Category: Damages

Vestergaard Frandsen A/S (Now Called Mvf 3Aps) v Bestnet Europe Ltd and Others: ChD 3 Oct 2014

The court had already found that the defendants had misused the confidential information of the claimant being secret information used in the manufacture of long lasting insecticidal mosquito bed nets mainly sold in areas of the world where malaria is endemic. The court now considered the level of damages to be awarded.

Rose DBE J
[2014] EWHC 3159 (Ch)
Bailii
England and Wales
Citing:
Cited – General Tire v Firestone Tyre and Rubber Company Limited HL 1975
The object of damages is to compensate for loss or injury. The general rule for ‘economic’ torts is that the measure is that sum of money which will put the injured party in the same position as he would have been in if he had not sustained the . .
At SC – Vestergaard Frandsen A/S and Others v Bestnet Europe Ltd and Others SC 22-May-2013
The claimant companies appealed against a reversal of their judgment against a former employee that she had misused their confidential trade secrets after leaving their employment. The companies manufactured and supplied bednets designed to prevent . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Updated: 22 December 2021; Ref: scu.537991

Contract Bottling Ltd v Cave and Another: EAT 18 Jul 2014

EAT Unfair Dismissal : Compensation- Polkey deduction
An ET held that a dismissal (held subsequently, on appeal, to be by reason of redundancy) was unfair because of wholesale failings in respect of selection of the two claimants for dismissal. A conclusion that there was no evidence on which it could make a Polkey deduction, which was in any event two speculative, was overruled on earlier appeal, and the matter remitted to the ET. This was an appeal against a finding of 20% deduction for which no sufficient reasons had been given.
The appeal was allowed on ground of insufficiency of reasons, with observations made about the calculation of Polkey awards as part of the calculation of future loss.
At the invitation of the parties, the EAT assessed the appropriate deduction, on such evidence as there was, as being 33%.

Langstaff P J
[2014] UKEAT 0100 – 14 – 1807
Bailii
England and Wales

Employment, Damages

Updated: 22 December 2021; Ref: scu.537752

Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same: CA 1895

The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of light. The fact that the wrongdoer is in some sense a public benefactor has never been considered a sufficient reason to refuse an injunction against a nuisance he creates. The Act which gave the Courts of Equity a discretion to award damages in place of an injunction did not thereby alter the rules on the grant of injunctions, and where an injunction was a proper remedy, the use of the discretion was not to be used to excuse wrong doing. A party with the benefit of a restrictive covenant is, as a general rule, entitled to an injunction on the trial of the action as distinct from an award of damages unless (1) the injury to the plaintiff’s legal rights is small, (2) it is capable of being estimated in terms of money, (3) it can adequately be compensated for by a small payment and (4) it would be oppressive to the defendant to grant an injunction.
AL Smith LJ said: ‘Many judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be.
In such cases the well known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff’s legal right has been invaded, and he is prima facie entitled to an injunction.
There are, however, cases in which this rule may be relaxed, and in which the damages may be awarded in substitution for an injunction as authorized by this section. In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the court may award damages in its place. So again, whether the case be for a mandatory injunction or to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of an injunction, assuming a case for an injunction to be made out. In my opinion, it may be stated as a good working rule that – (1) If the injury to the plaintiff’s legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction: – then damages in substitution for an injunction may be given.

There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with reckless disregard to the plaintiff’s rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction. It is impossible to lay down any rule as to what, under the differing circumstances of each case, constitutes either a small injury, or one that can be estimated in money, or what is a small money payment, or an adequate compensation, or what would be oppressive to the defendant. This must be left to the good sense of the tribunal which deals with each case as it comes up for adjudication. For instance, an injury to the plaintiff’s legal right to light to a window in a cottage represented by andpound;15 might well be held to be not small but considerable; whereas a similar injury to a warehouse or other large building represented by ten times that amount might be held to be inconsiderable. Each case must be decided upon its own facts; but to escape the rule it must be brought within the exception. In the present case it appears to me that the injury to the plaintiff is certainly not small; nor is it in my judgment capable of being estimated in money, or of being adequately compensated by a small money payment.’
Lindley LJ said: ‘Ever since Lord Cairns’ Act was passed the Court of Chancery has repudiated the notion that the Legislature intended to turn that court into a tribunal for legalizing wrongful acts: or in other words, the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrondgoer is able and willing to pay for the injury he may inflict. Neither has the circumstance that the wrondoer is in some sense a public benefactor (eg a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed. Expropriation, even for a money consideration, is only justifiable when Parliament has sanctioned it.’ and

‘Without denying the jurisdiction to award damages instead of an injunction, even in cases of continuing actionable nuisances, such jurisdiction ought not to be exercised in such cases except under very exceptional circumstances. I will not attempt to specify them, or to lay down rules for the exercise of judicial discretion. It is sufficient to refer, by way of example, to trivial and occasional nuisances: cases in which a plaintiff has shown that he only wants money; vexatious and oppressive cases; and cases where the plaintiff has so conducted himself as to render it unjust to give him more than pecuniary relief. In all such cases as these, and in all others where an action for damages is really an adequate remedy – as where the acts complained of are already finished – an injunction can be properly refused.’

Lindley LJ, A L Smith LJ
[1895] 1 Ch 287, [1891-4] All ER Rep 838, (1895) 64 LJ Ch 216, (1895) 72 LT 34, (1895) 12 R 112
Chancery Amendment Act 1858 (Lord Cairns’ Act)
England and Wales
Cited by:
Cited – Dennis and Dennis v Ministry of Defence QBD 16-Apr-2003
The applicants owned a substantial property near an airbase. They complained that changes in the patterns of flying by the respondents were a nuisance and sought damages. Walcot Hall was subjected to very high noise levels from military aircraft. . .
Applied – Kennaway v Thompson CA 30-Apr-1980
The plaintiff’s property adjoined the defendant’s boating lake over which the defendant had, over several years, come to run more and more motor boat sports events. The trial judge had found that the noise created by the racing was an actionable . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Cited – Kine v Jolly CA 1905
The court refused an injunction in respect of an infringement of the right to light to a dwelling house, restricting the plaintiff to a remedy in damages. Cozens-Hardy LJ: ‘I think it is impossible to doubt that the tendency of the speeches in the . .
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Cited – Jacklin and Another v Chief Constable of West Yorkshire CA 16-Feb-2007
The claimants asserted a vehicular right of way over land belonging to the defendant poilce authority. The defendant said that it had been abandoned. The judge found that it had not been and granted an injunction to prevent the defendants . .
Cited – Ludlow Music Inc v Williams and others ChD 2-Oct-2000
The claimant sought damages for copyright infringement in respect of two works which parodied a song to which they owned the rights.
Held: The amount copied, being as much as a quarter of the original work, meant that the claim was . .
Cited – Banks v EMI Songs Ltd (No.2) ChD 1996
Jacob J referred to the judgment of AL Smith LJ in Shelfer, and granted an injunction, even though he was not able to say that a small sum of money would be adequate compensation. The ‘checklist’ in that judgment was not an exhaustive statement and . .
Cited – Watson and others v Croft Promo-Sport Ltd CA 26-Jan-2009
The claimants were neighbours of the Croft motor racing circuit. They alleged nuisance in the levels of noise emanating from the site. The defendants denied nuisance saying that the interference was deemed reasonable since they operated within the . .
Cited – Fisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
Cited – ACCO Properties Ltd v Severn and Another ChD 1-Apr-2011
The parties disputed the boundary between their respective plots.
Held: Simon Barker QC J set out (and then applied) the principles for resolving boundary lines: ‘1 Where, as in this case, the property in question is registered land, the file . .
Cited – Slack v Leeds Industrial Co-operative Society Ltd CA 1924
Nothing in Colls served to undermine the ‘good working rule’ of A L Smith LJ in Shelfer, although they discharged a quia timet injunction and ordered an inquiry as to damages . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Explained – Fishenden v Higgs and Hill Ltd CA 1935
An injunction had been refused an injunction in respect of an infringement of an easement of light and awarded damages in lieu, even though the damages would be substantial because it had been shown that the plaintiff was plainly ‘only wanting . .
Cited – HKRUK II (CHC) Ltd v Heaney ChD 3-Sep-2010
The claimant sought a declaration that its property was free of a suggested right of light in favour of its neighbour . .
Cited – Regan v Paul Properties Ltd and others CA 26-Oct-2006
The court considered the appropriate remedy after a finding of infringement of a right to light, and in particular: ‘whether the proper remedy for infringement in this case is damages for nuisance, as ordered by the court below, or whether a . .
Cited – Miller v Jackson CA 6-Apr-1977
The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Damages, Land

Leading Case

Updated: 22 December 2021; Ref: scu.182118

Commonwealth of Australia v Amann Aviation Pty Ltd: 12 Dec 1991

(High Court of Australia) In a claim for damages for breach of contract, wasted expenditure was claimed and there was a complex dispute as to what the consequences of performing the contract would have been.
Held: The law should not, when assessing damages, adopt an all-or-nothing balance of probability approach, and assume certainty where none in truth exists.

Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ
(1991) 66 ALJR 12, [1991] HCA 54, (1992) 174 CLR 64
Austlii
Australia
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 . .
Cited – Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC 4-Aug-2010
Lost Expenses as Damages for Contract Breach
The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .

Lists of cited by and citing cases may be incomplete.

Damages

Updated: 21 December 2021; Ref: scu.222469

Sutherland Shire Council v Heyman: 4 Jul 1985

(High Court of Australia) The court considered a possible extension of the law of negligence.
Brennan J said: ‘the law should develop novel categories of negligence incrementally and by analogy with established categories. ‘
Dean J said: ‘The requirement of proximity is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act or omission of the defendant and the loss or injury sustained by the plaintiff. It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an over riding relationship of employer and employee or of a professional man and his client and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss and injury sustained. It may reflect an assumption by one party of a responsibility to take care to avoid or prevent injury, loss or damage to the person or property of another or reliance by one party upon such care being taken by the other in circumstances where the other party knew or ought to have known of that reliance. Both the identity and the relative importance of the factors which are determinative of an issue of proximity are likely to vary in different categories of case. That does not mean that there is scope for decision by reference to idiosyncratic notions of justice or morality or that it is a proper approach to treat the requirement of proximity as a question of fact to be resolved merely by reference to the relationship between the plaintiff and the defendant in the particular circumstances. The requirement of a relationship of proximity serves as a touchstone and control of the categories of case in which the common law will adjudge that a duty of care is owed. Given the general circumstances of a case in a new or developing area of the law of negligence, the question what (if any) combination or combinations of factors will satisfy the requirement of proximity is a question of law to be resolved by the processes of legal reasoning, induction and deduction. On the other hand the identification of the content of that requirement in such an area should not be either ostensibly or actually divorced from notions of what is ‘fair and reasonable’ . . or from the considerations of public policy which underlie and enlighten the existence and content of the requirement.’
Mason J said: ‘although a public authority may be under a public duty, enforceable by mandamus, to give proper consideration to the question whether it should exercise a power, this duty cannot be equated with, or regarded as a foundation for imposing, a duty of care on the public authority in relation to the exercise of the power. Mandamus will compel proper consideration of the authority of its discretion, but that is all.’
Brennan J pointed out that the statutory duty of a local authority to approve building plans could not be made the basis of a general duty to protect a subsequent purchaser against even foreseeable problems in the course of construction: ‘It is impermissible to postulate a duty of care to avoid one kind of damage – say, personal injury – and, finding the defendant guilty of failing to discharge that duty, to hold him liable for the damage actually suffered that is of another and independent kind – say, economic loss. Not only may the respective duties differ in what is required to discharge them; the duties may be owed to different persons or classes of persons. That is not to say that a plaintiff who suffers damage of some kind will succeed or fail in an action to recover damages according to his classification of the damage he suffered. The question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it.’

Brennan J, Dean J, Mason J
[1985] 50 ALR 1, (1985) 157 CLR 424
Austlii
Australia
Cited by:
Approved – Stovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
Cited – Binod Sutradhar v Natural Environment Research Council CA 20-Feb-2004
The defendant council had carried out research into a water supply in India in the 1980s. The claimant drank the water, and claimed damages for having consumed arsenic in it.
Held: There is a close link between the tests in law for proximity . .
Cited – Gorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
Adopted – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – Glaister and Others v Appelby-In-Westmorland Town Council CA 9-Dec-2009
The claimant was injured when at a horse fair. A loose horse kicked him causing injury. They claimed in negligence against the council for licensing the fair without ensuring that public liability insurance. The Council now appealed agaiinst a . .
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .

Lists of cited by and citing cases may be incomplete.

Negligence, Damages

Updated: 21 December 2021; Ref: scu.194628

Holyhead Marina Ltd v Farrer (Storm Emma): CA 3 Nov 2021

Provision allowing dock owners to limit liability for loss or damage to vessel- Definition of ‘dock’ including ‘stages, landing places and jetties’

Sir Geoffrey Vos, Master of the Rolls
[2021] EWCA Civ 1585, [2021] Bus LR 1874
Bailii
Merchant Shipping Act 1995 191(9)
England and Wales
Citing:
Appeal from – Holyhead Marina Ltd v Farrer and Others (Emma) AdCt 7-Jul-2020
Moorings in harbour were dock – limited liability
Several small vessels were moored in a marina, secured to floating pontoons. They were damaged in a bad storm. The claimants operated the marina under a lease, and now sought a declaration so as to limit their liability under s191 of the 1995 Act. . .

Lists of cited by and citing cases may be incomplete.

Transport, Damages

Updated: 21 December 2021; Ref: scu.669055

Triple Point Technology Inc v PTT Public Company Ltd: SC 16 Jul 2021

The approach to interpreting liquidated damages clauses. The liquidated damages clause here was in a familiar form, providing for liquidated damages to be paid for each day of delay by the contractor ‘from the due date for delivery up to the date [the employer] accepts such work.’ The issue was whether liquidated damages were payable under this clause in respect of work which had not been completed before the contract was terminated. Issue 2 involves the interpretation of an exception to a cap on the contractor’s liability for damages when the liability results from negligence. The question is whether ‘negligence’ in the exception means the tort of negligence or whether it includes breach of the contractual duty of skill and care. Issue 3 is whether liquidated damages are subject to a cap in the contract on the amount of recoverable damages.

Lord Hodge (Deputy President), Lady Arden, Lord Sales, Lord Leggatt, Lord Burrows
[2021] UKSC 29, [2021] AC 1148, [2021] WLR(D) 411, [2021] 3 WLR 521
Bailii, Bailii Press Summary, Bailii issues and Facts, WLRD
England and Wales

Contract, Damages

Updated: 21 December 2021; Ref: scu.666005

Fardous v Secretary of State for the Home Department: QBD 5 Sep 2014

The claimant had been subject to administrative detention after his failed asylum claim. The court considered whether he was entitled to an award for wrongful imprisonment.

Andrew Edis QC
[2014] EWHC 3061 (QB)
Bailii
England and Wales
Cited by:
Cited – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .

Lists of cited by and citing cases may be incomplete.

Damages, Torts – Other

Updated: 21 December 2021; Ref: scu.537029

Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade): HL 1983

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

Diplock, Keith of Kinkel, Scarman, Roskill and Bridge of Harwick LL
[1983] 2 AC 694, [1983] 2 AC 694, [1983] 2 All ER 763, [1983] 3 WLR 203
England and Wales
Citing:
Affirmed – Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) CA 1983
Charterers of a ship sought refielf from forfeiture of the charterparty on equitable grounds.
Held: No jurisdiction existed to grant such a rlief. In a commercial agreement between commercial parties, the court had no jurisdiction to relieve a . .

Cited by:
Cited – Lady Navigation Inc v Lauritzencool Ab and Another CA 17-May-2005
The shipowner appealed the award against them of an injunction requiring them not to act inconsistently with a time charterparty. The company said that such a form of order was improper.
Held: The existence of the contract to do what was . .
Applied – Sport International Bussum BV v Inter-Footwear Ltd HL 2-Jan-1984
A contractual licence was granted to use names and trademarks for sports shoes. An earlier action between the parties had been stayed on the terms scheduled to a Tomlin order, which provided for Inter-Footwear to pay a sum in instalments and to have . .
Cited – Sport Internationaal Bussum BV v Inter-Footwear Ltd CA 1984
There had been a contractual licence to use names and trademarks for sports shoes. An earlier action between the parties had been stayed on the terms scheduled to a Tomlin order, which provided for Inter-Footwear to pay andpound;105,000 in three . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .

Lists of cited by and citing cases may be incomplete.

