Category: Damages

Perestrello E Companhia Limitada v United Paint Co Ltd: CA 1969

The plaintiff alleged the wrongful repudiation by the defendant of a contract between them. The court considered the requirements as to what had to be pleaded in a claim for damages.
Held: Where a plaintiff claims that he has suffered damage, ie injury, of a kind which is not necessary and immediate consequence of the wrongful act, it is his duty to plead full particulars to show the nature and extend of the damages, ie the amount which he claims to be recoverable, irrespective of whether they are general or special damages, so fairly to inform the defendant of the case he has to meet and to assist him in computing a payment into Court, and the mere statement or prayer that he claims damages will not support a claim for such damages.
Lord Donovan said: ‘There is plenty of authority for the proposition that a plaintiff need not plead general damage; but since the expressions ‘special damage’ and ‘special damages’ are used in such a wide variety of meanings, it is safer to approach this question by considering what a plaintiff is required to plead rather than what he is not.
The Rules of the Supreme Court are of no direct assistance. Ord 18, r.7, requires that every pleading shall contain a summary of the material facts and by Rule 12 ‘every pleading must contain the necessary particulars of any claim . .’ By rule 15 ‘a statement of claim must state specifically the relief or remedy claimed. It follows that the necessity of pleading ‘damage’ (meaning injury) or ‘damages’ (meaning the amount claimed to be recoverable), if it arises at all, does so as an example of the general requirement of any statement of claim that it shall ‘put the defendants on their guard and tell them what they have to meet when the case comes on for trial. (per Cotton LJ in Philipps v Philipps (1878) QBD 127, 139).
Accordingly, if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claim will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court.
The limits of this requirement are not dictated by any preconceived notions of what is general or special damage but by the circumstances of the particular case. ‘The question to be decided does not depend on words, but is one of substance’ (per Bowen LJ in Ratcliffe v Evans [1892] 2 QB 524 at p 529).
The same principle gives rise to a plaintiff’s undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is ‘special’ in the sense that fairness to the defendant requires that it be pleaded.
The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.
. . if the claim is one which cannot with justice be sprung on the defendants at the trial it requires to be pleaded so that the nature of that claim is disclosed. As Lord Dunedin said in Susquehanna [1926] AC 655 at p 661 ‘if the damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question.’
What amounts to a sufficient averment for this purpose will depend on the facts of the particular case, but a mere statement that the plaintiffs claim ‘damages’ is not sufficient to let in evidence of a particular kind of loss which is not a necessary consequence of the wrongful act and of which the defendants are entitled to fair warning.’

Judges:

Lord Donovan

Citations:

[1969] 1 WLR 570

Cited by:

Cited – Whalley v PF Developments and Another CA 14-Feb-2013
The claimants appealed against the level of damages awarded to them in respect of a trespass by the respondent developer. The judge had rejected the claim for unpleaded special damages. The claimants said that the sums had been covered in the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Damages

Updated: 04 May 2022; Ref: scu.514229

Attorney-General v Guardian Newspapers Ltd: CA 2 Jan 1988

A former employee of the Secret Service had written a book (‘Spycatcher’). The AG sought several remedies including damages against a newspaper for serialising it. Dillon LJ said: ‘It has seemed to me throughout the hearing of this appeal that there could have been strong arguments for saying that, as Mr. Wright wrote and published Spycatcher in breach of his duty of secrecy to the Crown and was only able to do so by the misuse of secret information which had come to him in the course of his employment as an officer in the Security Service of the Crown, the copyright in Spycatcher belongs in equity to the Crown and is held on a constructive trust for the Crown with whatever consequences may follow from that. Since, however, the Crown has in the most explicit terms disclaimed any reliance on equitable copyright, I put such thoughts out of mind’.

Judges:

Dillon LJ

Citations:

[1988] 2 WLR 805

Jurisdiction:

England and Wales

Citing:

Appeal from – Attorney-General v Guardian Newspapers Ltd QBD 1988
A Mr Peter Wright had written a book about his service in MI5. The Crown sought to restrain publication of the book by newspapers and also, as against The Sunday Times, an account of profits.
Held: As to this latter Scott J, said: ‘I had . .
See Also – Attorney General v Guardian Newspapers Ltd (No.1) HL 13-Aug-1987
A retired secret service officer intended to publish his memoirs through the defendant. The house heard an appeal against a temporary injunction restraining publication.
Held: Lord Bridge delivered his dissenting speech in the case of . .

Cited by:

Appeal From – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Twentieth Century Fox Film Corp and Others v Harris and Others ChD 5-Feb-2013
The court was asked whether a copyright owner has a proprietary claim to money derived from infringement of the copyright.
Held: He did not. No such argument could be shown to have suceeded before. . .
Lists of cited by and citing cases may be incomplete.

Damages, Equity, Intellectual Property

Updated: 04 May 2022; Ref: scu.473040

Denmark Productions Ltd v Boscobel Productions Ltd: CA 1969

Where the award of damages at law may be inadequate, the court may order an account to be taken to determine precisely what is owing by one party to the other.
Salmon LJ doubted whether an unaccepted repudiation could bring an end to a contract of employment in law ‘although no doubt in practice it does’. In law, he thought that the position was (i) that the contract continued in being, (ii) that it would not, however, be specifically enforced because the employee had not worked and had not therefore earned his remuneration; (iii) that the employee’s only remedy was to sue for his lost wages as damages for the employer’s breach in preventing him from earning them (presumably from time to time as they would have fallen due); and (iv) that the only thing that prevented the employee from sitting idle for the rest of the contractual term and collecting damages equal to his lost wages was the condition that he should have taken reasonable steps to mitigate his loss by finding alternative employment.
He descibed the docrine of frustration, saying: ‘This was a doctrine evolved by the Courts to meet the case in which a contract became impossible through some supervening event, not reasonably foreseeable when the contract was made and for which neither contracting party was in any way responsible’.
Sachs LJ agreed, observing that ‘In such cases it is the range of remedies that is limited, not the right to elect.’
Winn LJ said: ‘Where A and B are parties to an executory contract, if A intimates by word or conduct that he no longer intends, or is unable, to perform it, or to perform it in a particular manner, he is, in effect, making an offer to B to treat the contract as dissolved or varied so far as it relates to the future. If B elects to treat the contract as thereby repudiated, he is deemed, according to the language of many decided cases, to ‘accept the repudiation’ and is thereupon entitled (a) to sue for damages in respect of any earlier breach committed by A and for damages in respect of the repudiation, (b) to refrain from himself performing the contract any further.’

Judges:

Salmon, Sachs, Winn LJJ

Citations:

[1969] 1 QB 699

Cited by:

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

Contract, Damages

Updated: 04 May 2022; Ref: scu.470541

Crampton v Nugawela: 23 Dec 1996

(Supreme Court of New South Wales) Defamation – Damages – Aggravated and general damages – Economic loss with respect to professional standing – Principles relevant to assessment of damages for defamation – Relationship to damages for serious personal injury
When considering the likelihood of repetition of a libel once published, the court spoke of ‘the grapevine effect’.

Judges:

Mahoney ACJ, Handley JA, Giles AJA

Citations:

[1997] Aust Torts Reports 81-416, (1996) 41 NSWLR 176, [1996] NSWSC 651

Links:

Austlii

Cited by:

Cited – Cairns v Modi CA 31-Oct-2012
Three appeals against the levels of damages awards were heard together, and the court considered the principles to be applied.
Held: In assessing compensation following a libel, the essential question was how much loss and damage did the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation, Damages

Updated: 04 May 2022; Ref: scu.465884

Mining Supplies (Longwall) Limited v Baker: EAT 1988

The unfairness of the Claimant’s dismissal lay in the employer’s failure to consult with him over his impending redundancy before dismissing him. Had they done so, the result would have been the same but dismissal would have been deferred for a short time.
Held: If a proper procedure would have taken some time to go through and the result would have been the same, it would be just and equitable to award compensation during the period of employment up to the date of the putative dismissal. The loss during the notional consultation period was recoverable as a Head of Loss within the compensatory award.

Judges:

Wood P

Citations:

[1988] ICR 676

Cited by:

Applied – Cartwright v Kings College London EAT 30-Apr-2012
EAT UNFAIR DISMISSAL – Polkey deduction
The Claimant was found (by the Court of Appeal) to have been unfairly dismissed by reason of failure to comply with Step 1 of the Standard Procedure. In all other . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 04 May 2022; Ref: scu.460334

Breavington v Godleman: 18 Aug 1988

Austlii (High Court of Australia) – Private International Law – Tort – Negligence – Act committed in Territory – Personal injury – Territory statute imposing limit on amount of damages – Action in State court – No limit on amount of damages under State law – Choice of law – Whether law of place of tortious act or of forum – The Constitution (63 and 64 Vict. c. 12), ss. 118, 122 – Motor Accidents (Compensation) Act 1979 (N.T.), ss. 4,5 – State and Territorial Laws and Records Recognition Act 1901 (Cth), s. 18.
Federal Jurisdiction – Conflict of laws – Full faith and credit – Whether State court required to give full faith and credit to Territory statute – Whether law of Territory a law of the Commonwealth – Inconsistency – The Constitution (63 and 64 Vict. c. 12), ss. 109, 118 – State and Territorial Laws and Recognition Act 1901 (Cth), s. 18.
Federal Jurisdiction – Action in State court against Commonwealth – Submission to jurisdiction – Whether federal jurisdiction – Whether State choice of law rules apply – The Constitution (63 and 64 Vict. c. 12), ss. 75(iii), 78 – Judiciary Act 1903 (Cth), ss. 39(2), 56, 64, 79.

Judges:

Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey, Gaudron JJ

Citations:

[1988] HCA 40, (1988) 169 CLR 41, (1988) 80 ALR 362, (1988) 62 ALJR 447, (1988) 7 MVR 289

Links:

Austlii

Cited by:

Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Constitutional

Updated: 04 May 2022; Ref: scu.449035

Macrae v Reed and Mallik Ltd: SCS 1961

(Second Division)
Held: Interest from a date earlier than the date of decree could be allowed on damages awarded for loss suffered before that date only where such loss could be definitely ascertained. Interest on solatium (being ascertainable not earlier than the award having been made in the court of first instance) was not payable from any date earlier than that court’s decree. The exercise of the discretion in respect of interest required a selective and discriminating approach, with lower interest rates applied.

Judges:

Lord Patrick (Lord Justice Clerk Thomson dissenting)

Citations:

1961 SC 68

Statutes:

Interest on Damages (Scotland) Act 1958 1

Cited by:

Cited – Farstad Supply As v Enviroco Ltd SCS 14-Sep-2011
(Outer House) The parties had settled a claim for the loss by fire of an oil rig supply vessel. The parties now disputed whether the settlement carries interest under the Act. The parties’ insurers were concerned that the interest rate awarded under . .
Lists of cited by and citing cases may be incomplete.

Scotland, Damages

Updated: 04 May 2022; Ref: scu.444293

Boots The Chemist Ltd v G A Estates Ltd: 1992

It is the general practice of the Court of Session to award interest due under the 1958 Act at the rate of 8%.

Citations:

1992 SC 485

Statutes:

Damages (Scotland) Act 1958 1

Jurisdiction:

Scotland

Cited by:

Cited – Farstad Supply As v Enviroco Ltd SCS 14-Sep-2011
(Outer House) The parties had settled a claim for the loss by fire of an oil rig supply vessel. The parties now disputed whether the settlement carries interest under the Act. The parties’ insurers were concerned that the interest rate awarded under . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 04 May 2022; Ref: scu.444292

Blazer v Yardley and Co: ChD 1992

The plaintiff carried on the business of a high class gentlemen’s outfitter. The defendant was accused of using the plaintiff’s trading name without having had any prior association with the name. The defendant’s get up had similarities to that used by the plaintiff, but was restrictied in use to toiletries. The plaintiff sought an injunction.
Held: An injunction was refused. In this particular case the court did not need to make a formal assessment of the likelhood of deception in order to make its decision on the balance of convenience. The defendant’s continued activites would no doubt restrict any attempt by the plaintiff to move into the toiletries market, but the damage would be uncertain. On the oter hand an injunction would cause The court will assume damage where the goodwill associated with the product is being used and eroded by the actions of the defendant.

Judges:

Aldous J

Citations:

[1992] FSR 501

Jurisdiction:

England and Wales

Intellectual Property, Damages

Updated: 04 May 2022; Ref: scu.440728

New Zealand Forest Products Limited v the New Zealand Insurance Company Limited: PC 21 Jul 1997

(New Zealand) Proceedings had been instituted in five causes of action against a company and its director, whose costs were both covered by an insurance policy, and in the case of one of the causes of action against a third person not so covered. All the defendants were represented by the same lawyers. It was common ground that costs not relating in any way to the insured director’s defence would not be covered, while costs exclusively related to the insured director’s defence would be covered. The issue which arose was as to defence costs which related at one and the same time to the defence both of the claim against the insured director and of the claim against the uninsured third person. The courts below took the view that there should be an apportionment.
Held: The relevant insurance. This covered ‘all loss . . which such officer has become legally obligated to pay on account of any claim made against him . . for a wrongful act’. Since this wording would cover the whole costs incurred in the defence where the insured officer was the sole defendant, the Board saw no reason why it should not cover them all, where some of them related also to the defence of an uninsured co-defendant.

Judges:

Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Clyde, Lord Hutton, Justice Henry

Citations:

[1997] UKPC 37, [1997] 1 WLR 1237

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Approved – 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 . .
Cited – Travelers Insurance Company Ltd v XYZ SC 30-Oct-2019
Challenge to the making of a non-party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (‘GLO’). Many of the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Damages, Costs

Updated: 04 May 2022; Ref: scu.159249

Lodge Holes Colliery Company v Wednesbury Corporation: HL 1908

Lord Loreburn LC said: ‘Now I think a Court of Justice ought to be very slow in countenancing any attempt by a wrong-doer to make captious objections to the methods by which those whom he has injured have sought to repair the injury. When a road is let down or land let down, those entitled to have it repaired find themselves saddled with a business which they did not seek, and for which they are not to blame. Errors of judgment may be committed in this as in other affairs of life. It would be intolerable if persons so situated could be called to account by the wrong-doer in a minute scrutiny of the expense, as though they were his agents, for any mistake or miscalculation, provided they act honestly and reasonably. In judging whether they have acted reasonably, I think a Court should be very indulgent and always bear in mind who was to blame.’

Judges:

Lord Loreburn LC

Citations:

[1908] AC 323

Jurisdiction:

England and Wales

Cited by:

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

Damages

Updated: 02 May 2022; Ref: scu.425895

Stevens v Aldershot Gas, Water and District Lighting Co: 1932

The plaintiff claimed for damage to electrical apparatus and loss of profits because the defendants had failed to supply electric current at the voltage at which they had said that they would.
Held: The question was ‘whether, if they have failed in that obligation, the plaintiff has a remedy at common law or is she limited to penalties in a court of summary jurisdiction?’ His Lordship held that the plaintiff was limited to the penalties.

Judges:

Macnaghten J

Citations:

(1932) LJKB 12

Jurisdiction:

England and Wales

Cited by:

Cited – Morrison Sports Ltd and Others v Scottish Power SC 28-Jul-2010
A fire caused substantial damage to buildings. It arose from a ‘shim’ placed in a fuse box which then overheated. The parties disputed whose employee had inserted the shim. The Act under which the Regulations had been made was repealed and replaced . .
Lists of cited by and citing cases may be incomplete.

Utilities, Damages

Updated: 02 May 2022; Ref: scu.421501

Hobbs v London and South Western Railway Company: 1875

Damages for personal inconvenience ‘where it is sufficiently serious’ is recoverable at law (per Sir Alexander Cockburn CJ). Mellor J said however that: ‘for the mere inconvenience, such as annoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your mind upon, without real physical inconvenience resulting, you cannot recover damages. That is purely sentimental and not a case where the word inconvenience as I here use it would apply.’

Judges:

Sir Alexander Cockburn CJ, Mellor J

Citations:

(1875) LR 10 QB 111

Cited by:

Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 02 May 2022; Ref: scu.408560

Holden v Chief Constable of Lancashire: CA 1987

The claimant sought damages after false imprisonment by the defendant for 20 minutes. The Judge had withdrawn from the jury the possibility of awarding exemplary damages on the basis that there was no suggestion of oppressive behaviour on the part of the police.
Held: The judge had been wrong to withdraw that claim. The Court considered whether in every case falling within a Rookes v Barnard category there should be an award of exemplary damages. It concluded that this was not the law and that what the Court had to do in each case was to consider all the circumstances and to decide whether such an award would serve any useful purpose. It was not enough that the action was simply unconstitutional; there had to be an improper use of ‘constitutional or executive power’.
Purchas LJ said: ‘If full effect is to be given to the word ‘or’ in the category ‘oppressive, arbitrary or unconstitutional action’ by government servants, wrongful arrest falls within the category without any of the added qualifications suggested by the judge, in which case the question whether or not to award exemplary damages should have been left to the jury with appropriate directions as to what special features of the case they might in their discretion take into account in deciding whether or not to award such damages, and, if so, how much.’

Judges:

Purchas LJ

Citations:

[1987] QB 380

Jurisdiction:

England and Wales

Cited by:

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.

