Category: Damages

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 should be shared equally between them. The agreement prepared by the defendant did not have this effect. P claimed that by reason of the defendant’s negligence she would have to pay 2/3 of the CGT on a sale of the farm, instead of 50%.
Held: The loss arose when the agreement was executed, not on the sale of the farm or assessment of CGT: ‘If shortly after executing the agreement the plaintiff had issued a writ against the defendants, however difficult or even speculative the process might have been, the court would have awarded damages.’ Had P brought an action shortly after the agreement had been executed, the court would have awarded damages (however difficult or speculative the assessment of damages on that date might have been).

Judges:

Nourse J

Citations:

[1981] 125 SJ 86

Citing:

Applied – 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 by:

Cited – Daniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Cited – 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 . .
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, Professional Negligence

Updated: 09 May 2022; Ref: scu.196068

Stoke City Council v W and J Wass: 1998

The court decsribed the ‘user principle’ for awarding damages for inteference with land: ‘It is an established principle concerning the assessment of damages that a person who has wrongfully used another’s property without causing the latter any pecuniary loss may still be liable to that other for more than nominal damages. In general, he is liable to pay, as damages, a reasonable sum for the wrongful use he has made of the other’s property. The law has reached this conclusion by giving to the concept of loss or damage in such a case a wider meaning than merely financial loss calculated by comparing the property owner’s financial position after the wrongdoing with what it would have been had the wrongdoing never occurred. Furthermore, in such a case it is no answer for the wrongdoer to show that the property owner would probably not have used the property himself had the wrongdoer not done so. ‘

Judges:

Nicholls LJ

Citations:

[1988] 1 WLR 1406

Citing:

Applied – The Owners of the Steamship Mediana v The Owners, Master and Crew of the Lightship Comet HL 1900
A lightship was damaged by negligence. The plaintiff harbour board kept a ship ready for emergencies, and consequently the damaged ship was replaced with the spare while she was being repaired. The question was whether the claimant could recover . .

Cited by:

Cited – Severn Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 09 May 2022; Ref: scu.196920

Seager v Copydex (No. 2): CA 1969

Judges:

Lord Denning MR

Citations:

[1969] 1 WLR 809

Jurisdiction:

England and Wales

Citing:

See Also – Seager v Copydex Ltd CA 1967
Mr Seager had invented a patented carpet grip which he manufactured and marketed under the trade mark Klent. There were protracted negotiations between Mr Seager and Copydex over a proposal for Copydex to market the Klent. One of the issues in the . .

Cited by:

Cited – Thames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited ChD 16-Dec-2003
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 09 May 2022; Ref: scu.195997

Robert Court and Son Ltd v Charman: EAT 1981

The EAT considered the effect of the statutory period of notice: ‘As a result, in our view Mr Charman has no right to complain to the Industrial Tribunal of unfair dismissal. Even if, as one must, one treats the effective date of termination as being 3 October (the combined effect of s 49 and s 55 [of the Employment Protection (Consolidation) Act 1978] requiring one to add the seven days after 26th September) he had not the necessary 52 weeks’ employment. However, he may have another remedy. The dismissal without notice seems to us to be a clear breach of contract. The measure for such breach may not be limited to one month’s loss of wages but may also include the loss of the right to compensation for unfair dismissal which he would have had if the correct notice had been given. Mr Charman therefore may not be left without remedy by our decision.’

Judges:

Browne-Wilkinson

Citations:

[1981] IRLR 437

Cited by:

Cited – Stapp v The Shaftesbury Society CA 1982
The employer had told the claimant: ‘I must ask you to relinquish your duties with effect from today 7 February 1981’ and thereby summarily dismissed him.
Held: The employer was clearly summarily dismissing with immediate effect in a wholly . .
Cited – Sally Harper v Virgin Net Limited CA 10-Mar-2004
The employee had been dismissed. Her contractual notice period was longer than the statutory period.
Held: The statutory notice period prevailed in calculating the date of dismissal. The contractual period could not be used to extend the total . .
Cited – Raspin v United Shops Ltd EAT 24-Mar-1999
A breach of contract by an employer failing to follow disciplinary procedure which leaves an employee unable to pursue claim for unfair dismissal, was remediable as a breach of contract by wrongful dismissal and damages accordingly. What must be . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 09 May 2022; Ref: scu.194625

Fea v Roberts: 2006

Expenditure on matters such as home improvements ‘could not be regarded as a dissipation or true ‘change of position”.

Judges:

Hazel Williamson QC

Citations:

[2006] WTLR 255

Jurisdiction:

England and Wales

Cited by:

Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Damages

Updated: 09 May 2022; Ref: scu.593142

Carr-Saunders v Dick McNeill Associates: 1986

The claim was for interference with the plaintiff’s right to light.
Held: There is a need to approach infringements of easements of light with flexibility. The plaintiff’s subjective views as to the loss of light were not to the point. When deciding upon an appropriate award in relation to the notional ‘reasonable sum’ or ‘fair figure’ for the defendant to pay, regard was to be had to the bargaining position of the parties in order to arrive at a price which would have been likely to have been negotiated as the reasonable price of a licence for the action taken by the defendant which constituted the invasion of the claimant’s rights. As between claims in contract or in tort, there is no reason for any difference of approach when awarding damages in respect of wrongful interference by a defendant with the use and enjoyment of the claimant’s land. The court having been shown daylight contour plans by both parties’ expert witnesses: ‘the conventional fifty-fifty rule by which a room may be regarded as adequately lit for all ordinary purposes if 50% or more of its area receives not less than one lumen of light at table level.’ When dismissing an argument that recently erected internal walls should be disregarded when determining whether there had been an actionable infringement: ‘I reject this approach. It applies the fifty-fifty rule rigidly as if it were a rule of law, and not (as it is) as merely a useful guide to be adopted or discarded according to the circumstances. The fifty-fifty rule is not, in my judgment, to be applied without any regard to the shape and size of the room or the disposition of the light within the room to which it is applied.’

Judges:

Millett J

Citations:

[1986] 2 All ER 888, [1986] 1 WLR 922

Citing:

Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .

Cited by:

Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Cited – Severn Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – Regan v Paul Properties DPF No 1 Ltd and others ChD 27-Jul-2006
The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .
Cited – Tamares (Vincent Square) Ltd. v Fairpoint Properties (Vincent Square) Ltd ChD 8-Feb-2007
The defendant had been found liable for infringing the claimant’s right of light. The court considered the proper measure of damages.
Held: The court should ask what might be the fair result of a hypothetical negiation for the sale of the . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 09 May 2022; Ref: scu.186373

Cooke, Sheppard, Page v United Bristol Health Care, Stibbe and Another, Lee: CA 16 Oct 2003

The claimant appealed against his damages award, saying that it should have allowed for the anticipated rises in the cost of providing his care in the future.
Held: Rises in future costs were already factored into the tables used for settlements. Attempts to show that rises would be more substantial trended to undermine that system, and should be resisted by the courts. Attempts to separate out such costs were nothing but ‘smoke and mirrors’. At a political level, the discount rate might be reset, but at a judicial level it could not be.

Judges:

Lord Justice Laws Lord Justice Dyson Lord Justice Carnwath

Citations:

[2003] EWCA Civ 1370, Times 24-Oct-2003, Gazette 13-Nov-2003

Statutes:

Damages Act 1996 1(1), Damages (Personal Injury) Order 2001 (2001 No 201)

Jurisdiction:

England and Wales

Citing:

Cited – Wells v Wells; Thomas v Brighton Health Authority; etc HL 16-Jul-1998
In each of three cases, the plaintiffs had suffered serious injury. They complained that the court had made a substantial reduction of their damages award for loss of future earnings and the costs of future care.
Held: The appeals succeeded. . .
Cited – Cookson v Knowles HL 24-May-1978
The House described the approach to the calculation of damages for a dependency under the Fatal Accidents Acts.
Held: The multipliers in Fatal Accidents Act cases should be calculated from the date of death.
Sections 3 and 4 mark a . .
Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Updated: 09 May 2022; Ref: scu.187001

W Lamb Limited (Trading As The Premier Pump and Tank Company) v J Jarvis and Sons Plc: TCC 31 Jul 1998

Contractors built a petrol station, and sub-contractors the underground piping. Leaks developed, and it was agreed to complete repairs, and apportion financial repairs through the court proceedings. In a case where a judge found it difficult to apportion blame, he could return to rely upon the question of onus. The parties had not alleged contributory negligence, and no apportionment could be made under the Act. There had been no sufficient agreement as to apportionment to prevent the judge reading it as necessary to give it business sense. Where there was multiple causation of damage, it was appropriate to distribute responsibility accordingly.
Court Service The Plaintiff, as sub-contractor to the Defendant, installed the pipework for a petrol filling station. The Defendant was responsible for the concrete supporting and surrounding the pipework. The pipework developed leaks and had to be replaced. The parties had agreed that the replacement works be carried out, reserving their positions as to the expense, for which each sought to make the other liable. The current trial was of liability only. In substance the only issue was whether the pipes failed because of faulty workmanship by the Plaintiff or because of the acts or omissions of the Defendant.
Held: (i) the failure was caused equally by the defaults of the Plaintiff and the Defendant; (ii) there was no rule of law which prevented effect from being given to that finding; (iii) the Defendant should pay one third of the Plaintiff’s costs of the trial.

Judges:

Judge Hicks QC

Citations:

[1998] EWHC Technology 304

Links:

Bailii

Statutes:

Civil Liability (Contributions) Act 1978

Jurisdiction:

England and Wales

Citing:

Cited – Morris v London Iron and Steel Co Ltd CA 1987
In exceptional cases, a judge conscientiously seeking to decide the issues between the parties might have to conclude ‘I just do not know’. . .
Cited – Tennant Radiant Heat Ltd v Warrington Development Corporation 1988
A property comprised a large building let on fully repairing leases of 22 units. The many rain outlets were allowed to become blocked, and water accumulated above one unit before that part of the roof collapsed. The landlord appealed a finding that . .
Lists of cited by and citing cases may be incomplete.

Construction, Evidence, Damages

Updated: 09 May 2022; Ref: scu.135885

Edwards v Hugh James Ford Simey Solicitors: SC 20 Nov 2019

The claimant sought damages saying that the defendant solicitors had failed to secure the incremental award of compensation under the vibration white finger scheme. The central issue was whether evidence which only became available later, but which would have undermined the claim for the incremental award should be allowed for.
Held: It could not be. The judge at first instance had been mistaken in taking account of the effect of the later medical examination and its report. The scheme was intended to be simple, and the report would not have been obtained under it. The case was remitted to assess damages on the basis of the standard scheme operation.

Judges:

Baroness Hale of Richmond PSC, Lord Reed DPSC, Lord Lloyd-Jones, Lord Sales JJSC, Lord Thomas of Cwmgiedd

Citations:

[2019] UKSC 54, [2019] WLR(D) 643, [2020] 1 All ER 749, [2019] 1 WLR 6549, [2020] PNLR 8, 172 BMLR 1, UKSC 2018/0132, SC 2019 Jul 25 am Video

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2019 Jul 25 pm Video

Jurisdiction:

England and Wales

Citing:

Cited – Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co HL 1903
A coalmine owner claimed statutory compensation against a water undertaking which had, under its statutory authority, prevented him mining his coal over a period during which the price of coal had risen. The House was asked whether the coal should . .
Cited – Perry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .
Appeal from – Edwards v Hugh James Ford Simey (A Firm) CA 6-Jun-2018
. .
Cited – Perry v Raleys Solicitors CA 28-Apr-2017
Appeal against dismissal of claim against the claimant’s former solicitors. Negligence was found, but no loss was proved in his personal injury claim. He had claimed a settlement at an undervalue of his claim of Vibration White Finger. The judge at . .
Cited – Armstrong and others v British Coal Corporation (2) CA 31-Jul-1998
The corporation appealed against a decision that it was liable to the plaintiffs (representatives of 25,000 other plaintiffs) for damages for Vibratory White Finger. . .
Cited – Hibbert Pownall and Newton (A Firm) v Whitehead and Another CA 4-Apr-2008
The defendant solicitors had been engaged to pursue a claim for damages for injury arising on the birth of the claimant. They had been instructed by the mother, but she then died, and the claim was compromised. The solicitors now appealed against a . .
Cited – Mount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Cited – Charles v Hugh James Jones and Jenkins (A Firm) CA 22-Dec-1999
Where a personal injury claimant’s claim had been lost because of the solicitor’s negligence, the notional time for assessment of damages was the time at which a trial might properly have been expected to have been held. This did not however . .
Cited – Somatra Ltd v Sinclair Roche and Temperley CA 28-Mar-2003
. .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Dudarec v Andrews and others CA 22-Mar-2006
In a claim for negligence against his former solicitors, the claimant sought damages for the loss of a chance of success in a personal injuries action struck out for want of prosecution seven years earlier.
Held: If the evidence were the same . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 09 May 2022; Ref: scu.644385

Mount v Barker Austin (a Firm): CA 18 Feb 1998

The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He appealed.
Held: The plaintiff had not established that he had any real chance of succeeding in the first action, and the appeal was dismissed. ‘The legal burden lies on the plaintiff to prove that in losing the opportunity to pursue his claim (or defence to counter-claim) he has lost something of value’ but, Simon Brown LJ said, ‘The evidential burden lies on the defendants to show that despite their having acted for the plaintiff in the litigation and charged for their services, that litigation was of no value to their client, so that he lost nothing by their negligence in causing it to be struck out. Plainly the burden is heavier in a case where the solicitors have failed to advise their client of the hopelessness of his position and heavier still where, as here, two firms of solicitors successively have failed to do to. If, of course, the solicitors have advised their client with regard to the merits of his claim (or defence) such advice is likely to be highly relevant.’
Moore-Bick J said: ‘When a person sues his former solicitors for negligence for the conduct of proceedings which led to his action being struck out, his loss is normally measured by reference to his prospects of success in the primary litigation – see Kitchen v. RAF Association [1958] 1 WLR 563. However in order to recover for the loss of this kind the court must be satisfied that the plaintiff had at least a real or substantial chance that he would have succeeded in the primary action, not merely a speculative one . . If his prospects fall short of that, the court will ascribe no value to them, but provided the court can see that there were real prospects of success it will evaluate them notwithstanding the difficulties that may involve.’

Judges:

Lord Justice Simon Brown Lord Justice Ward Mr Justice Moore-Bick

Citations:

[1998] EWCA Civ 277, (1998) PNLR 493

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Allen v Sir Alfred McAlpine and Sons Ltd CA 1968
The court described the peculiarly difficult position of a solicitor sued for the negligence of losing litigation for his client by reason of having his client’s claim struck out: ‘It is true that if the action for professional negligence were . .
Cited – W J Alan and Co Ltd v El Nasr Export and Import Co CA 3-Feb-1972
The parties disputed the effect of devaluation on a contract of sale and, in particular, on a letter of credit which was given for the price.
Held: Lord Denning MR said that: ‘The principle of waiver is simply this: If one party, by his . .
Cited – China and South Sea Bank Limited v Tan Soon Gin PC 1990
A mortgagee’s decision on sale is not constrained by reason of the fact that the exercise or non-exercise of the power will occasion loss or damage to the mortgagor. He can sit back and do nothing. He is not obliged to take steps to realise his . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .

Cited by:

Cited – Sharif and Others v Garrett and Co CA 31-Jul-2001
The applicants sought damages from the defendant solicitors who had failed to prosecute properly a claim for damages. Their building was damaged by fire, but they had not been insured. The action was against the brokers. The court had awarded them . .
Cited – Brinn and Another v Russell Jones and Walker (A Firm) QBD 12-Dec-2002
Police officers had instructed their solicitor to sue in defamation. By their negligence the chance of a claim was lost. They instructed a second firm of solicitors to claim against the first, but this firm also were negligent. The damages fell to . .
Cited – Harrison and Another v Bloom Camillin ChD 28-Oct-1999
When assessing the losses suffered by a plaintiff alleging that, through the professional negligence of his solicitors, he had lost the opportunity to pursue a similar action against his accountants, it was right to acknowledge, and allow for the . .
Cited – Dixon v Clement Jones Solicitors (A Firm) CA 8-Jul-2004
The defendant firm had negligently allowed a claim for damages against a firm of accountants to become statute barred. The defendants said the claim was of no or little value, since the claimant would have proceeded anyway.
Held: The court had . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Cited – Asiansky Television Plc and Another v Khanzada and Others QBD 4-Nov-2011
. .
Cited – Raleys Solicitors v Barnaby CA 21-May-2014
The claimant had been represented by the appellant in an action for personal injury. He said that the claim had been negligently settled for less than the proper damages award. The solicitors now appealed against an award of damages saying that any . .
Cited – Perry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .
Cited – Edwards v Hugh James Ford Simey Solicitors SC 20-Nov-2019
The claimant sought damages saying that the defendant solicitors had failed to secure the incremental award of compensation under the vibration white finger scheme. The central issue was whether evidence which only became available later, but which . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 09 May 2022; Ref: scu.143755

Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’): HL 28 Mar 2007

The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq war broke out, under which the charterer could have terminated the charter as of right. The defendant asked that the damages be reduced even though this event occurred after the repudiation.
Held: Awards of damages for breach of contract are compensatory. The damages were to be assessed to make allowance for events after the repudiation which reduced them.
Lord Bingham (dissenting) said that the later events should not be taken account of: ‘contracts are made to be performed, not broken. It may prove disadvantageous to break a contract instead of performing it. [I]f, on their repudiation being accepted, the charterers had promptly honoured their secondary obligation to pay damages, the transaction would have been settled well before the Second Gulf War became a reality.’ and ‘the owners were, as the arbitrator held, entitled to be compensated for the value of what they had lost on the date it was lost, and it could not be doubted that what the owners lost at that date was a charterparty with slightly less than four years to run.’ Lord Walker agreed.
Lord Scott of Foscote dismissed the owners appeal and said: ‘The assessment at the date of breach rule is particularly apt to cater for cases where a contract for the sale of goods in respect of which there is a market has been repudiated. The loss caused by the breach to the seller or the buyer, as the case may be, can be measured by the difference between the contract price and the market price at the time of the breach. The seller can re-sell his goods in the market. The buyer can buy substitute goods in the market. Thereby the loss caused by the breach can be fixed.’ but ‘where the contract for sale of goods is not simply a contract for a one-off sale, but is a contract for the supply of goods over some specified period, the application of the general rule may not be in the least apt.’ ‘Certainty is a desideratum and a very important one, particularly in commercial contracts. But it is not a principle and must give way to principle. Otherwise incoherence of principle is the likely result. The achievement of certainty in relation to commercial contracts depends, I would suggest, on firm and settled principles of the law of contract rather than on the tailoring of principle in order to frustrate tactics of delay to which many litigants in many areas of litigation are wont to resort.’
Lord Carswell said that ‘considerations of certainty and finality have in this case to yield to the greater importance of achieving an accurate assessment of the damages based on the loss actually incurred.’
Lod Brown of Eaton-Under-Heywood said: ‘the breach date rule does not require contingencies-such as the likely effect of a suspensive condition-to be judged prior to the date when damages finally come to be assessed.’ and ‘the owners’ argument here seeks to extend the effect of the available market rule well beyond its proper scope and to do so, moreover, at the plain expense of Lord Blackburn’s fundamental principle: to restore the injured party to the same position he would have been in but for the breach, not substantially to improve upon it. It is one thing to say that the injured party, mitigating his loss as the breach date rule requires him to do, thereby takes any future market movement out of the equation and to that extent crystallises the measure of his loss; it is quite another to say, as the owners do here, that it requires the arbitrator or court when finally determining the damages to ignore subsequent events (save where the defendants can demonstrate that at the date of breach some suspensive condition would inevitably-and immediately-have operated to cancel the contract). There is no warrant for giving the rule so extended an application. ‘