Transport, Damages, Contract, Equity

Updated: 20 December 2021; Ref: scu.225442

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 contract was made. At first instance, Staughton J found that a reasonable buyer would have offered, after cancellation, to take the vessel after all and that his loss was attributable to his own unreasonable conduct in failing to make such an offer (which would have been accepted by the seller).
Held: The buyer’s appeal succeeded. Mitigation and causation are really two sides of the same coin and ‘Whether a loss is avoidable by reasonable action on the part of the plaintiff is a question of fact not law. This was decided in Payzu v Saunders.’
The onus of proof on the issue of mitigation is on the defendant: ‘A plaintiff is a under no duty to mitigate his loss, despite the habitual use by the lawyers of the phrase ‘duty to mitigate’. He is completely free to act as he judges to be in his best interests. On the other hand, a defendant is not liable for all loss suffered by the plaintiff in consequence of his so acting. A defendant is only liable for such part of the plaintiff’s loss as is properly to be regarded as caused by the defendants’ breach of duty.’
As to Strutt v Whitnell, if the House of Lords ever considered it, they might hold that the judgments confused the proposition that a party deciding whether to rescind or affirm a contract need have no regard to considerations of mitigation with the proposition that, once such a decision had been made, the principles of mitigation apply.
Questions concerning whether or not claimants have acted reasonably in order to mitigate injury and loss are questions of fact for the court.

Sir John Donaldson MR
[1983] 1 Lloyd’s Rep 605
England and Wales
Citing:
Appeal from – Sotiros Shipping Inc v Sameiet: The Solholt 1981
The seller did not deliver the vessel by the contractual date for delivery. The buyer exercised his right to cancel and to recover his deposit. He also claimed damages because the vessel was worth $500,000 more on the delivery date than she had been . .
Not approved – 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 . .
Cited – Payzu Limited v Saunders CA 1919
The innocent plaintiff buyers had been found to have failed to mitigate their damages because they had not accepted an offer from the defendant sellers (who were in breach of contract) to supply goods on cash terms, the contract having originally . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .

Cited by:
Cited – Peregrine Systems Ltd v Steria Ltd CA 14-Mar-2005
The claimant provided computer software to the defendants. The defendants appealed dismissal of their defences arguing that the system had failed.
Held: No repudiatory breach was established, and moreover Steria had elected to affirm the . .
Cited – Standard Chartered Bank v Pakistan National Shipping Corporation; Seaways Maritime Limited; Oakprime International Limited; Arvind Mehra and Sgs United Kingdom Limited CA 26-Jan-2001
As part of its attempt to mitigate its loss caused by deceit perpetrated in relation to it by the defendants, the claimant bank presided over the sale of a cargo of bitumen in Vietnam. To do this, it sent one of its officers, to Vietnam on two . .
Cited – Samuels and Another v Benning CA 22-May-2002
. .
Cited – 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 . .
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 . .
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.

Contract, Damages

Updated: 20 December 2021; Ref: scu.223526

Parsons Corporation and others v C V Scheepvaartonderneming ‘The Happy Ranger’: CA 17 May 2002

There was a contact for the carriage by sea of three reactors. The contract applied the Hage-Visby rules.
Held: The contract applied the rules as they would apply in the country of shipment if they were applied mandatorily. The contact should be read so as to reflect the clearly expressed intention of the parties. The bill of lading is the bedrock on which the mandatory code is founded. Did it contain the terms required. This was a contract for carriage, and not a charterparty. The rules did therefore apply obligatorily, the limitation of liability applied, and the appeal succeeded.

Lord Justice Aldous Lord Justice Tuckey And Lord Justice Rix
[2002] EWCA Civ 694, [2002] 2 Lloyds Rep 357, [2002] 2 All ER (Comm) 24, [2003] 1 CLC 122
Bailii
Carriage of Goods By Sea Act 1971
England and Wales
Citing:
Cited – Adamastos Shipping v Anglo Saxon Petroleum HL 1959
Where the terms of a statute are incorporated into a contract by reference, the contract has to be read as if the words of the statute are written out in the contract and construed, as a matter of contract, in that contractual context. The Hague . .
Cited – Pyrene v Scindia Navigation Co QBD 1954
Under a classic FOB contract, a seller places the goods on board the ship, and procures a bill of lading in terms usual in the trade. The buyer nominates the shipper and bears all the expenses associated with the vessel including port charges, . .
Distinguished – President of India v Metcalfe Shipping Co (The ‘Dunelmia’) CA 1970
Voyage charterers and owners disputed whether a claim for short delivery was subject to the jurisdiction clause in the charter party or in the bills of lading.
Held: As the charter party authorised the master to sign the bill of lading . .
Distinguished – The Chitral 2000
The PNSC bill of lading named the consignee of goods carried on the defendant’s vessel. Goods were damaged during the voyage. The bill of lading was otherwise in conventional form, but the box in which the consignee was to be named said ‘If order . .

Cited by:
Cited – Daewoo Heavy Industries Ltd and Another v Klipriver Shipping Ltd and Another CA 3-Apr-2003
The carrier had loaded the cargo on the ship’s deck, despite a clause requiring it to be stowed in a hold. The charterparty sought to use the breach to remove the carrier’s limit of liability. The older form of Hague rules applied.
Held: It . .
Cited – J I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .

Lists of cited by and citing cases may be incomplete.

Transport, Damages

Updated: 20 December 2021; Ref: scu.171284

Somerset County Council v Chaloner: EAT 23 Jun 2014

EAT Unfair Dismissal : Compensation – Claimant’s appeal
The question of grossing up was a live issue before the Tribunal and the Respondent accepted that, in order to achieve an award that was just and equitable, grossing was required to the extent the award exceeded andpound;30,000. The Employment Tribunal accepted this point in its Review Judgment but failed to then make the necessary correction. Having accepted an error in this regard, it was simply inconsistent for the Tribunal to then confirm its original Judgment.
Further, it was agreed that there were errors of calculation in the original Judgment; again, apparently accepted by the Tribunal’s Review Judgment but there was then an error in the failure to make the necessary corrections.
On the Claimant’s next ground of appeal, the question arose as to the basis upon which the Tribunal had limited her claim. Neither side had approached this as being a case where there had been a break in the chain of causation. Both saw it as about adequacy of mitigation. There was a real difficulty in understanding the Tribunal’s decision as being one of a break in causation. This term was used for the first time in the Review Judgment. This was not a case where the Claimant had taken up an entirely new career path and the facts found by the Tribunal did not obviously speak of a break in the causative chain. There was no explanation for the Tribunal’s finding that this is what had occurred and the language used seemed only to address the question of reasonableness of mitigation. If this was a finding of a break in the chain of causation then it was inadequately reasoned.
Further, on the question of mitigation, the Tribunal had failed to ask the correct question. It needed to identify: what step should have been taken; the date on which that step would have produced an alternative income; and then to reduce the compensation by the amount of the alternative income (Gardiner-Hill v Raymond Berger Technics Ltd [1982] IRLR 498). The Tribunal’s Reasons – whether for the original Judgment or on Review – failed to demonstrate that this exercise was undertaken.
The Claimant’s appeal was allowed on the above grounds.
Although the Claimant’s third ground of appeal (relating to the 60% withdrawal factor on the pension award) did not succeed, given the view formed on the other grounds of appeal (both the Claimant’s and the Respondent’s), this point would go in any event.
The Respondent’s appeal
Accepting that the Tribunal was not obliged to adopt the guidelines or any particular approach and that it would not be an error of law to find pension loss continuing for longer than the loss of earnings in terms of basic pay, it remained the case that the Tribunal’s reasoning for its conclusion on pension loss was simply opaque. The Respondent could not understand why finding that the Claimant’s taking up the new position with Artslink broke the chain of causation in terms of its liability for basic pay but had no impact on pension loss (and see per Elias LJ in Aegon UK Corp Services Ltd v Roberts[2009] IRLR 1042, CA).
If the Tribunal was really holding that there was no break in the chain of causation but this was all about mitigation, the reasoning would still be inadequate. This is because the Tribunal did not adopt the approach laid down in Gardiner-Hill (see above).
Similar points arise in respect of the Respondent’s second ground of challenge to the Tribunal’s finding, in respect of the Claimant’s mitigation for the first year of unemployment. The Tribunal’s reasons were simply inadequate in this respect.
Respondent’s appeal also allowed.
Case remitted to a new Tribunal for fresh consideration of all points on remedy.