Damages, Torts – Other

Updated: 02 May 2022; Ref: scu.408657

Andrew Master Homes Ltd v Cruikshank and Fairweather: CA 1981

The method of assessing loss caused by a negligent patent agent was considered.
Held: As a negligence action and not an infringement action, the logical method for assessing damages was to evaluate the market price of the right to pursue the application, on the assumption that (as was conceded in that case on appeal) it would have been accepted without amendment by the Patent Office. In making the evaluation, the court would take into account the prior art, the likelihood of opposition or revocation proceedings and the possibility of competitors modifying their product to avoid infringement.
Buckley LJ said: ‘When a new device is introduced to the market its commercial use may well have experimental value from the point of view of the inventor or patentee for some time thereafter; but if the use of the apparatus is by no means experimental from the point of view of the customer I doubt whether it can be properly described as for the purpose of trial or experiment only’. And
‘In my judgment damages are not nominal, because the purchaser might well have been willing to pay something for a patent, which though vulnerable to attack and avoidance, nevertheless might prove some deterrent to competitors and some convenience to the patent owner. However, the patent would have been so vulnerable to attack on the grounds of invalidity and could have been so easily avoided that it is improbable that a purchaser would have been prepared to pay a large amount.’ and
‘In assessing damages it must be borne in mind that this is not an infringement action. What the plaintiff company suffered in consequence of the defendants’ negligence or breach of contract was the loss of whatever benefits might have accrued to the company if the application had been accepted by the patent office, as it is conceded it would have been if it had been put in order by 7 July 1967. As I have already pointed out, it does not follow from that concession either that the plaintiff company would certainly have obtained a grant of a patent, or that, if the company had obtained the grant of a patent, that patent could have successfully withstood revocation proceedings. Nor can we be sure what the claims of such a patent would have been, nor whether a competitor could easily have avoided infringing such claims. One method-and it seems to me to be the logical method-of arriving at an assessment of damages might be to attempt to quantify the price at which the plaintiff company could have disposed in the open market as between willing vendor and willing purchaser of its right to pursue its application on the assumption that it had been accepted by the Patent Office without amendment, for it was of this right that the company was deprived by the defendants’ negligence or breach of contract. Such a quantification cannot be an easy matter, for it necessarily involves forming a view of what the opinion of the supposed purchaser would be upon the various unknown factors which I have indicated, as well as of the value which the supposed purchaser would put upon the potential profitability of any patent he might succeed in obtaining.’
Templeman LJ said: ‘I agree also with my Lord that the appropriate method of assessing damages is to attempt to quantify the price at which the plaintiff company could have disposed in the open market as between willing vendor and willing purchaser of its right to pursue its application on the assumption that the application would have been accepted by the Patent Office without amendment. In my judgment it must however be assumed that the purchaser would have been prudent enough to make prior inquiries which would have revealed the Hotchkiss patent and that the purchaser would have bought the benefit of the application by the plaintiff company in the knowledge, or at least suspicion, that any patent granted in respect of Mr Andrew’s machine would be vulnerable to opposition proceedings or revocation proceedings and in any event could be avoided with ease by the use of fixed spacers.’

Judges:

Buckley LJ, Templeman LJ, Brightman LJ

Citations:

[1981] RPC 389

Cited by:

Cited – Kerr v Laurence Shaw and Associates Ltd (T/A Laurence Shaw and Associates (In Liquidation)) ChD 19-Mar-2010
The claimant sought damages, alleging that the defendant patent agents had failed to make a timely application for a Canadian patent.
Held: The evidence was conflicting, but the court found that the claimant had made a decision to limit his . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Updated: 02 May 2022; Ref: scu.403477

Stringman (a minor) v McArdle: CA 1994

The young plaintiff, under a disability, had asked for an interim payment of andpound;100,000 to adapt a house already bought. McCullough J upheld the refusal of the district judge to make that interim payment, taking the view that the plans for the conversion of the house were over-elaborate and might leave the plaintiff insufficiently provided for by way of future care.
Held: In order to obtain an interim payment, the plaintiff was not to be required to demonstrate any particular need beyond the general need to be paid damages as soon as reasonably possible. The court should not, when considering whether to order such a payment, investigate how the money was going to be used. The court was confident that the claimant was going to recover damages at trial which would substantially exceed the aggregate of the sums sought by way of an interim payment and those sums already paid. Any expenditure would be subject to the control of the Court of Protection.
Stuart-Smith LJ said: ‘The error into which the judge fell in this case was, in my opinion, when he concerned himself with what was to be done with the damages in the hands of the plaintiff or those responsible for her care. Once the threshold conditions in RSC Ord.29, r.11(1), sub-paragraphs (a), (b) or (c) are satisfied, what the court has to do, if it thinks fit, is to make an interim payment of such amount as it thinks just not exceeding a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff after taking into account contributory negligence and any set-off or counterclaim. It should be noted that the plaintiff does not have to demonstrate any particular need over and above the general need that a plaintiff has to be paid his or her damages as soon as reasonably may be done. It will generally be appropriate and just to make an order where there will be some delay until the final disposal of the case. Therefore what the court is concerned with in fixing the quantum is that it does not exceed a reasonable proportion of the damages which in the opinion of the court are likely to be recovered. It is quite clear here that the amount will on any basis substantially exceed the sum of andpound;187,000, which is the sum awarded by way of interim payment to date plus the andpound;100,000 which is now sought. That is all the judge should have been concerned with. In the case of an adult of sound mind, the court making an order under RSC Ord.29, r.11 is not concerned in any way with what the plaintiff does with his damages. In the case of an infant, the money will normally be paid into court and then the next friend will apply to the district judge for payment out as and when the money is required. Where the Court of Protection is concerned, it is for that court to decide how and when the money is to be spent.’

Judges:

Stuart-Smith LJ

Citations:

[1994] 1 WLR 1653

Jurisdiction:

England and Wales

Cited by:

Cited – Brown ( A Minor) v Emery QBD 4-Mar-2010
The court considered an application for an interim payment to fund the purchase of suitable accommodation in which the child claimant might spend periods of time with her parents and sibling and ultimately reside on discharge, at a cost of . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 02 May 2022; Ref: scu.402546

Ter Neuzen v Korn: 19 Oct 1995

CANLII (Supreme Court of Canada) The plaintiff underwent AI treatment by the defendant, during the course of which she contracted HIV-AIDS. She claimed in negligence and contract.
Held: A court must consider whether a common law warranty of fitness and merchantability should be implied into the contract which includes services as well as the provision of materials. However, such a warranty will not be implied in all circumstances. The court must examine the specific nature of the contract and the relationship between the parties in order to assess whether it was the intention of the parties that such a warranty be implied. Courts must be very cautious in their approach to implying contractual terms. A rationale for implying warranties in contracts of goods and services is that a supplier of goods generally has recourse against the manufacturer under the Sale of Goods Act as a result of the statutory conditions imposed. While it is true that the primary purpose of the implied warranty is to hold the supplier of goods liable notwithstanding the absence of negligence, different considerations apply in the context of the medical profession than in the ordinary commercial context. The doctor cannot trace the liability back to the initial manufacturer. Moreover, it must be recognized that biological products such as blood and semen, unlike manufactured products, carry certain inherent risks. It would be inappropriate to imply a warranty of fitness and merchantability in the circumstances of this case. Moreover, any warranty would simply be to take reasonable care.

Judges:

La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ

Citations:

[1995] 3 SCR 674

Links:

Canlii

Jurisdiction:

Canada

Commonwealth, Contract, Negligence, Damages

Updated: 02 May 2022; Ref: scu.402550

Cowan v Kitson Insulations Ltd: 1992

The plaintiff sought damages after work related exposure to asbestos. Though asbestosis had not yet occurred, he had developed calcified pleural plaques which indicated a risk of the disease.
Held: He was entitled to choose to take a final award in damages calculated according to the statistical risk identified as best the court could.

Judges:

J Crowley QC

Citations:

[1992] PIQR Q19

Jurisdiction:

England and Wales

Cited by:

Cited – Horsley v Cascade Insulation Services Ltd and Others QBD 18-Nov-2009
The claimant sought damages after contracting asbestosis through employment exposure with the defendants. . .
Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Updated: 02 May 2022; Ref: scu.380322

Regina (Adams) v Secretary of State for Justice: Admn 2009

Citations:

[2009] EWHC 156 (Admin)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Adams, Regina (on The Application of) v Secretary of State for Justice CA 27-Nov-2009
The claimant sought compensation for his imprisonment after the overturning of his conviction, on the basis that evidence had emerged which undermined the conviction.
Held: Such a claim could not succeed where the reason for the non-use of the . .
At First Instance – Adams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 02 May 2022; Ref: scu.383784

Wallace v United Grain Growers Ltd: 30 Oct 1997

SCC (Supreme Court of Canada) Bankruptcy – Property of bankrupt – Salary, wages or other remuneration – Undischarged bankrupt bringing action for wrongful dismissal – Whether damages for wrongful dismissal included in ‘salary, wages or other remuneration’ – Bankruptcy Act, R.S.C., 1985, c. B 3, s. 68(1).
Civil procedure – Wrongful dismissal – Undischarged bankrupt seeking damages for wrongful dismissal – Whether undischarged bankrupt can bring action for wrongful dismissal in his own name.
Employment law – Wrongful dismissal – Employee summarily discharged seeking damages for wrongful dismissal – Trial judge awarding employee damages based on 24 month notice period and aggravated damages – Whether Court of Appeal erred in reducing reasonable notice period to 15 months – Whether Court of Appeal erred in overturning aggravated damages award – Whether action can be brought for ‘bad faith discharge’ – Whether employee entitled to punitive damages.

Judges:

Lamer CJ and La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ

Citations:

[1997] 3 SCR 701, [1997] 152 DLR (4th) 1, 219 NR 161

Links:

Canlii short, Canlii

Jurisdiction:

Canada

Cited by:

Cited – GAB Robins (UK) Ltd v Triggs CA 30-Jan-2008
The claimant had been awarded damages for unfair constructive dismissal. The employer appealed an award of damages for the period prior to the acceptance by the employee of the repudiatory breach.
Held: Where a claimant’s losses arose before . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Employment, Damages

Updated: 02 May 2022; Ref: scu.375114

Strutt v Whitnell: CA 1975

The house sale contract provided for vacant possession on completion, notwithstanding that it was in fact occupied by a protected tenant who in the event declined to leave. The vendor offered to accept a reconveyance of the house, but that offer was refused by the purchaser who brought an action for breach of contract. The vendor contended that the purchaser had failed to mitigate by refusing his offer to accept a reconveyance.
Held: The argument failed. Where the purchaser’s only remedy was to recover damages for breach of contract he was not bound to take steps that would deprive him of his right to retain the property and recover damages for the breach of contract. It cannot be right that a refusal to accept a defendant’s offer: ‘even if such refusal were wholly capricious, was something that deprived the plaintiff of his right to substantial damages altogether.’
Cairns LJ said that the offer of buy-back was indistinguishable from an offer to pay damages of andpound;1,900. The plaintiff was not bound to choose between his two remedies: ‘if [the defendant’s] contentions were right it would logically follow that if the offer . . had been not ‘We will take the house back’ but ‘We will pay you andpound;1,900 damages’ and the plaintiff had then, for some reason, refused that offer and had brought an action for damages it could be said that he ought to have accepted the offer and thereby mitigated his damage and therefore he was entitled to nothing at all. That cannot be. Clearly what would happen in those circumstances would be that the defendants, if they were wise, would make a payment into court of the andpound;1,900 and the plaintiff would suffer in respect of costs. But it could not possibly be suggested that the refusal to accept the offer, even if such refusal were wholly capricious was something that deprived the plaintiff of his right to substantial damages altogether.’

Judges:

Cairns LJ

Citations:

[1975] 1 WLR 870

Cited by:

Not approved – Sotiros Shipping Inc v Sameiet; The Solholt CA 1983
The seller had failed to deliver the vessel he had sold by the delivery date. The buyer cancelled and requested return of his deposit, also claiming damages because the vessel was worth $500,000 more on the delivery date than she had been when the . .
Applied – Copley v Lawn; Maden v Haller CA 17-Jun-2009
The parties had been involved in a road accident. The insurer for the liable party offered a car for use whilst the claimant’s car was being repaired. The claimants had rejected that offer, and now appealed against a refusal to award them the cost . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 02 May 2022; Ref: scu.375998

Raza Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatan (The Indian Case): PC 1939

Land was to be acquired for anti-malarial works relating to a harbour development. Lord Romer rejected the suggestion in a compulsory purchase valuation that it would be possible to ascertain the potential special value of land to a ‘special purchaser’ by imagining an auction, as being ‘an entire waste of the arbitrator’s imagination’. Potentiality should be valued even if the only likely purchaser is the acquiring authority itself.

Judges:

Lord Collins, Lord Romer

Citations:

[1939] AC 302

Cited by:

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

Commonwealth, Land, Damages

Updated: 02 May 2022; Ref: scu.372333

George Franklin, Administrator Of Thomas Franklin, Deceased v The South Eastern Railway Company: 7 May 1858

In an action on the 9 and 10 Vict c. 93, for injury resulting from death, the damages should be calculated in reference to a reasonable expectation of pecuniary benefit, its of right or otherwise, from the continuance of the life. In an action by a father for injury resulting from the death of his son, it appeared that the father was old and infirm, that the son, who was young and earning good wages, assisted his father in some work for which the father was paid 3s 6d. a week. The jury having found that the father had a reasonable expectation of benefit from the continuatice of his son’s life : Held, that the action was maintainable.

Citations:

[1858] EngR 669, (1858) 3 H and N 211, (1858) 157 ER 448

Links:

Commonlii

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: 02 May 2022; Ref: scu.289140

Holmes v Bangladesh Biman Corporation: HL 1989

Mr Holmes was killed when the defendant’s aircraft in which he was a passenger crashed on a domestic flight in Bangladesh. As a domestic flight, it was not international carriage. The proper law of the contract was undoubtedly Bangladeshi law. Under Bangladeshi law the plaintiff’s damages would have been limited to andpound;913. But Mr Holmes’s widow sued in the United Kingdom, relying on the 1967 Order and its application to ‘all carriage of persons . . performed by aircraft for reward.’ She argued these words included foreign domestic flights.
Held: The airline’s appeal succeeded. Lord Bridge asked what modes of transport were regulated by the Hague Rules and said: ‘In authorising the application of such rules, based on or adapted from the Hague Rules, to non-Convention carriage by air, what categories of such carriage may Parliament have reasonably had in contemplation as the proper subject matter of United Kingdom legislation?’
Lord Griffiths said: ‘I can see no reason why our Parliament should wish to legislate to provide for domestic air law in Bangladesh any more than it would wish to legislate on road traffic or railway safety in Bangladesh and I do not believe that it intended it to do so.’

Judges:

Lord Bridge, Lord Griffiths

Citations:

[1989] AC 1112, [1989] 1 All ER 852, [1989] 2 WLR 481

Jurisdiction:

England and Wales

Cited by:

Cited – Disley v Levine (T/a Airtrak Levine Paragliding) CA 11-Jul-2001
The claimant sought damages from her instructor, after being injured as a passenger trainee pilot of a paraglider. He responded that she was out of time, since the regulations applied. His appeal was refused. The system of regulation did not mention . .
Cited – Laroche v Spirit of Adventure (UK) Ltd CA 21-Jan-2009
Hot Air balloon was an aircraft: damages limited
The claimant was injured flying in the defendant’s hot air balloon. The defendant said that the journey was covered by the 1967 Regulations and the damages limited accordingly. The claimant appealed against a decision that the balloon was an . .
Cited – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.

Transport, Damages, Jurisdiction

Updated: 02 May 2022; Ref: scu.280079

Knauer v Ministry of Justice: SC 24 Feb 2016

The court was asked: ‘whether the current approach to assessing the financial losses suffered by the dependant of a person who is wrongfully killed properly reflects the fundamental principle of full compensation, and if it does not whether we should depart from previous decisions of the House of Lords.’
Held: The correct date as at which to assess the multiplier when fixing damages for future loss in claims under the Fatal Accidents Act 1976 should be the date of trial and not the date of death. The court could not follow the Cookson and Graham cases.
It was emphasised that, because of the importance of the role of precedent and the need for certainty and consistency in the law, the Supreme Court ‘should be very circumspect before accepting an invitation to invoke the 1966 Practice Statement’.

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Clarke
Lord Reed
Lord Toulson, Lord Hodge

Citations:

[2016] UKSC 9, [2016] 4 All ER 897, [2016] 2 WLR 672, [2016] WLR(D) 103, (2016) 150 BMLR 16, [2016] PIQR P10

Links:

Bailii, Bailii Summary, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Taylor v O’Connor HL 1970
The appellant driver had caused a car accident in 1965, in which the respondent’s husband died. The respondent sought damages under the Fatal Accidents Acts for herself then aged 52 and for her 18 year old daughter. The husband died aged 53 and a . .
Appeal from – Knauer v Ministry of Justice QBD 24-Jul-2014
The deceased died of mesothelioma after working for the defendant as an administrative assistant in buildings constructed using asbestos. . .
Cited – A Train and Sons Ltd v Fletcher CA 24-Apr-2008
Appeal re award of interest on claim under Fatal Accidents Act.
Hooper LJ confessed: ‘I do not understand why chronological years are deducted from the multiplier’. . .
Cited – A v Hoare HL 30-Jan-2008
Each of six claimants sought to pursue claims for damages for sexual assaults which would otherwise be time barred under the 1980 Act after six years. They sought to have the House depart from Stubbings and allow a discretion to the court to extend . .
Not followed – 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 . .
Cited – 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 . .
Not Followed – Graham v Dodds HL 1983
A court dealing with personal injury claims normally makes a discount in respect of damages for the future loss of earnings
Lord Bridge said ‘The only issue arising in this appeal which is strictly one of law is whether, in assessing damages . .
Cited – Corbett v Barking Havering and Brentwood Health Authority CA 1991
The Claimant was a child who would have been dependant on his deceased young mother only until adulthood. When the trial took place the infant Plaintiff was 11.5 with a dependency until the age of 18. As the multiplier calculated as at the date of . .
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 – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Cited – White (Widow and Administratrix of the Estate of David Charles White Deceased) v Esab Group (UK) Ltd QBD 11-Oct-2001
. .
Cited – ATH and another (Executors of the Estate of M, decd) v MS CA 11-Jun-2002
The claimants were the children of the deceased, seeking damages following the death of their mother. At the time of the death they were not living with their father but moved to live with him after the death. They claimed damages for the services . .