Judges:

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2007] UKHL 12, Times 30-Mar-2007, [2007] 2 Lloyds Rep 164, [2007] Bus LR 997, [2007] 3 All ER 1, [2007] 2 AC 353, [2007] 1 CLC 352, [2007] 2 WLR 691, [2007] 2 All ER (Comm) 97

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Golden Strait Corporation v Nippon Yusen Kubishika Kaisha; ‘the Golden Victory’ CA 18-Oct-2005
Measurement of damages for repudiatory breach.
The parties had entered into a charter which was intended to last seven years. The charterers broke the charterparty. A war later occurred which would have cut the contract short in any event.
Cited – B S and N Limited (BVI) v Micado Shipping Limited (Malta) (‘The Seaflower’) 19-Apr-2000
A time charterparty was dated 20 October 1997 for a period of 11 months, maximum 12 months at charterers’ option. It referred to various major oil company approvals, including that of Mobil, all on the point of expiring, and provided that if, during . .
Cited – Jamal v Moolla Dawood, Sons and Co PC 3-Nov-1915
The plaintiff claimed damages from the buyer for his failure to accept shares contracted to be taken on a particular date. Two months after that date the sellers began to re-sell the shares on a rising market.
Held: Damages for breach of . .
Cited – Miliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
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 – Dodd Properties (Kent) Ltd v Canterbury City Council CA 21-Dec-1979
The defendants had, in the course of building operations, caused nuisance and damage to the plaintiff’s building. The dispute was very lengthy, the costs of repair increased accordingly, and the parties now disputed the date at which damages fell to . .
Cited – Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co HL 1903
A coalmine owner claimed statutory compensation against a water undertaking which had, under its statutory authority, prevented him mining his coal over a period during which the price of coal had risen. The House was asked whether the coal should . .
Cited – In re Bradberry; National Provincial Bank Ltd v Bradberry ChD 1942
The parties disputed the date of valuation of an annuity during the course of the administration of an estate.
Held: The principle in Bwlfa was applied: ‘where facts are available they are to be preferred to prophecies’, and ‘Why should the . .
Cited – County Personnel (Employment Agency) Ltd v Alan R Pulver and Co (a Firm) CA 1987
The claimant sought damages after his negligent solicitors had saddled him with a ruinous underlease. They had had to buy themselves out of the lease. The court considered the date at which damages were to be calculated.
Held: The starting . .
Cited – Carslogie Steamship Co Ltd v Royal Norwegian Government HL 1952
The plaintiff’s vessel had been damaged in a collision, and underwent temporary repairs at Port Glasgow. It was certified as authorised ‘to be confirmed in her present class without fresh record of survey, subject to certain permanent repairs at the . .
Cited – Re Thoars (Dec’d); Reid v Ramlort Ltd ChD 15-Nov-2002
The deceased had a valuable life insurance policy. Before an operation he wrote it in trust with no consideration. He died in the operation. He was insolvent. The issue was as to when the policy was to be valued.
Held: The property was to be . .
Cited – Curwen v James CA 1963
An appeal court had a discretion to hear relevant evidence of events after the date of judgment, in this case a change in circumstances of the victim’s widow, when considering a claim for damages for personal injury, where that evidence would . .
Cited – Murphy v Stone-Wallwork (Charlton) Ltd HL 1969
It had been assumed at the trial and in the Court of Appeal that the defendants would continue to employ the plaintiff and the assessment of future loss had been based upon that assumption. Shortly after the decision of the case by the Court of . .
Cited – Chapman v Hearse, Baker v Willoughby HL 26-Nov-1969
The plaintiff, a pedestrian had been struck by the defendant’s car while crossing the road. The plaintiff had negligently failed to see the defendant’s car approaching. The defendant had a clear view of the plaintiff prior to the collision, but was . .
Cited – Jobling v Associated Dairies HL 1980
The claimant suffered an accident at work which left him with continuing disabling back pain. Before the trial of his claim he was diagnosed as suffering from a disease, in no way connected with the accident, which would in any event have wholly . .
Cited – Aitchison v Gordon Durham and Company Limited CA 30-Jun-1995
A joint venture agreement to develop land had been broken. The parties disputed the date at which damages were to be assessed.
Held: The court took account of what actually happened later to decide what the claimant’s profit would have been. . .
Cited – Dudarec v Andrews and others CA 22-Mar-2006
In a claim for negligence against his former solicitors, the claimant sought damages for the loss of a chance of success in a personal injuries action struck out for want of prosecution seven years earlier.
Held: If the evidence were the same . .
Cited – McKinnon and another v E Survey Ltd (formerly known as GA Valuation and Survey Ltd) ChD 14-Jan-2003
The claimants purchased a house relying upon a survey by the defendants. Although the defendants reported long standing movement of the property, the defendants failed to report that to be saleable, a long investigation would be required, reducing . .
Cited – Radford v De Froberville 2-Jan-1977
A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a . .
Cited – Jobling v Associated Dairies HL 1980
The claimant suffered an accident at work which left him with continuing disabling back pain. Before the trial of his claim he was diagnosed as suffering from a disease, in no way connected with the accident, which would in any event have wholly . .
Cited – Platt Site Services Ltd, Barkin Construction Ltd v Re-Source America International Ltd CA 8-Feb-2005
The plaintiff was the bailee of spools which were used to carry optic fibre cables which it was to refurbish. The spools were destroyed by fire.
Held: The company was entitled to recover the cost of replacing the spools, subject to a deduction . .
Cited – Wertheim v The Chicoutimi Pulp Company PC 18-Mar-1910
(Quebec) The buyer sought damages for late delivery of goods calculated on the difference between the market price at the place of delivery when the goods should have been delivered and the market price there when the goods were in fact delivered. . .
Cited – Maredelanto Compania Naviera SA v BergbauHandel GmbH (The Mihalis Angelos) CA 1-Jul-1970
The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .
Cited – Woodstock Shipping Co v Kyma Compania Naviera SA (‘The Wave’) 1981
There was a time charter for 24 months, 3 months more or less at charterers’ option. The owners repudiated the charter and the charterers accepted their repudiation on 2 August 1979.
Held: Assessing the charterers’ loss, and allowing for their . .
Cited – SIB International SRL v Metallgesellschaft Corporation (‘The Noel Bay’) CA 1989
The Noel Bay was let on a charterparty to carry oil between ports in Europe, with demurrage provisions. The owners treated the charterer’s failure to nominate a port, as a repudiation. The owners found alternative employment for the ship and sought . .
Cited – Kaines (UK) Ltd v Osterreichische Warrenhandelsgesellschaft Austrowaren Gesellschaft mbH CA 1993
In June 1987 the defendants repudiated a contract to sell the claimant’s crude oil for lifting in September 1987 and for payment in October 1987. The claimants thereupon contracted to buy the oil at a higher price, again for lifting in September . .
Cited – North Sea Energy Holdings Nv (Formerly Midland and Scottish Holdings Nv) v Petroleum Authority of Thailand CA 16-Dec-1998
The buyers repudiated an oil purchase agreement and the sellers accepted their repudiation. The sellers could not show that they would have been able to obtain the oil to sell.
Held: They were not entitled to substantial damages. . .
Cited – B S and N Limited (BVI) v Micado Shipping Limited (Malta) (‘The Seaflower’) 19-Apr-2000
A time charterparty was dated 20 October 1997 for a period of 11 months, maximum 12 months at charterers’ option. It referred to various major oil company approvals, including that of Mobil, all on the point of expiring, and provided that if, during . .
Cited – Dampskibsselskabet ‘Norden’ A/S v Andre and Cie S A ComC 30-Jan-2003
A forward freight swap agreement was treated as terminated because of the defendants’ breach of solvency guarantees. The parties agreed that the injured party’s loss was to be measured by the difference between the contract rate and the market rate . .
Cited – Vallejo v Wheeler 1774
Lord Mansfield said: ‘In all mercantile transactions the great object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other. Because speculators in . .
Cited – Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) CA 1983
Charterers of a ship sought relief from forfeiture of the charterparty on equitable grounds.
Held: No jurisdiction existed to grant such a relief. In a commercial agreement between commercial parties, the court had no jurisdiction to relieve a . .
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Cited – Miliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – Lavarack v Woods of Colchester Ltd CA 1967
Damages for wrongful dismissal could not confer on an employee extra benefits that the contract did not oblige the employer to confer. There is a clear distinction between expectations, however reasonable, and contractual obligations.
Diplock . .
Cited – Koch Marine Inc v D’Amica Societa Di Navigazione ARL (The Elena d’Amico) QBD 1980
The ship owners wrongfully repudiated a charterparty in March 1973, 14 months after its inception. The charterers did not hire a substitute but claimed damages for the loss of profits they would have made between January and April 1974, during which . .
At First Instance – 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 . .

Cited by:

Cited – Richmond Adult Community College v McDougall CA 17-Jan-2008
The claimant had been offered and had accepted a job subject to satisfactory health clearance. When that was not received her offer was withdrawn. She had suffered a condition which would affect her daily activities, but had recovered from that . .
Cited – Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC 4-Aug-2010
Lost Expenses as Damages for Contract Breach
The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
Cited – McDougall v Richmond Adult Community College EAT 13-Jul-2007
EAT Disability discrimination – Disability
Compulsory admission of a patient under the Mental Health Act is not automatically a disability under the DDA 1995. In the circumstances of this case the severity . .
Cited – Force India Formula One Team Ltd v Etihad Airways PJSC and Another QBD 4-Nov-2009
The parties had entered into a sponsorship agreement, with the claimants undertaking to display the name of the defendants on their car. After the agreement, the claimant company had been taken over by parties with interests competing with those of . .
Cited – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel Sau CA 21-Dec-2015
The charter of the ship ‘New Flameno’ was repudiated two years early. The owners sold it, making rather more profit than they would have if sold after the end of the term. The court was now asked how the profit should affect the loss claim on the . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel Sau CA 21-Dec-2015
The charter of the ship ‘New Flameno’ was repudiated two years early. The owners sold it, making rather more profit than they would have if sold after the end of the term. The court was now asked how the profit should affect the loss claim on the . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .
Cited – Edwards v Hugh James Ford Simey Solicitors SC 20-Nov-2019
The claimant sought damages saying that the defendant solicitors had failed to secure the incremental award of compensation under the vibration white finger scheme. The central issue was whether evidence which only became available later, but which . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Leading Case

Updated: 09 May 2022; Ref: scu.251021

Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co: HL 1903

A coalmine owner claimed statutory compensation against a water undertaking which had, under its statutory authority, prevented him mining his coal over a period during which the price of coal had risen. The House was asked whether the coal should be valued as at the beginning of the period or at its value during the currency of the period.
Held: Any decision maker should make the assessment on the best evidence, and that is the most up to date information available at the date of the hearing. The coalowner was entitled to ‘full compensation.’ The House upheld the latter measure, but emphasised that this might not apply to cases involving a sale or property transfer.
Lord Macnaghten said: ‘In order to enable the arbitrator to come to a just and true construction it is his duty I think to avail himself of all information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him why should he shut his eyes and grope in the dark?’

Judges:

Lord Halsbury LC, Lord Macnaghten, Lord Robertson

Citations:

[1903] AC 426

Jurisdiction:

England and Wales

Cited by:

Cited – McKinnon and another v E Survey Ltd (formerly known as GA Valuation and Survey Ltd) ChD 14-Jan-2003
The claimants purchased a house relying upon a survey by the defendants. Although the defendants reported long standing movement of the property, the defendants failed to report that to be saleable, a long investigation would be required, reducing . .
Cited – Mohammed Aslam v South Bedfordshire District Council CA 21-Dec-2000
The claimant appealed an award of the Lands Tribunal of compensation for an order discontinuing his use as a slaughterhouse of premises of which he held a long lease. The tribunal had applied a discount for wastage on sheep carcasses of 25%, but had . .
Cited – In re Bradberry; National Provincial Bank Ltd v Bradberry ChD 1942
The parties disputed the date of valuation of an annuity during the course of the administration of an estate.
Held: The principle in Bwlfa was applied: ‘where facts are available they are to be preferred to prophecies’, and ‘Why should the . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Richmond Adult Community College v McDougall CA 17-Jan-2008
The claimant had been offered and had accepted a job subject to satisfactory health clearance. When that was not received her offer was withdrawn. She had suffered a condition which would affect her daily activities, but had recovered from that . .
Cited – Latchman v Reed Business Information Ltd EAT 7-Dec-2001
EAT The EAT considered the expression ‘likely to last’ in paragraph 2(1)(b) of the Act, and stated: ‘It is always tempting to accord, and is often appropriate, when it is charged with finding out what at some . .
Cited – Secretary of State for Defence v Lance Corporal (Now Corporal) Duncan and Another CA 12-Oct-2009
The servicemen had challenged the awards made to them for injuries suffered in service. The SSD now appealed.
Held: The awards had been increased when it became clear that the SD had failed to take account of some elements of the injuries . .
Cited – McDougall v Richmond Adult Community College EAT 13-Jul-2007
EAT Disability discrimination – Disability
Compulsory admission of a patient under the Mental Health Act is not automatically a disability under the DDA 1995. In the circumstances of this case the severity . .
Cited – Lachaux v Independent Print Ltd (1) CA 12-Sep-2017
Defamation – presumption of damage after 2013 Act
The claimant said that the defendant had published defamatory statements which were part of a campaign of defamation brought by his former wife. The court now considered the requirement for substantiality in the 2013 Act.
Held: The defendant’s . .
Cited – Edwards v Hugh James Ford Simey Solicitors SC 20-Nov-2019
The claimant sought damages saying that the defendant solicitors had failed to secure the incremental award of compensation under the vibration white finger scheme. The central issue was whether evidence which only became available later, but which . .
Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice

Leading Case

Updated: 09 May 2022; Ref: scu.181246

Dudarec v Andrews and others: CA 22 Mar 2006

In a claim for negligence against his former solicitors, the claimant sought damages for the loss of a chance of success in a personal injuries action struck out for want of prosecution seven years earlier.
Held: If the evidence were the same in the negligence action as it would have been at the trial there would be no reason to apply a discount.

Judges:

Smith LJ

Citations:

[2006] EWCA Civ 256, [2006] 1 WLR 3002, [2006] 2 All ER 856

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – McDonnell and Another v Walker CA 24-Nov-2009
The defendant appealed against the disapplication of section 11 of the 1980 Act under section 33.
Held: The appeal succeeded. The defendant had not contributed significantly to the delay: ‘the defendant received claims quite different in . .
Cited – Edwards v Hugh James Ford Simey Solicitors SC 20-Nov-2019
The claimant sought damages saying that the defendant solicitors had failed to secure the incremental award of compensation under the vibration white finger scheme. The central issue was whether evidence which only became available later, but which . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 09 May 2022; Ref: scu.239215

Engell v Fitch: ChD 1869

The lease of land was sold at auction. The conditions of sale provided for possessionto be given on completion. The vendors, mortgagees with the right of sale, were unwilling to incur the expense of recovering possession.
Held: The vendor was under a duty to do everything possible to make good title. The ordinary rule which would limit the damages on the purchase of real property did not apply. The purchaser could recover, the deposit expenses of investigating title, the loss of profit on a resale and cost of conveyance to a sub-vendee. The measure was the difference between the price in the contract and the value of land at the time of the breach.

Citations:

(1869) LR 4 QB 659, 10 BandS 738, 38 LJQB 304, 17 WR 894 ex Ch

Jurisdiction:

England and Wales

Cited by:

Cited – Re Daniel, Daniel v Vassall 1917
The vendor of land who, whether through innocent or wiful default, or with or without bad faith, fails to do everything possible to make good title, makes himself liable in damages for the general losses of the purchaser, including any loss of . .
Lists of cited by and citing cases may be incomplete.

Land, Damages, Contract

Updated: 08 May 2022; Ref: scu.183264

Sciuriaga v Powell: 1979

The plaintiff made a claim for the breach of a contract to terminate pregnancy by abortion.
Held: The sole reason for the continuation of the pregnancy was the doctor’s breach of contract. Damages were awarded for pain and suffering and for actual and prospective loss of earnings and for diminution of marriage prospects but not for the maintenance of the child, which were not requested.

Judges:

Watkins J

Citations:

(1979) 123 Solicitors Journal 406

Cited by:

Cited – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 08 May 2022; Ref: scu.182865

Hevican v Ruane: QBD 1991

The plaintiff’s son died in a car crash, and she claimed damages for nervous shock.
Held: Given the relationship, the psychological illness was reasonably foreseeable, and recoverable.

Judges:

Mantell J

Citations:

[1991] 3 All ER 65, [1991] 141 New LJ 235

Citing:

Distinguished – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .

Cited by:

Doubted – Alcock and Others v Chief Constable of South Yorkshire Police CA 31-May-1991
The defendant policed a football match at which many people died. The plaintiffs, being relatives and friends of the deceased, inter alia suffered nervous shock having seen the events either from within the ground, or from outside or at home on . .
Doubted – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Updated: 08 May 2022; Ref: scu.179874

Zaiwalla and Co (a Firm) v Walia: EAT 24 Jul 2002

The claimant sought aggravated damages for the aggressive way the respondent firm had defended her action for sex discrimination.
Held: In exceptional circumstances, and this was one, the tribunal could award additional damages where a respondent behaved in his defence in an over-enthusiastic way: ‘If a respondent misconducts himself in the defence of a discrimination case, it may amount to victimisation of the applicant in respect of the protected act of bringing the claim. It is easy to imagine cases in which the misconduct amounting to victimisation might only arise at a late stage of the proceedings, perhaps only during the hearing. It seems to us that it would be regrettable if such victimisation could only be compensated by the commencement of further proceedings.’ Generally a party should be warned in advance that this might be considered, and such awards should remain the exception.
The defendant said that the tribunal had not demonstrated its independence, but had restricted his cross examination of the claimant and had made many interruptions. The EAT found the allegation of bias unfounded.
Though there had been a delay of three months before promulgation of the decision, there was no reason to think that it was undermined. The defendant had not met the test for alleging perversity as set down in Yeboah.
‘overenthusiastic litigants and litigants in Employment Tribunals may be tempted to read our conclusions in a way which would give the green light to claims for aggravated damages in respect of alleged misconduct in the defence of proceedings almost as a matter of routine. They would be wrong to do so. ‘

Judges:

Mr Justice Maurice Kay, Dr D. Grieves and Mr P. R. A. Jacques

Citations:

Times 01-Aug-2002, EAT/827/00, EAT/451/00, [2002] IRLR 697

Links:

EATn

Statutes:

Sex Discrimination Act 1975 65

Citing:

See Also – Zaiwalla and Co and Another v Walia EAT 16-Nov-2000
. .
See Also – Zaiwalla and Co and Another v Walia EAT 18-Sep-2001
. .
Cited – Hauschildt v Denmark ECHR 24-May-1989
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; . .
Cited – Nash v Chelsea College of Art and Design QBD 11-Jul-2001
A student’s appeal against her examination marking was heard, but the reasons were only given some months later.
Held: When looking to see whether those reasons should be admitted, a court should be careful before accepting late reasons, . .
Applied – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
Cited – Armitage Marsden and HM Prison Service v Johnson EAT 1997
The tribunal set out the relevant principles for assessing awards for injury to feelings for unlawful discrimination. The principles are: ‘(1) Awards for injury to feelings are compensatory. They should be just to both parties. They should . .
Cited – The Chief Constable of West Yorkshire Police v Vento EAT 4-Dec-2001
EAT Sex Discrimination – Direct . .