Eady QC J
[2014] UKEAT 0063 – 14 – 2306
Bailii
England and Wales
Citing:
See Also – Chaloner v Somerset County Council EAT 23-Jun-2014
EAT Unfair Dismissal : Compensation – Claimant’s appeal
The question of grossing up was a live issue before the Tribunal and the Respondent accepted that, in order to achieve an award that was just and . .

Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 20 December 2021; Ref: scu.536435

The Cadogan Hotel Partners Ltd v Ozog: EAT 15 May 2014

EAT Sex Discrimination – Injury to feelings
Other Losses
Injury to feelings award of andpound;10,000 manifestly too high. Award of andpound;6,600 substituted.
Having found sexual harassment and direct sex discrimination, the Employment Tribunal had erred in assessing the level of award appropriate for compensating injury to feelings.
The focus of the Tribunal had been on the acts of discrimination and what it considered to be the Respondent’s failure to respond to the Claimant’s grievance. The Tribunal had not found the latter to be an act of discrimination and had rejected any claim for aggravated damages; in those circumstances it provided no basis for an award of compensation.
The Tribunal failed to focus on the actual injury suffered by the Claimant. Had it done so, it would have been bound – by its own findings of fact – to have categorised this case as falling within the lower of the Vento bands.
As no higher award would be possible on the Tribunal’s findings of fact and as the Respondent was prepared to agree an award at the top end of that band (with a 10% uplift, following Simmons v Castle [2012] EWCA Civ 1039), the Court considered it was able to substitute an award of andpound;6,600 for the original award of andpound;10,000.
ACAS UPLIFT
The Employment Judge had given the Tribunal’s Judgment on this issue orally at the end of the Hearing, when it was held that the Claimant had not made any written grievance such as to engage the provisions of the Acas Code on Discipline and Grievance 2009. That being so, it was not open to the Tribunal to subsequently change its substantive finding of fact in that regard in its written reasons, particularly as the parties had not been forewarned of this alteration or given the opportunity to make representations thereon. Given the apparent finding of fact in the Tribunal’s oral Judgment, there was no basis for the 25% uplift and this part of the Tribunal’s award would be quashed.

Easy QC J
[2014] UKEAT 0001 – 14 – 1505
Bailii
England and Wales

Discrimination, Damages

Updated: 20 December 2021; Ref: scu.535994

May and Another v Gosport Borough Council: UTLC 8 Jan 2014

UTLC COMPENSATION – compulsory purchase – two maisonettes on former Ministry of Defence residential estate compulsorily acquired for regeneration purposes – value of long leasehold interests – comparables – weight to be attached to settlement evidence – value of claimants’ interests determined at andpound;34,000 and andpound;31,750 – disturbance – surveyor’s fees

[2013] UKUT 632 (LC)
Bailii
England and Wales

Land, Damages

Updated: 20 December 2021; Ref: scu.535672

Miller v Network Rail Infrastructure Ltd: UTLC 8 Jul 2014

UTLC COMPENSATION – preliminary issue – pressure relief shaft constructed under licence – purpose of compulsory acquisition – whether land specially suitable for use as PRS – meaning of ‘special Act’ under s7 of Compulsory Purchase Act 1965 – whether valuation can take account of cost saving to acquiring authority of not having to remove shaft

A J Trott FRICS
[2014] UKUT 264 (LC)
Bailii
Compulsory Purchase Act 1965 7
England and Wales

Land, Damages

Updated: 18 December 2021; Ref: scu.535661

Empresso Cubana v Octainer: 1986

[1986] 1 Lloyd’s Rep 273
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 . .

Lists of cited by and citing cases may be incomplete.

Damages

Updated: 18 December 2021; Ref: scu.238595

Tate and Lyle Food Distribution Ltd v Greater London Council: 1981

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

Forbes J
[1981] 3 All ER 716, [1982] 1 WLR 149
Citing:
Cited – London, Chatham and Dover Railway Co v South Eastern Railway Co HL 1893
The Lord Chancellor was considering the position of a creditor whose debtor refused to exchange accounts as agreed, thus preventing the creditor from quantifying the debt.
Held: The House declined to alter the rule in Page -v- Newman.
Cited by:
At First Instance – Tate and Lyle Industries Ltd v Greater London Council HL 24-Mar-1983
The plaintiff had constructed and used two jetties, and dredged a channel down to the Thames for their use. The Council constructed two terminals nearby, the result of which was to cause a build up of silt blocking the channel.
Held: The . .
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 – Adcock v Co-Operative Insurance Society Ltd CA 26-Apr-2000
The claimant claimed under his fire insurance with the defendants. He sought damages for their delay in processing the claim.
Held: The power to award interest on damages is discretionary. The judge had refused to allow interest, at a rate . .
Cited – Sycamore Bidco Ltd v Breslin and Another ChD 18-Mar-2013
. .
Cited – Jones and Others v Secretary of State for Energy and Climate Change and Another QBD 3-May-2013
The claimants sought an order for pre-judgment interest on the disbursements incurred in this group litigation. The clients were liable for payment of the disbursements under the conditional fee agreements, and in this case these amounted to over . .

Lists of cited by and citing cases may be incomplete.

Damages

Updated: 18 December 2021; Ref: scu.238596

Metal Box Co Ltd v Curreys: 1988

[1988] 1 WLR 175
England and Wales
Cited by:
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .

Lists of cited by and citing cases may be incomplete.

Damages

Updated: 18 December 2021; Ref: scu.238594

BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel): SC 22 Mar 2017

The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose from risks which it was no part of the adviser’s duty to protect his client against.
Held: The appeal failed. The whole loss was attributable to Mr Gabriel’s misjudgements and reduced the damages to nil. They also held, for largely overlapping reasons, that had there been any recoverable loss, it would have been reduced by 75% for contributory negligence.
‘There was no positive evidence to the effect that, if pounds 200,000 had been spent on developing the property, its value would have been such as to ensure recovery of Mr Gabriel’s loan or, in other words, that the transaction was viable. On the contrary, such evidence as was before the judge suggested that expenditure in such amount would not have increased the value of the property. As Mr Stewart submitted, the judge, in my view wrongly, reversed the burden of proof by finding that the defendants had not persuaded him that no development was possible. That the value of the developed property, by the utilisation of funds of pounds 200,000, would have been such as to ensure recovery of Mr Gabriel’s loan was a matter for Mr Gabriel to allege and to prove.’
Lord Sumption JSC highlighted the distinction drawn by Lord Hoffman in SAAMCO between ‘advice’ cases and ‘information’ cases but acknowledged that such distinction could be confusing. In a case falling within the ‘information’ category a professional adviser would contribute a limited part of the material on which the client will rely in deciding whether to enter a particular transaction but the process of identifying and assessing the other risks would remain with the client. In such circumstances, the adviser is only liable for the financial consequences of the information being wrong and not for all the financial consequences of the claimant entering into the transaction so far as these are greater. The defendant does not become the underwriter of the entire transaction by virtue of having assumed a duty of care in relation to just one element of the decision.
‘The principle laid down in SAAMCO depends for its application on the award of loss which is within the scope of the defendant’s duty, not on the exclusion of loss which is outside it. In a simple case, they may amount to the same thing. It may, for example, be possible in a valuation case to strip out the effect of the fall in the market if that is the only extraneous source of loss. Even there, however, the exercise will be complicated by the common practice of lenders to allow a margin or ‘cushion’ between the loan and the value of the property to allow for contingencies including some adverse market movement. Where the loss arises from a variety of commercial factors which it was for the claimant to identify and assess, it will commonly be difficult or impossible as well as unnecessary to quantify and strip out the financial impact of each one of them. ‘