Cited by:

Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 02 May 2022; Ref: scu.560236

Inverugie Investments Ltd v Hackett: PC 1995

The plaintiff was the lessee of 30 apartments within a hotel complex. The defendants ejected the plaintiff and for some years used the apartments as part of the hotel with an average occupancy rate of not more than 40%.
Held: The defendants were liable for damages in trespass for the use of each apartment at the going rate for 365 days for each year of trespass notwithstanding that they had been unable to derive an income from the property for the entire time due to low occupancy rates. Lord Lloyd of Berwick said: ‘It is sometimes said that these cases are an exception to the rule that damages in tort are compensatory. But this is not necessarily so. It depends how widely one defines the ‘loss’ which the plaintiff has suffered.’

Judges:

Lord Lloyd of Berwick

Citations:

[1995] 1 WLR 713

Jurisdiction:

Commonwealth

Citing:

Applied – Swordheath Properties Ltd v Tabet CA 1979
The amount of damages payable by a trespasser on land is ordinarily the letting value of the premises. Megaw LJ said: ‘It appears to me to be clear, both as a matter of principle and of authority, that in a case of this sort the plaintiff, when he . .
Cited – Skull And Another v Glenister And Others 1864
A right of way appurtenant to land passes to the tenant by a parol demise of the land, though nothiiig is said about it at the time of the demise. – A, having a right of way to D close, demised the close to B. The latter, being possessed of an . .

Cited by:

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.
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 – Peacock and Another v Custins and Another CA 14-Nov-2000
The conveyance of a field constituting the dominant land to the claimants was expressed to be subject to the benefit of a right of way over land owned by the defendants, enabling the claimants to reach the dominant land ‘at all times and for all . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 01 May 2022; Ref: scu.276912

Swordheath Properties Ltd v Tabet: CA 1979

The amount of damages payable by a trespasser on land is ordinarily the letting value of the premises. Megaw LJ said: ‘It appears to me to be clear, both as a matter of principle and of authority, that in a case of this sort the plaintiff, when he has established that the defendant has remained on as a trespasser in residential property, is entitled, without bringing evidence that he could or would have let the property to someone else in the absence of the trespassing defendant, to have as damages for the trespass the value of the property as it would fairly be calculated; and, in the absence of anything special in the particular case it would be the ordinary letting value of the property that would determine the amount of damages. In the present case, therefore, it appears to me that this appeal falls to be allowed and that the plaintiffs ought to have, not merely judgment for possession, but also damages for trespass for whatever would have been the appropriate amount . . as being the proper letting value of the property from July 5, 1976, to the date of the judgment in the West London County Court’.

Judges:

Megaw LJ

Citations:

[1979] 1 WLR 285, [1979] 1 All ER 240

Cited by:

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.
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 . .
Applied – Inverugie Investments Ltd v Hackett PC 1995
The plaintiff was the lessee of 30 apartments within a hotel complex. The defendants ejected the plaintiff and for some years used the apartments as part of the hotel with an average occupancy rate of not more than 40%.
Held: The defendants . .
Cited – Ramzan v Brookwide Ltd CA 19-Aug-2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
Cited – Ramzan v Brookwide Ltd ChD 8-Oct-2010
The claimant owned a flying freehold room butting into the defendant’s property. Whilst the claimant’s property was unoccupied, the defendant broke through into the room, blocked off the door to the claimant’s property, and included the room in the . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Damages

Updated: 01 May 2022; Ref: scu.276910

Morton – Norwich Products v Intercen (No 2): ChD 1981

The plaintiffs had alleged patent infringement and now sought to recover the costs of the action it had had to take for discovery as against HM Customs and Excise, which they said had been necessary to discover the extent of the concealed fraud alleged against the defendants. As a result of the concealment the plaintiffs sought in addition damages going back before normal limitation periods, and exemplary damages.
Held: The costs claimed were forseeable and recoverable. The limitation period did not commence until the fraud was or could have been discovered. Exemplary damages were to be seen as exceptional in Patent infringement cases and in this case were not recoverable. Concealed fraud could be established by showing that the defendants had turned a blind eye to the infringing acts of others.

Judges:

Graham J

Citations:

[1981] FSR 337

Statutes:

Patents Act 1949 63 101, Limitation Act 1939 26

Jurisdiction:

England and Wales

Cited by:

Cited – Phonographic Performance Ltd v Reader ChD 22-Mar-2005
The claimant had in the past obtained an injunction to prevent the defendant broadcasting without their licence musical works belonging to their members at his nightclub. The defendant had obtained a licence, but had not renewed it. The claimants in . .
Cited – Oxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Updated: 01 May 2022; Ref: scu.272762

Dixons (Scholar Green) Ltd v JL Cooper Ltd: CA 1970

The plaintiffs claimed damages for the loss of use of their commercial vehicle, but called no evidence to prove the loss incurred by its deprivation for 11 weeks.
Held: The Court substituted for the trial judge’s award of andpound;2 an award of andpound;450.

Citations:

[1970] RTR 222

Cited by:

Cited – Carlton Greer v Alstons Engineering Sales and Services Limited PC 19-Jun-2003
PC (Trinidad and Tobago) The claimant had bought an expensiv agriucltural tool (a hoe) from the defendants. It was defective and her returned it repeatedly for repair. Eventually they refused to allow him to test . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Damages

Updated: 01 May 2022; Ref: scu.272550

Transworld Oil Ltd v North Bay Shipping Corpn (The Rio Claro): 1987

Staughton J said that for a loss arising from a breach of contract to be recoverable: ‘It must be such as the contract breaker should reasonably have contemplated as not unlikely to result. To that direction must be added the point that the precise nature of the loss does not have to be in his contemplation, It is sufficient that he should have contemplated loss of the same type or kind as that which in fact occurred. There is no need to contemplate the precise concatenation of circumstances which brought it about’.

Judges:

Staughton J

Citations:

[1987] Lloyd’s Rep 173

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, Contract

Updated: 01 May 2022; Ref: scu.270784

Nichols Advanced Vehicle Systems Inc v Rees: 1979

The court considered how to decide whether to award additional damages for flagrancy in copyright breach cases.
Held: Such awards should not be limited to where a defendant was aware of copyright law, but should look to the circumstances of the case.

Citations:

[1979] RPC 127

Cited by:

Cited – Cala Homes (South) Ltd and others v Alfred McAlpine Homes East Ltd ChD 6-Jul-1995
The plaintiff alleged that the defendant had copied its house designs after a senior employee involved in creating the designs left and eventually came to work for the defendant. The plaintiff alleged that the copying was flagrant allowing . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Updated: 01 May 2022; Ref: scu.269664

Inland Revenue Commissioners v Hambrook: 1956

The Revenue claimed for loss resulting from its being deprived of the services of a taxing officer due to a vehicle accident.
Held: The action was dismissed. An action for that kind of loss did not lie where its relationship was with an established civil servant.

Citations:

[1956] 2 QB 641

Jurisdiction:

England and Wales

Cited by:

Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – G D Searle and Co Ltd v Celltech Ltd CA 1982
The court was asked as to an employee’s covenant now said to be in restraint of trade.
Held: In disputes between employers and ex-employees courts will usually seek to protect the rights of employees to advance their chosen trade and . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 01 May 2022; Ref: scu.268778

Strang v Steuart: 1864

The court lamented the amount of court time that had been taken by foolish and absurd litigation about a hedge and ditch which separated the parties’ properties. Nevertheless that it was the duty of the court to deal with the case: ‘We are not indeed bound to adjudicate de lana caprina; but if there be a pecuniary or patrimonial interest, however small, depending on the determination of the question, the parties have a right to invoke the aid of a court of law to decide their differences.’

Judges:

Lord Justice-Clerk Inglis

Citations:

(1864) 2 M 1015

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.

Damages, Scotland

Updated: 01 May 2022; Ref: scu.260122

Rodger v Comptior d’Escompte de Paris: 1871

Where restitution followed the reversal on appeal of a previously satisfied judgment, common law interest was awarded.

Citations:

(1871) LR 3 PC 465

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: 01 May 2022; Ref: scu.260129

Allison v KPMG Peat Marwick: 2000

(New Zealand Court of Appeal) If one tortfeasor settles the victim’s claim by paying him a sum which fully satisfies his right to damages for loss and injury, the victim cannot then sue any concurrent tortfeasor for damages for the same loss and injury. Thomas J said: ‘Satisfaction discharges the loss. It is in the nature of an executed judgment in its effect. The loss no longer exists. There is nothing left for anyone to sue on; the injury or loss has been satisfied. As between the parties there is no problem. Where the co-defendants are concurrent tortfeasors, however, concurrently liable on a different cause of action, the satisfaction of one obligation cannot in itself discharge the other obligation. The concurrent tortfeasor will be released only if the satisfaction satisfies the injury or loss which flows from his or her separate cause of action. Its extinction is then independent of the agreement between the plaintiff and the defendant. Simply put, no injury or loss exists on which to sue.’

Judges:

Thomas J

Citations:

[2000] 1 NZLR 560

Cited by:

Cited – Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice, Damages

Updated: 01 May 2022; Ref: scu.251634

Watkins v Olafson: 1989

(Supreme Court of Canada) The plaintiff sought damages for his injury. He was cared for by the state between the accident and the trial and so had no claim for the cost of care during that period. The Appeal Court (British Columbia) had held that in calculating the plaintiff’s pre-trial loss of income, allowance should be made for the plaintiff’s basic living expenses.
Held: Consistently with the reasoning in Andrews, this was wrong.
McLachlin J: ‘In calculating loss of future earning capacity in cases where an award for future care is made, a deduction is made from the award for lost earning capacity for living expenses to avoid duplication between the two heads of damage. The Court of Appeal in this case applied similar reasoning to the plaintiff’s pre-trial lost income. However, the basis for making a deduction on this account – duplication between two heads of damage – was lacking, there being no award for pre-trial cost of care. No case was cited to us in which a deduction for living expenses has been made from damages for pre-trial loss of earning capacity and I see no need to introduce such a practice.’

Judges:

McLachlin J

Citations:

[1989] 2 SCR 750

Citing:

Applied – Andrews v Grand and Toy Alberta Ltd 1978
(Supreme Court of Canada) The injured plaintiff sought damages for future loss of earnings and for the cost of future care.
Held: Dickson J said: ‘It is clear that a plaintiff cannot recover for the expense of providing for basic necessities . .

Cited by:

Cited – O’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages

Updated: 01 May 2022; Ref: scu.250034

The “Pegase”: 1981

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

Judges:

Goff J

Citations:

[1981] I Ll Rep 175

Citing:

Cited – Victoria Laundry (Windsor) Ltd v Newman Industries CA 1949
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .

Cited by:

Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
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: 01 May 2022; Ref: scu.246863

Meyer v Sanderson: 1913

The charterer had sent out the vessel on a further voyage even on the day when the charter was to come to an end. The owner sought damages.
Held: The charterers were ordered to ‘pay for the use of the steamer on that last voyage at the rate current at the time’.

Judges:

Atkin J

Citations:

[1913] 108 LT 428

Cited by:

Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 01 May 2022; Ref: scu.246741

Louis Dreyfus Trading Ltd v Reliance Trading Ltd: 2004

LD sold 7kmt sugar to R, C and FFO Banjul at $257.43 per mt. Shipment was ‘per m.v. Dawn currently discharging at Banjul’. An associate of R had already sold 5kmt to B at $290 per mt, for which the sugar was bought. LD knew of the resale and insisted that R buy the full 7kmt and B bought the extra 2kmt at $253 per mt. On August 17 payment was made by R to LD and by B to R for 3kmt. LD was responsible for a delayed discharge, and mean tme the price fell $224 per mt. R said that they would only take the 4,000 m.t. if a reduced price was applied to the whole 7kmt. LD treated R as in default in regards to the 4kmt. R sought damages at the difference between the contract price ($257.43) and the value of the goods when they eventually became available ($224). LD said that R had suffered no loss. They pointed out that R was to receive from B $290 for 5kmt and $253 for the balance and that it was likely that R had obtained payment for the 3kmt discharged at $290 per mt and Reliance had still profited. The arbitrators awarded R damages calculated as claimed.
Held: The profit or loss made by a buyer on a sub-sale is generally irrelevant to the assessment of damages for breach by a seller of a warranty of quality or failure to deliver; but that if the parties had a particular sub-sale within their contemplation when making their contract the buyer might be entitled to have that sub-sale brought into account to increase his damages or the seller might be entitled to have it brought into account in order to reduce the award against him. Where the parties anticiated when the contract was made that the buyer was committed to deliver the same goods to a sub-buyer under a specific contract, principles of remoteness did not require that the sub-sale be disregarded in assessing they buyer’s damages. It was to be taken to have been within the parties’ reasonable contemplation as a serious possibility, or a consequence not unlikely to result from LD being in breach of their obligations, that the loss suffered by R might depend on the impact of the sub-sale to B. The case was remitted to the arbitrators for reconsideration because it was apparent that they had not considered whether or not LD had rebutted the presumption that the damages should be assessed in accordance with section 53 (3) of the 1979 Act.

Judges:

Andrew Smith J

Citations:

[2004] 2 LLR 243

Statutes:

Sale of Goods Act 1979 52(3)

Cited by:

Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 01 May 2022; Ref: scu.246957

The Rio Claro: 1987

For a loss arising from a breach of contract to be recoverable, Staughton J said: ‘It must be such as the contract breaker should reasonably have contemplated as not unlikely to result. To that direction must be added the point that the precise nature of the loss does not have to be in his contemplation, It is sufficient that he should have contemplated loss of the same type or kind as that which in fact occurred. There is no need to contemplate the precise concatenation of circumstances which brought it about’.

Judges:

Staughton J

Citations:

[1987] 2 Lloyd’s Rep 173

Cited by:

Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract

Updated: 01 May 2022; Ref: scu.246864

Joyner v Weeks: 1891

The general rule at common law is that the measure of damages for breach of the covenant to repair by a tenant is the cost of putting the premises into the state of repair required by the covenant.

Citations:

[1891] 2 QB 31

Cited by:

Cited – Latimer and Another v Carney and others CA 27-Oct-2006
The landlords appealed disissal of their request for relief against their tenants for non-repair of the premises. The judge had held that the landlord had not provided appropriate evidence of the damage and costs of repair which it claimed.
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Damages

Updated: 01 May 2022; Ref: scu.245770

McLaren Transport Ltd v Somerville: 1996

(New Zealand) Tipping J discussed the award of exemplary damages: ‘Exemplary damages for negligence causing personal injury may be awarded if, but only if, the level of negligence is so high that it amounts to an outrageous and flagrant disregard for the plaintiff’s safety, meriting condemnation and punishment.’

Judges:

Tipping J

Citations:

[1996] 3 NZLR 424

Jurisdiction:

England and Wales

Cited by:

Cited – A v Bottrill PC 9-Jul-2002
PC (New Zealand) The defendant was a pathologist who carried out cervical smears. His actions were found to be negligent.
Held: The Board considered whether it would be correct to require an additional . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 01 May 2022; Ref: scu.242425

C R Taylor (Wholesale) Ltd v Hepworths Ltd: 1977

May J referred with approval to a statement in McGregor On Damages (13th edn, 1972) paras 1059-1061 that in deciding between diminution in value and cost of reinstatement the appropriate test was the reasonableness of the plaintiffs desire to reinstate the property and remarked that the damages to be awarded were to be reasonable as between plaintiff and defendant. He concluded that in the case before him to award the notional cost of reinstatement would be unreasonable since it would put the plaintiffs in a far better financial position then they would have been before the fire occurred.

Judges:

May J

Citations:

[1977] 1 WLR 659, [1977] 2 All ER 784

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 – 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, Construction

Updated: 01 May 2022; Ref: scu.238583

Skandia Property (Uk) Limited Vala Properties Bv v Thames Water Utilities Limited: 1997

The burden of proof in establishing betterment to reduce a damages award is on the defendant.

Citations:

(1997) 57 Con LR 65

Jurisdiction:

England and Wales

Cited by:

Appeal from – Skandia Property (UK) Limited Vala Properties Bv v Thames Water Utilities Limited CA 27-Jul-1999
The defendants were liable after a flood invaded and damaged the plaintiff’s premises. Having been advised professionally that the waterproofing system in the property would need replacing, the plaintiffs so replaced it but, it turned out, . .
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 . .
Lists of cited by and citing cases may be incomplete.