Cited by:

Cited – Ministry of Defence v Fletcher EAT 9-Oct-2009
mod_fletcherEAT2009
EAT SEX DISCRIMINATION
Injury to feelings
SEXUAL ORIENTATION DISCRIMINATION
Where there is overlap between the basis of aggravated damages and compensation for injury to feelings, double counting . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages, Discrimination

Updated: 08 May 2022; Ref: scu.174744

Inntrepreneur Pub Company (CPC) and Another v Sweeney: ChD 27 May 2002

The landlord sought an injunction against the defendant. The defendant countered, relying upon sec 2(1).
Held: The remedy provided by the section was limited to the award of damages. It could not, therefore, be used to defend an action for an injunction. Whilst he might be entitled in equity to repudiate the lease, he could not repudiate only part of the lease. The landlord might e criticised for its earlier conduct of the case, but rule 44 was concerned with the behaviour of the parties in conducting the litigation itself, and the rule could not be used to overturn the costs consequences because of misbehaviour outside the litigation.

Judges:

Mr Justice Park

Citations:

Times 26-Jun-2002, Gazette 27-Jun-2002

Statutes:

Misrepresentation Act 1967 2(1), Civil Procedure Rules 44.3(4)(a)

Jurisdiction:

England and Wales

Damages, Torts – Other, Equity, Costs

Updated: 08 May 2022; Ref: scu.174083

Regina (Ben-Abdelaziz) v Haringey London Borough Council and Another: CA 19 Jun 2001

The claimant asserted that judicial proceedings, since they were conducted in the name of the Crown, were brought ‘by or at the instigation’ of a public authority, and that acts so challenged were therefore subject to the Act, even though they had taken place before the Act came into effect. The assertion was unsustainable. The Crown’s involvement was nominal only, and in reality the proceedings were instigated by the claimants. The acts complained of were not therefore those of a public authority. The Supreme Court Act also precluded a claim.

Citations:

Times 19-Jun-2001

Statutes:

Human Rights Act 1998 7, 22 (4), Supreme Court Act 1981 31(4)

Jurisdiction:

England and Wales

Judicial Review, Human Rights, Damages

Updated: 08 May 2022; Ref: scu.85950

Regina (Ben-Abdelaziz) v Haringey London Borough Council and Another: CA 21 Jun 2001

The claimant asserted that judicial proceedings, since they were conducted in the name of the Crown, were brought ‘by or at the instigation’ of a public authority, and that acts so challenged were therefore subject to the Act, even though they had taken place before the Act came into effect. The assertion was unsustainable. The Crown’s involvement was nominal only, and in reality the proceedings were instigated by the claimants. The acts complained of were not therefore those of a public authority. The Supreme Court Act also precluded a claim.

Citations:

Gazette 21-Jun-2001

Statutes:

Human Rights Act 1998 7, 22 (4), Supreme Court Act 1981 31(4)

Jurisdiction:

England and Wales

Judicial Review, Human Rights, Damages

Updated: 08 May 2022; Ref: scu.85951

Lewisham and Guys Mental Health NHS Trust v Andrews: EAT 21 Apr 1999

A claim of damages for race discrimination did not survive the claimant’s death, and the estate cannot continue the claim. There is no statutory basis for such a survival, and it had not been intended by Parliament. This differs explicitly from other types of claims under general employment law, but is similar for sex discrimination.

Citations:

Gazette 11-Aug-1999, Times 21-Apr-1999

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Discrimination, Damages, Wills and Probate

Updated: 08 May 2022; Ref: scu.83050

Hulse and Others v Chambers and Another: CA 13 Jul 2001

A claimant in England sought damages for personal injuries for an accident which had occurred in Greece. Although the law which decided liability was the law of Greece, the calculation of damages is a procedural issue, and in an English court was to be assessed according to English rules. The assessment of damages remained in principle a jury question, even though for many years the judge had undertaken the task.

Citations:

Times 13-Jul-2001

Statutes:

Private International Law (Miscellaneous Provisions) Act 1995 14 (3) (b)

Jurisdiction:

England and Wales

Damages, Personal Injury, International

Updated: 08 May 2022; Ref: scu.81526

Greenfield v Irwin and Others (A Firm): CA 6 Feb 2001

A woman who had had to give up work to care for a child was not able to claim damages from a nurse who had failed to diagnose her pregnancy, with the result that she had lost the opportunity to have an abortion. She had no sustainable claim for loss of earnings when she gave up work to look after the child. There is no longer any justification in a distinction being made between negligent advice cases and cases involving actual physical injury.

Citations:

Times 06-Feb-2001

Jurisdiction:

England and Wales

Health, Professional Negligence, Damages

Updated: 08 May 2022; Ref: scu.81010

Birse Construction Ltd v Haiste Ltd: CA 12 Dec 1995

A contribution order was only proper where the damage caused was the same damage to the same person.

Citations:

Gazette 17-Jan-1996, Times 12-Dec-1995, Ind Summary 18-Dec-1995, [1996] 1 WLR 675

Statutes:

Civil Liability (Contributions) Act 1978 2

Jurisdiction:

England and Wales

Cited by:

Cited – Royal Brompton Hospital National Health Service Trust v Hammond and others HL 25-Apr-2002
The claimants sought damages against the defendants for their late delivery of a building. The contractors sought to share the damages with the architects who had certified the delays, defeating their own claims.
Held: The Act sought to extend . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 08 May 2022; Ref: scu.78420

Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd: 2 Feb 1981

Austlii High Court of Australia – Damages – Calculation – Failure by insurance broker to arrange workers’ compensation insurance – Employer liable to make periodic payments of compensation to injured employee – Payments adjusted by reference to average weekly wage – Assessment of damages – Rate of discount for present payment – Significance of monetary inflation – Workers’ Compensation Act, 1926(N.S.W.),s. 9A.
Workers’ Compensation – Domestic assistance to injured worker – Whether ‘nursing’ – Workers’ Compensation Act, 1914 (N.S.W.),s. 10 (1), (2).

Judges:

Barwick CJ, Gibbs, Stephen, Mason, Murphy, Aickin, Wilson JJ

Citations:

(1981) 145 CLR 625, [1981] HCA 3

Links:

Austlii

Jurisdiction:

Australia

Damages

Updated: 08 May 2022; Ref: scu.566287

G W Atkins Ltd v Scott: CA 1980

A building owner complained of defective tiling installed by the appellant. He claimed the cost of retiling the whole roof. The county court judge found that the tiling was defective, but that the defects were mostly cosmetic and of a minor character. He refused to give the plaintiff the cost of reinstatement, but awarded instead the sum of andpound;250 as damages for bad workmanship. The defects as not being very serious, and accordingly that it would be unreasonable to go to the expense of completely stripping the tiles.
Held: The appeal failed.
Sir David Cairns said that the judge’s finding that it would be unreasonable to award the cost of reinstatement was not open to attack on appeal: ‘[Counsel for the defendant] accepts that in some cases it would be grossly unreasonable, or capricious, or perverse, to suggest reinstatement and that in such a case some other basis of assessment must be found. I confess that I can see no reason in principle, nor any support in the authorities, for the proposition that the test is other than lack of reasonableness simpliciter . .’
Ackner LJ said: ‘I accept that the court must have some regard for the predilections of the building owner, but that is only one of the factors. To take a wholly fanciful example; the half round tiles at the edge of the bath . . were white. They did not match the tiles as they should have done. If, for the purpose of this argument, they could only have been removed and replaced by the removal of all the tiles in the bathroom at a cost of several hundred pounds, would it have been reasonable for the plaintiff to have required this to be done? [Counsel for the defendant] contends that his client is entitled to say, ‘I want what I bargained for. What you have done is unacceptable to me.’ Such an approach seems to me to make his client the sole arbiter of what is ‘reasonable.”
Stephenson LJ agreed with both judgments.

Judges:

Stephenson LJ, Ackner LJ, Sir David Cairns

Citations:

(1980) 7 Const LJ 215

Jurisdiction:

England and Wales

Cited by:

Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.

Construction, Damages

Updated: 08 May 2022; Ref: scu.526103

Pevec v Brown: 1964

A widower claimed on behalf for himself and for his infant son damages for his wife’s death. He said that compensation should be awarded for loss, not of a mother’s love, but for the disadvantage of the care which the child would receive from the nanny whom the father had engaged as compared with that which he would have received from his mother had she survived.
Held: The court rejected the submission. Megaw J referred to the ‘irrecoverability of compensation for the father’s loss of the companionship of his wife’ and, said that there was no distinction in principle in relation to the child, and no damages should be awarded in respect of any element of the child receiving less care than he would have done had his mother survived.

Judges:

Megaw J

Citations:

[1964] 108 SJ 219

Jurisdiction:

England and Wales

Cited by:

Cited – Hay v Hughes CA 17-Oct-1974
A couple had died in a road accident. The court considered the award of damages for dependency. . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 08 May 2022; Ref: scu.519668

Malvon v Flummer: 1964

The court considered the award of damages under the Fatal Accidents Acts, and the award of proportionate damages for the loss of a deceased mother’s service.
Held: Lord Diplock said: ‘The pecuniary loss which the Court has to assess is a loss which will be sustained in the future. This involves making two estimates, videlicet, (1) what benefits in money or money’s worth arising out of the relationship would have accrued to the person for whom the action is brought from the deceased if the deceased had survived but has been lost by reason of his death; and (2) what benefit in money or money’s worth (subject to certain statutory exceptions) the person for whom the action is brought will derive from the death of the deceased which would not have been enjoyed had the deceased lived. The difference between these two estimates is the measure of damages recoverable under the Fatal Accidents Acts, 1846 to 1959’.

Judges:

Lord Diplock

Citations:

[1964] 1 QB 349

Statutes:

Fatal Accidents Act 1959

Jurisdiction:

England and Wales

Cited by:

Cited – Hay v Hughes CA 17-Oct-1974
A couple had died in a road accident. The court considered the award of damages for dependency. . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 08 May 2022; Ref: scu.519667

Owens v Liverpool Corporation: CA 1938

Four family mourners at a funeral appealed against rejection of their claims for damages for distress caused by witnessing a collision between a negligently driven tramcar and the hearse.The incident had involved no apprehension, or sight, or sound of physical injury to a human being.
Held: The appeal succeeded. There is a common law right to a decent burial. Nervous shock is a ‘form of ill-health’ ‘ascertainable by the physician.’
MacKinnon LJ said: ‘one who is guilty of negligence to another must put up with idiosyncracies of his victim that increase the likelihood or extent of damage to him: it is no answer to a claim for a fractured skull that its owner had an unusually fragile one.’ and ‘It may be that the plaintiffs are of that class which is peculiarly susceptible to the luxury of woe at a funeral so as to be disastrously disturbed by any untoward accident to the trappings of mourning.’

Judges:

MacKinnon LJ

Citations:

[1939] 1 KB 394, [1938] 4 All ER 727, 55 TLR 246

Jurisdiction:

England and Wales

Cited by:

Disapproved – Bourhill v Young’s Executor HL 5-Aug-1942
When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 08 May 2022; Ref: scu.464385

Galt v British Railways Board: 1983

The plaintiff train driver had seen two men on the line as he approached, and believing that he had run them over suffered chest pains and myocardial infarction.

Citations:

(1983) 133 NLJ 870

Jurisdiction:

England and Wales

Damages

Updated: 08 May 2022; Ref: scu.464278

Dingle v Hare: 15 Nov 1859

In an action for a breach of warranty on the sale of goods which the buyer has sold again.
Held: The proper measure of damages was the difference between the real market value at the time of the sale and the contract price. Quaere, whether the buyer might not have been entitled to recover a sum fairly and reasonably paid by him as compensation to a third person to whom he had upon the faith of the defendant’s warranty sold a portion of the goods?

Citations:

[1859] EngR 977, (1859) 7 CB NS 145, (1859) 144 ER 770

Links:

Commonlii

Jurisdiction:

England and Wales

Contract, Damages

Updated: 07 May 2022; Ref: scu.288329

My Kinda Town Ltd v Soll: QBD 1982

Although there was no acquiescence on the part of the plaintiffs, such as to have destroyed their rights, the court was not persuaded that, nevertheless, they should be deprived of an injunction.

Judges:

Slade J

Citations:

[1982] FSR 147, (1983) RPC 15

Jurisdiction:

England and Wales

Cited by:

Appeal from – My Kinda Town Ltd v Soll CA 1983
The appeal succeeded. Where there is already a substantial potentiality for confusion of two businesses simply by reason of their being engaged in the same trade, a trader cannot legitimately build on and increase that trade potentiality in such a . .
Mentioned – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Lists of cited by and citing cases may be incomplete.

Damages, Intellectual Property

Updated: 07 May 2022; Ref: scu.276922

Esso Petroleum Co Ltd v Niad Ltd: ChD 2001

Esso had entered into a solus agreement with Naid covering one filling station. Esso introduced a marketing scheme called ‘Pricewatch’ under which it made financial support available to its dealers in return for their selling petrol at recommended retail prices, designed to compete with or undercut Esso’s competitors. Niad agreed to join the scheme, but in fact sold petrol at prices in excess of the recommended prices. Morritt V-C awarded Esso an account of Niad’s profits. His reasons for doing so were that: ‘First, damages is an inadequate remedy. It is almost impossible to attribute lost sales to a breach by one out of several hundred dealers who operated Pricewatch. Second, the obligation to implement and maintain the recommended pump prices was fundamental to Pricewatch. Failure to observe it gives the lie to the advertising campaign by which it was publicised and therefore undermines the effectiveness of Pricewatch in achieving the benefits intended for both Esso and all its dealers within Pricewatch. Third, complaint was made of Niad on four occasions. On all of them Niad appeared to comply without demur. It now appears that the breaches of its obligation were much more extensive than Esso at first thought. Fourth, Esso undoubtedly has a legitimate interest in preventing Niad from profiting from its breach of obligation.’
He continued to make a restitutionary award: ‘It is undoubted that Niad obtained a benefit, in the form of the price support, to which it was only entitled if it complied with its obligation to implement and maintain the recommended pump prices to be supported. In these circumstances it can hardly be denied that Niad was enriched to the extent that it charged pump prices in excess of the recommended prices. The enrichment was unjust because it was obtained in breach of contract. It was obtained at the expense of Esso because Esso was providing price support for a lower price than that charged by Niad. I can see no reason why this remedy should be unavailable to Esso if it wishes to pursue it. Indeed it appears to me to be the most appropriate remedy in that it matches most closely the reality of the case, namely that Niad took an extra benefit to which it was not entitled. It is just that it should be made to restore it to its effective source.’

Judges:

Morritt V-C

Citations:

[2001] EWHC 6 (Ch)

Jurisdiction:

England and Wales

Cited by:

See Also – Esso Petroleum Co Ltd v Niad Ltd ChD 22-Nov-2001
The court ordered an account of profits as a remedy for breach of a contractual scheme called ‘Pricewatch’ operated by the claimant with its dealers, who agreed to report competitors’ prices and to abide by prices set daily by Esso to match the . .
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 07 May 2022; Ref: scu.276909

Satef-Huttenes Albertus SpA v Paloma Tercera Shipping Co SA (The Pegase): 1981

Robert Goff J set out the limits of the kinds of losses for which a reasonable person would consider himself responsible: ‘The test appears to be: have the facts in question come to the defendant’s knowledge in such circumstances that a reasonable person in the shoes of the defendant would, if he had considered the matter at the time of making the contract, have contemplated that, in the event of a breach by him, such facts were to be taken into account when considering his responsibility for loss suffered by the plaintiff as a result of such breach.’

Judges:

Robert Goff J

Citations:

[1981] Lloyd’s Rep 175

Jurisdiction:

England and Wales

Cited by:

Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 07 May 2022; Ref: scu.270783

Compania Financiera v Hamoor Tanker Corporation (‘the Borag’): CA 1981

The managers had taken on the management of the ship. In the course of a dispute, the managers had the ship arrested whilst in Capetown. The owners had to obtain a bank guarantee to secure its release, and sought the interest payments on the overdaft it had had to incur in order to take out the guarantee. Mustill J had allowed the charge.
Held: The appeal succeeded. The expenditure was damages, not the mitigation of damages. As such it was too remote to have been forseeable. Stuart-Smith LJ said: ‘It is not every consequence of a wrongful act which is the subject of compensation. The law has to draw a line somewhere.’

Judges:

Stuart-Smith LJ

Citations:

[1981] 1 WLR 274, [1981] 1 All ER 856

Jurisdiction:

England and Wales

Citing:

Cited – Liesbosch Dredger (Owners of) v Owners of SS Edison, The Liesbosch HL 28-Feb-1933
The ship Edison fouled the moorings of the Liesbosch resulting in the total loss of the dredger when it sank. It had been engaged on work in the harbour under contract with the harbour board. All the owners’ liquid resources were engaged in the . .

Cited by:

Cited – Lamb v Camden London Borough Council CA 18-Mar-1981
The plaintiff owned a house. While she was away, the defendant negligently allowed a sewer to break causing substantial damage. Whilst the property was awaiting repair, it was invaded, on two occasions, by squatters who caused further damage. She . .
Cited – Knightley v Johns and others CA 27-Mar-1981
There had been an accident in a tunnel, blocking it. The defendant inspector ordered a traffic constable to ride into the tunnel on his motorcycle against the flow of traffic. The constable crashed and sought damages for negligence against the . .
Cited – Palmer (Administratrix of the Estate of Rose Frances Palmer) v Tees Health Authority and Hartlepool and East Durham NHS Trust CA 2-Jun-1999
A claim for damages on behalf of a murdered child’s estate and the child’s mother for psychiatric damage against a health authority for negligence in having failed to manage a psychiatric outpatient who had abducted and murdered the child, was bound . .
Cited – William John Henry Johnson v Gore Wood and Co CA 3-Dec-2003
. .
Cited – Alcoa Minerals of Jamaica Inc v Herbert Broderick PC 20-Mar-2000
(Jamaica) Damage had been caused to the claimant’s property, but, because of his lack of funds, he was dependent upon the receipt of the damages to carry out the works of repair necessary. By the time the matter came to trial, inflation meant that . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 07 May 2022; Ref: scu.263205

F G Minter v Welsh Health Technical Services Organisation: CA 1980

Where a claim is for a debt incurred by a building contractor to raise the necessary capital which has interest charges as one of its constituents, the loss suffered as a result of the late payment of money was recoverable.