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Hodge
171 Con LR 46, [2017] UKSC 21, [2017] 2 WLR 1029, [2017] PNLR 23, [2017] WLR(D) 199, [2017] 3 All ER 969, UKSC 2014/0026
Bailii, WLRD, SC, SC Summary Video
England and Wales
Citing:
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Appeal from – Gabriel v Little and Others CA 22-Nov-2013
The claimant sought repayment of sums loaned to the defendant by them under a facility letter supported by a legal charge. The charge had been enforced but the sums realised had been insufficient. . .
Cited – Stapley v Gypsum Mines Ltd HL 25-Jun-1953
Plaintiff to take own responsibility for damage
The question was whether the fault of the deceased’s fellow workman, they both having disobeyed their foreman’s instructions, was to be regarded as having contributed to the accident.
Held: A plaintiff must ‘share in the responsibility for the . .
Cited – Roe v Ministry of Health CA 1954
The plaintiff complained that he had developed a spastic paraplegia following a lumbar puncture.
Held: An inference of negligence was rebutted. However the hospital authority was held to be vicariously liable for the acts or omissions of the . .
Cited – 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 – Koch Marine Inc v D’Amica Societa Di Navigazione ARL (The Elena d’Amico) QBD 1980
The ship owners wrongfully repudiated a charterparty in March 1973, 14 months after its inception. The charterers did not hire a substitute but claimed damages for the loss of profits they would have made between January and April 1974, during which . .
Cited – Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others CA 24-Feb-1995
The plaintiffs were mortgagees. The defendants were valuers. The defendants negligently over-valued properties and the plaintiffs then accepted mortgages of the properties. Later the property market collapsed and the various borrowers defaulted and . .
Cited – Sutherland Shire Council v Heyman 4-Jul-1985
(High Court of Australia) The court considered a possible extension of the law of negligence.
Brennan J said: ‘the law should develop novel categories of negligence incrementally and by analogy with established categories. ‘
Dean J said: . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Galoo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
Cited – Banque Bruxelles Lambert Sa v Eagle Star Ins Co Ltd and Others QBD 7-Mar-1994
A negligent valuer was liable for the loss arising from an overvaluation, but the valuer was not liable for that proportion of the lender’s loss on the loan which was attributable to the fall in the market after the valuation date, even though (i) . .
Cited – Baxter v Gapp (FW) and Co Ltd CA 1939
Where there would have been no transaction (loan) but for the valuers’ negligence, it was held that the plaintiff was entitled to recover the actual loss suffered, rather than the difference between the real value of the property at the date of . .
Cited – Swingcastle Ltd v Alastair Gibson HL 1991
A lender made a claim against a surveyor after a negligent survey. the lender would have made no loan at all, there would have been no transaction, if it had known the true position. At first instance and in the Court of Appeal the Claimant’s loss . .
Cited – Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd HL 1991
Banks had made loans against property which the borrower had said was valuable, and, also insurance policies against any shortfall on the realisation of the property. The borrower was a swindler and the property worthless. The insurers relied upon a . .
Cited – Liverpool (Owners) v Ousel (Owners), (The Liverpool No 2) CA 1963
The Ousel and the Liverpool collided in the Port at Liverpool and the Ousel sank. The owners of the Liverpool admitted liability. The Mersey Docks and Harbour Board took the wreck under statutory powers and claimed the expenses of clearing the wreck . .
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Cited – Platform Home Loans Ltd v Oyston Shipways Ltd and others HL 18-Feb-1999
The plaintiffs had lent about 1 million pounds on the security of property negligently valued at 1.5 million pounds. The property was sold for much less than that and the plaintiffs suffered a loss of 680,000 pounds. The judge found that the . .
Limited to the particular facts – Aneco Reinsurance Underwriting Limited (In Liquidation) (a Body Incorporate Under the Laws of Bermuda) v Johnson and Higgins Limited HL 18-Oct-2001
Brokers contracted to obtain re-insurance of risks undertaken by the claimants. They negligently failed to obtain full cover. The question at issue was whether they were liable for the full loss, or whether their duty was limited to obtaining . .
Cited – Haugesund Kommune and Another v Depfa ACS Bank and Another CA 28-Jan-2011
Lawyers had negligently advised that a Norwegian local authority had legal capacity to enter into a loan agreement, when it did not. A local authority’s legal capacity to borrow might fairly be thought fundamental to any decision to lend it money, . .
Cited – Bristol and West Building Society v Fancy and Jackson and similar ChD 1-Jul-1997
The solicitor defendants (and others) had acted for both the lender and the borrower. Under their retainer they were required to notify the lender of any matters which might prejudice its security. The solicitors failed in one case to report that . .
Criticised – Portman Building Society v Bevan Ashford (a firm) CA 2000
The lender alleged negligence in the defendant solicitors.
Held: Otton LJ, delivering the leading judgment, declined to ask himself whether the scope of the solicitor’s duty extended to the lender’s decision or only to the material which the . .
Cited – Haugesund Kommune and Another v Depfa Acs Bank CA 27-May-2010
. .

Cited by:
Cited – Meadows v Khan QBD 23-Nov-2017
Claim for the additional costs of raising the claimant’s son, A, who suffered from both haemophilia and autism. It is admitted that, but for the defendant’s negligence, A would not have been born because his mother would have discovered during her . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 18 December 2021; Ref: scu.581025

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 payment of the cost of the credit agreement.
Held: A negligent driver must take his victim as he finds him. Mr Lagden’s claim was, in essence, a claim for the loss of use of his car while it was in the garage undergoing the repairs as a result of the accident. He had no choice but to hire the vehicle, and to do so on credit. The cost of the credit was recoverable.

Lord Nicholls of Birkenhead, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe
[2003] UKHL 64, Times 05-Dec-2003, [2004] 1 AC 1067, [2004] 1 All ER 277, [2003] 3 WLR 1571, [2004] Lloyd’s Rep IR 315, [2004] RTR 24
House of Lords, Bailii
England and Wales
Citing:
Appeal from – Clark v Ardington Electrical Services; Dennard v Plant; Sen v Steelform Engineering Company Ltd; Lagden v O’Connor CC 3-Aug-2001
The several claimants had hired motor vehicles following accidents, being re-assured that the costs would be recovered from defendant insurers. The agreements would not comply with the requirements of the Consumer Credit Act. They each envisaged . .
Cited – Cartledge v E Jopling and Sons Ltd HL 1963
The plaintiffs were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of . .
Cited – Dimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
Overruled – 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 – Alcoa Minerals of Jamaica Inc v Herbert Broderick PC 20-Mar-2000
(Jamaica) Damage had been caused to the claimant’s property, but, because of his lack of funds, he was dependent upon the receipt of the damages to carry out the works of repair necessary. By the time the matter came to trial, inflation meant that . .
Appeal from – Burdis v Livsey QBD 2001
The several cases claimed the cost of provision by credit hire companies of car hire and repair services to the innocent victims of road accidents. The transactions were ‘res inter alios acta’ – collateral to the commission of the tort. . .
Cited – The Gazelle 1844
A vessel was damaged by collision. What was the amount to be paid to the owners of the damaged vessel for its repair?
Held: The measure of the indemnification to which the owner of the damaged vessel was entitled was co-extensive with the . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Derbyshire v Warren 1963
The plaintiff cannot recover from the defendant by way of damages any sum greater than what is reasonably necessary for the purpose of making good his loss. . .
Cited – Harbutt’s Plasticine Ltd v Wayne Tank and Pump Co Ltd CA 1970
The plaintiffs’ factory in an old mill, burned down because Wayne Tank had installed a pipeline made of unsuitable and dangerous plastic material and wrapped in heating tape attached to a useless thermostat. It had been switched on and the plant . .
Cited – 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 . .
Cited – Ramwade Ltd v W J Emson and Co Ltd CA 1987
The plaintiffs had been obliged to hire vehicles to perform the work carried out by their skip lorry which had been damaged beyond repair in a road accident. Their insurance brokers had, contrary to instructions, failed to procure a comprehensive . .
Mentioned – In re Polemis and Furness, Withy and Co CA 1921
A wrongdoer was liable for all the direct consequences of his negligent act, even though those consequences could not reasonably have been anticipated. ‘Once the act is negligent, the fact that its exact operation was not foreseen is immaterial.’ . .
Cited – 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 – Monarch Steamship Co Ltd v Karlshamns Oljefabriker A/B HL 1949
Damages were sought for breach of contract.
Held: After reviewing the authorities on remoteness of damage, the court reaffirmed the broad general rule that a party injured by the other’s breach of contract is entitled to such money . .
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 – Dodd Properties (Kent) Ltd v Canterbury City Council CA 21-Dec-1979
The defendants had, in the course of building operations, caused nuisance and damage to the plaintiff’s building. The dispute was very lengthy, the costs of repair increased accordingly, and the parties now disputed the date at which damages fell to . .
Cited – Perry v Sidney Phillips and Son CA 1982
In 1982 the surveyor failed to observe serious defects, including a leaking roof and a septic tank with an offensive smell. The plaintiff purchaser could not afford major repairs and executed only minor repairs himself. At the date of the trial the . .
Cited – 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, . .
Cited – Mattocks v Mann CA 2-Sep-1992
The plaintiff was able to recover the cost of a car hire till his repair bill had been paid by the insurers, where he was himself unable to pay the bill. ‘. . . at the present day it is generally accepted that, in what Lord Wright termed ‘the varied . .
Cited – 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 . .
Cited – Prehn v Royal Bank of Liverpool CE 31-Jan-1870
The defendants, bankers at Liverpool, by their letter of credit to the plaintiffs, grain merchants at Alexandria and Liverpool, undertook to accept the drafts of the plaintiffs’ Alexandria firm, the plaintiffs undertaking to put them in funds to . .
Cited – The Owners of No 7 Steam Sand, Pump Dredger v The Owners of SS ‘Greta Holme’ HL 1897
The plaintiff’s vessel, a sand dredger, was being used to deepen the river near the landing stage. It was damaged in a collision with the ‘Greta Holme’, for which the latter was solely responsible. The dredger was out of action for fifteen weeks and . .
Cited – The Owners of the Steamship Mediana v The Owners, Master and Crew of the Lightship Comet HL 1900
A lightship was damaged by negligence. The plaintiff harbour board kept a ship ready for emergencies, and consequently the damaged ship was replaced with the spare while she was being repaired. The question was whether the claimant could recover . .
Cited – 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 . .
Cited – Radford v De Froberville 2-Jan-1977
A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a . .
Cited – McAuley v London Transport Executive CA 1957
A plaintiff in a claim for personal injuries may be deemed to have failed to mitigate his losses by an unreasonable refusal to undergo free surgical treatment after a bodily injury, and the damages he may recover from the tortfeasor are to be . .
Cited – Koch Marine Inc v D’Amica Societa Di Navigazione ARL (The Elena d’Amico) QBD 1980
The ship owners wrongfully repudiated a charterparty in March 1973, 14 months after its inception. The charterers did not hire a substitute but claimed damages for the loss of profits they would have made between January and April 1974, during which . .