Construction, Damages

Updated: 01 May 2022; Ref: scu.238589

Ozanne and Others v Hertfordshire County Council: HL 1989

Land was acquired for a new highway. The developer had persuaded or agreed with the public authority that it would exercise its statutory powers to acquire land possessed of ransom value.
Held: What the scheme was which underlined a proposed compulsory acquisition was a matter of fact for the tribunal or court. The statutory powers must relate to the use of the acquired land and must be powers enabling the use of the land for a statutory purpose and to be necessary for that purpose. This excludes planning permission or other general consents. They do not include agreements to do works on land owned by a statutory authority.
Lord Mackay of Clashfern: ‘The special suitability or adaptability of the land for any purpose is directed to be left out of account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers. This is expressed in the passive voice but the context shows that the application referred to is by a person using the land and, therefore, the statutory powers in question must be powers enabling a person entitled to use the land to apply it to the purpose in question and since the purpose in question is one to which the land could be applied only in pursuance of the statutory powers the statutory powers must be necessary to enable such person to use the land for that purpose. I do not see how statutory powers not related to the use of the land acquired could form a basis for the application of this part of the rule.
Therefore, I consider that statutory powers conferred upon the Secretary of State to order the stopping up of a highway on land which is not part of the land being acquired could not form the basis of the application of this part of the rule to the land acquired. Since the only statutory powers here relied upon by the council are the statutory powers of the Secretary of State to stop up parts of Thorley Lane, I consider that the council’s argument must fail.’
and ‘ . . in the present case the land acquired could have been used for a highway without the exercise of any statutory power and certainly was not dependent upon the Secretary of State exercising any statutory power to stop up any part of Thorley Lane.’ and
He then drew a distinction between a general statutory consent (eg planning permission), which does not fall within the rule, and a particular statutory power (113C):-
‘This I think goes to emphasise the distinction referred to by counsel for the claimants when he pointed out that, if the present case were covered by the rule, it was very difficult to see why the rule should not also cover a purpose to which a piece of land could be put only after obtaining some particular statutory consent such as planning permission, consent under the Building Acts, or the like. It is clear from the modern statutory provisions governing compensation for the compulsory acquisition of land and the question of what types of development would receive planning consent is highly relevant to the determination of compensation for compulsory acquisition and any construction of the provision founded upon which resulted in any enhancement of the value of a piece of land resulting from its use for a purpose which required planning permission being disregarded would be absurd.’ He approved the conclusion that ‘the first limb of the provisions of rule (3) cannot apply in that special suitability or adaptability of the land can be realised other than by the use of statutory powers.’

Judges:

Lord Mackay

Citations:

[1989] 2 EGLR 18, [1991] 1 WLR 105

Statutes:

Highways Act 1959 214

Jurisdiction:

England and Wales

Cited by:

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

Land, Damages

Updated: 01 May 2022; Ref: scu.238657

Re Kershaw’s Application: LT 1975

Two bungalows were to be built in the grounds of a house subject to a restrictive covenant. The tribunal considered the degree of disturbance which would be suffered by the objector neighbours.
Held: The neighbours would ‘suffer considerably from the noise of builder’s vehicles, from the construction of the driveway and by the general disturbance associated with building works’. This would be a considerable disadvantage for up to a year and ‘One of the questions, perhaps the most important question I have to decide, is what weight I should give to this intensive inconvenience and noise generated by builders’ traffic for this very limited period. Clearly for that period the restrictive covenant does secure practical benefits of substantial value or advantage to (the objector). On the other hand, I cannot think that such a literal construction of the section is intended, but rather one should look at the matter in a broader context and regard this as a short term, albeit intensive interference but small and not so substantial in relation to the overall long term enjoyment of the property.’
In principle, protection from short term disturbance arising from construction, although providing a ‘substantial’ benefit during the construction period, had to be looked at in a broader context for the purposes of section 84.

Judges:

Douglas Frank QC

Citations:

(1975) 31 Pand CR 187

Statutes:

Law of Property Act 1924 84

Jurisdiction:

England and Wales

Cited by:

Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Cited – Winter and Another v Traditional and Contemporary Contracts Ltd CA 7-Nov-2007
The land-owners applied for a variation of a restrictive covenant to allow them to put a second house on their plot. They had bought out the right of the original builder, but a neighbour also had the benefit of the covenant. They now appealed the . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 01 May 2022; Ref: scu.238677

Payne v Railway Executive: 1951

Disablement pensions, whether voluntary or not, are to be ignored in the assessment of damages.

Citations:

[1952] 1 KB 26

Citing:

Affirmed on Appeal – Payne v Railway Executive 2-Jan-1951
A Royal Navy sailor was disabled by a railway accident and was awarded a disability pension of pounds 2 16s. 3d. per week. At first instance J Sellers had held that Bradburn’s case applied so as to prevent deduction of the value of the pension. If . .

Cited by:

Cited – Longden v British Coal Corporation HL 13-Mar-1997
The plaintiff was injured whilst at work in one of the defendant’s collieries. The House considered the deductibility from damages awarded for personal injury of a collateral benefit.
Held: The issue of deductibility where the claim is for . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 01 May 2022; Ref: scu.237504

The Gudrun Maersk: 1941

In a collision case there had been a reference to assess damages before the Assistant Registrar and a merchant.andpound;97 10s. was claimed for the wages of an employed superintendent. The Assistant Registrar thought that the superintendent only did ‘slight extra work’ in excess of his ordinary duties. He allowed only andpound;5 5s.
Held: On a motion in objection to the report of the Assistant Registrar the court considered that it was impossible to lay down any general principle but the sum allowed was much too small. The superintendent had been put to a very large amount of work outside his normal duties. It was argued that the superintendent was an employee. The court approached the matter by giving the claimants the sum they would have been entitled to if they had put forward a claim properly vouched in respect of extra outside assistance but allowed the wrongdoer some part of the ‘advantage from the fact that the shipowner has a marine superintendent with special expert knowledge.’

Judges:

Langton J

Citations:

(1941) 70 LlL Rep 251

Cited by:

Cited – Carisbrooke Shipping Cv5 v Bird Port Ltd ComC 13-Sep-2005
. .
Lists of cited by and citing cases may be incomplete.

Transport, Damages

Updated: 30 April 2022; Ref: scu.230127

Lord Aldington v Tolstoy, Watts: QBD 30 Nov 1989

The plaintiff sought damages after the article published by the defendants falsely accused him of complicity in war crimes.
Held: As to damages the jury awarded one and a half million pounds after being directed inter alia: ‘Let us now, members of the jury . . deal with the aspect of damages . . If the plaintiff wins, you have got to consider damages. Some would say that the only direction on damages necessary in this particular case was to say: [the applicant] says that if damages are to be payable he agrees they should be enormous. Mr Rampton [defence counsel], I do not think, in his final speech could quite bring himself to utter that word, but he said they will be very generous – and I could stop there. But that is not the way, you see, because the parties do not dictate (even if they are making concessions) how you should approach damages. You do it in accordance with the law, and that is what I am now going to tell you. You have to accept my directions about it, and you will apply them of course as you think fit.’ and
‘the means of the parties – the plaintiff or the defendant – is immaterial . . Neither, as I think I said earlier but I say it now, is the question whether Lord Aldington or [the applicant], or for that matter Mr Watts, have been or will be financially supported by any well wishers as to damages relevant at all. Nor is it relevant the undoubted fact that legal aid is not available in libel cases to a plaintiff or a defendant. All irrelevant, and if it is to be changed it is up to Parliament to do something about it . . what you are seeking to do, what a jury has to do, is to fix a sum which will compensate the plaintiff – to make amends in financial terms for the wrong done to him, because wrong has been done if you have got to the stage of awarding damages. It is not your duty or your right to punish a defendant . . What [Lord Aldington] does claim, of course, is for ‘general damages’, as lawyers call it, a sum of money to compensate him. First of all, you have to take into account the effect in this case, as in every case where there is libel, on the position, standing and reputation of the successful plaintiff . . If they [the allegations made in the pamphlet] were untrue and not fair comment, where it is suggested that they were comment, he is entitled to be compensated for that, so that that will register your view of that. Then you have got to consider . . the injury to his feelings. I told you that he cannot, of course, claim on behalf of his wife or any member of his family, although the affect on them may have had an affect on him which is a reaction, which you are entitled to take into account.
It is not just his feelings when he read this . . It is his feelings during the time whilst awaiting the trial . . and the publicity . . you have to consider . . what lawyers call ‘vindication’ . . You may think – it is a matter for you – that in this particular case vindication – showing that he was right – is the main reason for Lord Aldington bringing this action – that is what he says anyway – to restore his character and standing . . ‘An award, an enormous award’, to use [the applicant’s] words – ‘a very generous award’ to use Mr Rampton’s words, will enable him to say
that put the record straight.
Members of the jury, of course, you must not, as a result of what I have just said, just bump and bump the damages up. You must, at all times, as they say, keep your feet on the ground.
. . You have to take into account the extent and nature of the publication.
. . whilst you must leave aside any thought of punishing the defendants if you find for the plaintiff, juries are always entitled, as I have hinted already, to take into account any conduct of the defendant which has aggravated the damages – that is to say, made the damage more serious and the award higher – or mitigated them – made the damage done less serious and the award smaller.
Now, two general remarks which I make in every case: nobody asks you how you arrive at your verdict, and you do not have to give reasons like a Judge does, so it is exceedingly important that you look at the matter judicially, and that means that you should not be outrageously or unreasonably high, or outrageously or unreasonably low.
The second matter I say to every jury is: please, I beg you, if you come to damages, do not pay the slightest attention to any other case or the result of any other case you may have read about or heard about. The facts and the legal considerations are like[ly] to have been completely different. There is no league of damages in defamation cases. There is no first division, there is no fourth division, there is no Vauxhall conference, if any of you are interested in football.
So, members of the jury, please forget other cases. Use your own common sense about it. How do you translate what I have said into money terms? By our rules and procedure, members of the jury, counsel can use, and a judge can use, words like ‘very substantial’ or ‘very small’, but we do not either of us, counsel or judges, mention figures. Some people again, who have not really considered the matter very carefully, wonder about that, and they say juries should be given guidance, and I say to you what I say to every jury in these cases, it would not be a great deal of help for you, because inevitably, it is human nature and it would be their duty – counsel for the plaintiff would be at the top end of the scale and perhaps in some cases, I do not suggest this one, off the clock, and counsel for the defendant would be at the bottom end of the scale in the basement. Now, that would not be much good to anybody. As for the Judge, well the jury might think – you may have an exactly opposite view – a jury might think: ‘Well, on the whole, whatever other people say about this particular Judge in this case, we think he tried to be fair, why doesn’t he suggest a figure to us?’
Supposing a Judge, myself in this case, were to suggest a figure to you, or a bracket between so and so and so and so, there would be two possibilities: one is that you would ignore what I said and either go higher than my figure or bracket, or much lower, in which case of course the losing party that did not like it would be off to the Court of Appeal saying: ‘Look, the Judge suggested a figure and the jury went above it or below it.’
Supposing you accepted my suggestion, and gave a figure that I recommended, or close to it. Well, all I can say is that you would have been wasting your valuable time in considering the matter of damages because you would just have been acting as a rubber stamp for me, or the Judge, whoever it was. So we do not have that over-bidding or under-bidding, as the Court of Appeal has called it, by counsel, and we do not have Judges trying to lay down to juries what they should award, and I do not hesitate to say, whatever other people say, I hope and pray, for the sake of our law and our court, we never get the day when Judges dictate to juries so that they become rubber stamps.
I am, however, allowed – indeed encouraged – by the Court of Appeal just to say a little bit more. I say it not perhaps in the words of the Court of Appeal, but in my own way, which may be too homely for some, but I say to you that you must remember what money is. You do not deal in Mickey Mouse money just reeling off noughts because they sound good, I know you will not. You have got to consider money in real terms. Sometimes it is said ‘Well, how much would a house cost of a certain kind’, and if you are giving a plaintiff as compensation so much money how many houses is he going to buy? I do not mean to suggest that Lord Aldington or any other plaintiff would take his damages and go and buy a house or a row of houses, but that relates it to the sort of thing, if you will allow me to say, you and I do know something about, because most of us have a pretty good idea how much houses are worth. So remember that.’

Judges:

Justice Michael Davies

Citations:

Unreported, 30 November 1989

Cited by:

Appeal from – Watts v Aldington, Tolstoy v Aldington CA 15-Dec-1993
There had been a settlement of proceedings for libel brought by Lord Aldington against Mr Nigel Watts and Count Nikolai Tolstoy. Lord Aldington had obtained judgment for andpound;1.5 million in damages against both defendants following a trial. . .
Lists of cited by and citing cases may be incomplete.

Defamation, Damages

Updated: 30 April 2022; Ref: scu.224363

Sillitoe v McGraw-Hill Book Co: 1983

The defendants had imported and distributed a series of ‘study notes’ for students which the plaintiffs alleged infringed the copyrights in the works under discussion.
Held: The defendants had been ‘fixed with knowledge’ 14 days after letters before action sent by the plaintiffs, that being a reasonable time in which to consider their position.
The court considered whether the lack of acknowledgement of the source of a quote made the use unfair. As to whether a use was in breach of import provisions so as to give rise to additional damages: ‘What the defendants have done here and knowing of the plaintiffs’ comments and the facts on which the complaints were based, was to take the risk of finding their legal advice wrong. If a person takes a deliberate risk as to whether what he is doing is wrong in law, I do not see that he can say later that he did not, at the time, know that what he was doing was wrong, if in the event his actions are held to be wrong.’

Judges:

Mervyn Davies QC J

Citations:

[1983] FSR 545

Statutes:

Copyright Act 1956 5(2) 5(3)

Jurisdiction:

England and Wales

Citing:

Cited – Albert v Hoffnung and Co Ltd 1921
(Court of Appeal of New South Wales) ‘Knowledge’ means . . notice of facts such as would suggest to a reasonable man that a breach of copyright law was being committed.’ . .
Cited – Van Dusen v Kritz 1936
Section 2(2) of the 1911 Act, which provided that ‘Copyright in a work shall also be deemed to be infringed by any person who . . (c) by way of trade exhibits in public . . any work which to his knowledge infringes copyright.’ The plaintiff owned . .
Cited – RCA Corporation v Custom Cleared Sales Pty Ltd 1978
(Court of Appeal of New South Wales) The court considered the knowledge to be established for copyright infringement saying, ‘the knowledge which has to be proved is actual but not constructive’. . .

Cited by:

Cited – Fraser-Woodward Ltd v British Broadcasting Corporation Brighter Pictures Ltd ChD 23-Mar-2005
The claimant asserted infringement of copyright by the defendants in photographs of the family of David Beckham. The defendant admitted using the photographs but asserted that no permission was required since the use was a fair dealing.
Held: . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Updated: 30 April 2022; Ref: scu.223819

Caltex Singapore Pte Ltd v BP Shipping Ltd: 1996

A provision of Singapore law giving a ship-owner the right to limit his liability for damage resulting from a collision in Singapore was procedural, or at least not substantive. The limitation in question did not qualify the right of the claimants and could not be regarded as a matter of substantive law for the purposes of the conflicts of laws.

Judges:

Clarke J

Citations:

[1996] 1 Lloyd’s Law Rep. 286

Cited by:

Cited – Harding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Damages

Updated: 30 April 2022; Ref: scu.222528

Boys v Chaplin: HL 1969

The plaintiff sued in England for a traffic accident which had happened in Malta. The law of Malta would have denied certain elements of damages which would be available in this jurisdiction.
Held: Liability in respect of the road accident in which only English parties were involved was governed by English law. The House was asked whether the rule which excluded liability for non-economic damages was substantive law or concerned only the remedies available. (Majority) The rule was part of the substantive law of tort liability. This was a ‘general’ rule which would ‘normally’ apply to foreign torts. The rule should be interpreted flexibly, ‘so as to leave some latitude in cases where it would be against public policy to admit or to exclude claims’. So far as damages are concerned it is a question for the substantive law whether a head of damage is recoverable, but quantification of the actual head is procedural. The House also considered the double-actionability rule.
Lord Hodson said: ‘I am now, however, persuaded that questions such as whether loss of earning capacity or pain and suffering are admissible heads of damage must be questions of substantive law. The law relating to damages is partly procedural and partly substantive, the actual quantification under the relevant heads being procedural only.’
Lord Wilberforce said: ‘The broad principle should surely be that a person should not be permitted to claim in England in respect of a matter for which civil liability does not exist, or is excluded, under the law of the place where the wrong was committed. This non-existence of exclusion may be for a variety of reasons and it would be unwise to attempt a generalisation relevant to the variety of possible wrongs. But in relation to claims for personal injuries one may say that provisions of the lex delicti, denying, or limiting, or qualifying recovery of damages because of some relationship of the defendant to the plaintiff, or in respect of some interest of the plaintiff (such as loss of consortium) or some head of damage (such as pain and suffering) should be given effect to.’
Lord Pearson said: ‘If the difference between the English law and the Maltese law could be regarded only as a difference of procedural (or adjectival or non-substantive) law, there would be an easy solution of the problem in this appeal. On that basis the nature and extent of the remedy would be matters of procedural law regulated by the lex fori, which is English, and the proper remedy for the plaintiff in this case according to English law would be that he should recover damages for all the relevant consequences of the accident, including pain and suffering as well as pecuniary expense and loss . . But I am not convinced that the difference between the English law and the Maltese law can reasonably be regarded as only a difference of procedural law. There is a radical difference in the cause of action, the right of action, the jus actionis. A claim to be reimbursed or indemnified or compensated for actual economic loss is substantially different in character from a claim for damages for all the relevant consequences of the accident to the plaintiff, including pain and suffering. If an accident caused no economic loss, but only pain and suffering, there would be a cause of action according to English law, but not according to Maltese law. Surely that must be a matter of substantive law.’
Lord Guest (dissenting): ‘It would not be correct, in my view, to talk of compensation for pain and suffering as a head of damage apart from patrimonial loss. It is merely an element in the quantification of the total compensation’
Lord Donovan (dissenting) said that once the claim was actionable in an English court, ‘it was right that it should award its own remedies’.