Judges:

Ackner LJ

Citations:

(1980) 13 Build LR 1

Jurisdiction:

England and Wales

Cited by:

Cited – Sempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 07 May 2022; Ref: scu.260130

Jaggard v Sawyer: CC 1993

(Weymouth County Court) The court refused an injunction to a land owner who complained that a neighbour had erected a building over a right of way. The court awarded damages of andpound;694.44, being a proportionate part of the the sum he might be expected to have to pay for the right of way which had been lost.

Judges:

Judge Jack QC

Citations:

[1993] 1 EGLR 197

Jurisdiction:

England and Wales

Cited by:

Appeal from – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 07 May 2022; Ref: scu.258437

BP Exploration Co (Libya) Ltd v Hunt (No. 2): 1982

The court considered the application of interest to damages: ‘the basic principle . . that interest will be awarded from the date of loss’ and ‘the mere fact that it is impossible for the defendant to quantify the sum due until judgment has been given will not generally preclude such an award’.

Judges:

Robert Goff J

Citations:

[1982] 1 All ER 925

Jurisdiction:

England and Wales

Citing:

See Also – BP Exploration Co (Libya) Ltd v Hunt 1976
The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
The court should be careful before describing as non-disclosure as material not included in an affidavit in . .
Cited – Way v Latilla HL 1937
Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. . .

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 07 May 2022; Ref: scu.247681

Brown v Superior Court: 1988

(Supreme Court of California) The court considered the ‘market share doctrine’ for apportioning liability between tortfeasors: ‘In creating the market share doctrine, this court attempted to fashion a remedy for persons injured by a drug taken by their mothers a generation ago, making identification of the manufacturer impossible in many cases. We realised that in order to provide relief for an injured DES daughter faced with this dilemma, we would have to allow recovery of damages against some defendants which may not have manufactured the drug that caused the damage. . . Each defendant would be held liable for the proportion of the judgment represented by its market share, and its overall liability for injuries caused by DES would approximate the injuries caused by the DES it manufactured. A DES manufacturer found liable under this approach would not be held responsible for injuries caused by another producer of the drug. The opinion acknowledged that only an approximation of a manufacturer’s liability could be achieved by this procedure, but underlying our holding was a recognition that such a result was preferable to denying recover altogether to plaintiffs injured by DES.
It is apparent that the imposition of joint liability on defendants in a market share action would be inconsistent with this rationale. Any defendant could be held responsible for the entire judgment even though its market share may have been comparatively insignificant. Liability would in the first instance be measured not by the likelihood of responsibility for the plaintiff’s injuries but by the financial ability of a defendant to undertake payment of the entire judgment or a large portion of it.’

Citations:

(1988) 751 P 2d 470

Jurisdiction:

England and Wales

Cited by:

Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Lists of cited by and citing cases may be incomplete.

International, Damages

Updated: 07 May 2022; Ref: scu.241494

Sealce Shipping Company Limited v Oceanvoice Limited: CA 1991

The parties contracted for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for second-hand propellers. So the only way of providing a spare propeller would have been to commission the manufacture of a new propeller at great expense. The arbitrator held that this would be unreasonable. Instead he awarded the scrap value of the propeller, since that was all the buyer had actually lost by reason of the seller’s breach.
Held: The arbitrator’s award was upheld. The court considered the principles for the award of damages in a case of the sale of a ship with a spare propeller. The court applied principles derived from construction contracts.
Neill LJ said: ‘I can only read this award as meaning that he asked the question: what did these buyers really suffer as a result of the non-delivery of this spare propeller with this vessel? and he gave the answer: they lost its scrap value which in circumstances was the only value which it had for them.’

Judges:

Neill LJ

Citations:

[1991] 1 Lloyds Rep 120

Jurisdiction:

England and Wales

Cited by:

Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Cited – Robot Arenas Ltd and Another v Waterfield and Another QBD 8-Feb-2010
The tenant company had defaulted under the lease, and the landlord had retaken possession. The landlord discarded the tenant’s possessions, and the tenant now sued, saying that the landlords as involuntary bailees owed duties to the proper owner. . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 07 May 2022; Ref: scu.238587

West Suffolk County Council v W Rought Ltd: HL 1957

The principle in Gourley v BTC was applicable to compensation for the compulsory acquisition of land used in a trade or business in a case where it was accepted that the compensation would not be taxable in the owner’s hands.

Citations:

[1957] AC 403

Jurisdiction:

England and Wales

Citing:

Cited – British Transport Commission v Gourley HL 1955
It is a universal rule that the plaintiff cannot recover more than he has lost and that realities must be considered rather than technicalities. The damages to be awarded for personal injury including loss of earnings should reflect the fact that . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 07 May 2022; Ref: scu.237517

General Electric Co v General Electric Co Limited; GE TM; Re GE Trade Mark: CA 1970

Citations:

[1970] RPC 339

Jurisdiction:

England and Wales

Citing:

Appeal from – General Electric Co v General Electric Co Ltd ChD 1969
A form of co-branding was held to be non-deceptive. Grahame J said: ‘The registered use provisions are permissive only and not a compulsory prerequisite for retention of validity of the mark and that, provided the conditions of control are adequate, . .

Cited by:

Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Appeal from – General Electric Co v General Electric Co Ltd; GE TM; Re GE Trade Mark HL 1972
Lord Diplock said: ‘The common law of trade marks before 1875
The use by manufacturers of distinctive marks upon goods which they had made is of very ancient origin, but legal recognition of trade marks as a species of incorporeal property was . .
Lists of cited by and citing cases may be incomplete.

Damages, Intellectual Property

Updated: 07 May 2022; Ref: scu.238585

A Baily and Co v Clark Son and Morland: HL 1938

The House considered how market research surveys might be introduced in evidence. Lord Russell recommended filing affidavits from a limited number of respondents to the survey and filing a further affidavit proving the number of other persons who had replied and making their answers available for perusal.

Judges:

Lord Russell

Citations:

[1938] AC 557

Jurisdiction:

England and Wales

Cited by:

Cited – Customglass Boats Limited v Salthouse Brothers Limited 1976
(New Zealand) The court examined the question of whether market resarch was admissible as expert evidence as to damages.
Held: ‘So far as I can see, public opinion or survey evidence is not now in practice treated as hearsay in trade mark or . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Damages

Updated: 07 May 2022; Ref: scu.238582

Lynch v Knight: HL 17 Jul 1861

Lord Wensleydale said: ‘Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone; though where material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested.’

Judges:

Lord Wensleydale

Citations:

(1861) 9 HLC 577, [1861] EngR 822, (1861) 11 ER 854

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Approved – Allsop v Allsop 25-Apr-1860
Complaint was made of illness allegedly caused by a slanderous imputation of unchastity to a married woman. The woman heard the slander at third hand. It was held that the woman could not claim special damages for her illness in an action for . .

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 – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Updated: 07 May 2022; Ref: scu.238191

Donselaar v Donselaar: 1982

(Court of Appeal – New Zealand) The plaintiff sued for exemplary damages for assault and battery alleged to have caused physical injury, indignity, mental suffering, disgrace and humiliation. The defendant had been charged with assault in a Magistrate’s Court but the charge had been dismissed. The defendant did not rely upon the fact that he had already been prosecuted. Instead, he submitted that all claims for damages for personal injury were excluded by the terms of the Accident Compensation Act 1972.
Held: The Act excluded only claims for compensatory damages.

Citations:

[1982] 1 NZLR 97

Jurisdiction:

England and Wales

Cited by:

Cited – W v W; J v Raewyn Bell PC 19-Jan-1999
PC (New Zealand) The claimants sught to recover exemplary damages from defendants convicted of criminal offences against them.
Held: There were differences in the system between New Zealand and the English . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 07 May 2022; Ref: scu.237242

E Hulton and Co v Jones: HL 1910

An article was written by a correspondent of an English newspaper reporting that at a large and well attended motor vehicle show in France there on the terraces was ‘Artemus Jones with a woman not his wife who must be you know – the other thing.’ The writer did not know an Artemus Jones and had made the name up for the purposes of the story. In fact there really was an Artemus Jones a barrister in practice in North Wales.
Held: The plaintiff was entitled to maintain the action. The newspaper and its publishers were liable: ‘A person charged with libel cannot defend himself by showing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both.’
Lord Loreburn LC said that intention is no defence ‘however excellent it may be’. The defendant’s remedy ‘is to abstain from defamatory words.’ It is for the jury to decide as a question of fact whether the article actually identified the plaintiff.
The meaning intended by the publisher is irrelevant for the purpose of construing the words, although it may be relevant to the question of damages.
‘Libel is a tortious act. What does the tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it.’

Judges:

Loreburn LC

Citations:

[1910] AC 20, [1908-1910] All ER Rep 29, 79 LJKB 198, [1909] 2 KB 444, [1908-10] All ER 29, [1910] AC 20

Jurisdiction:

England and Wales

Cited by:

Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Mentioned – Dow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
Cited – Baturina v Times Newspapers Ltd CA 23-Mar-2011
The claimant appealed against directions given in her defamation action against the defendant. It had been said that she owned a house, and the defendant said that this was not defamatory. The claimant said that as the wife of the Mayor of Moscow . .
Lists of cited by and citing cases may be incomplete.

Damages, Defamation, Defamation

Updated: 06 May 2022; Ref: scu.223204

Gammell v Wilson; Furness v Massey: HL 1980

Lord Diplock set out the method of assessment of damages for lost years: ‘Here was an obvious injustice which this House remedied by overruling Oliver v. Ashman [1962] 2 Q.B. 210 and holding that a living plaintiff could recover damages for loss of earnings during the lost years; but that in assessing the measure of such damages here should be deducted from the total earnings the amount that he would have spent out of those earnings upon his own living expenses and pleasures, since these would represent an expense that would be saved in consequence of his death. In the case of a married man of middle age and of a settled pattern of life, which was the case of Mr. Pickett, the effect of this deduction is to leave a net figure which represents the amount which he would have spent on providing for his wife and any other dependants, together with any savings that he might set aside cut of his income. If one ignores the savings element, which in most cases could be likely to be small, this net figure is substantially the same as the damages that would have been recoverable by the widow under the Fatal Accidents Acts; it represents the dependency. So, in the particular case of Mr. Pickett’s widow the result was to do substantial justice.
Lord Scarman said: ‘The loss to the estate is what the deceased would have been likely to have available to save, spend, or distribute after meeting the cost of his living at a standard which his job and career prospects at time of death would suggest he was reasonably likely to achieve.’

Judges:

Lord Fraser of Tullybelton, Lord Diplock, Lord Scarman

Citations:

[1980] 3 WLR 591, (1980) 124 SJ, [1980] All ER 557

Jurisdiction:

England and Wales

Cited by:

Appeal from – Gammell v Wilson; Furness v Massey HL 1982
In each case, the deceased, died as a result of the defendants’ negligence. The parents claimed damages for themselves as dependants under the 1976 Act, and for the estate under the 1934 Act. The claims under the 1976 Act were held to have been . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 06 May 2022; Ref: scu.222516

Trego v Hunt: HL 1896

The court defined the meaning of the goodwill of a business: ‘What ‘goodwill’ means must depend on the character and nature of the business to which it is attached. Generally speaking, it means much more than what Lord Eldon took it to mean in the particular case actually before him in Cruttwell v Lye where he says: ‘the goodwill which has been the subject of sale is nothing more than the probability that the old customers will resort to the old place.’ Often it happens that the goodwill is the very sap and life of the business, without which the business would yield little or no fruit. It is the whole advantage, whatever it may be, of the reputation and connection of the firm, which may have been built up by years of honest work or gained by lavish expenditure of money.’

Judges:

Lord Herschell and Lord Macnaghten

Citations:

[1896] AC 7

Jurisdiction:

England and Wales

Cited by:

Cited – Lonrho Plc and Others v Fayed and Others (No 5) CA 27-Jul-1993
Defamatory statements causing pecuniary loss may give rise to an action in tort only. The boundaries set by the tort of defamation are not to be side-stepped by allowing a claim in contract that would not succeed in defamation. A claimant cannot, by . .
Cited – Collins Stewart Ltd and Another v The Financial Times Ltd QBD 20-Oct-2004
The claimants sought damages for defamation. The claimed that the article had caused very substantial losses (andpound;230 million) to them by affecting their market capitalisation value. The defendant sought to strike out that part of the claim. . .
Cited – Eyestorm Ltd v Hoptonacre Homes Ltd CA 19-Dec-2007
The appellant had agreed to take leases on a development of the defendant, hoping to sell the apartments on at a profit. After difficulties, the appellant refused to complete, and the defendant forfeited the deposits.
Held: Eyestorm’s appeal . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 06 May 2022; Ref: scu.220033

GUS Property Management Ltd v Littlewoods Mail Stores: HL 1982

The House referred to a claim for damages falling into ‘some legal black hole.’

Judges:

Lord Keith of Kinkel

Citations:

1982 SLT 533

Jurisdiction:

Scotland

Cited by:

Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 06 May 2022; Ref: scu.218908

British Fame v MacGregor (‘The MacGregor’): HL 1947

Two ships had collided. One party sought to appeal the apportionment of damages.
Held: The House considered the reluctance of an appellate court to interefere with an apportionment of damages applied by the court at first instance: ‘It seems to me, my Lords, that the cases must be very exceptional indeed in which an appellate court, while accepting the findings of fact of the court below as to the fixing of blame, none the less has sufficient reason to alter the allocation of blame made by the trial judge. I do not say that there may not be such cases. I apprehend that, if a number of different reasons were given why one ship is to blame, but the Court of Appeal, on examination, found some of those reasons not to be valid, that might have the effect of altering the distribution of the burden. If the trial judge, when distributing blame, could be shown to have misapprehended a vital fact bearing on the matter, that, I think, would be a reason for considering whether a change in the distribution should be made on appeal. But, subject to rare exceptions, I submit to the House that, when findings of fact are not disputed and the conclusion that both vessels are to blame stands, the cases in which an appellate tribunal will undertake to revise the distribution of blame will be rare.’

Judges:

Viscount Simon, Lord-Chancellor

Citations:

[1943] AC 197, [1943] 1 All ER 33

Jurisdiction:

England and Wales

Cited by:

Cited – Joyce Andrews v Initial Cleaning Services Limited McDougalls Catering Foods Limited CA 14-Jul-1999
Employees of one company were injured whilst working cleaning the premises of another. The issue was as to apportionment of the personal injury damages between the two companies.
Held: There was an error of approach by the Recorder entitling . .
Cited – Whitehead v Bruce and Others CA 21-Mar-2013
The three defendants each appealed against apportionment of liability for serious personal injuries incurred in a road traffic accident. The first defendant a motor cycle driver, with the claimant his pillion passenger took suddent action to evade a . .
Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice

Updated: 06 May 2022; Ref: scu.219155

Mallett v McMonagle: HL 1970

The House discussed the role of the court in assessing future losses. Lord Diplock: ‘The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions for determining what was. In determining what did happen in the past the court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or what would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that the particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.’

Judges:

Lord Diplock, Lord Reid

Citations:

[1970] AC 166

Jurisdiction:

England and Wales

Cited by:

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 – Les Laboratoires Servier and Another v Apotex Inc and others ChD 9-Oct-2008
The claimant had alleged that the defendant was producing generic drugs which infringed its rights in a new drug. The patentee had given a cross-undertaking in damages, but the patent was later ruled invalid. The court had to assess the damages to . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 06 May 2022; Ref: scu.219077

Morrison Steamship Co Ltd v Greystoke Castle (Cargo Owners): HL 1946

A ship was damaged in a collision. Though their goods were not damaged, the owners of cargo on the first ship became liable to the owners of the ship for a general average contribution. The owners sued the other ship owners for their negligence. The primary issue was whether the cargo-owners had only a derivative claim arising from an obligation to contribute towards the expenditure of the carrying vessel or whether they had a direct claim against the non-carrying vessel.
Held: (Majority) They could recover, even though the damages were a purely financial loss. The House identified an exemption to the general rule.
Lord Porter said: ‘But it may be said that this is an answer to the contention that the damage is too remote, but does not deal with the allegation that it does not flow from the tortious act but from the contractual relationship between the ship and its cargo. Sir William McNair put this contention in the words ‘ Liability or damage arising from a ‘contract with a third party gives no ground for a claim for’ damages in an action for negligence against a wrongdoer ‘unless the liability or damage arose from physical injury’ to the plaintiff’s person or to property owned by or in the ‘possession of the plaintiff.’ For this contention there may be much to be said where the person or thing injured was not engaged, as is cargo when being carried in a ship, on a joint adventure. I do not, however, think it applies to such carriage. It is true that general average is not affected by insurance law but the outlook upon the mutual obligation entered into by ship and cargo owners resulting in the undertaking of a common adventure may be illustrated by the fact that whereas in non-marine cases there is no loss unless the thing insured is injured, in marine insurance cases the loss of the adventure constitutes a loss for which underwriters are liable though the cargo itself be safe.’
Lord Uthwatt said: ‘My Lords, under the law of the sea there is recognized a community between ship and cargo that does not obtain between carrier and customer on land. This is shown by two well settled principles. First, if a collision causing damage to cargo occurs, and the carrying ship and the other vessel are both in fault, cargo could under the old law recover only a moiety of the damage and under statute can now only recover a due proportion determined by the degree of blame. That conception finds no place in land carriage, where there would be joint liability for the whole. Secondly, the liability to contribute to general average expenditure is part of the law of the sea. The principle involved in general average contribution is peculiar to the law of the sea and extends only to sea risks. (Cf. Falcke v. Scottish Imperial Insurance Co.) The law of the sea apart, neither at law nor in equity can contribution be obtained on the ground that loss incurred by one person has delivered another from a common danger (see Johnson v. Wild (2)), or that expenditure incurred by one person has incidentally benefited another (cf. Ruabon Steamship Co., Ld. v. London Assurance (3).) Agency is not implied from the circumstances, and there is no equity to claim relief. The sufferer both at law and equity must look to gratitude and not to the courts for his recompense. Under the law of the sea, however, ship and cargo are linked together in the fortunes of the voyage and, in a loose sense, there is in some respects a compulsory partnership between ship and cargo in respect to the venture of sea carriage : Bell’s Principles, 9th ed., s. 437 ; Bell’s Commentaries, 5th ed., vol. I., p. 534. Section 66 of the Marine Insurance Act, 1906, aptly refers to the matter as ‘the common adventure.’ A breach of the duty to take care involving only damage to the ship may therefore be and in my opinion is a breach of duty owed to cargo.’
Lord Roche put it more broadly: ‘On the other hand, if two lorries A and B are meeting one another on the road, I cannot bring myself to doubt that the driver of lorry A owes a duty to both the owner of lorry B and to the owner of goods then carried in lorry B. Those owners are engaged in a common adventure with or by means of lorry B, and if lorry A is negligently driven and damages lorry B so severely that whilst no damage is done to the goods in it the goods have to be unloaded for the repair of the lorry and then reloaded or carried forward in some other way and the consequent expense is by reason of his contract or otherwise the expense of the goods owner, then in my judgment the goods owner has a direct cause of action to recover such expense. No authority to the contrary was cited and I know of none relating to land transport.’