Cited by:
Cited – Vision Golf Ltd v Weightmans (A Firm) ChD 26-Jul-2005
A lease had been forfeited. The defendant firm of solicitors had negligently failed to apply for relief. They argued that that failure had in fact caused no loss to the claimants, since they would have lost the lease anyway.
Held: The ‘but . .
Cited – Bee v Jenson ComC 21-Dec-2006
The defendant objected to paying the plaintiff the costs of a replacement hire car after the accident for which he was liable. He said that the plaintiff was in any event insured to recover that cost, and the insurance company were subrogated to the . .
Cited – Bee v Jenson CA 13-Sep-2007
The claimant hired a car whilst his own, damaged by the defendant, was being repaired. His insurer sought to recover the cost from the other driver. The insurer had first arranged te hire with one company, but then another provided a finacial reward . .

Lists of cited by and citing cases may be incomplete.

Damages, Road Traffic, Costs

Updated: 18 December 2021; Ref: scu.188543

Prehn v Royal Bank of Liverpool: CE 31 Jan 1870

The defendants, bankers at Liverpool, by their letter of credit to the plaintiffs, grain merchants at Alexandria and Liverpool, undertook to accept the drafts of the plaintiffs’ Alexandria firm, the plaintiffs undertaking to put them in funds to meet the bills at maturity, and the defendants receiving pounds per cent, for the accommodation. Bills were accepted by the defendants under this arrangement, and the plaintiffs duly provided the defendants with funds exceeding the amount of the acceptances. Before the bills became due, the defendants’ bank stopped, and they gave notice to the plaintiffs that they would be unable to meet the bills. The plaintiffs arranged with another house in Liverpool to take up the bills, paying per cent, commission; they were also obliged to pay to the holders the expenses of protesting the bills at Liverpool and Alexandria; and had also to incur expense in telegraphic communications between Liverpool and Alexandria. In an action against the defendants for breach of the contract contained in their letter of credit. Held, that the plaintiffs were entitled to recover the commission and the notarial and telegraphic expenses.
Martin B said: ‘Special damages are given in respect of any consequences reasonably or probably arising from the breach complained of.’

Martin B
(1870) 5 Ex 92, [1870] UKLawRpExch 15, (1869-1870) LR 5 Exch 92
Commonlii
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 . .

Lists of cited by and citing cases may be incomplete.

Damages

Updated: 18 December 2021; Ref: scu.188655

Grimshaw v Hudson: QBD 25 Feb 2021

Application by the Claimant, supported by the Defendant, for this Court to give approval, pursuant to the inherent jurisdiction of the Court, for a settlement arrived at by the parties in county court negligence proceedings.

Mr Justice Fordham
[2021] EWHC 425 (QB)
Bailii
England and Wales

Professional Negligence, Damages

Updated: 17 December 2021; Ref: scu.670231

The Governor and Company of The Bank of Ireland v Faithful and Gould Ltd: TCC 10 Jul 2014

The bank claimant had successfully recovered a substantial sum from the first defendants, its advisers, after it had lost money in a development. The first defendants now sought a contribution from the second defendant valuers.

Edwards-Stuart J
[2014] EWHC 2217 (TCC)
Bailii
Civil Liability (Contribution) Act 1978

Professional Negligence, Damages

Updated: 16 December 2021; Ref: scu.534087

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 ten years from 42%, when he first consulted the doctor to 25%. The House asked how should the loss suffered by a patient in this position could be identified.
Held: ‘the appropriate characterisation of a patient’s loss in this type of case must surely be that it comprises the loss of the chance of a favourable outcome, rather than the loss of the outcome itself. Justice so requires, because this matches medical reality. This recognises what in practice a patient had before the doctor’s negligence occurred. It recognises what in practice the patient lost by reason of that negligence. The doctor’s negligence diminished the patient’s prospects of recovery. And this analysis of a patient’s loss accords with the purpose of the legal duty of which the doctor was in breach. In short, the purpose of the duty is to promote the patient’s prospects of recovery by exercising due skill and care in diagnosing and treating the patient’s condition.’ The significant reduction in the prospects of a successful outcome which the negligence caused is a loss for which the appellant is entitled to be compensated. If it is necessary to prove that this loss was caused by a physical injury, the enlargement of the tumour which the negligence caused was such an injury. Lord Hoffmann: ‘[The] law regards the world as in principle bound by laws of causality. Everything has a determinate cause, even if we do not know what it is… The fact that proof is rendered difficult or impossible . . makes no difference. There is no inherent uncertainty about what caused something to happen in the past or about whether something which happened in the past will cause something to happen in the future. Everything is determined by causality. What we lack is knowledge and the law deals with lack of knowledge by the concept of the burden of proof.’
(Dissenting) A change in the law by a wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in our law as to amount to a legislative act, and must be left to Parliament.