Judges:

Hodson, Wilberforce, Pearson LL

Citations:

[1971] AC 356, [1969] 3 WLR 322, [1969] 2 All ER 1085

Jurisdiction:

England and Wales

Citing:

Appeal from – Boys v Chaplin CA 1968
The plaintiff had been injured in a road accident in Malta. By the law of Malta, non-economic damage (pain and suffering, loss of amenity) was not actionable. Only financial loss was compensatable. The plaintiff brought proceedings in England. The . .

Cited by:

Cited – Harding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Damages

Updated: 30 April 2022; Ref: scu.222521

Laferriere v Lawson: 1991

(Supreme Court of Canada) A doctor negligently failed in 1971 to tell a patient that a biopsy had revealed a lump in her breast to be cancerous. She first learned of the cancer in 1975, when the cancer had spread to other parts of the body and she died in 1978 at the age of 56. The judge found that earlier treatment would have increased the chances of a favourable outcome but was not satisfied on a balance of probability that it would have prolonged her life. Gonthier J said that although the progress of the cancer was not fully understood, the outcome was determined. It was either something capable of successful treatment or it was not: ‘Even though our understanding of medical matters is often limited, I am not prepared to conclude that particular medical conditions should be treated for purposes of causation as the equivalent of diffuse elements of pure chance, analogous to the non-specific factors of fate or fortune which influence the outcome of a lottery.’

Citations:

(1991) 78 DLR (4th) 609

Cited by:

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

Commonwealth, Professional Negligence, Damages

Updated: 30 April 2022; Ref: scu.222471

Harris v Harris: CA 1973

The court considered the award of damages for the loss of the chance of marriage.

Judges:

Lord Denning MR

Citations:

[1973] 1 Lloyd’s Rep 445

Jurisdiction:

England and Wales

Cited by:

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

Family, Damages

Updated: 30 April 2022; Ref: scu.222512

Auty v National Coal Board: CA 1985

A widow received a widow’s pension under a Coal Board scheme on the death of her husband, which had been caused by the defendants’ negligence.
Held: She did not have to give credit for this pension when the value of her dependency on her husband for the rest of his anticipated lifetime (from his earnings until his retirement, and thereafter from his pension until his death) was being calculated. It was maintained that she was entitled to claim, as an additional head of damage, the loss of the widow’s pension she would normally have expected to receive under the scheme at the end of his life following her husband’s death at a mature age. This was said to result from the operation of Section 4.
Held: The court rejected this submission. The plaintiff first had to establish a loss, and since she was receiving her widow’s pension immediately she could not claim for the loss of the opportunity to receive something she already had.
Oliver LJ: ‘There are thus two stages in the inquiry. First there must be ascertained what ‘injury . . to the dependants’ has resulted from the death. Secondly, there must be assessed the damages which are to be awarded for that injury. No doubt in ascertaining the extent of the injury suffered (for instance, the loss of dependency or of the estate duty advantage with which Davies v Whiteways Cyder Co Ltd [1973] QB 262 was concerned) you do not take into account any countervailing advantage which may have resulted to the dependant from the death in the form of pension or insurance benefit. In other words, it is no doubt right to observe the provisions of section 4(1) at both stages of the inquiry. But it is still necessary to establish that the dependant has in fact suffered an injury (ie lost something) as a result of the death. Here what is claimed as the injury is the loss of the very thing (ie a widow’s pension) that the widow in fact has gained as a result of the fulfilment of the conditions of the scheme earlier rather than later, and whilst section 4 precludes setting the benefit of the pension against damage suffered under some other head, there is nothing in that section which requires one to assume, in ascertaining whether there has been any injury at all, that that which has happened in fact has not happened. The fallacy of the plaintiffs’ reasoning is, in my judgment, that it premises a loss which has not occurred and which cannot be substantiated either in fact or in law.’

Judges:

Oliver LJ

Citations:

[1985] 1 WLR 784, [1985] 1 All ER 930

Statutes:

Fatal Accidents Act 1976 4

Jurisdiction:

England and Wales

Citing:

Explained – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .

Cited by:

Cited – Cantwell v Criminal Injuries Compensation Board HL 5-Jul-2001
When calculating the losses suffered by a victim of crime, the allowance to be made for losses to a retirement pension through having to retire early should have set off against them, the benefits received by way of payments for his ill-health, . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 30 April 2022; Ref: scu.219832

Jason v Batten (1930) Ltd: 1969

The plaintiff suffered a coronary thrombosis partly as the result of an accident caused by the defendant’s negligence and partly as a result of a pre-existing medical condition. He was a market trader, the one man in a one-man business, a limited company. But he did not have the beneficial ownership of all the shares in that company. Fifty per cent of those shares were held in trust for his children. ‘The form in which he took the profits was by way of director’s fees which were voted to him annually, but the amount so voted was decided by him, in consultation with his accountant, and was quite properly influenced by tax considerations’
Held: The true measure of his loss was the reduction in the net profit of the company caused by his injuries, and was not restricted to 50% of those profits. The insured

Judges:

Fisher J

Citations:

[1969] 1 Lloyds Rep 281

Jurisdiction:

England and Wales

Cited by:

Cited – Blackburn Rovers Football and Athletic Club Plc v Avon Insurance Plc, Eagle Star Insurance Company Ltd, AGF Insurance Ltd IC Insurance Ltd ComC 15-Nov-2004
The claimant football club insured its players through the defendants. A footballer injured himself in training and his career was finished. The insurers rejected the claim, and relied upon exception clauses, saying that the true cause was a . .
Lists of cited by and citing cases may be incomplete.

Insurance, Damages

Updated: 30 April 2022; Ref: scu.219698

Davidson v Upper Clyde Shipbuilders: 1990

The pursuer could make no claim for loss of pension rights for the period after which she would have become entitled to a widow’s pension in her own right after her husband’s death.

Judges:

Lord Milligan

Citations:

1990 SLT 329

Jurisdiction:

Scotland

Cited by:

Cited – Cantwell v Criminal Injuries Compensation Board HL 5-Jul-2001
When calculating the losses suffered by a victim of crime, the allowance to be made for losses to a retirement pension through having to retire early should have set off against them, the benefits received by way of payments for his ill-health, . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 30 April 2022; Ref: scu.219834

Smith v Giddy: 1904

Damage was caused to the plaintiff’s fruit trees by trees from the defendant’s premises overhanging his.
Held: The plaintiff was not confined to his remedy of cutting the offending trees; he could claim damages.

Citations:

[1904] 2 KB 448

Jurisdiction:

England and Wales

Nuisance, Damages

Updated: 30 April 2022; Ref: scu.219083

Wimpey (George) Co Ltd v British Overseas Airways Corporation: HL 1954

A joint tortfeasor could escape liability in contribution proceedings if it had been unsuccessfully sued by the injured person in an action brought outside the relevant limitation period. Where a court has to decide between two competing cases, if the arguments are fairly evenly balanced that interpretation should be chosen which involves the least alteration of the existing law.
An employee of BOAC, had been injured in a collision between a vehicle owned by BOAC and another owned by Wimpey. He sued Wimpey, who now claimed a contribution against BOAC. The claimant later joined BOAC, but outside a special one year limitation period under the 1939 Act. The judge had found BOAC one third liable, but that they then escaped liability, the claim against them being time barred. At the Court of Appeal LLJ Denning and Singleton compared the situation with that of co-sureties, and that a six year period applied.
Held: The decision and discussion was limited firmly to the point of statutory construction under section 6(1)(c) of the 1935 Act.
Viscount Simonds: ‘My Lords, at the hearing of the action and of the appeal two questions were raised, upon which there was no argument before your Lordships, the first as to the date upon which Wimpeys’ right to contribution arose and the second as to the period of limitation in respect of a claim for contribution against a public authority under section 21 of the Limitation Act, 1939. I am content to assume that the right to contribution arose at any rate not earlier than the date when the existence and amount of Wimpeys’ liability to Littlewood was ascertained by judgment and that the relevant period of limitation was six years.’ The concept of being ‘held liable’ by a judgment for the purpose of setting time running in a claim for contribution involved the ascertainment of the quantum of the liability.
Lord Porter: ‘The quantum having been determined, the only question is: can the party against whom judgment has been given recover contribution from the other who was in part the cause of the injury?’ and ‘Substantially, their view was that Wimpeys were under no liability until judgment was given against them, that their cause of action arose then and not until then, and accordingly their cause of action against B.O.A.C. arose at that date. I need not, I think, set out the authorities and reasoning upon which these opinions are founded except to refer to such cases as Wolmershausen v. Gullick and Robinson v. Harkin, both of which were claims to contribution between co-sureties, and M’Gillivray v. Hope, which was a claim involving the right of present and former employers to contribution inter se in respect of damages awarded to a workman employed by them consecutively.
If this view be true, Wimpeys’ liability did not come into existence until judgment had been given against them, and therefore they had whatever was the appropriate period of limitation from that date. What that appropriate period may be – whether it is a year because B.O.A.C. is a public authority and the action is brought in respect of any act, neglect or default or whether it is six years, because the claim is not in respect of any act, neglect or default, but for contribution – is immaterial in the present case inasmuch as Wimpeys made their claim to contribution in the original action before judgment was given.’
Lord Keith of Avonholm: ‘My Lords, your Lordships are not now concerned with a question which was considered in the courts below, namely, when the cause of action in the claim for contribution accrued. It is conceded, in conformity with the view taken by the Court of Appeal, that the cause of action accrued at earliest at the date when judgment was given in favour of Littlewood against the appellants.’

Judges:

Lord Reid, Lord Keith of Avonholm, Viscount Simonds, Lord Porter

Citations:

[1955] AC 169, [1954] 3 WLR 932, [1954] 3 All ER 661

Statutes:

Law Reform (Married Women and Tortfeasors) Act 1935, Limitation Act 1939 21

Jurisdiction:

England and Wales

Citing:

Cited – Wolmershausen v Gullick 1893
Claim for contribution between co-securities. Wright J reviewed the development of the entitlement to contribution from Justinian’s statement of it, through its application by the custom of the City of London in the time of Queen Elizabeth to the . .
Appeal from – Littlewood and George Wimpey and Co Ltd v British Overseas Airways Corporation CA 1953
The words ‘liable to pay’ in s 3 carried their usual meaning as ‘responsible in law’. . .

Cited by:

Cited – Director of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
Cited – Aer Lingus v Gildacroft Ltd and Another CA 17-Jan-2006
The claimant had been found liable to pay damages for personal injury, and now sought contribution from the defendants. The defendants said that they were out of time since the contribution action had been commenced more than 2 years after the . .
Cited – Ronex Properties v. John Laing Construction Ltd CA 1983
The court considered a claim for contribution between tortfeasors. Donaldson LJ said: ‘The starting point of this submission is that a cause of action for contribution, under the Law Reform (Married Women and Tortfeasors) Act 1935, arises at the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other, Damages, Limitation

Updated: 30 April 2022; Ref: scu.214211

Kitano Maru (Owners) v Otranto (Owners) (The Otranto): HL 1931

The House considered the ability of an appeal court to reapportion responsibility after a finding as to responsibility for a collision at sea: ‘Upon the question of altering the share of responsibility each has to take, this is primarily a matter for the judge at the trial, and unless there is some error in law or in fact in his judgment it ought not to be disturbed.’

Judges:

Lord Buckmaster

Citations:

[1931] AC 194

Jurisdiction:

England and Wales

Damages

Updated: 30 April 2022; Ref: scu.200472

Harris v Empress Motors: CA 1984

When calculating a dependency loss, the modern practice was ‘to deduct a percentage from the net income figure to represent what the deceased would have spent exclusively on himself’. The conventional figure for a married couple was said to be 33% and 25% where there were children. The ‘net loss of earnings’ was the relevant starting-point.

Judges:

O’Connor LJ

Citations:

[1984] 1 WLR 212

Jurisdiction:

England and Wales

Cited by:

Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 30 April 2022; Ref: scu.199761

Dews v National Coal Board: HL 1988

The plaintiff miner sought damages for an injury suffered at work.
Held: An employee who had been injured at work could not recover unpaid pension contributions, which had no effect on his pension entitlement, as part of his loss of pay while absent from work as a result of his injury. A tortfeasor cannot obtain a reduction in damages otherwise payable to a claimant in respect of earnings on the basis that the injury has prevented the claimant from spending some of those earnings in the way that ordinarily he would have done. ‘Where a plaintiff is injured and as a result is paid no wages his immediate real loss is that part of his net earnings that were available for current expenditure. In respect of this part of his earnings the object of which is to provide income available for current expenditure the tortfeasor is, subject to sums necessarily spent to earn the income, entitled to no credit for expenditure saved as a result of the injury; the principle that it is no concern of the tortfeasor how the plaintiff chooses to spend his income applies.’ As to deducting travelling expenses from the lost wages, ‘Where ever a man lives he is likely to incur some travelling expenses to work which will be saved during his period of incapacity, and they are strictly expenses necessarily incurred for the purpose of earning his living. It would, however, be intolerable in every personal injury action to have an inquiry into travelling expenses to determine that part necessarily attributable to earning the wage and that part attributable to a chosen life-style. I know of no case in which travelling expenses to work have been deducted from a weekly wage, and although the point does not fall for decision, I do not encourage any insurer or employer to seek to do so. I can, however, envisage a case where travelling expenses loom as so large an element in the damage that further consideration of the question would be justified as, for example, in the case of a wealthy man who commuted daily by helicopter from the Channel Islands to London. I have only touched on the question of travelling expenses to show that in the field of damages for personal injury, principles must sometimes yield to common sense.’ Parry v. Cleaver established the circumstances in which a disability pension is to be disregarded in calculating damages: ‘It is to be observed that whereas the disability pension is not to be taken into account until the date of his normal retirement from the police it is thereafter to be taken into account in that it is subsumed in the general retirement pension.’

Judges:

Lord Griffiths

Citations:

[1988] AC 1

Jurisdiction:

England and Wales

Citing:

Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .

Cited by:

Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Cited – Lim Poh Choo v Camden and Islington Area Health Authority HL 21-Jun-1979
The plaintiff was catastrophically injured. Her life expectation was not affected, but she would never be able to work at her expected profession as a doctor, and was entitled to recover for loss of earnings. The defendant said that there was in . .
Cited – Eagle (By Her Litigation Friend) v Chambers CA 29-Jul-2004
The claimant had been severely injured, and a substantial damages award made. Cross appeals were heard as to the several elements awarded. The claimant sought as part of her award of damages for personal injuries the fees she would have to pay to . .
Cited – Longden v British Coal Corporation HL 13-Mar-1997
The plaintiff was injured whilst at work in one of the defendant’s collieries. The House considered the deductibility from damages awarded for personal injury of a collateral benefit.
Held: The issue of deductibility where the claim is for . .
Cited – Longden v British Coal Corporation CA 1995
The plaintiff sought damages after being injured at work. The defendant sought to set off against the damages to be awarded sums received by way of a collateral benefit.
Held: Roch LJ said: if the plaintiff were not permitted to recover the . .
Cited – O’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 30 April 2022; Ref: scu.199754

Ashcroft v Curtin: CA 1971

A plaintiff, injured in a motor accident, was seeking to recover damages for loss of profit.
Held: The court commented adversely on the evidence and stated that no figures were given, and that counsel for the defendant had force in his observation that ‘as no other man was engaged (that is to replace the plaintiff in his job when he was unable to do it) it is irrelevant to consider what would have happened if he had been, for, so far from producing a drop in profitability, his engagement might equally well have led to a realisation of that 10 per cent increase which Mr Boulter assumed would have enured but for the accident.’ In other words, it might well have been that he would not have suffered any loss at all . . . ‘So approaching the matter, the unsatisfactory conclusion to which I have felt myself driven is that, while the probability is that some loss of profitability resulted from the plaintiff’s accident it is quite impossible to quantify it.’

Judges:

Davies, Edmund Davies and Stamp LJJ

Citations:

[1971] 1 WLR 1731, [1971] 3 All ER 1208

Jurisdiction:

England and Wales

Cited by:

Cited – Alger, Brownless and Court Copyservices Limited v Thakrar Trading As Thakrar and Co (a Firm) CA 15-Jan-1999
The defendant firm of solicitors signed a lease of a photocopier, but claimed to have agreed oral terms which contradicted those set out in the document they signed.
Held: The judge was entitled to make his assessment of the witnesses as he . .
Cited – Moeliker v Reyrolle and Co Ltd CA 1976
The court considered the principles for the award of damages for future loss of earning capacity.
Held: The court distinguished between an award for loss of earnings and compensation for loss of earning capacity. The latter head of damage . .
Cited – Phillips v Holliday and Another CA 6-Jul-2001
The claimant was injured when scaffolding on which he was working collapsed. The defendants appealed the awards for loss of future earnings. The claimant was self-employed working through a limited company controlled by his wife. His past earnings . .
Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Updated: 30 April 2022; Ref: scu.199277

McGriel v Wake: CA 1984

Citations:

[1984] 13 HLR 134

Jurisdiction:

England and Wales

Citing:

Approved – Fayner v Bilton 1878
. .