Judges:

Lord Porter, Lord Uthwatt, Lord Roche

Citations:

[1946] 2 All ER 696, [1947] AC 265, [1947] LJR 297, [1946] 176 LT 66

Jurisdiction:

England and Wales

Cited by:

Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Lists of cited by and citing cases may be incomplete.

Negligence, Damages

Updated: 06 May 2022; Ref: scu.216362

AMEV-UDC Finance Ltd v Austin: 1986

High Court of Australia – Contract – Damages – Penalty – Agreement for hire of chattel – Failure to pay instalments of hire – Termination by owner pursuant to contractual power – Damages – Instalments due but unpaid – Damages for loss of contract.
The court discussed the doctrine against penalties in contracts: ‘But equity and the common law have long maintained a supervisory jurisdiction, not to rewrite contracts imprudently made, but to relieve against provisions which are so unconscionable or oppressive that their nature is penal rather than compensatory. The test to be applied in drawing that distinction is one of degree and will depend on a number of circumstances, including (1) the degree of disproportion between the stipulated sum and the loss likely to be suffered by the plaintiff, a factor relevant to the oppressiveness of the term to the defendant, and (2) the nature of the relationship between the contracting parties, a factor relevant to the unconscionability of the plaintiff’s conduct in seeking to enforce the term. The courts should not, however, be too ready to find the requisite degree of disproportion lest they impinge on the parties’ freedom to settle for themselves the rights and liabilities following a breach of contract. The doctrine of penalties answers, in situations of the present kind, an important aspect of the criticism often levelled against unqualified freedom of contract, namely the possible inequality of bargaining power. In this way the courts strike a balance between the competing interests of freedom of contract and protection of weak contracting parties: see generally Atiya, The rise and Fall of Freedom of Contract (1979), especially Chapter 22.’
‘the equitable jurisdiction to relieve against penalties withered on the vine’.

Judges:

Gibbs CJ(1), Mason(2), Wilson(2), Deane(3) and Dawson(4) JJ.

Citations:

[1986] 162 CLR 1770, (1986) 162 CLR 170, [1986] HCA 63

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Philips (Hong Kong) Ltd v The Attorney General of Hong Kong PC 9-Feb-1993
After referring to two Australian cases on penalty clauses in contracts: ‘These statements assist by making it clear that the court should not adopt an approach to provisions as to liquidated damages which could, as indicated earlier, defeat their . .
Cited – Jeancharm Ltd (T/A Beaver International) v Barnet Football Club Ltd CA 16-Jan-2002
The claimant contracted to supply football shirts to the defendant, but claimed that clauses in the contract with regards to late delivery and payment operated as penalties and so were void at common law.
Held: The sums set out were immodest . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages, Equity

Updated: 06 May 2022; Ref: scu.197034

Stebbing v Metropolitan Board of Works: 1870

In compensation for compulsory purchase (in this case, of graveyards), ‘value’ means value to the owner, not value to the purchaser. The graveyards were therefore of little or no value to the rector.
Cockburn CJ said: ‘When Parliament gives compulsory powers, and provides that compensation shall be made to the person from whom property is taken, for the loss that he sustains, it is intended that he shall be compensated to the extent of his loss; and that his loss shall be tested by what was the value of the thing to him, not by what will be its value to the persons acquiring it.’

Judges:

Cockburn CJ

Citations:

(1870) LR 6 QB 37

Jurisdiction:

England and Wales

Cited by:

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 – 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 . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 06 May 2022; Ref: scu.196507

Countess of Ossalinsky v Manchester Corporation: 1883

Land bounding Thirlmere in the Lake District was acquired for use as a reservoir to supply water to Manchester. The prospect that the land, because of its particular characteristics, would be likely to be developed as a reservoir was a matter which might give the land an enhanced value. That should be taken into account. The particular purpose to which the Manchester Corporation was going to put the land should not be taken into account. But the fact of the acquisition of the land for this particular purpose might have evidential value showing that suggested alternative reservoir development schemes ‘are not visionary, but are schemes with a certain probability in them.’

Citations:

(1883) Browne and Allen 659

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 06 May 2022; Ref: scu.196508

In re Lucas and Chesterfield Gas and Water Board: CA 1909

Land suitable for construction of a reservoir was the subject of a compulsory purchase for that purpose. The circumstances made it very unlikely that anyone other than the Water Board would have wanted, or been able, to construct the reservoir and exploit the water collected in it. In these circumstances, and bearing in mind the ‘value to the owner’ principle, could the site’s suitability for use as a reservoir enhance its value to the owner for which the Water Board should pay?
Held: When assessing compensation on the compulsory purchase of land, the value to the owner, as distinct from the value to the purchaser, is ‘to be estimated as it stood before the grant of the compulsory powers’. This was an absolute rule. ‘The owner is only to receive compensation based upon the market value of his lands as they stood before the scheme was authorized by which they are put to public uses.’ Where the special adaptability of land gives the land a special value which exists only for a particular purchaser with compulsory powers, that value cannot be taken into consideration when fixing the price. It is otherwise where the special value exists also for other possible purchasers so as to create a real though limited market for that special value.
Fletcher Moulton LJ had a restrictive approach: ‘The scheme which authorises the new reservoir only entitles the owner of the land to receive as compensation the value of the land unenhanced by that scheme, and, unless its situation and peculiarities create a market for it as a reservoir site for which other possible bidders exist, I do not think that the single possible purchaser that has obtained parliamentary powers can be made to pay a price based on special suitability merely by reason of the fact that it was easy to foresee that the situation of the land would lead to compulsory powers being some day obtained to purchase it.’

Judges:

Fletcher Moulton LJ, Vaughan Williams LJ

Citations:

[1909] 1 KB 16

Jurisdiction:

England and Wales

Cited by:

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 . .
Disapproved in part – Raja Vyricherla Narayana Gajapathiraju v Revenue Divisional Officer, Vizagapatam PC 23-Feb-1939
Land adjoining a harbour at Vizagapatam which at that time was malarial was to be valued for compulsory purchase. The land contained a spring of clean water. The only potential purchaser of the special adaptability of the land as a water supply was . .
Adopted – Cedars Rapids Manufacturing and Power Co v Lacoste PC 1914
Land at the St Lawrence river was to be valued for a compulsory purchase.
Held: Value does not mean the value of ‘the realized undertaking as it exists in the hands of the undertaker’. It means the price which possible undertakers would give. . .
Applied – Fraser v City of Fraserville PC 1917
One ground on which the arbitrators’ valuation award on a compulsory purchase, was set aside was that, in valuing the falls of a river and adjacent land acquired for electricity generation purposes, the arbitrators had taken into account the . .
Cited – Earl Cadogan v Pitts and Wang; Similar HL 10-Dec-2008
The House considered the basis of valuation on an acquisition of the freehold reversion of a lease under the 1967 Act of the three elements, the rent, vacant possession after the lease, and the marriage or hope value of the two interests when . .
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: 06 May 2022; Ref: scu.196511

Cedars Rapids Manufacturing and Power Co v Lacoste: PC 1914

Land at the St Lawrence river was to be valued for a compulsory purchase.
Held: Value does not mean the value of ‘the realized undertaking as it exists in the hands of the undertaker’. It means the price which possible undertakers would give. This should be tested by the imaginary market which would have ruled if the land had been exposed for sale ‘before any undertakers had secured the powers, or acquired the other subjects which made the undertaking as a whole a realized possibility’, and ‘For the present purpose it may be sufficient to state two brief propositions: (1) The value to be paid for is the value to the owner as it existed at the date of the taking, not the value to the taker. (2) The value to the owner consists in all advantages which the land possesses, present or future, but it is the present value alone of such advantages that falls to be determined. Where, therefore, the element of value over and above the bare value of the ground itself (commonly spoken of as the agricultural value) consists in adaptability for a certain undertaking . . . the value . . . is merely the price, enhanced above the bare value of the ground which possible intended undertakers would give. That price must be tested by the imaginary market which would have ruled had the land been exposed for sale before any undertakers had secured the powers, or acquired the other subjects which made the undertaking as a whole a realised possibility.’

Judges:

Lord Dunedin

Citations:

[1914] AC 569

Jurisdiction:

England and Wales

Citing:

Adopted – In re Lucas and Chesterfield Gas and Water Board CA 1909
Land suitable for construction of a reservoir was the subject of a compulsory purchase for that purpose. The circumstances made it very unlikely that anyone other than the Water Board would have wanted, or been able, to construct the reservoir and . .

Cited by:

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 – Fraser v City of Fraserville PC 1917
One ground on which the arbitrators’ valuation award on a compulsory purchase, was set aside was that, in valuing the falls of a river and adjacent land acquired for electricity generation purposes, the arbitrators had taken into account the . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 06 May 2022; Ref: scu.196512

Lambe v Secretary of State for War: CA 1955

The acquiring authority was a sitting tenant and the compulsory purchase order related to the freehold reversion.
Held: Rule 3 was inapplicable. The marriage value which a reversion has for a sitting tenant does not clothe the land with a special suitability within that rule. The court decided that the correct measure of value was the price the acquiring authority, in the course of Lord Romer’s friendly negotiation, would have been willing to pay for the reversion if it had no compulsory powers. This included the marriage value.

Citations:

[1955] 2 QB 612

Jurisdiction:

England and Wales

Citing:

Applied – Raja Vyricherla Narayana Gajapathiraju v Revenue Divisional Officer, Vizagapatam PC 23-Feb-1939
Land adjoining a harbour at Vizagapatam which at that time was malarial was to be valued for compulsory purchase. The land contained a spring of clean water. The only potential purchaser of the special adaptability of the land as a water supply was . .

Cited by:

Doubted – 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 – Batchelor v Kent County Council LT 1-Mar-1987
The tribunal was asked to determine compensation to be paid on the acquisition of two plots of land. The land-owner claimed andpound;9,000,000 and the council offered andpound;5,490. The land-owner claimed the value as ransom as necessary access to . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 06 May 2022; Ref: scu.196514

Fraser v City of Fraserville: PC 1917

One ground on which the arbitrators’ valuation award on a compulsory purchase, was set aside was that, in valuing the falls of a river and adjacent land acquired for electricity generation purposes, the arbitrators had taken into account the enhanced value emanating from a reservoir being built by the acquiring authority higher up the river.
Held: The question of what is the scheme is a question of fact. ‘ . . . the value to be ascertained is the value to the seller of the property in its actual condition at the time of expropriation with all its existing advantages and with all its possibilities, excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired . . .’

Judges:

Lord Buckmaster

Citations:

[1917] AC 187

Jurisdiction:

England and Wales

Citing:

Applied – In re Lucas and Chesterfield Gas and Water Board CA 1909
Land suitable for construction of a reservoir was the subject of a compulsory purchase for that purpose. The circumstances made it very unlikely that anyone other than the Water Board would have wanted, or been able, to construct the reservoir and . .
Cited – Cedars Rapids Manufacturing and Power Co v Lacoste PC 1914
Land at the St Lawrence river was to be valued for a compulsory purchase.
Held: Value does not mean the value of ‘the realized undertaking as it exists in the hands of the undertaker’. It means the price which possible undertakers would give. . .

Cited by:

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 – 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 – 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.
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 06 May 2022; Ref: scu.196516

Nicholson v Atlas Steel Foundry and Engineering Co Ltd: HL 1957

The deceased had worked in the defender’s steel foundry, inhaling there siliceous dust particles. He contracted pneumoconiosis and died. The complaints related to the defender’s failure to provide adequate ventilation to extract the dust. The deceased had inhaled large quantities of noxious particles about which he could have no cause of complaint. The question was whether, in addition, he had, at the fault of the defenders in failing to provide adequate ventilation, inhaled other particles which made a material contribution to his illness
Held: For the defender: ‘if the statute prescribes a proper system of ventilation by the circulation of fresh air so as to render harmless, so far as practicable, all fumes, dust and other impurities that may be injurious to health, generated in the course of work carried on in the factory, and if it is proved that there is no system or only an inadequate system of ventilation, it requires little further to establish a causal link between that default and the illness, due to noxious dust, of a person employed in the shop. Something is required as was held in Wardlaw’s case. I was a party to that decision and would not in any way resile from it. But it must not be pressed too far. In the present case there was, in my opinion, ample evidence to support the appellants’ case.’ Since the family could not complain of the production of dust, and the deceased had been forced to inhale some noxious particles without having any legal complaint, it was doubly incumbent on the employer to safeguard him against any additional risk. Viscount Simonds said: ‘dust containing dangerous particles of silica was emitted into the air by the operation of pneumatic hammers on the castings, that this dust hung about in concentrated form longer than it would have if there had been better ventilation, and that improved roof ventilators were practicable and would have effectively improved the conditions. It follows that owing to the default of the respondents the deceased was exposed to a greater degree of risk than he should have been, and, though it is impossible, even approximately, to quantify the particles which he must, in any event, have inhaled and those which he inhaled but need not have, I cannot regard the excess as something so negligible that the maxim ‘de minimis’ is applicable. Accordingly, following the decision in Wardlaw’s case, I must hold the respondents liable.’ Lord Cohen: ‘Pneumoconiosis is a progressive disease. The longer a workman is exposed to an intense cloud the graver must be the risk of infection. In the present case it is clearly established by the evidence that at any rate down to 1949 the tool with which the deceased was working on dirty castings created a thick cloud of dust which must have necessarily included siliceous particles to an extent which cannot classed as ‘de minimis’. The respondents are admittedly not to blame for the generation of this cloud, but any failure to provide proper ventilation must, I think, lengthen the period during which the cloud remains intense. It seems to me to follow that the respondents’ failure to provide adequate ventilation must increase the risk to which the workmen are exposed. Reading the evidence as a whole, I think it establishes that (to use the language of Lord Reid in Wardlaw’s case) ‘on a balance of probabilities the breach of duty caused or materially contributed to’ the injury.’

Judges:

Viscount Simonds, Lord Oaksey, Lord Morton of Henryton, Lord Cohen

Citations:

[1957] 1 WLR 613, [1957] 1 All ER 776

Statutes:

Factories Act 1937 4(1)

Jurisdiction:

England and Wales

Citing:

Applied – Bonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .

Cited by:

Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
Lists of cited by and citing cases may be incomplete.

Damages, Scotland, Negligence

Updated: 06 May 2022; Ref: scu.190113

Dingle v Associated Newspapers: CA 1961

A defamation of the claimant had been published and then repeated by others.
Held: The court discussed the logical impossibility of apportioning damage between different tortfeasors: ‘Where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it. As between the plaintiff and the defendant it is immaterial that there are others whose acts also have been a cause of the injury and it does not matter whether those others have or have not a good defence. These factors would be relevant in a claim between tortfeasors for contribution, but the plaintiff is not concerned with that; he can obtain judgment for total compensation from anyone whose act has been a cause of his injury. If there are more than one of such persons, it is immaterial to the plaintiff whether they are joint tortfeasors or not. If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month’s wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law.’

Judges:

Devlin LJ

Citations:

[1961] 2 QB 162

Jurisdiction:

England and Wales

Cited by:

Appeal from – Dingle v Associated Newspapers HL 1964
The plaintiff complained of an article written in the Daily Mail which included the reporting of a report of a Parliamentary select committee. The reporting of the select committee’s report was privileged under the Parliamentary Papers Act 1840. At . .
Cited – Rahman v Arearose Limited and Another, University College London, NHS Trust CA 15-Jun-2000
The claimant had suffered a vicious physical assault from which the claimant’s employers should have protected him, and an incompetently performed surgical operation. Three psychiatrists agreed that the aetiology of the claimant’s very severe . .
Cited – Pickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Lists of cited by and citing cases may be incomplete.

Defamation, Damages

Updated: 06 May 2022; Ref: scu.190108

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 road improvements, including the construction of a roundabout, had been carried out. The compulsorily acquired plot was the site of the roundabout. The Lands Tribunal assessed the compensation for the plot on the basis that it was the key to the residential development.
Held: The value of the plot had to be assessed by reference to its value prior to the acquisition and disregarding any increase in value attributable to the residential development. On the facts, however, there was no ground for holding that the tribunal had failed to have regard to the principle that any such increase in value had to be disregarded. Mann LJ considered also the section 5 rule (3) disregard and the meaning of the statutory words ‘special suitability’. The tribunal had found that ‘the most suitable access to the land to the south [ie. part of the land to be residentially developed] is that which has been formed on the order land [ie. the roundabout]’, but found also ‘it was unable to find that the order land would have been the only access to the land to the south’. Those findings were ‘decisive against a finding of special suitability’: ‘The order land may have been the most suitable land for access to the south but it was not specially suitable for that purpose. Most suitable does not correspond with specially suitable.’ and ‘If a premium value is ‘entirely due to the scheme underlying the acquisition’ then it must be disregarded. If it was pre-existent to the [scheme] it must in my judgment be regarded. To ignore the pre-existent value would be to expropriate it without compensation and would be to contravene the fundamental principle of equivalence.’
Mann LJ: ‘The [Point Gourde] principle enjoins the tribunal to ignore ‘an increase in value which is entirely due to the scheme underlying the acquisition’. The scheme underlying the acquisition was here stated by the tribunal to be ‘the construction of the roundabout and the associated roadworks’. The roundabout and associated works when they were completed removed the inhibition imposed by…the planning permission…the removal of the inhibition was a removal naturally to be desired by the landowners whose development was otherwise curtailed. The critical question as it seems to me, is whether the scheme underlying the acquisition as found, did enhance the value of the order land. The question is a question of fact. If there were found to be an enhancement, its dimension was a matter of valuation. It is to be observed, and critically so, that the tribunal must search for an increase in value ‘entirely due to the scheme.
The Pointe Gourde principle cannot diminish a pre-scheme value. Was there a particular value prior to the scheme underlying the acquisition? As it seems to me the tribunal found that there was.’