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Phillips of Worth Matravers, Baroness Hale of Richmond
[2005] UKHL 2, Times 28-Jan-2005, [2005] 2 AC 176, [2005] 2 WLR 268
Bailii, House of Lords
England and Wales
Citing:
Cited – Chaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
Appeal from – Gregg v Scott CA 29-Oct-2002
The claimant sought damages. He had a lymphoma, but despite his seeking medical assistance, it was not diagnosed early, and his life expectancy was diminished.
Held: In order to claim damages for a reduced life expectancy, the claimant had to . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Hotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
Cited – McWilliams v Sir William Arrol and Co Ltd HL 1962
A steel erector had fallen seventy feet to his death from a steel lattice tower. The employers had not provided a safety harness, but the judge found that he would not have used a security belt even if provided, and that the onus was on the pursuer . .
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Spring v Guardian Assurance Plc and Others HL 7-Jul-1994
The plaintiff, who worked in financial services, complained of the terms of the reference given by his former employer. Having spoken of his behaviour towards members of the team, it went on: ‘his former superior has further stated he is a man of . .
Cited – Barnett v Chelsea and Kensington Hospital Management Committee QBD 1968
The widow of a night watchman who died of arsenic poisoning claimed in negligence after he had attended the defendant’s hospital, but was negligently sent home without adequate treatment.
Held: The court was satisfied that even if the . .
Cited – Davies v Taylor HL 1974
The plaintiff’s husband was killed in a road accident caused by the defendant’s negligence. They were childless. She had deserted him five weeks before his death and thereafter, he learned about her adultery with a fellow employee. He tried to . .
Cited – Mallett v McMonagle HL 1970
The House discussed the role of the court in assessing future losses. Lord Diplock: ‘The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its . .
Cited – Wilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
Cited – Coudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
Cited – 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 . .
Cited – Smith v National Health Service Litigation 2001
. .
Cited – Doyle (By Her Mother and Next Friend) v Wallace CA 18-Jun-1998
A court awarding personal injury damages could make allowance for a prospective increase in salary which a claimant might have achieved upon completion of qualifications. In this case an increase was allowed at half up from an administrative pay . .
Cited – Commonwealth of Australia v Amann Aviation Pty Ltd 12-Dec-1991
(High Court of Australia) In a claim for damages for breach of contract, wasted expenditure was claimed and there was a complex dispute as to what the consequences of performing the contract would have been.
Held: The law should not, when . .
Cited – Croke v Wiseman CA 1982
The court considered the calculation of damages for loss of future earnings for a young child. . .
Cited – Langford v Hebran and Another CA 15-Mar-2001
The claimant sought damages for the loss of his chances of pursuing his career as a kick-boxer. The judge considered four different courses of varying success which his career might have taken. He accepted that, whether or not those scenarios had . .
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Kyle v P and J Stormonth Darling WS 1992
Where a loss of opportunity which was the subject of a claim was part of the causal sequence which might or might not have led to the damnum or loss resulting from the injuria, the damnum lay not in the loss of opportunity but in the loss of the eye . .
Cited – Harris v Harris CA 1973
The court considered the award of damages for the loss of the chance of marriage. . .
Cited – Girvan v Inverness Farmers Dairy and Another IHCS 1996
The claimant sought damages. One of the heads of claim that were not in dispute was that the pursuer’s injuries had made it impossible for him to continue as a dedicated clay pigeon shot and had as a result lost the very real prospect of winning . .
Cited – Hughes v McKeown 1985
It was not appropriate to make any reduction in the damages multiplier for future loss of earnings to reflect the possibility that the pursuer might marry and have children. . .
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
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 . .

Cited by:
Appealed to – Gregg v Scott CA 29-Oct-2002
The claimant sought damages. He had a lymphoma, but despite his seeking medical assistance, it was not diagnosed early, and his life expectancy was diminished.
Held: In order to claim damages for a reduced life expectancy, the claimant had to . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Rothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Cited – Brown v Ministry of Defence CA 10-May-2006
Claim for injury suffered whilst training in Army. The claimant was committed to a career in the Army, and had anticipated promotion. She complained that her loss of pension rights had been calculated at a rate to reflect an average length career. . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Parabola Investments Ltd and Others v Browallia Cal Ltd and Others CA 5-May-2010
The second defendant appealed against the level of damages awarded against him after he was found guilty of a fraud on the claimant, saying that the loss of profits element was unproven.
Held: The appeal failed. Where a claimant’s investment . .
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 – Perry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 16 December 2021; Ref: scu.222050

Deeny and Others v Gooda Walker Ltd and Others: QBD 26 Jan 1995

Damages awards received by Lloyds’ names for their managing agents’ negligence were taxable as trading income, since they were revenue receipts.

Ind Summary 27-Feb-1995, Times 26-Jan-1995
England and Wales
Cited by:
See Also – Deeny and Others v Gooda Walker Ltd and Others QBD 5-May-1995
A decision as to an agent’s liability may be deferred pending decisions in other courts on anticipated claims. . .

Lists of cited by and citing cases may be incomplete.

Income Tax, Damages

Updated: 16 December 2021; Ref: scu.79874

Coker v Wandsworth Borough Council: EAT 27 Jun 2014

EAT Unfair Dismissal : This was an appeal on compensation for unfair constructive dismissal which was allowed in part by consent. Arguments relating to whether to apply the simplified substantial loss approach in relation to pension rights were dismissed on the facts. Furthermore the Employment Tribunal were entitled on the facts to refuse to award an uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.

Birtles HHJ
[2014] UKEAT 0421 – 13 – 2706
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 207A
England and Wales

Employment, Damages

Updated: 15 December 2021; Ref: scu.533185

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 dollars.
Held: The currency ‘which most truly expresses BFS loss’ was the Japanese Yen and any judgment for damages should be expressed in that currency. The rate of interest should be awarded as the rate of the currency of the award of damages.

The Hon Mr Justice Evans-Lombe
[2003] EWHC 2371 (Ch)
Bailii
England and Wales
Citing:
Cited – Miliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
Cited – The Despina R, The Folias HL 1979
The House dealt with the issue of the proper currency for the award of damages. There had been a collision at sea. In The Folias, damages in contract were claimed by charterers of a ship against the owners to be recouped compensation that they had . .
Mentioned – The Pacific Colocotronis CA 1981
. .
Cited – The Texaco Melbourne 1994
In deciding what should be the appropriate currency for a damages award, no account should be taken of fluctuations in the value of currencies between the date of breach and the date of judgment. . .
Cited – Ketteman v Hansel Properties Ltd HL 1987
Houses were built on defective foundations. The purchasers sued the builders and later the architects who designed them. The defendants argued that the houses were doomed from the start so that the cause of action accrued, not when the physical . .
Cited – 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 . .

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, Financial Services

Updated: 13 December 2021; Ref: scu.186811

Allison v London Underground Ltd: CA 13 Feb 2008

‘whether or not the duty imposed by Regulation 9 is absolute, and does not require the proof of any fault on the part of the employer. Should the adequacy of the training given to an employee be judged by the result in the light of events or should it, as the judge held, be assessed in the light of what the employer knew about the risks at the time, even though, in the light of later events, it could be seen that the training had been inadequate? If neither if those tests is correct, what is the correct test?’

[2008] EWCA Civ 71, [2008] ICR 719, [2008] IRLR 440
Bailii
Fatal Accidents Act 1976, Provision and Use of Work Equipment Regulations 1998 9
England and Wales

Damages, Health and Safety

Updated: 13 December 2021; Ref: scu.264496

Fairclough Homes Ltd, Re: LT 8 Jun 2004

Application was made to vary a restrictive covenant: ‘ . . how the character of the area and the amenities would be affected by the modification of the restriction is not in my view to be judged by envisaging the worst that could be done without breaching the restriction and comparing it with what the proposed modification is intended to permit . . In such a case as this, the provision, it seems to me, operates in this way. By preventing development that would have an adverse affect on the persons entitled to his benefit, the restriction may be said to secure practical benefits to them but if other developments having adverse affects could be carried out without breaching the covenant, these practical benefits may not be of substantial value or advantage. Whether they are of substantial value or advantage is likely to depend on the degree of probability of such other development being carried out and how bad, in comparison to the appellant’s scheme, the effects of that development would be.’

George Bartlett QC
[2004] EWLands LP – 30 – 2001, LP/30/2001
Bailii
Law of Property Act 1925 84
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. . .
Approved – Shepherd v Turner CA 2006
. .
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: 13 December 2021; Ref: scu.225804

Mansfield v Mansfield: CA 27 Jul 2011

The court was asked as to the degree to which the judge in ancillary relief proceedings should reflect the origin of the family assets in a substantial damages award on the settlement of a personal injuries claim brought in the Queen’s Bench Division.

Thorpe, Jackson, Black LJJ
[2011] EWCA Civ 1056, [2012] Fam Law 17, [2011] 3 FCR 167
Bailii
England and Wales

Family, Personal Injury, Damages

Updated: 11 December 2021; Ref: scu.443753

Rowe v Dolman: QBD 16 Nov 2007

Simon J
[2007] EWHC 2799
England and Wales
Cited by:
Appeal from – Rowe v Dolman CA 23-Jul-2008
The claimant had been very severely injured in a road accident. The court was asked to determine the effect on his life expectancy, the experts had diverged as to the appropriate range of life expectancy.
Held: The judge had assessed the . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 11 December 2021; Ref: scu.276756

Lamb v Camden London Borough Council: CA 18 Mar 1981

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

The Master of the Rolls (Lord Denning},
Lord Justice Oliver,
And,
Lord Justice Watkins
[1981] EWCA Civ 7, [1981] 2 All ER 408, [1981] QB 625
Bailii
England and Wales
Citing:
Cited – Compania Financiera v Hamoor Tanker Corporation (‘the Borag’) CA 1981
The managers had taken on the management of the ship. In the course of a dispute, the managers had the ship arrested whilst in Capetown. The owners had to obtain a bank guarantee to secure its release, and sought the interest payments on the . .