Cited by:

Cited – English Churches Housing Group v Shine CA 7-Apr-2004
The claimant was a secure tenant of English Churches Housing Group. He was unemployed and lived on benefits. He claimed damages against his landlord for breaches of the repairing covenants implied by section 11. The court considerd the appropriate . .
Lists of cited by and citing cases may be incomplete.

Housing, Damages

Updated: 30 April 2022; Ref: scu.198680

Jegon v Vivian: 1871

Unauthorised mining of land – measure of damages.
Held: Although the value of his land may not have been diminished by the trespass, the plaintiff recovered damages equivalent to what he would have received if he had been paid for a wayleave. The financial position of the plaintiff should not be different, according to the accident of whether it intercepted the minerals, or discovered their loss only after they had been sold by the defendant.

Citations:

(1871) LR 6 Ch App 742

Jurisdiction:

England and Wales

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 . .
Approved – Whitwham v Westminster Brymbo Coal and Coke Co CA 24-Jun-1896
Common law damages for the misuse of property involved an award of a sum equivalent to the price or hire that a reasonable person would pay for such use, even if the owner would not himself actually have been using the property. This case involved . .
Lists of cited by and citing cases may be incomplete.

Damages, Land

Updated: 29 April 2022; Ref: scu.196922

Overstone Ltd v Shipway: 1962

Where a claimed loss will be suffered over a period in the future, the computation will have to make allowance for any advancement that has occurred.

Citations:

[1962] 1 WLR 117

Jurisdiction:

England and Wales

Cited by:

Cited – In Re Park Air Services Plc; Christopher Moran Holdings Ltd v Bairstow and Another HL 4-Feb-1999
The tenant company went into liquidation, the receiver disclaimed the lease, and the landlord claimed compensation under the Act. The question concerned how the compensation was to be calculated.
Held: Where a solvent tenant under an onerous . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 29 April 2022; Ref: scu.197010

Smith v Leech Brain and Co Ltd: CA 1962

The reasoning in The Wagon Mound did not affect the rule that a tortfeasor takes his victim as he finds him.
Lord Parker CJ said: ‘The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and that [the victim] would die. The question is whether these employers could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim.’

Judges:

Lord Parker LCJ

Citations:

[1962] 2 QB 405

Jurisdiction:

England and Wales

Citing:

Considered – Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) PC 18-Jan-1961
Foreseeability Standard to Establish Negligence
Complaint was made that oil had been discharged into Sydney Harbour causing damage. The court differentiated damage by fire from other types of physical damage to property for the purposes of liability in tort, saying ‘We have come back to the plain . .

Cited by:

Confirmed – McKillen v Barclay Curle and Co Ltd 1967
The Lord Ordinary had awarded the pursuer damages for tuberculosis, on the basis that in the accident he had fractured a rib and this had reactivated his pre-existing tuberculosis.
Held: The pursuer had failed to prove the causal connexion . .
Cited – Simmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
Cited – Corr v IBC Vehicles Ltd HL 27-Feb-2008
The claimant’s husband had committed suicide. She sought damages for financial loss from his former employers under the 1976 Act. He had suffered a severe and debilitating injury working for them leading to his depression and suicide. The employers . .
Cited – Gates v Mckenna QBD 14-Aug-1998
The plaintiff suffered schizophrenia after taking part in an on-stage hypnosis performance by the defendant.
Held: The claim failed: ‘it is highly improbable that the onset of the plaintiff’s schizophrenia had anything to do with his . .
Lists of cited by and citing cases may be incomplete.

Negligence, Damages

Updated: 29 April 2022; Ref: scu.196526

Davy v Leeds Corporation: HL 1965

The Corporation declared an area in which the appellants owned some slum houses to be a slum clearance area and made a compulsory purchase order. Compensation was to be assessed under the 1919 Act and the 1959 Act. The appellants were entitled to receive in compensation the value of their land as sites cleared of buildings and available for re-development. The issue was whether this value was to be assessed on the footing that all the other buildings in the clearance area would be cleared away. This would have enhanced the value of the appellants’ land.
Held: The disregards introduced by section 9 of the 1959 Act prevented any such enhancement of value being reflected in the compensation. Viscount Dilhorne, citing Pointe Gourde: ‘By section 9(2) of the Act of 1959 Parliament, it seems to me, has given statutory expression to the principle which Lord MacDermott stated was well settled. Just as it would be wrong if the price to be paid for land compulsorily acquired was to be reduced if compulsory acquisition reduced its value, so, equally, would it be wrong if the price to be paid was increased as a result of what was proposed.’

Judges:

Viscount Dilhorne, Lord Cohen

Citations:

[1965] 1 WLR 445

Statutes:

Town and Country Planning Act 1959 9(1)

Jurisdiction:

England and Wales

Citing:

Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Appeal from – Davy v Leeds Corporation CA 1964
Harman LJ described the section as ‘monstrous legislative morass’ and ‘a Slough of Despond’. . .

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 – Camrose v Basingstoke Corporation CA 1966
Basingstoke was to be expanded to receive overspill population from London and the corporation contracted to purchase about 550 acres from a landowner on terms that the price would be assessed as though the land had been compulsorily acquired under . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 29 April 2022; Ref: scu.196520

Richardson v Redpath Brown and Co Ltd: HL 1944

Viscount Simon LC discussed the role and status of medical assessors, saying: ‘But to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and perhaps cannot even be fully appreciated by the parties until judgment is given, is to misunderstand what the true functions of an assessor are. He is an expert available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence. He may, in proper cases, suggest to the judge questions which the judge himself might put to an expert witness with a view to testing the witness’s view or to making plain his meaning. The judge may consult him in case of need as to the proper technical inferences to be drawn from proved facts, or as to the extent of the difference between apparently contradictory conclusions in the expert field.’
. . And ‘The material question, as this House recently pointed out in Steele v. Robert George and Co. (1937) Ltd. is not whether the medical advice given to the workman against an operation is more soundly based than advice in favour of it, but whether the workman who refuses to be operated upon is acting reasonably in view of the advice he has received.’

Judges:

Viscount Simon LC

Citations:

[1944] AC 62, [1944] 1 All ER 110, 36 BWCC 259

Jurisdiction:

England and Wales

Citing:

Cited – Steele v Robert George and Co Ltd HL 1942
Where it is claimed on behalf of a defendant that a claimant has failed to mitigate his damages by refusing recommended surgery, the onus rests upon the defendant to show that the claimant’s refusal has been unreasonable in the circumstances. The . .

Cited by:

Cited – Skandia Property (UK) Limited Vala Properties Bv v Thames Water Utilities Limited CA 27-Jul-1999
The defendants were liable after a flood invaded and damaged the plaintiff’s premises. Having been advised professionally that the waterproofing system in the property would need replacing, the plaintiffs so replaced it but, it turned out, . .
Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice

Updated: 29 April 2022; Ref: scu.196011

Westwood v Secretary of State for Employment: HL 1985

The house considered the benevolence rule: ‘I do not see any analogy at all between the generosity of private subscribers to a fund for the victims of some disaster, who also have claims for damages against a tortfeasor, and the state providing subventions for the needy out of funds which, in one way or another, have been subscribed compulsorily by various classes of citizens. The concept of public benevolence by the state is one I find difficult to comprehend.’

Judges:

Lord Bridge of Harwich

Citations:

[1985] AC 20, [1984] 1 All ER 874

Statutes:

Employment Protection (Consolidation) Act 1978

Jurisdiction:

England and Wales

Cited by:

Cited – Hodgson v Trapp HL 10-Nov-1988
The question was whether the attendance and mobility allowances which were payable to the plaintiff pursuant to statute should be deducted from damages she had received for personal injury.
Held: They should be. Damages for negligence are . .
Cited – Pirelli General Plc and others v Gaca CA 26-Mar-2004
The claimant was awarded damages from his employers, who claimed that the benefits received by the claimant from an insurance policy to which the defendants had contributed should be set off against the claim.
Held: McCamley was no longer good . .
Cited – Notcutt v Universal Equipment Company (London) Ltd CA 14-Mar-1986
The Court was asked to consider the application of the doctrine of frustration to a periodic contract of employment, which is determinable by short or relatively short notice where the contract is said to have been frustrated by the illness or . .
Lists of cited by and citing cases may be incomplete.

Damages, Employment

Updated: 29 April 2022; Ref: scu.195739

White v Mellin: HL 1895

Lord Watson said: ‘Damages and injunction are merely two different forms of remedy against the same wrong; and the facts which must be proved in order to entitle a plaintiff to the first of these remedies are equally necessary in the case of the second. The onus resting upon a plaintiff who asks an injunction, and does not say that he has as yet suffered any special damage, is if anything the heavier, because it is incumbent upon him to satisfy the Court that such damage will necessarily be occasioned to him in the future.’

Judges:

Lord Watson

Citations:

[1895] AC 134

Jurisdiction:

England and Wales

Cited by:

Cited – Drury v Secretary of State for Environment, Food and Rural Affairs CA 26-Feb-2004
Trespassers occupied part of the land owned by the claimant. They now appealed agaainst an injunction preventing them unlawfully occupying any part of the claimant’s land including areas not previously occupied.
Held: It was critical to . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 29 April 2022; Ref: scu.194593

Hogan v Bentinck Collieries: HL 1949

The workman plaintiff suffered from a congenital defect; he had an extra thumb in his right hand. He met with an industrial accident and fractured the false thumb. It was treated by splinting but he continued to be in pain. He was then sent to the hospital where it was discovered that the fracture had not united. He was advised that an operation was required to remove not just the false thumb, but also the top joint of the normal thumb. The result of this operation was unsatisfactory as it left him with a tender stump which rendered him fit for light work only. He applied for compensation on the ground of this incapacity.
Held: (Majority) The incapacity was not the result of the injury which was caused by the industrial accident.
Whether a chain of causation had been broken was a question of fact. It was ‘axiomatic’ that later negligence by a doctor (so in principle, presumably anyone’s later negligence) would amount to a ‘new cause’ and so break the chain of causation flowing from the original accident. Lord Reid (dissenting) said that a ‘grave lack of skill or care on the part of the doctor’ treating an injury could amount to a novus actus interveniens.
The question of the effect of a novus actus ‘can only be answered on a consideration of all the circumstances and, in particular, the quality of that later act or event’.
Lord Reid said that not only must the new cause come in but the old must go out; there must no longer be any cause or connection between the injury by accident and the present incapacity

Judges:

Lord Simonds, Lord Normand, Lord Reid

Citations:

[1949] 1 All ER 588

Jurisdiction:

England and Wales

Cited by:

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

Damages, Negligence

Updated: 29 April 2022; Ref: scu.189972

Meah v McCreamer (No 1): QBD 1985

The claimant had suffered serious brain damage as a result of the defendant’s negligence, resulting in a personality change which caused him to commit offences for which he was imprisoned. He sought damages for that imprisonment.
Held: Woolf J said: ‘this case is unusual because it is not suggested that he has suffered any financial loss as a result of going into prison. He is a person who might have worked from time to time, but the money he has saved as a result of being boarded in prison has apparently been regarded as outweighing his loss. So I approach this case on the basis that there is no continuing financial loss as result of his being in prison . .’ and ‘If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions, and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute.’

Judges:

Woolf J

Citations:

[1985] 1 All ER 367

Jurisdiction:

England and Wales

Cited by:

Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Cited – O’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Cited – Meah v McCreamer (No 2) 1986
The court rejected an attempt to recover the damages which the plaintiff had been found liable to pay to two women whom he had subjected to criminal attacks. The damages were too remote. But the claim would also have been rejected on the public . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Lists of cited by and citing cases may be incomplete.

Negligence, Damages

Updated: 29 April 2022; Ref: scu.190028

Robinson v Post Office: 1974

The chain of causation leading to the damages was broken by a later negligent act.

Citations:

[1974] 1 WLR 1176

Jurisdiction:

England and Wales

Cited by:

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

Damages

Updated: 29 April 2022; Ref: scu.190110

Weld-Blundell v Stephens: HL 1920

The plaintiff had been successfully sued for a libel contained in a document which he had supplied to his accountant.
Held: He could not recover the damages he had had to pay to the defamed party from his accountant, who had negligently left the document about so that it came to the former’s attention.
Lord Sumner said: ‘In general, even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do. Though A may have given the occasion for B’s mischievous activity, B then becomes a new and independent cause.’

Judges:

Lord Sumner

Citations:

[1920] AC 956

Jurisdiction:

England and Wales

Citing:

Appeal from – Weld-Blundell v Stephens CA 1919
The exception to the obligation not to disclose confidential information is limited to the proposed or contemplated commission of a crime or a civil wrong. . .

Cited by:

Cited – Stansbiev Troman CA 1948
A decorator working alone in a house went out to buy wallpaper and left the front door unlocked. He was held liable for the loss caused by a thief who entered while he was away. For the purpose of attributing liability to the thief (e.g. in a . .
Cited – Empress Car Company (Abertillery) Ltd v National Rivers Authority HL 22-Jan-1998
A diesel tank was in a yard which drained into a river. It was surrounded by a bund to contain spillage, but that protection was over ridden by an extension pipe from the tank to a drum outside the bund. Someone opened a tap on that pipe so that . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 29 April 2022; Ref: scu.190105

Bird and Bird v Wakefield Metropolitan Borough Council: 1976

The underlying scheme to be disregarded when calculating compensation on a compulsory purchase need not, as a matter of law, be confined to the area of land compulsorily acquired or to the specific purposes of the CPO. The acquisition may be only a small part of the underlying scheme. Browne LJ: ‘It is true that [the scheme] did not provide for the compulsory acquisition of any land for industrial development. I do not, however, think it necessary for the scheme to provide for the acquisition; it is enough that it ‘underlies’ it.’

Judges:

Browne LJ, Shaw LJ and Megaw LJ

Citations:

(1976) 33 PandCR 478

Citing:

Developed – 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 – Bolton Metropolitan Borough Council v Tudor Properties Ltd and Others CA 19-Apr-2000
The court had to consider the compensation to be awarded on the compulsory purchase of land.
Held: The appeal failed. The tribunal had not erred in ascertaining the extent of the underlying scheme. In deciding that, they were entitled to have . .
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: 29 April 2022; Ref: scu.188872

Clippens Oil Co v Edinburgh and District Water Trustees: HL 1907

A wrongdoer must take his victim as he finds him, and be answerable for the consequences which actually flow from his wrongful act.
Lord Collins said: ‘In my opinion the wrongdoer must take his victim talem qualem, and if the position of the latter is aggravated because he is without the means of mitigating it, so much the worse for the wrongdoer, who has got to be answerable for the consequences flowing from his tortious act.’
and ‘I think the wrong-doer is not entitled to criticise the course honestly taken by the injured person on the advice of his experts, even though it should appear by the light of after-events that another course might have saved loss. The loss he has to pay for is that which has actually followed under such circumstances upon his wrong’

Judges:

Lord Collins

Citations:

[1907] AC 291

Jurisdiction:

England and Wales

Cited by:

Distinguished – 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 – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
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 . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 29 April 2022; Ref: scu.188645

Admiralty Commissioners v Owners of the Steamship Susquehanna; The Susquehanna: HL 1926

An Admiralty oiler, the ‘Prestol’, was damaged in a collision with the defendants’ vessel in the Baltic. Her place was taken by another oiler, the ‘Belgol’, which was withdrawn from service on the Clyde. In effect, the Admiralty was able to make do with the resources at its disposal, making it unnecessary to charter in a substitute vessel. The Admiralty claimed general damages at the rate of andpound;225 a day in respect of the period during which the ‘Prestol’ was out of service while undergoing repairs, that being the rate at which she could have been chartered out. The registrar awarded damages at the rate of andpound;200 a day. The House considered the principles to be applied in assessing damages.
Held: The Admiralty was not entitled to recover general damages assessed by reference to the rate at which the vessel could be chartered out and on that point their Lordships were agreed. Viscount Dunedin said: ‘There is no difference in this matter between the position in Admiralty law and that of the common law . .’

Judges:

Viscount Dunedin

Citations:

[1926] AC 655

Jurisdiction:

England and Wales

Cited by:

Cited – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Cited – West Midlands Travel Ltd v Aviva Insurance UK Ltd CA 18-Jul-2013
The claimant bus operator sought damages after one of its buses was off the road for several weeks. It made a claim for general damages for loss of use, using for that purpose a formula produced by the Confederation of Passenger Transport UK, which, . .
Lists of cited by and citing cases may be incomplete.

Damages, Transport

Updated: 29 April 2022; Ref: scu.188654

Chanthall Investments Ltd v F G Minter Ltd: OHCS 22 Jan 1976

The court considered the approach to claims for damages which had been made worse because of the impecuniosity of the victim: ‘I am of opinion that in each case where the matter arises it is a question of fact, in the particular circumstances, whether loss associated with the impecuniosity of the party claiming to have suffered loss was within the contemplation of the parties.’