Judges:

Mann LJ

Citations:

[1992] 1 EGLR 217, (1990) 59 PandCR 357

Jurisdiction:

England and Wales

Citing:

Cited – Stokes v Cambridge Corporation LT 1961
The tribunal considered case concerned 5.1 ha of land with an assumption of planning permission for industrial development under Planning legislation. There was only one possible access over adjoining land in different ownership.
Held: When . .
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 by:

Cited – C F and M G Roberts v South Gloucestershire District Council LT 31-Dec-1994
LT COMPENSATION – Compulsory purchase of land for the construction of a road – value – assumed planning permission – value of minerals – planning permission for a commercial minerals operation not granted or to . .
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 – Llanelec Precision Engineering Co Ltd v Neath Port Talbot County Borough Council LT 3-Aug-2000
. .
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 – 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 . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 06 May 2022; Ref: scu.188856

K v P: ChD 1993

The court considered when orders might be made under the Act for a contribution to be made to damages payable. Ferris J said: ‘In my judgment the ex turpi causa defence is not available as an answer to a claim for contribution under the Act of 1978. The specific purpose of that Act, as of the Act of 1935 before it, was to enable claims for contribution to be made as between parties who had no claim to contribution under the general law. To permit the ex turpi causa defence to be relied upon as an answer to such a claim would, in my view, narrow to a substantial extent the deliberately wide wording of section 6(1) of the Act of 1978 and would, in effect, make a claim for contribution subject to a condition precedent which is not to be found in the Act. Moreover, section 2(1) and (2) give the court ample power to fix the amount of the contribution at a level, including a zero level, which takes account of all the factors which, in relation to common law claims, are relevant to the ex turpi causa defence.’

Judges:

Ferris J

Citations:

[1993] Ch 140

Statutes:

Civil Liability (Contribution) Act 1978 1(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Great North Eastern Railway Limited v Hart and Secretary of State for Transport, Local Government and the Regions and Network Rail Infrastructure Limited QBD 30-Oct-2003
A driver had crashed through a barrier before a bridge, and descended into the path of a train. Ten people died. He now sought a contribution order against the Secretary of State for the condition of the barrier which was said to be faulty.
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Lists of cited by and citing cases may be incomplete.

Negligence, Damages

Updated: 06 May 2022; Ref: scu.187297

The Despina R, The Folias: HL 1979

The House dealt with the issue of the proper currency for the award of damages. There had been a collision at sea. In The Folias, damages in contract were claimed by charterers of a ship against the owners to be recouped compensation that they had paid to cargo receivers in respect of cargo which had arrived damaged. In The Despina R the damage was the cost of repair of a ship which had been paid in various currencies.
Held: The appeal failed. Since United States Dollars was the currency in which the claimant conducted its business, and that with which it acquired the currency of expenditure in repairing the ship, judgment should be in United States Dollars. In the Folias the House held that since the charterers were a French company that was conducting its business in Francs with which it had acquired Brazilian Cruzeiros to compensate the cargo receivers, Francs best expressed the charterers’ loss and judgment should be in that currency. Lord Wilberforce asked if plaintiffs could recover damages other than in Sterling. He discussed the alternatives: ‘The first is to take the currency in which the expense or loss was immediately sustained. This I shall call ‘the expenditure currency.’ The second is to take the currency in which the loss was effectively felt or borne by the plaintiff having regard to the currency in which he generally operates or with which he has the closest connection. This I shall call ‘the plaintiffs currency’. ‘I return to consider the alternatives. . . this question can be solved by applying the normal principles which govern the assessment of damages in cases of tort (I shall deal with contract cases in the second appeal) these are the principles of restitutio in integrum and that of the reasonable foreseeability of the damage sustained. It appears to me that a plaintiff who normally conducts his business through a particular currency, and who, when other currencies are immediately involved, uses his own currency to obtain those currencies, can reasonably say that the loss he sustains is to be measured not by the immediate currencies in which the loss first emerges but by the amount of his own currency, which in the normal course of operation, he uses to obtain those currencies. This is the currency in which his loss is felt, and is the currency which it is reasonably foreseeable he will have to spend.’ and ‘The plaintiff has to prove his loss: if he wishes to present his claim in his own currency, the burden is on him to show to the satisfaction of the tribunal that his operations are conducted in that currency and that in fact it was his currency that was used in a normal manner to meet the expenditure for which he claims or that his loss can only be appropriately measured in that currency (this would apply in the total loss of a vessel which cannot be dealt with by the ‘expenditure’ method). The same answer can be given to the objection that some companies, particularly large multi national companies, maintain accounts and operate in several currencies. Here again it is for the plaintiff to satisfy the court or arbitrators that the use of the particular currency was in the course of normal operation of that company and was reasonably foreseeable . . I wish to make it clear that I would not approve of a hard and fast rule that in all cases where a plaintiff suffers a loss or damage in a foreign currency the right currency to take for the purpose of his claim is ‘the plaintiffs currency’. I should refer to the definition I have used of this expression and emphasise that it does not suggest the use of a personal currency attached, like nationality, to a plaintiff, but a currency which he is able to show is that in which he normally conducts trading operations. Use of this currency for assessment of damage may and probably will be appropriate in cases of international commerce. But even in that field and still more outside it, cases may arise in which a plaintiff will not be able to show that in the normal course of events he would use, and be expected to use, the currency, or one of several currencies, in which he normally conducts his operations (the burden being on him to show this) and consequently the conclusion will be that the loss is felt in the currency in which it immediately arose.’ As to The Folias, in respect of a contract case the test was the same as in a tort case namely ‘restitutio in integrum, regard being had to what was in the reasonable contemplation of the parties.’ He adopted the test of Lord Denning in the Court of Appeal that ‘the plaintiff should be compensated for the expense or loss in the currency which most truly expresses his loss.’ He continued:- ‘If then the contract fails to provide a decisive interpretation, the damage should be calculated in the currency in which the loss was felt by the plaintiff or ‘most truly expresses his loss’. This is not limited to that in which it first and immediately arose. In ascertaining which this currency is, the court must ask what is the currency payment of which will as nearly as possible compensate the plaintiff in accordance with the principle of restitution, and whether the parties must be taken reasonably to have had this in contemplation.’

Judges:

Lord Wilberforce

Citations:

[1979] AC 685

Jurisdiction:

England and Wales

Cited by:

Cited – Barings Plc (In Liquidation) and Another, Barings Futures (Singapore) Pte Ltd (In Liquidation) v Coopers and Lybrand (A Firm) and Others, Mattar and 36 Others ChD 17-Oct-2003
BFS was a company incorporated in Singapore which conducted its internal affairs in Singapore Dollars. It was by statute required to render its accounts in that currency. It paid its staff in Singapore Dollars. It sought damages in Singapore . .
Cited – Sports Network Ltd v Calzaghe QBD 16-Mar-2009
The claimant boxing promoter sought to enforce an obligation on the defendant champion boxer to fight under one further promotion by the claimant. During negotiations about that fight a further oral agreement was reached about subsequent fights . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 06 May 2022; Ref: scu.186847

Blamire v South Cumbria Health Authority: CA 1993

When assessing damages for losses arising through professional negligence by a school, the court arrived at a lump sum representing the loss of the opportunity to gain employment at the end of a successful period of education. The onus of proving what the plaintiff would have earned had he not been injured and what he was now likely to earn rested on the plaintiff throughout.

Judges:

Garland J, Steyn LJ

Citations:

[1993] P1QR Q1

Jurisdiction:

England and Wales

Cited by:

Cited – Liennard v Slough Borough Council QBD 15-Mar-2002
The claimant sought damages from the respondents who had been responsible for his education, for having failed to diagnose his learning difficulties. The school had recognised that he was underachieving, but diagnosis as to the reason was not easy. . .
Cited – Vernon v Bosley (3) CA 19-Dec-1996
The plaintiff claimed damages for acute stress after failing to rescue his two daughters in an accident caused by the defendant. After the accident, he became involved in family proceedings concerning custody of other children. Medical reports used . .
Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury, Education

Updated: 06 May 2022; Ref: scu.184030

Chadwick v British Railways Board: 1967

Mr Chadwick tried to bring relief and comfort to the victims of the Lewisham train disaster in December 1967. His widow claimed in nervous shock, saying that it had eventually led to his own death.
Held: Where an accident is of a particular horrifying kind and the rescuer is involved with the victims in the immediate aftermath it may be reasonably foreseeable that the rescuer will suffer psychiatric injury. Mr Chadwick suffered his injury because of the terrible impact on his mind of the suffering he witnessed in his rescue attempt, and not because of any fear for his own safety: ‘although there was clearly an element of personal danger in what Mr Chadwick was doing, I think that I must deal with this case on the basis that it was the horror of the whole experience which caused his reaction.’ His widow was entitled to damages.
Waller J said: ‘The community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extraordinary. There is an infinite variety of creatures, all with varying susceptibilities.’

Judges:

Waller J

Citations:

[1967] 1 WLR 912, [1967] 2 All ER 945

Jurisdiction:

England and Wales

Cited by:

Cited – North Glamorgan NHS Trust v Walters CA 6-Dec-2002
A new mother woke in hospital to see her baby (E) fitting. E suffered a major epileptic seizure leading to coma and irreparable brain damage. E was transferred to a London hospital and the following day the claimant was told by a consultant that E’s . .
Cited – White, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998
No damages for Psychiatric Harm Alone
The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy.
Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 06 May 2022; Ref: scu.183347

Cadbury Schweppes v FBI Foods: 28 Jan 1999

Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction appropriate remedy for breach of confidence in this case – Whether ‘head start’ concept applies — Whether calculation of equitable compensation differs from common law damages.

Judges:

L’Heureux-Dube, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ

Citations:

[1999] 1 SCR 142, 1999 CanLII 705 (SCC), 85 ACWS (3d) 166, 191 WAC 161, [1999] SCJ No 6 (QL), JE 99-317, AZ-99111005, 83 CPR (3d) 289, 235 NR 30, 117 BCAC 161, 42 BLR (2d) 159, 59 BCLR (3d) 1, 167 DLR (4th) 577

Links:

Canlii

Jurisdiction:

Canada

Citing:

Cited – Hodgkinson v Simms 30-Sep-1994
Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by . .

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Equity, Intellectual Property

Updated: 06 May 2022; Ref: scu.554203

Tynes v Barr: 28 Mar 1994

(Supreme Court of the Bahamas) The plaintiff had been wrongfully arrested and humiliated publicly at an airport. He claimed exemplary damages. In assessing the exemplary damages in a court should take account of the injury the plaintiff has endured to his dignity and pride, mental suffering and loss of reputation: ‘Exemplary damages should be awarded in view of the arrogant, abusive and outrageous disregard shown by the police for the law, in particular, their delay in producing documents; the manner in which the defence was conducted; and the fact that liability was not conceded until the sixth and ninth days of the trial and even then with no appropriate apology being offered to the plaintiff. The police should be made aware of the need to observe the requirements as to when they may arrest and detain a person without a warrant and the way in which a person so detained must be humanely treated.’

Citations:

(1994) 45 WIR 7, [1994] ICHRL 5

Links:

Worldlii

Cited by:

Cited – Takitota v The Attorney General and Others PC 18-Mar-2009
Bahamas – The claimant appeald as to the amount of compensation awarded to him for his unlawful detention for over eight years, in appalling prison conditions. The Court of Appeal categorised his treatment not only as ‘less than humane’ but as a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Constitutional, Torts – Other

Updated: 06 May 2022; Ref: scu.471044

Arab Monetary Fund v Hashim: 11 Oct 1994

In cases under the 1978 Act the court does not ask whether, under some rule of English private international law to be found independently of that Act, the contribution claim is to be determined by reference to the 1978 Act. Rather, the court asks whether, under the provisions of the 1978 Act itself, the contribution claim ought to succeed. Chadwick J said: ‘If B and C were each persons against whom liability had been or could be established in an action brought against them by A in an English court, applying the appropriate law in accordance with English private international law rules, then the Act conferred on B a right of contribution against C to which the court had to give effect. There was no preliminary question as to proper law the answer to which determined, independently of the Act, whether the Act applied.’

Judges:

Chadwick J

Citations:

Times 11-Oct-1994

Statutes:

Civil Liability Contribution Act 1978

Cited by:

Cited – Cox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
Lists of cited by and citing cases may be incomplete.

International, Damages

Updated: 06 May 2022; Ref: scu.460863

Ridgeland Properties Ltd v Bristol City Council: CA 27 May 2011

Appeal against a decision of the Upper Tribunal (Lands Chamber), determining the compensation payable for the compulsory acquisition of the Appellant’s property in the sum of andpound;4.5m. The ground of appeal was that the Tribunal wrongly refused the Appellant’s application, made following the publication of the Tribunal’s draft decision to re-open the hearing to permit further evidence to be given of three letters making offers of between andpound;15.3m and andpound;23m for Tollgate House.

Citations:

[2011] EWCA Civ 649

Links:

Bailii

Jurisdiction:

England and Wales

Land, Damages

Updated: 06 May 2022; Ref: scu.440223

Indian Oil Corporation v Greenstone Shipping SA: QBD 23 Apr 1987

Staughton J discussed the modern meaning of the rule of evidence known in Latin as ‘omnia praesumuntur contra spoliatorem’ (everything is presumed against a destroyer (of evidence) – ‘spoliation’ as it is termed in US and which the rule of ‘litigation hold’ is designed to combat: ‘If the wrongdoer prevents the innocent party proving how much of his property has been taken, then the wrongdoer is liable to the greatest extent possible in the circumstances’

Judges:

Staughton J

Citations:

[1988] 1 QB 345, Times 23-Apr-1987

Cited by:

Cited – Earles v Barclays Bank plc Merc 8-Oct-2009
earles_barclaysQBD2009
The claimant had lost his claim against the bank, but resisted the amount of costs claimed.
Held: The trial had been of a simple factual dispute, and the bank had failed adequately to disclose electronically held material in its possession. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Damages

Updated: 06 May 2022; Ref: scu.427356

Gunton v Richmond-upon-Thames London Borough Council: CA 1980

The plaintiff college registrar had been the subject of disciplinary proceedings, but the defendant had not followed the contractual procedure. The judge had ordered an inquiry as to damages on the basis that the Plaintiff was entitled to remain in the council’s employment until retirement age unless in the meantime liable to redundancy or dismissal under the disciplinary procedure, allowance being made for the plaintiff to mitigate his loss.
Held: The employee was entitled to damages representing the salary he would have earned if the procedures had been followed and then during the one month’s notice period on which the employment could have been terminated. (Shaw LJ dissenting)
Buckley LJ said that the adoption of the disciplinary regulations disenabled the council from dismissing the plaintiff on disciplinary grounds until the procedure prescribed by those regulations had been carried out. However, once that disciplinary process had been completed the council could have given notice and brought the contract of employment to an end.
Brightman LJ accepted that there was no right to sue for wages after the employer’s repudiation: ‘An employee’s remedy, if he is unlawfully dismissed by his employer, is damages. He cannot obtain an order for specific performance because it is not available to compel performance of a contract of service against an unwilling employer.’
He rationalised the continued existence of the contract, by positing a distinction between Mr Gunton’s status as an employee, which was terminated when he was excluded from work, and the contract of employment, which subsisted until it was lawfully terminated, saying: ‘It is clear beyond argument that a wrongfully dismissed employee cannot sue for his salary or wages as such, but only for damages. It is also, in my view, equally clear that such an employee cannot assert that he still retains his employment under the contract. If a servant is dismissed and excluded from his employment, it is absurd to suppose that he still occupies the status of a servant. Quite plainly he does not. The relationship of master and servant has been broken, albeit wrongfully by one side alone. The same would apply to a contract for services, such as an agency. If a two year agency contract is made between principal and agent, and the principal wrongfully repudiates the contract of agency after only one year, quite plainly the agent cannot hold himself out as still being the agent of the principal. He is not. The relationship of principal and agent has been broken. I do not think it follows, however, from the rupture of the status of master and servant, or principal and agent, that the contract of service, or the contract of agency, has been terminated by the wrongful act of the master or the principal. What has been determined is only the status or relationship. So in the result the servant cannot sue in debt for his wages, which he is wrongfully deprived of the opportunity to earn; or for his fringe benefit, such as the house which the carpenter in Ivory v Palmer [1975] ICR 340 had the right to occupy as part of his emoluments. As the relationship of master and servant is gone, the servant cannot claim the reward for services no longer rendered. But it does not follow that every right and obligation under the contract is extinguished. An obligation which is not of necessity dependent on the existence of the relationship of master and servant may well survive; such as the right of the master in Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227 that the servant should not during the term of the contract deal on his own account with customers of the plaintiff company.’
Shaw LJ dissented, on the ground that the continued vestigial existence of an unperformable contract was an artificial fiction devoid of any connection with the true state of affairs: ‘I cannot see how the undertaking to employ on the one hand, and the undertaking to serve on the other can survive an out-and-out dismissal by the employer or a complete and intended withdrawal of his service by the employee. It has long been recognised that an order for specific performance will not be made in relation to a contract of service. Therefore, as it seems to me, there can be no logical justification for the proposition that a contract of service survives a total repudiation by one side or the other. If the only real redress is damages, how can its measure or scope be affected according to whether the contract is regarded as still subsisting or as at an end? To preserve the bare contractual relationship is an empty formality. The servant who is wrongfully dismissed cannot claim his wage for services he is not given the opportunity of rendering; and the master whose servant refuses to serve him cannot compel that servant to perform his contracted duties. In this context remedies and rights are inextricably bound together. It is meaningless to say that the contract of service differs from other contracts only in relation to the availability of remedies in the event of breach. The difference is fundamental, for there is no legal substitute for voluntary performance.’

Judges:

Buckley, Shaw, Brightman LJJ

Citations:

[1980] ICR 755, [1981] Ch 448

Citing:

Cited – Thomas Marshall (Exports) Ltd v Guinle ChD 1979
The managing director defendant had resigned before the end of the contractual term. There was an express covenant in his contract against using or disclosing the company’s confidential information during or after his employment. It was submitted . .

Cited by:

Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust QBD 31-Jul-2009
The claimant, a consultant surgeon had been subject to disciplinary proceedings by his employer. They were however conducted in a manner which breached his contract. The GMC had summarily dismissed the same allegations. The claimant now appealed . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust CA 26-May-2010
The claimant, a consultant doctor, sought damages saying that his employer had failed to follow the contract when disciplining and dismissing him. The GMC had dismissed as unfounded the allegation on which the dismissal was based. He sought damages . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust SC 14-Dec-2011
The claimant had been employed as consultant surgeon. He had been dismissed in a manner inconsistent with the extress terms of his employment contract. He sought common law damages for the manner of his dismissal. The employer appealed.
Held: . .
Dissent Approved – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Applied – Boyo v London Borough of Lambeth CA 8-Mar-1994
An employee dismissed by his employer’s act of repudiation of the contract, is entitled to receive money in lieu of notice as well as compensation for a reasonable period for carrying out the appropriate disciplinary procedure.
Ralph Gibson LJ . .
Cited – Rigby v Ferodo Ltd HL 1988
The House considered a claim for constructive dismissal where the employer had changed the terms of the employment contract by unilaterally imposing a pay cut.
Held: It was possible for an employee to continue to work under protest as to the . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 06 May 2022; Ref: scu.416162

CCC Films (London) Ltd v Impact Quadrant Films Ltd: 1984

The claimants purchased a licence to promote three films, but the defendant lost the film prints and CCC could not therefore promote them. After their claim for loss of profit failed in the absence of evidence, they claimed for the expenditure they had wasted.
Held: The plaintiff has a full discretion to pursue either a loss of profit or for wasted expenditure after a breach of contract by the defendant. He need not provide evidence before making that election. Where the defendant prevented the fulfilment of the contract the onus lay on him to prove it if he asserted that the plaintiff would not have managed to recoup at least his expenditure from profits. It would be fair to impose the onus of proof on the defendant at least in the following cases: ‘where the plaintiff’s decision to base his claim on abortive expenditure was dictated by the practical impossibility of proving loss of profit rather than by unfettered choice, any other rule would largely, if not entirely, defeat the object of allowing this alternative method of formulating the claim. This is because, notwithstanding the distinction to which I have drawn attention between proving a loss of net profit and proving in general terms the probability of sufficient returns to cover expenditure, in the majority of contested cases impossibility of proof of the first would probably involve like impossibility in the case of the second. It appears to me to be eminently fair that in such cases where the plaintiff has by the defendant’s breach been prevented from exploiting the chattel or the right contracted for and, therefore, putting to the test the question of whether he would have recouped his expenditure, the general rule as to the onus of proof of damage should be modified in this manner’.

