v British and Foreign Exchange and Investment Bank 1877
A court can give a liquidator leave to distribute, thus protecting him from any risk of personal liability, but only if he retained a sum sufficient when invested at compound interest to fund future liabilities. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Damages, Insolvency

Updated: 19 May 2022; Ref: scu.82112

Island Records Ltd v Tring International Plc and Another: ChD 12 Apr 1995

A copyright plaintiff may delay the choice of his remedy between damages and account of profits until information was available from the defendant which would allow him to gauge which remedy suited him best. The court may make the orders necessary for such discovery.

Judges:

Lightman J

Citations:

Times 28-Apr-1995, [1995] EWHC 8 (Ch), [1995] FSR 560, [1995] 3 All ER 444

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Personal Representatives of Tang Man Sit v Capacious Investments Ltd PC 18-Dec-1995
The claimant, Capacious Investments Ltd, brought proceedings against Tang’s estate for damages for the loss of use and occupation, and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with . .
Cited – Ramzan v Brookwide Ltd CA 19-Aug-2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Updated: 19 May 2022; Ref: scu.82432