Judges:

Lord Keith

Citations:

1976 SC 73

Citing:

Cited – Trans Trust SPRL v Danubian Trading Co Ltd CA 1952
Lord Justice Denning said: ‘It was also said that the damages were the result of the impecuniosity of the sellers and that it was a rule of law that such damages are too remote. I do not think there is any such rule. In the case of a breach of . .

Cited by:

Cited – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Applied – Margrie Holdings Ltd v City of Edinburgh District Council IHCS 1994
When asking whether a claim for damages could properly include an additional element to recover additional costs of an impecunious pursuer, the proper approach, consistent with the modern authorities, was to ask whether the loss was or was not . .
Lists of cited by and citing cases may be incomplete.

Scotland, Damages

Updated: 29 April 2022; Ref: scu.188650

Merlin v British Nuclear Fuels plc: 1990

The plaintiffs claimed that their house had been damaged by radioactive material that had been discharged into the Irish Sea from Sellafield which had subsequently become deposited in their house as dust.
Held: The l965 Act required them to established that there had been damage to property, meaning tangible property. He went on to reject the plaintiffs’ claim that the house included the air space within the walls, ceilings and floors and that it had been damaged by the presence of radioactive material which had resulted in the house being rendered less valuable. All that had happened was that the house had been contaminated and that did not amount to damage to property which was the type of damage for which the Act provided compensation. The fact that the house was less valuable was the economic result of the presence of radioactive material, not the result of damage to the house from the radioactive properties of the material.

Judges:

Gatehouse J

Citations:

[1990] 2 QB 557, [1991] CLY 2662, [1990] 3 WLR 383

Statutes:

Nuclear Installations Act 1965 7 8 9 10 11 12

Jurisdiction:

England and Wales

Cited by:

Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Lists of cited by and citing cases may be incomplete.

Damages, Utilities

Updated: 29 April 2022; Ref: scu.188045

Dooley v Cammell Laird and Co Ltd: 1951

The plaintiff was a crane driver whose load of timber, drums of paint, and bags of bolts etc, and without any fault on his part, fell into the hold of a ship as they were being lowered along with scaffolding. No one was actually injured but the plaintiff knew that fellow workers were then in the hold, and he suffered nervous shock. He sued his employers saying that the sling was either overloaded or defective in breach of shipbuilding regulations and the common law duties to provide safe plant and a safe system.
Held: The plaintiff was entitled to recover in those circumstances. Cammell Laird were in breach of the regulations. one of which was made as a protection against the risk of bodily injury which included injury to the nerves, the nerves being a part of the body.
Donovan J said: ‘I suppose I may reasonably infer that his fellow workmen down the hold were his friends,’ Mr Dooley was the unwitting agent of the defendant’s negligence. He was the crane driver who, without any fault, was party to an accident which could have killed his fellow workers. It was his activity in operating the crane which caused the actual and potential damage. It was that activity which brought him into the category of persons for whom the defendants owed a duty of care, not really any question of relationships of friendships.

Judges:

Donovan J

Citations:

[1951] 1 Lloyd’s Rep 271

Cited by:

Cited – Salter v UB Frozen Chilled Foods OHCS 25-Jul-2003
The pursuer was involved in an accident at work, where his co-worker died. He suffered only psychiatric injury.
Held: Being directly involved, the pursuer was a primary victim, and accordingly not subject to the limits on claiming for . .
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 . .
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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages, Health and Safety

Updated: 29 April 2022; Ref: scu.186974

Helming Schiffahrts GMBH v Malta Drydocks Corporation: 1977

A German ship owning company claimed in contract arising from a contract for the construction of two ships in Malta. The currency of account specified by the contract was Maltese Pounds. The court awarded interest on the judgment, although in Maltese Pounds, based on the German commercial borrowing rate at the relevant time. The exceptional feature which guided the court to produce this result was that Maltese Pounds being a ‘soft’ currency it was not possible to borrow that currency in Germany. Interest on a judgment is awarded in order to compensate the judgment creditor for the cost of borrowing the amount of the judgment in his home country between the date of breach and judgment.

Citations:

[1977] 2 Lloyds Rep 5

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

Damages

Updated: 29 April 2022; Ref: scu.186850

Alghussein Establishment v Eton College: HL 1985

A literal construction of the relevant provision of a lease would have led to an absurd result that a contractor who failed to complete a development without fault could not call for a lease, whereas a contractor who wilfully defaulted could do so.
Held: The implication of a term into a contract is a matter of law. A party may be prevented from enforcing a contractual provision where he is in breach of another contractual provision designed to avoid the situation sought to be achieved coming about, or to cast onto him responsibility for the matter in question.
Lord Jauncey of Tullichettle said: ‘Although the authorities to which I have already referred involved cases of avoidments a clear theme running through them is that no man can take advantage of his own wrong. There was nothing in any of them to suggest the foregoing proposition was limited to cases where the parties in breach were seeking to avoid the contract and I can see no reason for so limiting it. A party who seeks to obtain a benefit under a continuing contract is just as much taking advantage of his own wrong as a party who relies on his breach to avoid a contract and thereby escape his obligations’.

Judges:

Lord Jauncey of Tullichettle

Citations:

[1988] 1 WLR 587

Jurisdiction:

England and Wales

Cited by:

Cited – Portsmouth City Football Club v Sellar Properties (Portsmouth) Limited, Singer and Friedlander Properties Plc ChD 17-Sep-2003
Various contracts were entered into for the sale of land, with compensation being paid in certain circumstances. One contract required a calculation of consideration as a set figure less a sum to be calculated as the cost of acquiring land. The sum . .
Cited – Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Cited – Micklefield v SAC Technology Ltd 1990
A Share Option Scheme provided that the option could not be exercised if the option holder ceased to be an executive ‘for any reason’. The employer dismissed Mr Micklefield wrongfully, so that he ceased to be an employee before he was able to . .
Cited – Murray v Leisureplay Plc QBD 5-Aug-2004
The claimant sought payment of three years’ salary after termination of his service contract. He said that an agreement had been made by the company to purchase a ‘financial institution’, which would trigger the additional payments. The defendants . .
Cited – Michael Wilson and Partners Ltd v Emmott ComC 8-Jun-2011
The claimant challenged an arbitration award made concerning the agreement under which the defendant had been admitted to partnership. MWP contended that the Tribunal were guilty of a large number of serious irregularities in their conduct of the . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 29 April 2022; Ref: scu.186485

Occidental Worldwide Investment Corporation v Skibs A/S Avanti (The Siboen and Sibotre): 1976

The effect of a rescission of a compromise agreement settling the dispute may be to revive the original agreement. As to the liability of a principal for misrepresentations by his agent: ‘If one agent makes a fraudulent statement to another agent, intending the latter to pass the statement on to a third party, and this done, the principal will be liable; for in these circumstances the first agent is guilty of the complete tort of fraudulent misrepresentation, the second agent being his innocent agent.’
Exemplary damages are not available for breach of contract even if a contract breaker has made a similarly cynical calculation that it will benefit him more to break a contract than to perform it.
As to the establishment of economic duress, Kerr J said that in a contractual situation commercial pressure is not enough. There must be present some factor ‘which could in law be regarded as a coercion of his will so as to vitiate his consent.’

Judges:

Kerr J

Citations:

[1976] 1 Lloyds Rep 293

Cited by:

Cited – MCI Worldcom International Inc v Primus Telecommunications Inc ComC 25-Sep-2003
The claimant sought judgment, and the defendant leave to amend its defence. The question was whether the proposed defence had any reasonable prospect of success.
Held: The misrepresentation alleged was made by the claimant’s in-house . .
Cited – Crystal Palace FC (2000) Ltd v Dowie QBD 14-Jun-2007
The parties had agreed a compromise on the leaving of the defendant as manager. The club now said that the agreement had been obtained by fraudulent misrepresentation. He had been released but had said he had not had contact with another London club . .
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.
Cited – Pao On and Others v Lau Yiu Long and Others PC 9-Apr-1979
(Hong Kong) The board was asked whether a contract of guarantee had been obtained by duress.
Held: Lord Scarman said: ‘Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree with the . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 29 April 2022; Ref: scu.186445

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 said: ‘When it is necessary for a court to ascribe liability in proportions to more than one person, it is well established that regard must be had not only to causative potency of the acts or omissions of each of the parties, but to their relative blameworthiness.’, and after quoting from the Miraflores, he continued: ‘It is worthy of note, I think, that that being a case where three ships had been involved in a collision, Lord Pearce said that what was essential was to compare the fault of each with the fault of the other two; the emphasis is upon fault not solely with the causation of damage.’

Judges:

Winn LJ

Citations:

[1968] 1 WLR 1003

Statutes:

Law Reform (Contributory Negligence) Act 1945 1(1)

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .

Cited by:

Cited – Eagle v Chambers CA 24-Jul-2003
The claimant was severely injured when run down by the defendant driving his car. She was in Blackpool, and drunk and wandering in the highway. The defendant was himself at or near the drink driving limit. She appealed against a finding that she was . .
Lists of cited by and citing cases may be incomplete.

Negligence, Damages

Updated: 29 April 2022; Ref: scu.185855

Otter v Church Adams Tatham and Co: ChD 1953

The plaintiff was sole administratix of her son’s estate. He had died on active service intestate. She claimd negligence on the part of the solicitors, saying they were in breach of their duty to exercise care and skill as solicitors, having failed to advise her, acting as the agent of Michael, that his interest in certain settled property was an entailed interest and, that having recently attained 21, he was in a position to disentail and make the property his own.
Held: The plaintiff had established a breach of contract by the defendants. As to damages, the defendants said that a personal representative can have no better rights than the person he represents and that, since Michael could have received no more than nominal damages in his lifetime, the plaintiff, as his personal representative, could have no better claim than that. The matter was ‘admittedly free from authority’, but the right of action which had previously been vested in Michael vested in his personal representative and that the damage had to be ascertained in accordance with principles affecting damages for breach of contract ‘at the time that the damage accrues.’

Judges:

Upjohn J

Citations:

[1953] Ch 280

Jurisdiction:

England and Wales

Cited by:

Cited – Corbett v Bond Pearce (a Firm) CA 8-Aug-1997
The solicitors had added a date to a will executed by the client, as a result of this the will had been open to challenge. Objection was then made to the will on the ground of capacity. An action found negligence, but costs were paid from the estate . .
Cited – Corbett (As Administrator of the Estate of Miss N A Tresawna (Deceased)) v Bond Pearce (a Firm) CA 11-Apr-2001
The testatrix had executed her will, but the will was dependent upon deeds of gift first taking place. The will was only later dated, once the deeds had been put into effect. . .
Cited – Nestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages, Wills and Probate, Trusts

Updated: 29 April 2022; Ref: scu.185875

Youssoupoff v MGM Pictures: CA 1934

The plaintiff (herself a Princess) complained that she could be identified with the character Princess Natasha in the film ‘Rasputin, the Mad Monk’. On the basis that the film suggested that, by reason of her identification with ‘Princess Natasha’, she had been seduced by Rasputin, she was awarded andpound;25,000 damages. The defendant contended that if the film indicated any relations between Rasputin and ‘Natasha’ it indicated a rape of Natasha and not a seduction.
Held: In defamation cases, the setting of the level of damages is for the jury.
Slesser LJ said that defamation could include words which cause a person to be shunned or avoided: ‘not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on [the plaintiff’s] part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on [the plaintiff’s] part. It is for that reason that persons who have been alleged to have been insane, or be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.’ and, on the facts:
‘One may, I think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectable consideration from the world.’ and
‘I, for myself, cannot see that from the plaintiff’s point of view it matters in the least whether this libel suggests that she has been seduced or ravished. The question whether she is or is not the more or the less moral seems to me immaterial in considering this question whether she has been defamed, and for this reason, that, as has been frequently pointed out in libel, not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on her part, but also if tends to make the plaintiff be shunned and avoided and that without any moral discredit on her part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.’ and
‘When this woman is defamed in her sexual purity I do not think that the precise manner in which she has been despoiled of her innocence and virginity is a matter which a jury can properly be asked to consider.’
Scrutton LJ defined a defamatory statement as ‘a false statement about a man to his discredit’.
As to the assessment of damages by the jury: ‘The constitution has thought, and I think there is great advantage in it, that the damages to be paid by a person who says false things about his neighbour are best decided by a jury representing the public.’

Judges:

Scrutton LJ, Slesser LJ

Citations:

(1934) 50 TLR 581

Jurisdiction:

England and Wales

Citing:

Approved – Scott v Sampson QBD 1882
The court explained why evidence of particular acts of misconduct on the part of the Plaintiff tending to show his character and disposition should be excluded, saying ‘Both principle and authority seems equally against its admission. It would give . .

Cited by:

Cited – Kiam v MGN Ltd CA 28-Jan-2002
Where a court regards a jury award in a defamation case as excessive, a ‘proper’ award can be substituted for it is not whatever sum court thinks appropriate, wholly uninfluenced by jury’s view, but the highest award which a jury could reasonably . .
Cited – Berkoff v Burchill and and Times Newspapers Limited CA 31-Jul-1996
The plaintiff actor said that an article by the defendant labelling him ugly was defamatory. The defendant denied that the words were defamatory.
Held: It is for the jury to decide in what context the words complained of were used and whether . .
Cited – Thornton v Telegraph Media Group Ltd QBD 16-Jun-2010
The claimant said that a review of her book was defamatory and a malicious falsehood. The defendant now sought summary judgment or a ruling as to the meaning of the words complained of.
Held: The application for summary judgment succeeded. The . .
Lists of cited by and citing cases may be incomplete.

Defamation, Damages

Updated: 29 April 2022; Ref: scu.184740

Mount Banking Corporation Ltd v Brian Cooper and Co: QBD 1992

The plaintiff submitted that where the final valuation figure is within the Bolam principle, an acceptable figure, albeit towards the top end, but where none the less the valuer has erred materially in reaching that figure, the plaintiff can succeed in his claim because of those negligent errors, even though the total valuation figure was not negligent.
Held: If the valuation that has been reached cannot be impugned as a total, then, however, erroneous the method or its application by which the valuation has been reached, no loss has been sustained, because, within the Bolam principle, it was a proper valuation. This focuses on the end result rather than the process by which the valuer reached the end result. Though there was a fault in the process of calculation, none the less a proper and acceptable process could properly have resulted in no, or no perceptible, difference to the end valuation; the figure in fact reached by was acceptable on the Bolam principle. If it is shown even at the first stage (whether the valuation fell outside the proper range of valuations results) that the valuer did not adopt an unprofessional practice or approach, then that may be taken into account in considering whether his valuation contained an unacceptable degree of error. Where the valuation is shown to be outside the acceptable limit, that may be a strong indication that negligence has in fact occurred.

Judges:

Mr Robin Stewart QC

Citations:

[1992] 2 EGLR 142

Jurisdiction:

England and Wales

Cited by:

Cited – Goldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
Cited – Craneheath Securities v York Montague CA 1996
When testing whether a valuation was negligent, it would not be enough for the plaintiff to show that there have been errors at some stage of the valuation unless they can also show that the final valuation was wrong. would not be enough for the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 29 April 2022; Ref: scu.184176

Taylor v John Webster Buildings Civil Engineering: EAT 1999

‘the basic award is to reflect a lost redundancy award; that is its function’.

Judges:

Lindsay P

Citations:

[1999] ICR 561

Cited by:

Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 29 April 2022; Ref: scu.183847

Bliss v South East Thames Regional Health Authority: CA 1985

General damages cannot be awarded for frustration, mental distress or injured feelings arising from an employer’s breach of the implied term of confidence and trust. Dillon LJ said that damages for mental distress in contract are limited to certain classes of case including ‘where the contract which has been broken was itself a contract to provide peace of mind or freedom from distress.’
Dillon LJ set out the position on constructive dismissal: ‘It follows that I agree with the judge that the authority was in breach of contract in requiring the plaintiff to submit himself to medical examination and in suspending him when he refused to do so. I have no doubt that the breach was a continuing breach, so long as the suspension lasted.
Was it then a repudiatory breach, which would entitle the plaintiff to treat the contract as at an end and claim damages on that footing?
It is common ground on the pleadings that it was an implied term of the plaintiff’s contract that the authority would not without reasonable cause conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee. There is ample authority in employment cases to warrant the implication of such a term. The authority was in breach of that term, and the question is whether that breach was fundamental, or repudiatory, or not.’
. . and: ‘There must be some breaches at least of such an implied term which are fundamental and repudiatory and go to the root of the contract, and if ever there was a breach of such a term going to the root of the contract, it was this. It would be difficult in this particular area of employment law to think of anything more calculated or likely to destroy the relationship of confidence and trust which ought to exist between employer and employee than, without reasonable cause, to require a consultant surgeon to undergo a medical, which was correctly understood to mean a psychiatric examination, and to suspend him from the hospital on his refusing to do so.’

Judges:

Dillon LJ

Citations:

[1985] IRLR 308, [1987] ICR 700

Jurisdiction:

England and Wales

Cited by:

Cited – Gogay v Hertfordshire County Council CA 26-Jul-2000
The employee sought damages for breach of the implied term of trust and confidence, even though she remained throughout the employment of the Council against whom she was bringing proceedings.
Held: Her remaining in employment was a factor . .
Cited – Nottinghamshire County Council v Meikle CA 8-Jul-2004
The claimant was a teacher who had come to suffer a sight disability. She complained that her employers had failed to make reasonable accomodation for her disability, and subsequently she resigned claiming constructive dismissal and damages for . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Cited – Meikle v Nottingham City Council EAT 14-Apr-1994
The appellant challenged dismissal of her claim for indirect racial discrimination based on two grounds. First, that the Tribunal’s decision was perverse; in other words that it was a decision which, on the evidence before it, no reasonable tribunal . .
Cited – Meikle v Nottinghamshire County Council EAT 19-Aug-2003
EAT Disability Discrimination – Less favourable treatment. The appellant brought proceedings against the Respondents alleging that they had failed to make adjustments to her workplace and conditions so as to . .
Lists of cited by and citing cases may be incomplete.