Judges:

Hutchison J

Citations:

[1985] 1 QB 16, [1984] 3 WLR 245

Jurisdiction:

England and Wales

Cited by:

Not applied – Parker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Cited – Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC 4-Aug-2010
Lost Expenses as Damages for Contract Breach
The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 05 May 2022; Ref: scu.278874

Arthur Guinness Son and Co (GB) Ltd v Green: EAT 1989

The employee claimed unfair dismissal. On the tribunal indicating support, the employers asked for the period after which he could fairly have been dismissed so that that could calculate how much might be due. The tribunal indicated orally six months, but later gave judgment for a longer period.
Held: The tribunal had exceeded its jurisdiction in seeking to correct its oral judgment in this way. Evidence had been called upon which the decision was based that the cut-off point was six months after the date of dismissal; and there had been submissions from both sides; so neither party was taken by surprise, and the decision was reached after evidence called, and asked after submissions.

Judges:

Garland J

Citations:

[1989] IRLR 288, [1989] ICR 241

Statutes:

Industrial Tribunals (Rules of Procedure) regulations 1985 (SI 1985 No 16) Sch 1 9

Jurisdiction:

England and Wales

Cited by:

Cited – RSPCA (Derby) v Rollinson EAT 11-Sep-1991
. .
mentioned – Pickrose Co Ltd (T/A Long Airdox (Cardox) Ltd) v Jones and others EAT 8-May-1992
. .
Cited – Trago Mills (Falmouth) Ltd v Roberts EAT 30-Nov-1994
. .
Mentioned – Trollope and Colls Construction Ltd v Sharp EAT 22-Jun-1994
. .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 05 May 2022; Ref: scu.278668

Arta Shipping Co Ltd v Thai Europe Tapioca Service Ltd (The Johnny): 1977

When claiming damages for the loss of a charter, the market rate for a substitute charter ‘must be ascertained by postulating a charter-party which corresponds as closely as possible with the actual charter-party.’

Judges:

Lord Denning MR, Sir David Cairns

Citations:

[1977] 2 Lloyd’s Rep 1

Jurisdiction:

England and Wales

Cited by:

Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 05 May 2022; Ref: scu.270749

Bearmans Ltd v Metropolitan Police District Receiver: CA 1961

Sellers LJ said: ‘The second plaintiffs had paid some andpound;5,000 for that theft; and for their respective losses these plaintiffs sought to recover damages under the Riot (Damages) Act, 1886’
The court considered that a liberal approach was appropriate for the admissibility of hearsay evidence in civil proceedings.

Judges:

Sellers LJ, Devlin LJ

Citations:

[1961] 1 WLR 634, [1961] 1 All ER 384

Statutes:

Riot (Damages) Act 1886

Jurisdiction:

England and Wales

Cited by:

Cited – Bedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
Lists of cited by and citing cases may be incomplete.

Police, Damages, Evidence

Updated: 05 May 2022; Ref: scu.270269

Blackwell v GEC Elliott Processes: 1976

Citations:

[1976] IRLR 144

Jurisdiction:

England and Wales

Citing:

Applied – 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 . .

Cited by:

Cited – Burlo v Langley and Carter CA 21-Dec-2006
The claimant had been employed by the defendants as a nanny. She threatened to leave, but then was injured in a car acident and given a sick note. The employer immediately engaged someone else. She was found to have been unfairly dismissed. The . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 05 May 2022; Ref: scu.270013

Berry v British Transport Commission: QBD 1961

Although in civil cases extra costs incurred in excess of the sum allowed on taxation could not be recovered as damages, the Court was not compelled to extend that rule (based as it is on a somewhat dubious presumption) to criminal proceedings in which an award of costs would not necessarily amount to a complete indemnity for costs properly incurred.
Although therefore it could be founded upon any form of legal proceedings, whether civil or criminal, the action on the case for malicious prosecution was usually brought in the wake of unsuccessful criminal proceedings; and in that regard an important aspect of public policy was engaged.

Judges:

Diplock J

Citations:

[1961] 1 QB 149

Jurisdiction:

England and Wales

Cited by:

Appeal from – Berry v British Transport Commission CA 1961
The plaintiff had been prosecuted by the defendant for pulling the emergency cord on a train without proper cause. After acquittal and payment of part of her costs, she sued for malicious prosecution, saying the damages were the part of her defence . .
Cited – Gregory v Portsmouth City Council CA 5-Nov-1997
The plaintiff councillor had been disciplined by the defendant for allegations. The findings were later overturned, and he now sought damages alleging malicious prosecution.
Held: The categories of malicious prosecution are closed, and it was . .
Cited – Crawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another PC 13-Jun-2013
(Cayman Islands) A hurricane had damaged property insured by the respondent company. The company employed the appellant as loss adjustor, but came to suspect advance payments recommended by him, and eventually claimed damages for deceit and . .
Cited – Williamson v The Attorney General of Trinidad and Tobago PC 3-Sep-2014
(Trinidad and Tobago) The claimant had been held after arrest on suspicion of theft. He was held for several months before the case was dismissed, the posecution having made no apparent attempt to further the prosecution. He appealed against refusal . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages

Updated: 05 May 2022; Ref: scu.267525

The Miraflores and The Abadesa: PC 1967

Two ships had collided. A third itself ran aground trying to avoid them, and its ownes sought damages.
Held: The unit approach to apportionment of damages was wrong.
Lord Morris said of section 1 of the 1911 Act: ‘The section calls for inquiry as to fault, and inquiry as to damage or loss, and inquiry as to causation. As applied to the claim made by the George Livanos it becomes necessary to decide whether the damage or loss to the George Livanos (or her cargo or freight) was caused by the fault of two or more vessels. The decision of the learned judge being that such loss or damage was caused by the fault of all three vessels, that is, the fault of herself, the fault of the Miraflores and the fault of the Abadesa, it followed that the liability to make good the damage or loss had to be ‘in proportion to the degree in which each vessel was at fault,’ which I think means the degree in which the fault of each vessel caused the loss or damage. Consequently three inquiries were involved. To what extent as a matter of causation did the fault of the Abadesa bring about the grounding of the George Livanos? To what extent as a matter of causation did the fault of the Miraflores bring about the grounding of the George Livanos? To what extent as a matter of causation did the fault of the George Livanos bring about her grounding? The liability to make good the damage or loss caused by the grounding would be in the proportions shown by the answers to those questions.
In performing the task directed by section 1, I think that it may lead to confusion if it is sought to link the faults of two separate vessels into one ‘unit.’ I think that it is preferable to follow the wording of the section without introducing the complication of ‘units.’ As applicable in the present case, once it was established that there was fault in each one of the three vessels and also that the damage or loss of the George Livanos was caused to some extent by the fault of each one of the three vessels, then it became necessary to apportion the liability for the damage or loss by deciding separately in reference to each one of the three vessels what was the degree in which the fault of each one caused the damage or loss to the George Livanos. The process necessarily involved comparisons and it required an assessment of the inter-relation of the respective faults of the three vessels as contributing causes of the damage or loss. If the faults of two vessels out of three are being grouped together there may be risk of making it difficult to make separate comparisons and assessments as between the three.’
Lord Pearce stated that it was essential to compare the fault of each with the fault of the other two; the emphasis is upon fault but not solely with the causation of damage: ‘It is axiomatic that a person who embarks on a deliberate act of negligence should, in general, bear a greater degree of fault than one who fails to cope adequately with the resulting crisis which is thus thrust upon him. This generality is subject, of course, to the particulars facts. And it may be that the initial act was so slight or easily avoidable and the subsequent failure to take avoiding action so gross that the blame for the accident falls more largely or even (if the interval and opportunity for avoidance are sufficiently great) wholly upon the person who failed to avoid the consequences of another’s negligence. Between the extremes in which a man is either wholly excused of a foolish act done in the agony of the moment as the result of another’s negligence or is wholly to blame because he had plenty of opportunity to avoid it, lies a wide area where his proportion of fault in failing to react properly to a crisis thrust upon him by another must be assessed as a question of degree. But the driver who deliberately goes round a corner on the wrong side should, as a rule, find himself more harshly judged than the negligent driver who fails to react promptly enough to the unexpected problem thereby created. For all humans can refrain from deliberately breaking well-known safety rules; but ’tis not in mortals to command the perfect reaction to a crisis; and many fall short at times of that degree which reasonable care demands.’
Lord Pearce considered how to apportion damages between several different defendants and said: ‘To get a fair apportionment it is necessary to weigh the fault of each negligent party against that of each of the others. It is, or may be, quite misleading to substitute for a measurement of the individual fault of each contributor to the accident a measurement of the fault of one against the joint fault of the rest.’
As to the 1945 Act he said: ‘Its intention was to allow a plaintiff, though negligent, to recover damages reduced to such an extent as the court thinks just and equitable, having regard to his share in the responsibility for the damage (section 1(1)). But that share can only be estimated by weighing his fault against that of the defendant or, if there are two defendants, against that of each defendant. It is true that apportionment as between the defendants comes theoretically at a later stage (under the Law Reform (Married Women and Tortfeasors) Act 1935). But as a matter of practice the whole matter is decided at one time and the court weighs up the fault of each in assessing liability as between plaintiff and defendants themselves. And I see nothing in the Act of 1945 to show that it intends the court to treat the joint defendants as a unit whose joint blameworthiness could only, one presumes, be the aggregate blameworthiness of its differing components.’

Judges:

Lord Pearce, Lord Morris of Borth-y-Gest

Citations:

[1967] 1 AC 826

Statutes:

Maritime Conventions Act 1911 1, Law Reform (Contributory Negligence) Act 1945 1

Citing:

Cited – Davies v Swan Motor Co (Swansea) Ltd CA 1949
A plaintiff brought an action for damages for personal injury against the drivers of two cars.
Held: There are two aspects to apportioning responsibility between a plaintiff and defendant in an action for negligence, the respective causative . .

Cited by:

Not approved – Fitzgerald v Lane HL 14-Jul-1988
The plaintiff crossed road at a pelican crossing. The lights were against him but one car had stopped. As he passed that car he was struck by another in the second lane and again by a car coming the other way. The judge had held the three equally . .
Cited – Brown v Thompson CA 1968
A car driver drove into the back of a stationary lorry but was nevertheless held only 20% responsible.
Held: A court of appeal should only exceptionally interfere with a judge’s apportinment of responsibility for an accident.
Winn LJ . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 05 May 2022; Ref: scu.267738

Way v Latilla: HL 1937

Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. In return, he was promised a share. W returned and acquired concessions. They agreed his reward would be decided on returning, and L promised W a substantial interest in his new Trust copany. They agreed no amount, but only that he should receive a share of the concessions. W now sought his remuneration. At trial he was awarded andpound;30,000 on the basis of a contract between the parties. The court of appeal disagreed and held that no contract was made.
Held: There was no concluded contract, and the court could not complete one for the parties but that W was entitled to remuneration on a quantum meruit. The question was the amount of the award. The CA said, applyig evidence from consulting mining engineers, that the proper award was a fee of andpound;600.
Lord Atkin said that the CA decision ignored the real business position, and that the award was to be fixed by reference to the approach to remuneration adopted by the parties: ‘My Lords, this decision appears to me to ignore the real business position. Services of this kind are no doubt usually the subject of an express contract as to remuneration, which may take the form of a fee, but may also take the form of a commission share of profits, or share of proceeds calculated at a percentage, or on some other basis. In the present case, there was no question of fee between the parties from beginning to end. On the contrary, the parties had discussed remuneration on the footing of what may loosely be called a ‘participation,’ and nothing else. The reference is analogous to the well known distinction between salary and commission. There are many employments the remuneration of which is, by trade usage, invariably fixed on a commission basis. In such cases, if the amount of the commission has not been finally agreed, the quantum meruit would be fixed after taking into account what would be a reasonable commission, in the circumstances, and fixing a sum accordingly. This has been an everyday practice in the courts for years. But, if no trade usage assists the court as to the amount of the commission, it appears to me clear that the court may take into account the bargainings between the parties, not with a view to completing the bargain for them, but as evidence of the value which each of them puts upon the services. If the discussion had ranged between 3 per cent on the one side and 5 per cent on the other, all else being agreed, the court would not be likely to depart from somewhere about those figures, and would be wrong in ignoring them altogether and fixing remuneration on an entirely different basis, upon which, possibly, the services would never have been rendered at all. That, in fixing a salary basis, the court may pay regard to the previous conversation of the parties was decided by the Court of Exchequer in 1869, in Scarisbrick v Parkinson, where the terms of an agreement, invalid under the Statute of Frauds, were held to be admissible as evidence in a quantum meruit. This seems to me to be good law, and to give effect to a principle which has been adopted regularly by the courts not only in fixing remuneration for services but also in fixing prices, sums due for use and occupation, and, indeed, in all cases where the court has to determine what is a reasonable reward for the consideration given by the claimant. As I have said, the rule applied in fixing the amount of the remuneration necessarily applies to the basis on which the amount is to be fixed. I have therefore no hesitation in saying that the basis of remuneration by fee should, in this case, on the evidence of the parties themselves, be rejected, and that Mr Way is entitled to a sum to be calculated on the basis of some reasonable participation.’ He fixed the award at andpound;5,000.
Lord Wright said that the court had to do its best to arrive at a figure which was fair and reasonable to both parties on all the facts of the case. He continued: ‘One aspect of the facts to be considered is found in the communings of the parties while the business was going on. Evidence of this nature is admissible to show what the parties had in mind, however indeterminately, with regard to the basis of remuneration. On those facts, the court may be able to infer, or attribute to the parties, an intention that a certain basis of payment should apply. This evidence seems to me to show quite clearly that the appellant was employed on the basis of receiving a remuneration depending on results. If he had been unsuccessful, he would have been entitled to no more than his expenses, but the respondent had led him to believe that, if the concessions he obtained were valuable, his remuneration would be on the basis of some proportion of their value.’ and ‘While it is not unknown that such services should be remunerated by a fee if it is expressly or impliedly so agreed, this is by no means necessarily, and would not generally be, the case. The idea of such a fee being excluded, it follows that the question of the amount to which the appellant is entitled is left at large, and the court must do the best it can to arrive at a figure which seems to it fair and reasonable to both parties, on all the facts of the case. One aspect of the facts to be considered is found in the communings of the parties while the business was going on. Evidence of this nature is admissible to show what the parties had in mind, however indeterminately, with regard to the basis of remuneration. On those facts, the court may be able to infer, or attribute to the parties, an intention that a certain basis of payment should apply.’

Judges:

Lord Atkin, Lord Wright

Citations:

[1937] 3 All ER 759

Jurisdiction:

England and Wales

Cited by:

Cited – Vedatech Corporation v Crystal Decisions (UK) Limited ChD 21-May-2002
The defendant wanted to amend its software and introduce it to the Japanese market, and worked with the claimants for this purpose. The defendant suggested that a concluded agreement existed, the claimant that only no contract was concluded. There . .
Cited – Kenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
Cited – Hunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
Cited – Stack v AJAT-Tec Ltd EAT 8-Jul-2011
EAT JURISDICTIONAL POINTS – Worker, employee or neither
Employment Judge wrongly held that claimant could not as a matter of law be party to a contract, either of service or for services, in circumstances . .
Cited – BP Exploration Co (Libya) Ltd v Hunt (No. 2) 1982
The court considered the application of interest to damages: ‘the basic principle . . that interest will be awarded from the date of loss’ and ‘the mere fact that it is impossible for the defendant to quantify the sum due until judgment has been . .
Cited – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 05 May 2022; Ref: scu.181805

AB v South West Water Services Ltd: CA 1993

Exemplary and aggravated damages were claimed in an action for nuisance arising out of the contamination of water by the defendant utility.
Held: Sir Thomas Bingham MR said: ‘A defendant accused of crime may ordinarily be ordered (if convicted) to pay a financial penalty. In such a case he will enjoy the constitutional safeguards afforded to defendants in criminal cases, which may include trial by jury, and the sum he is ordered to pay is received by the state, not (even in the case of a private prosecution) by the prosecutor. In a civil case, arising out of a civil wrong (whether or not it is also a crime), the defendant may be ordered to pay damages. In the ordinary way, damages bear no resemblance to a criminal penalty. The damages awarded to a plaintiff will be such as will compensate him for the loss he has suffered as a result of the wrong, so far as money can. The court looks to the extent of the plaintiff’s loss, not to the quality of the defendant’s conduct. Since the damages are awarded to compensate the plaintiff they are of course paid to him’
As to aggravated damages: ‘The plaintiffs are of course entitled to be fully compensated for all they suffered as a direct result of the defendants’ admitted breach of duty. The ordinary measure of compensatory damages will cover all they have suffered as a result of that breach, physically, psychologically and mentally. Full account will be taken of the distress and anxiety which such an event necessarily causes. To the extent that any of these effects was magnified or exacerbated by the defendants’ conduct, the ordinary measure of damages will compensate. The question is whether, in addition to that full compensatory measure, the plaintiffs have pleaded a sustainable claim for additional compensation by way of aggravated damaged. This is claimed in paragraph 27 on the basis that the plaintiff’s feelings of indignation were aroused by the defendants’ high-handed way of dealing with the incident. I know of no precedent for awarding damages for indignation aroused by a defendant’s conduct. Defamation cases in which a plaintiff’s damages are increased by the defendant’s conduct of the litigation (as by aggressive cross-examination of the plaintiff or persistence in a groundless plea of justification) are not in my view a true exception, since injury to the plaintiff’s feelings and self-esteem is an important part of the damage for which compensation is awarded. In very many other tort actions (and, for that matter, actions in contract, boundary disputes, partnership actions and other disputes) the plaintiff is indignant at the conduct of the defendant (or his insurers). An award of damages does not follow: nor, in my judgment should it, since this is not damage directly caused by the defendant’s tortious conduct and this is not damage which the law has ever recognised.’

Judges:

Sir Thomas Bingham MR, Stuart-Smith LJ

Citations:

[1993] QB 507, [1993] 1 All ER 609

Jurisdiction:

England and Wales

Cited by:

Cited – Lancashire County Council v Municipal Mutual Insurance Ltd CA 3-Apr-1996
The defendant agreed to indemnify the insured ‘in respect of all sums which the insured shall become legally liable to pay as compensation arising out of’ various matters including wrongful arrest, malicious prosecution and false imprisonment. The . .
Cited – Richardson v Howie CA 13-Aug-2004
The claimant sought damages for assault. In the course of a tempestuous relationship, she said the respondent had physically assaulted her in Barbados. He was later convicted of soliciting her murder. She sought and was awarded aggravated damages, . .
Distinguished – Appleton and others v Garrett 1996
The plaintiffs were patients of the defendant dentist who had carried out unnecessary treatment on them; they claimed damages for trespass and sought aggravated damages.
Held: There was no reason in principle why awards of aggravated damages . .
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Cited – Muuse v Secretary of State for The Home Department CA 27-Apr-2010
The claimant, a Dutch national, was detained pending deportation. He was arrested ‘for immigration’ after being given bail in other proceedings. It had been found that that detention was unlawful. He did not come within the criteria for deportation, . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Damages

Updated: 05 May 2022; Ref: scu.179822

Hinz v Berry: CA 1970

Then plaintiff saw her husband killed and her children injured by a runaway motor car. At trial she was awarded damages for nervous shock. The question was whether, having regard to the fact that she had suffered sorrow and grief it would not be to overcompensate her by failing to make a deduction for the sorrow and grief which was otherwise not compensable.
Held: A plaintiff who suffered from extreme grief, including a case where the condition of the sufferer was debilitating, but which fell short of a recognised psychiatric illness was not able to recover damages. Personal injury at law connotes serious trauma or illness.
Lord Denning said: ‘The law at one time said that there could not be damages for nervous shock; but for these last twenty-five years, it has been settled that damages can be given for nervous shock caused by the sight of an accident, at any rate to a close relative.’ and ‘In English law no damages are awarded for grief and sorrow caused by a person’s death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are however recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant.’ Also he said: ‘It happened on April 19, 1964. It was bluebell time in Kent’
Sir Gordon Wilmer discussed setting damages for this kind of injury: ‘It is practically impossible to find any signposts on the road; there is no tariff or pattern of awards in this class of case; and this makes it difficult for any one judge to criticize another’s estimate of what the damages ought to be.’
Lord Pearson said: ‘The first factor was her own inevitable grief and sorrow at losing her husband, a good husband who was also a good father to her family. That would have caused much sorrow and mourning in any event. Secondly, there was her anxiety about the welfare of her children who were injured in the accident. Thirdly, there was the financial stress resulting from the removal of this very hard-working breadwinner who took extra work in addition to his normal work. She may well have been in considerable financial difficulties. The fourth factor was the need for adjusting herself to a new life, which may well have been quite unusually severe in this case. Now, all those four factors are not compensatible, that is to say that they are not proper subjects to be taken into account in assessing damages according to English law.’ and ‘It should not be for the whole of the mental anguish and suffering which she has been enduring during the last five or six years. It should be only for that additional element which has been contributed by the shock of witnessing the accident, and which would not have occurred if she had not suffered that shock. It is a difficult distinction to draw, but I think the judge has laid a proper foundation and has found a right ground of decision, namely, that where there is an extra element which has been added by the shock of witnessing the accident, that is a proper subject of compensation. On his findings in this case that that element in itself was the sole cause of the added morbidity, the recognisable psychiatric element in her present condition, that is a proper ground for a substantial sum of money to be awarded.’

Judges:

Lord Denning, Sir Gordon Wilmer, Lord Pearson

Citations:

[1970] 2 QB 40

Jurisdiction:

England and Wales

Cited by:

Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
Cited – Tranmore v T E Scudder Limited CA 28-Apr-1998
Psychiatric damage following the death of a son after alleged negligence by defendant. . .
Cited – White, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998
No damages for Psychiatric Harm Alone
The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy.
Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . .
Cited – McLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .
Cited – Reilly and Another v Merseyside Regional Health Authority CA 28-Apr-1994
. .
Cited – Vernon v Bosley (2) CA 29-Mar-1996
The defendant had been driving the plaintiff’s daughters, but negligently caused an accident from which they died. The plaintiff was called to the accident, and claimed to have suffered post traumatic stress. The defendant said that the effect was . .
Cited – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 05 May 2022; Ref: scu.180107

Zanzibar v British Aerospace (Lancaster House) Ltd: QBD 31 Mar 2000

In a contract for the purchase of airplanes, the plaintiff claimed misrepresentation, and as a result, rescission and damages. The issue was whether, once the right to rescind had been lost, any claim for damages had also lapsed under section 2(2).
Held: The power to award damages was properly an alternative to rescission, which a judge could award where he felt that it was a more equitable solution. As an alternative, it fell with the claim for rescission.

Judges:

Stuart-Smith LJ

Citations:

Times 31-Mar-2000, [1999] 1 Lloyd’s Rep 387

Statutes:

Misrepresentation Act 1967 2(2)

Jurisdiction:

England and Wales

Citing:

Not Followed – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .
See also – Government of Zanzibar v British Aerospace (Lancaster House) Ltd ComC 26-Jan-2000
The claimant had bought an airplane from the defendant in 1992. It brought an action in misrepresentation. The defendant asked that it be struck out as without chances of success for delay and breach of the court rules.
Held: The court asked . .

Cited by:

Cited – Six Continents Hotels Inc v Event Hotels Gmbh QBD 21-Sep-2006
The claimant had licensed the defendant to use its trademarks in connection with the naming of their hotels in Germany. The defendants failed to pay their fees as agreed, the claimants terminated the license and now sought payment under the . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other, Damages

Updated: 05 May 2022; Ref: scu.90686

Bank of Credit and Commerce International (Overseas) Ltd (In Liquidation) and Others v Price Waterhouse: ChD 2 Apr 1998

Damages for negligently conducted audit were not to include sums which would not have been spent if truth had been known and if the company had stopped trading immediately. The court should consider whether also the defendant had had opportunity to issue a disclaimer.

Judges:

Sir Brian Neill

Citations:

Times 02-Apr-1998, Gazette 16-Apr-1998

Jurisdiction:

England and Wales

Cited by:

Cited – West Bromwich Albion Football Club Ltd v El-Safty QBD 14-Dec-2005
The claimant sought damages from the defendant surgeon alleging negligent care of a footballer. The defendant argued that he had no duty to the club as employer of his patient who was being treated through his BUPA membership. It would have created . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 05 May 2022; Ref: scu.78134

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.

Citations:

[1964] 2 QB 134

Statutes:

Land Clauses Consolidation Act 1845 63

Jurisdiction:

England and Wales

Cited by:

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 – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 04 May 2022; Ref: scu.259680

Meikle v Sneddon: 1862

The pursuers sought damages for the wrongful arrestment of their ship. They claimed andpound;500 as solatium for injury to their feelings. But the only loss that had been actually sustained was the sum required to relieve the vessel from the arrestment, which was less than andpound;10.
Held: Lord Justice-Clerk Inglis said: ‘It is of no consequence whether the pursuers have sustained any substantial damage. Suppose the damage to be such that one farthing is recovered, that will show that a wrong has been done by the defenders to the pursuers; and, consequently, that this action is well founded.’

Judges:

Lord Justice-Clerk Inglis

Citations:

(1862) 24 D 720

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Damages

Updated: 04 May 2022; Ref: scu.260121

K v P (J, Third Party): 1993

Illegality was arguably not a defence to a claim under the Act of 1978: ‘The Act of 1978 extends the potential for contribution beyond joint tortfeasors to joint contractors, joint trustees and others who are liable in respect of the same damage. . . . it is manifest that the words of section 6(1) of the Act of 1978 are intended to be interpreted widely, hence the use of the words ‘whatever the basis of his liability’ and the emphasis added by the word ‘otherwise’ at the end of the enumerated causes of action.’

Judges:

Ferris J

Citations:

[1993] Ch 140

Statutes:

Civil Liability (Contribution) Act 1978 1

Cited by:

Cited – Friends’ Provident Life Office v Hillier, Parker May and Rowden CA 1997
Friends Provident had participated in a development project on terms which required it to pay its share of the development costs as it proceeded. It employed Hillier Parker, a firm of surveyors, to check demands made from time to time for payment of . .
Cited – Charter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 04 May 2022; Ref: scu.247620

C Chiodi v De Marney: CA 1988

The claimant was a statutory tenant occupying a flat at a registered fair rent of andpound;8 per week. He withheld the rent and was sued for possession. He counterclaimed for damages for breach of the implied covenant on the part of the landlord to repair. The judge awarded damages under three heads including for inconvenience and distress calculated on the basis of andpound;30 per week for three and a half years. The tenant was also awarded andpound;4,657 special damages for damage to her furniture, clothing and decorations and andpound;1,500 damages for injury to her health. The landlord appealed contending that, as the rent was only andpound;8 per week, the award was too high.
Held: The appeal failed. A weekly sum, even in excess of the rent payable for the premises, is a permissible way to calculate the monetary compensation to be awarded for distress and inconvenience. Ralph Gibson LJ cited Atkin LJ in Hewitt for the proposition that ‘the fact that the tenant was a statutory tenant made no difference to the assessment of damages of the proper award to be made’.

Judges:

Ralph Gibson LJ

Citations:

[1988] 21 HLR 6

Jurisdiction:

England and Wales

Cited by:

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.

Housing, Damages

Updated: 04 May 2022; Ref: scu.245597

Isleworth Studios v Rickard: EAT 1988

The claimant had on dismissal gone into business on his own account and earned some andpound;10,000 more than he would have done had he remained employed. The employer appealed the award of damages.
Held: The tribunal had erred in awarding compensation for the 23 weeks’ unexpired period of the year’s fixed term contract. It would have been wholly unjust if he had received this sum as a windfall.

Citations:

[1988] ICR 432

Jurisdiction:

England and Wales

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, Damages

Updated: 04 May 2022; Ref: scu.240328

SSP Health Ltd v The National Health Service Litigation Authority (Primary Care Appeals Service) and Others: CA 25 Nov 2020

The issue on this appeal is whether an adjudicator appointed to resolve a dispute under an NHS contract made a lawful decision not to award interest on sums that she considered due.

Judges:

Lord Justice Stuart-Smith

Citations:

[2020] EWCA Civ 1574

Links:

Bailii

Statutes:

National Health Service Act 2006 9

Jurisdiction:

England and Wales

Citing:

At Admn – SSP Health Ltd, Regina (on The Application of) v Care Quality Commission Admn 12-Aug-2016
Redress for unamended report
‘Suppose that a regulator, charged by Parliament with the responsibility for the assessment and rating of certain bodies providing services to the public, affords an inspected entity the opportunity to make factual corrections to its draft report . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Damages

Updated: 04 May 2022; Ref: scu.656358

The Llanover: 1947

The lost vessel for which the claim was made, was under charter, to the British government in wartime. The war conditions had driven up the need for shipping, and with it the market value of ships.
Held: The owner was not awarded damages more than such profit as the vessel would have made if the voyage on which it was engaged at the time of its loss had been completed.
Pilcher J said: ‘in March, 1942, any British shipowner selling or buying a British ship would do so with the knowledge that his ship would, so long as she was kept efficient, be assured of profitable engagement probably at rates laid down by the Ministry of War Transport. If this were so, it seemed to follow that any enhanced value due to the virtual certainty of profitable employment was already reflected in the prices realized by the sales of comparable ships and was therefore already included in the sum allowed by the assistant registrar’ as the going concern value of the vessel.

Judges:

Pilcher J

Citations:

[1947] P 80

Jurisdiction:

England and Wales

Cited by:

Appeal from – The Llanover CA 1948
Bucknill LJ said: ‘On the undisputed evidence as to the circumstances leading up to the collision, it seems to me that a prima facie case of negligence is made out against the ‘Llanover’ which she has failed to rebut. Her rebuttal rests on her . .
Lists of cited by and citing cases may be incomplete.

Transport, Damages

Updated: 04 May 2022; Ref: scu.581029

The Llanover: CA 1948

Bucknill LJ said: ‘On the undisputed evidence as to the circumstances leading up to the collision, it seems to me that a prima facie case of negligence is made out against the ‘Llanover’ which she has failed to rebut. Her rebuttal rests on her evidence that her steering gear jammed, which made it impossible for her to keep out of the way. It is not sufficient for a ship to say: ‘My steering gear has jammed and therefore I can do nothing.’ I think the burden is cast on her of showing that the jamming could not have been avoided by the exercise of reasonable care and skill on her part, or at least that she used all reasonable care and skill to prevent the jamming of the gear, and that it might reasonably have jammed for a cause which they could not have prevented by the exercise of reasonable care and skill.’

Judges:

Bucknill LJ

Citations:

[1948] 79 Lloyds LLR 159

Jurisdiction:

England and Wales

Citing:

Appeal from – The Llanover 1947
The lost vessel for which the claim was made, was under charter, to the British government in wartime. The war conditions had driven up the need for shipping, and with it the market value of ships.
Held: The owner was not awarded damages more . .
Lists of cited by and citing cases may be incomplete.

Transport, Damages

Updated: 04 May 2022; Ref: scu.581030

Farrell v Avon Health Authority: 8 Mar 2001

The claimant was father to a new-born child. At the birth he was told that his baby son was dead before seeing his son and understanding that an error had been made. He sought damages asserting that he had suffered nervous shock. The Hospital said that he was not able to recover for psychiatric injury where no possibility of a physical injury was forseeable.
Held: He succeeded. As a primary victim a claim for psychiatric injury was possible even where no physical injury was risked. A real risk of suffering a recognised psychiatric disorder was sufficient.

Judges:

Judge Bursell QC

Citations:

[2001] All ER (D) 17

Personal Injury, Damages

Updated: 04 May 2022; Ref: scu.536640

Sealace Shipping Co Ltd v Oceanvoice Ltd, The Alecos M: CA 1991

The parties contracted for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for secondhand propellers. So the only way of providing a spare propeller would have been to commission the manufacture of a new propeller at great expense. The arbitrator had held that this would be unreasonable. Instead, he awarded the scrap value of the propeller, since that was all the buyer had actually lost by reason of the seller’s breach.
Held: The arbitrator’s decision was upheld
Neill LJ said: ‘I can only read his award as meaning that he asked the question: what did these buyers really suffer as a result of the non-delivery of this spare propeller with this vessel? And he gave the answer: they lost its scrap value which in the circumstances was the only value which it had for them.’

Judges:

Neill LJ

Citations:

[1991] 1 Lloyd’s Rep 120

Cited by:

Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 04 May 2022; Ref: scu.526104

Imodco Ltd v Wimpey Major Projects Ltd: CA 1987

Glidewell LJ stated that the cost of work to put pipes in the position contracted for would be recoverable if there was an intention to carry out the work and if it was reasonable so to do.

Judges:

Glidewell LJ

Citations:

(1987) 40 BLR 1

Cited by:

Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.

Construction, Damages

Updated: 04 May 2022; Ref: scu.526099

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 interim payment to be made in those circumstances.

Judges:

Schiemann J

Citations:

Times 08-Mar-1988

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice, Personal Injury

Updated: 04 May 2022; Ref: scu.526107

Bellgrove v Eldridge: 1954

High Court of Australia. The builder built a house with defective foundations, as a result of which the house was unstable. The building owner brought an action against the builder claiming the cost of reinstatement.
Held: His claim succeeded on the facts.
The court approved the rule as stated in Hudson on Building Contracts that: ‘The measure of the damages recoverable by the building owner for the breach of a building contract is . . the difference between the contract price of the work or building contracted for and the cost of making the work or building conform to the contract’ as to the case law: ‘In none of these cases is anything more done than that work which is required to achieve conformity and the cost of the work, whether it be necessary to replace only a small part, or a substantial part, or, indeed, the whole of the building is, subject to the qualification which we have already mentioned and to which we shall refer, together with any appropriate consequential damages, the extent of the building owner’s loss. The qualification, however, to which this rule is subject is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt.’
The cost of reinstatement work subject to the qualification of reasonableness was the extent of the loss. Reasonableness was a factor to be considered in determining what was that loss rather than, as had been argued, merely a factor in determining which of two alternative remedies were appropriate for a loss once established.
The land owner, having contracted for a building, is, as a general rule, entitled to have a building which conforms with the contract plans, the High Court continued: ‘The qualification, however, to which this rule is subject is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt. No one would doubt that where pursuant to a building contract calling for the erection of a house with cement rendered external walls of second-hand bricks, the builder has constructed the walls of new bricks of first quality the owner would not be entitled to the cost of demolishing the walls and re-erecting them in second-hand bricks. In such circumstances the work of demolition and re-erection would be quite unreasonable or it would, to use a term current in the United States, constitute ‘economic waste’ . . We prefer, however, to think that the building owner’s right to undertake remedial works at the expense of a builder is not subject to any limit other than is to be found in the expressions ‘necessary’ and ‘reasonable’, for the expression ‘economic waste’ appears to us to go too far and would deny to a building owner the right to demolish a structure which, though satisfactory as a structure of a particular type, is quite different in character from that called for by the contract. Many examples may, of course, be given of remedial work, which though necessary to produce conformity would not constitute a reasonable method of dealing with the situation and in such cases the true measure of the building owner’s loss will be the diminution in value, if any, produced by the departure from the plans and specifications or by the defective workmanship or materials. As to what remedial work is both ‘necessary’ and ‘reasonable’ in any particular case is a question of fact.’

Citations:

(1954) 90 CLR 613

Cited by:

Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.

Damages, Commonwealth, Construction

Updated: 04 May 2022; Ref: scu.526101

Minscombe Properties Ltd v Sir Alfred McAlpine and Sons Ltd: CA 1986

O’Connor LJ applied the test of reasonableness in determining whether the cost of reinstatement of land to its contracted for condition should be recoverable as damages.

Judges:

O’Connor LJ

Citations:

(1986) 2 Const LJ 303

Jurisdiction:

England and Wales

Cited by:

Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.

Construction, Damages

Updated: 04 May 2022; Ref: scu.526100

Taff Vale Railway v Jenkins: HL 1913

Damages can be awarded under the Fatal Accidents Acts only in respect of pecuniary loss and not as a solatium for injured feelings. The House set down the test that award of damages in fatal accident action is compensation for the reasonable expectation of pecuniary benefit by the deceased’s family. The purpose of award of compensation is to put the dependants of the deceased, who had been bread-winner of the family, in the same position financially as if he had lived his natural span of life; it is not designed to put the claimants in a better financial position in which they would otherwise have been if the accident had not occurred.

Judges:

Lord Haldane

Citations:

[1913] AC 1, [1911-13] All ER 160

Jurisdiction:

England and Wales

Damages

Updated: 04 May 2022; Ref: scu.519670

Burgess v Florence Nightingale Hospital: 1955

Damages under the Fatal Accidents Acts should be awarded ‘for what the child lost by the wife’s death, both in respect of the school fees and of what she might have done for the child’.

Judges:

Devlin J

Citations:

[1955] 1 All ER 511

Cited by:

Cited – Hay v Hughes CA 17-Oct-1974
A couple had died in a road accident. The court considered the award of damages for dependency. . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 04 May 2022; Ref: scu.519669