Damages, Employment

Updated: 29 April 2022; Ref: scu.183848

Christensen v Scott: 1996

(New Zealand Court of Appeal) Thomas J said: ‘the diminution in the value of Mr and Mrs Christensen’s shares in the company is by definition a personal loss and not a corporate loss. The loss suffered by the company is the loss of the lease and the profit which would have been obtained from harvesting the potato crop. That loss is reflected in the diminution in the value of Mr and Mrs Christensen’s shares. They can no longer realise their shares at the value they enjoyed prior to the alleged default of their accountants and solicitors.’ and ‘We do not need to enter upon a close examination of the Newman Industries decision. It has attracted not insignificant and, at times, critical comment. See eg L C B Gower, Gower’s Principles of Modern Company Law (5th ed, 1992) at pp 647-653; L S Sealy, ‘Problems of Standing, Pleading and Proof in Corporate Litigation’ (Ed, B.G. Pettit) at p 1 esp at pp 6-10; and M J Sterling, ‘The Theory and Policy of Shareholder Actions in Tort’ (1987) 50 MLR. 468, esp at pp 470-474. It may be accepted that the Court of Appeal was correct, however, in concluding that a member has no right to sue directly in respect of a breach of duty owed to the company or in respect of a tort committed against the company. Such claims can only be bought by the company itself or by a member in a derivative action under an exception to the rule in Foss v Harbottle (1843) 2 Hare 461. But this is not necessarily to exclude a claim brought by a party, who may also be a member, to whom a separate duty is owed and who suffers a personal loss as a result of a breach of that duty Where such a party, irrespective that he or she is a member, has personal rights and these rights are invaded, the rule in Foss v Harbottle is irrelevant. Nor would the claim necessarily have the calamitous consequences predicted by counsel in respect of the concept of corporate personality and limited liability. The loss arises not from a breach of duty owed to the company but from a breach of duty owed to the individuals. The individual is simply suing to vindicate his own right or redress a wrong done to him or her giving rise to a personal loss.
Thomas J continued: ‘We consider, therefore, that it is certainly arguable that, where there is an independent duty owed to the plaintiff and a breach of that duty occurs, the resulting loss may be recovered by the plaintiff. The fact that the loss may also be suffered by the company does not mean that it is not also a personal loss to the individual. Indeed, the diminution in the value of Mr and Mrs Christensen’s shares in the company is by definition a personal loss and not a corporate loss. The loss suffered by the company is the loss of the lease and the profit which would have been obtained from harvesting the potato crop. That loss is reflected in the diminution in the value of Mr and Mrs Christensen’s shares. They can no longer realise their shares at the value they enjoyed prior to the alleged default of their accountants and solicitors. (For a discussion of the policy issues which arise in considering these questions, see Sterling (supra) at pp 474-491.) In circumstances of this kind the possibility that the company and the member may seek to hold the same party liable for the same loss may pose a difficulty. Double recovery, of course, cannot be permitted. The problem does not arise in this case, however, as the company has chosen to settle its claim. Peat Marwick and McCaw Lewis accepted a compromise in the knowledge that Mr and Mrs Christensen’s claim was outstanding. It may well be, as was acknowledged by Mr Pidgeon in the course of argument, that an allowance will need to be made for the amount already paid to the liquidator in settlement of the company’s claim. It is to be acknowledged, however, that the problem of double recovery may well arise in other cases. No doubt, such a possibility is most likely with smaller private companies where the interrelationship between the company, the directors and the shareholders may give rise to independent duties on the part of the professional advisers involved. But the situation where one defendant owes a duty to two persons who suffer a common loss is not unknown in the law, and it will need to be examined in this context. It may be found that there is no necessary reason why the company’s loss should take precedence over the loss of the individuals who are owed a separate duty of care. To meet the problem of double recovery in such circumstances it will be necessary to evolve principles to determine which party or parties will be able to seek or obtain recovery. A stay of one proceeding may be required. Judgment, with a stay of execution against one or other of the parties, may be in order. An obligation to account in whole or in part may be appropriate. The interest of creditors who may benefit if one party recovers and not the other may require consideration. As the problem of double recovery does not arise in this case, however, it is preferable to leave an examination of these issues to a case where that problem is squarely in point. ‘
and ‘Essentially, Mr and Mrs Christensen are alleging that as a result of Peat Marwick and McCaw Lewis’s breach of duty owed to them personally they suffered a personal loss, that is, a reduction in the value of their assets. Their assets in this case had been channelled into their company. Thus, it is arguable that the diminution in the value of their shareholding is the measure of that loss. It may well be that when the evidence is heard it will be apparent that Mr and Mrs Christensen’s claim is inflated, but that is a matter for the trial. We are not prepared to hold at this stage that they do not have an arguable case to recover damages for the breach of an acknowledged duty.”

Judges:

Thomas J

Citations:

[1996] 1 NZLR 273

Citing:

Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .

Cited by:

Not followed – Johnson v Gore Wood and Co (a Firm) CA 12-Nov-1998
The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Company, Damages

Updated: 29 April 2022; Ref: scu.183149

Hussain v New Taplow Paper Mills Ltd: HL 1988

The plaintiff was injured in an accident at work. His employer was partly responsible. For 13 weeks he received full sick pay in accordance with his contract. He then received half his pre-accident earnings under the permanent health insurance scheme for which his employer paid. The injuries prevented him from resuming his pre-accident work as a machine operator. The employers offered alternative, less well-paid employment as a weighbridge operator.
Held: His claim for damages in respect of loss of earnings fell to be reduced by the amounts of the payments from his employer through the schemes. The payments were indistinguishable in character from the uninsured sick pay in lieu of wages: ‘They are payable under a term of the employee’s contract by the defendants to the employee qua employee as a partial substitute for earnings and are the very antithesis of a pension which is payable only after employment ceases. The fact that the defendants happen to have insured their liability to meet these contractual commitments as they arise cannot affect the issue in any way.’ The general rule was that: ‘prima facie the only recoverable loss is the net loss. Financial gains accruing to the plaintiff which he would not have received but for the event which constitutes the plaintiff’s cause of action are prima facie to be taken into account in mitigation of losses which that event occasions to him. In many, perhaps most cases, both losses and gains will come into the calculation.’ Lord Reid’s dichotomy in Parry ‘must not be allowed to obscure the rule that prima facie the only recoverable loss is the net loss’. Describing the benevolence exception: ‘Secondly, when the plaintiff receives money from the benevolence of third parties prompted by sympathy for his misfortune, as in the case of a beneficiary from a disaster fund, the amount received is again to be disregarded’. ‘There are however, a variety of borderline situations where a plaintiff may receive money which, but for the wrong done to him by the defendant, he would not have received and where there may be no obvious answer to the question whether the rule against double recovery or some principle derived by analogy from one of the two classic exceptions to that rule should prevail. Some of these problems have been resolved by legislation, sometimes in the form of a compromise solution providing that a proportion only of certain statutory benefits is to be taken into account when assessing damages. But where there is no statute applicable the common law must solve the problem unaided and the possibility of a compromise solution is not available. Many eminent common law judges, I think it is fair to say, have been baffled by the problem of how to articulate a single guiding rule to distinguish receipts by a plaintiff which are to be taken into account in mitigation of damage from those which are not.’

Judges:

Lord Bridge of Harwich

Citations:

[1988] AC 514

Jurisdiction:

England and Wales

Citing:

Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Appeal from – Hussain v New Taplow Paper Mills Ltd CA 1987
The worker had been injured at work. His employer was partly at fault. The employer had a compensation scheme for which it paid, and sought to deduct the payments to the worker from the damages it was to pay. The Court was also invited by the . .

Cited by:

Cited – Longden v British Coal Corporation HL 13-Mar-1997
The plaintiff was injured whilst at work in one of the defendant’s collieries. The House considered the deductibility from damages awarded for personal injury of a collateral benefit.
Held: The issue of deductibility where the claim is for . .
Cited – Dimond v Lovell CA 29-Apr-1999
Mrs Dimond had a car accident as a result of Mr Lovell’s negligence and sought to recover from him the cost of the hire of a replacement vehicle while her car was being repaired. Under clause 5 of the hire agreement the hire company had the conduct . .
Cited – Pirelli General Plc and others v Gaca CA 26-Mar-2004
The claimant was awarded damages from his employers, who claimed that the benefits received by the claimant from an insurance policy to which the defendants had contributed should be set off against the claim.
Held: McCamley was no longer good . .
Cited – McCamley v Cammell Laird Shipbuilders Limited CA 1990
The plaintiff suffered injury at work and claimed damages. He had received a lump sum under insurance provided by the defendant’s parent company for the benefit of employees injured at work. Did the lump sum payment fall to be deducted from the . .
Cited – O’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 29 April 2022; Ref: scu.183063

Emeh v Kensington and Chelsea and Westminster Area Health Authority: CA 1 Jul 1984

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

Judges:

Waller LJ

Citations:

[1985] 1 QB 1012, [1984] 3 All ER 1044

Jurisdiction:

England and Wales

Citing:

Doubted – Udale v Bloomsbury Area Health Authority QBD 1983
The plaintiff underwent a sterilisation operation. The operation was painful and she later became pregnant. She sought damages for the pain and suffering and the additional costs of caring for the new child.
Held: Public policy held fast . .
Approved – Thake v Maurice CA 1986
A vasectomy was performed. The husband was told that contraception precautions were not necessary but a child was born. The claim was brought in contract and in tort. The first instance court found no reason why public policy prevented the recovery . .
Applied – Mekew v Holland and Hannen and Cubitts (Scotland) 1970
. .

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 . .
Cited – Spencer v Wincanton Holdings Ltd (Wincanton Logistics Ltd) CA 21-Dec-2009
The claimant suffered injury for which he sought compensation from his employers. He later had to have his leg amputated as a consequence, but then through his own inadvertence suffered further injury to his other leg and a complete loss of . .
Lists of cited by and citing cases may be incomplete.

Damages, Contract, Professional Negligence

Updated: 29 April 2022; Ref: scu.183007

Thake v Maurice: CA 1986

A vasectomy was performed. The husband was told that contraception precautions were not necessary but a child was born. The claim was brought in contract and in tort. The first instance court found no reason why public policy prevented the recovery of expenses arising from the birth of a healthy child, and awarded damages in respect of the expenses of the birth and the mother’s loss of wages but refused damages for the pain and distress of labour holding that these were off set by the joy occasioned by the birth. It also awarded damages in an agreed sum for the child’s upkeep to its seventeenth birthday.
Held: Damages should be awarded for pain and suffering ‘per the majority’ in tort rather than contract. The joy of having the child could be set off against the time, trouble and care in the upbringing of the child but not against prenatal pain and distress. For the latter, damages should be awarded.
Nourse LJ said: ‘Valuable too are the observations of Lord Denning MR in Greaves and Co (Contractors) Ltd v Baynham Meikle and Partners [1975] 1 WLR 1095 . . Lord Denning thought, and I respectfully agree with him, that a professional man is not usually regarded as warranting that he will achieve the desired result. Indeed, it seems that that would not fit well with the universal warranty of reasonable care and skill, which tends to affirm the inexactness of the science which is professed. I do not intend to go beyond the case of a doctor. Of all sciences medicine is one of the least exact. In my view a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms. The defendant did not do that in the present case.’

Judges:

Nourse LJ

Citations:

[1986] 2 WLR 337, [1986] QB 644, [1986] 1 All ER 497

Jurisdiction:

England and Wales

Citing:

Cited – Greaves and Co (Contractors) Ltd v Baynham Meikle and Partners CA 1975
Consultant engineers were instructed to design a warehouse, the first floor of which, as they knew, was to be used for storing drums of oil that would be moved around by fork-lift trucks. The warehouse was built to the engineers’ design but after a . .

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 . .
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
Approved – Emeh v Kensington and Chelsea and Westminster Area Health Authority CA 1-Jul-1984
A sterilisation operation had been performed negligently and failed and the claimant was born.
Held: The birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon’s careless failure to clip a fallopian tube . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 29 April 2022; Ref: scu.183008

Aerial Advertising Co v Batchelors Peas Ltd (Manchester): 1938

Aerial advertising (‘Eat Bachelors Peas’) took place during Armistice Day services.
Held: The court was careful to confine damages to the financial loss flowing from public boycotting of the defendant’s goods and to exclude damages for loss of reputation.

Judges:

Atkinson J.

Citations:

[1938] 2 All ER 788

Damages, Contract

Updated: 29 April 2022; Ref: scu.182105

Foaminol Laboratories Ltd v British Artide Plastics Ltd: 1941

There is no justification for artificially excising from the damages recoverable for breach of contract that part of the financial loss which might or might not be the subject of a successful claim in defamation. A claim for mere loss of reputation is properly for an action for defamation, and cannot ordinarily be sustained by means of any other form of action, but if pecuniary loss can be established, the mere fact that the pecuniary loss is brought about by the loss of reputation caused by a breach of contract is not sufficient to preclude the plaintiffs from recovering in respect of that pecuniary loss.

Judges:

Hallett J

Citations:

[1941] 2 All ER 393

Cited by:

Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – Lonhro Plc and Others v Fayed and Others (No 5) CA 6-Oct-1993
The plaintiff sought to amend a conspiracy claim, based on arrangements to publish defamatory statements, by adding a claim for damage to reputation and feelings.
Held: Such a claim could not be made in conspiracy. A Plaintiff’s motives in . .
Cited – Hannon and Another v News Group Newspapers Ltd and Another ChD 16-May-2014
The claimants alleged infringement of their privacy, saying that the defendant newspaper had purchased private information from police officers emplyed by the second defendant, and published them. The defendants now applied for the claims to be . .
Lists of cited by and citing cases may be incomplete.

Contract, Defamation, Damages

Updated: 29 April 2022; Ref: scu.182103

Wood v Bentall Simplex Ltd: CA 1992

No aspect of the law of damages has been found in practice to be more dependent on the facts of each particular case than the assessment of loss of pecuniary benefit to dependants under the Fatal Accidents Act

Judges:

Beldam LJ

Citations:

[1992] PIQR 332

Jurisdiction:

England and Wales

Cited by:

Cited – Cape Distribution Ltd v Aine O’Loughlin CA 8-Feb-2001
The company appealed the calculation of an award of damages to the respondent following the death of her husband, a former employee. The deceased had operated a company in Ireland as a property developer. The company alleged that the earnings were . .
Cited – Harland and Wolff Plc Husbands Ltd v Patricia Lillian Mcintyre CA 28-Mar-2006
. .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 28 April 2022; Ref: scu.181792

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 costs not awarded. The defendant replied that this was not claimable loss.
Held: The award of costs included no element of compensation, and that therefore her claim stood.
Devlin said: ‘the rule of the law of damages that if costs were awarded in hostile civil litigation nothing beyond the taxed amount could be recovered by the successful party from the unsuccessful party rested on the presumption that the award of costs (as between party and party) gave compensation for the cost of litigation so far as the law allowed, and the reason for the rule was that the law could not permit the question of the amount of costs to be litigated a second time between the same parties in new proceedings; it was however a fiction that costs taxed between party and party were the same as costs reasonably incurred and the law should recognise that an assessment of damage and a taxation of party and party costs were two different things. The rule should not be extended to criminal cases, because the principles governing the award of costs in civil and criminal cases were not the same; for in criminal cases a successful defendant had no prima facie entitlement to an award of costs, as the prosecution was brought in the public interest, and an award of costs need not be directed to quantifying the damage and indemnifying the accused according to a conventional measure.’
A charge of a statutory offence punishable only by fine would not support an action for malicious prosecution unless the charge was such as to injure the ‘fair fame’ (that is, was necessarily and naturally defamatory) of the person charged.

Judges:

Devlin LJ

Citations:

(1962) 1 QB 306, [1961] 3 All ER 65, [1961] 3 WLR 450, 105 Sol Jo 587

Statutes:

Railways Act 1868

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .

Cited by:

Compared – Union Discount Company Ltd v Robert Zoller and Others, Union Cal Ltd CA 21-Nov-2001
The claimant had incurred costs in defending an action brought by the respondents in breach of an exclusive jurisdiction agreement. They appealed a judgement against them.
Held: The claim for the costs must succeed. The jurisdiction in which . .
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 – Botham v The Ministry of Defence QBD 26-Mar-2010
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
Cited – Gregory v Portsmouth City Council HL 10-Feb-2000
Disciplinary proceedings had been taken by the local authority against Mr Gregory, a council member, after allegations had been made that he had failed to declare conflicts of interest, and that he had used confidential information to secure a . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Costs, Damages

Updated: 28 April 2022; Ref: scu.180971

Feldman v Allways Travel Service: 1957

The claimant sought damages after a disappointing holiday.
Held: Such damages were capable of being awarded.

Judges:

Judge Alun Pugh

Citations:

[1957] CLY 934

Cited by:

Cited – Jarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 28 April 2022; Ref: scu.180900