Lists of cited by and citing cases may be incomplete.

Damages

Updated: 11 December 2021; Ref: scu.262680

James Finlay and Co Ltd v N V Kwik Tong HM: CA 1929

It will be regarded as unreasonable to require a claimant to take steps which are likely to injure its commercial reputation, or otherwise t in a way it perceives to be commercially unwise, as a mitigation of damages.
Sankey LJ said of the decision of this House in Re Hall Limited’s and Pim (Jr) and Co’s arbitration (1928) 139 LT 30, that it had ‘astonished the Temple and surprised St Mary Axe.’

Sankey LJ
[1928] All ER 110, [1929] 1 KB 400
England and Wales
Citing:
Cited – R and H Hall Ltd v WH Pim Junr and Co Ltd HL 1928
Pim sold a cargo of wheat to Hall at 51s 9d a quarter. Hall had agreed to sell a similar cargo to Williams at 56s 9d a quarter, and Williams to sell again Suzuki at 59s 3d a quarter. Pim bought a cargo of wheat on board the ‘S.S. Indianic’ at 60s a . .

Lists of cited by and citing cases may be incomplete.

Damages

Updated: 10 December 2021; Ref: scu.263199

Scheps v Fine Art Logistic Ltd: QBD 16 Mar 2007

The claimant bought fine art sculptures by Anish Kapoor at auction. They were stored by the defendant who when called upon to deliver them, said they had possibly been thrown away as rubbish. The defendant sought to limit its liability to the sum set by its contract. The defendant said that the claimant had been involved in the art trade and knew of the use of such terms. The claimant said he had not been sent a copy of them.
Held: There was no course of trading between the parties so as to demonstrate that British Crane should be applied and the defendant’s standard terms incorporated. Had the terms been incorporated and the claimant notified, the defendant may have been able to rely on the clause. The evidence was that the work was lost in approximately September 2004, and it should be valued at at date, but consequential damages also awarded for the expected further increase in value to the date of judgment.

[2007] EWHC 541 (QB)
Bailii
Unfair Contract Terms Act 1977, Unfair Terms in Consumer Contracts Regulations 1999, Torts (Interference with Goods) Act 1977
England and Wales
Citing:
Cited – British Crane Hire v Ipswich Plant Hire CA 13-Nov-1973
Lord Denning MR said: ‘I would not put it so much on the course of dealing, but rather on the common understanding which is to be derived from the conduct of the parties, namely, that the hiring is to be on the terms of the plaintiff’s usual . .
Cited – McCutcheon v David MacBrayne Ltd HL 21-Jan-1964
The appellant had asked his brother-in-law to have a car shipped from Islay to the mainland. The appellant had personally consigned goods on four previous occasions. On three of them he was acting on behalf of his employer; on the other occasion he . .
Cited – Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd and Another CA 18-Apr-1997
The defendant’s driver had taken a consignment of shoes to Spain, where they were stolen. The plaintiff alleged his gross negligence amounted to ‘wilful misconduct’ so as to disapply an exemption clause.
Held: Whether a bailee’s acts . .
Cited – Singer Co (UK) Ltd v Tees and Hartlepool Port Authority 1988
The court upheld under the 1977 Act a clause which limited a port authority’s liability to andpound;800 per ton of consignment. Other factors were relevant but ‘The way in which the port authority’s general conditions came into being seems to me to . .
Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages, Consumer

Updated: 10 December 2021; Ref: scu.250625

Spillman v Bradfield Riding Centre: QBD 6 Feb 2007

The claimant child suffered very severe brain injury when kicked in the head by a horse at the defendant’s riding stables. The claimant appealed an interim award of damages. It had not been possible to determine her future earnings.

Langley J
[2007] EWHC 89 (QB)
Bailii
England and Wales
Citing:
Cited – Stringman v McCardle CA 19-Nov-1993
The Judge is not to be concerned with the intended application or use of interim damages requested to be paid to a Plaintiff. . .
Cited – Campbell v Mylchreest CA 23-Jan-1998
The claimant sough an interim award of damages.
Held: An ‘unlevel playing field’, in the sense that an interim award might prejudge arguments which might be run at a full trial, is not an absolute bar to making the requested order but only a . .
Cited – Dolman v Rowe 2005
. .
Cited – Campbell v Mylchreest CA 23-Jan-1998
The claimant sough an interim award of damages.
Held: An ‘unlevel playing field’, in the sense that an interim award might prejudge arguments which might be run at a full trial, is not an absolute bar to making the requested order but only a . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 10 December 2021; Ref: scu.248403

Beswick v Beswick: CA 1966

The court was asked as to breach of an agreement to pay a man’s widow an annuity for life.
Held: A plaintiff is entitled to no more than nominal damages in respect of the defendant’s breach of a contract where the plaintiff himself has suffered no loss.
Lord Justice Denning said: ‘Old Peter Beswick was a coal merchant in Eccles, Lancashire. He had no business premises. All he had was a lorry, scales, and weights. He used to take the lorry to the yard of the National Coal Board, where he bagged coal and took it round to his customers in the neighbourhood. His nephew, John Joseph Beswick, helped him in his business. In March 1962, old Peter Beswick and his wife were both over 70. He had had his leg amputated and was not in good health. The nephew was anxious to get hold of the business before the old man died. So they went to a solicitor, Mr. Ashcroft, who drew up an agreement for them.’

Lord Justice Denning
[1966] Ch 538
England and Wales
Cited by:
Appeal from – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 10 December 2021; Ref: scu.238123

Haigh v Royal Mail Steampacket Co Ltd: CA 1883

”personal injury’ is not ‘loss’ because a limb may be broken without being lost. The word ‘injury’ would certainly have been more apt, but the word ‘damage’ can certainly mean personal injury’.

Brett MR
[1883] 52 LJ QB 640
England and Wales
Cited by:
Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .

Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Updated: 10 December 2021; Ref: scu.183846

Payzu Limited v Saunders: CA 1919

The innocent plaintiff buyers had been found to have failed to mitigate their damages because they had not accepted an offer from the defendant sellers (who were in breach of contract) to supply goods on cash terms, the contract having originally provided for sales on credit. the plaintiffs submitted that as a matter of law they had not been bound to consider any offer made by the defendants because of their prior conduct.
Held: Whether a plaintiff or applicant has taken reasonable steps to mitigate his loss is a question of fact and not of law. He may not have to risk starting uncertain litigation himself, but might have to consider an offer made by the wrongdoer himself.
Bankes LJ said: ‘It is plain that the question what is reasonable for a person to do in mitigation of his damages cannot be a question of law but must be one of fact in the circumstances of each particular case. There may be cases where as [a] matter of fact it would be unreasonable to expect a plaintiff to consider any offer made in view of the treatment he has received from the defendant. . But that is not to state a principle of law, but a conclusion of fact to be arrived at on a consideration of all the circumstances of the case.’
Scrutton LJ said: ‘Whether it be more correct to say that a plaintiff must minimize his damages, or to say that he can recover no more than he would have suffered if he had acted reasonably, because any further damages do not reasonably follow from the defendant’s breach, the result is the same . . Mr Matthews [for the plaintiff] has contended that in considering what steps should be taken to mitigate the damage all contractual relations with the party in default must be excluded. That is contrary to my experience . . in commercial contracts it is generally reasonable to accept an offer from the party in default. However, it is always a question of fact. About the law there is no difficulty.’

Bankes LJ, Scrutton LJ
[1919] 2 KB 581, 121 LT 563
England and Wales
Cited by:
Cited – Sembawang Corp Ltd v Pacific Ocean Shipping Corp and Another ComC 25-Nov-2004
. .
Cited – Wilding v British Telecommunications Plc CA 19-Mar-2002
The employee challenged the Employment Tribunal’s finding, upheld by the EAT, that he had not acted reasonably in refusing an offer of re-employment made by his employer.
Held: The appeal failed. Potter LJ said: ‘As was made clear in the . .
Cited – Wilding v British Telecom Plc EAT 2-Apr-2001
EAT Disability Discrimination – Compensation . .
Cited – 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 . .
Cited – Lock v Connell Estate Agents EAT 10-May-1994
The employee had failed to meet targets in a difficult sales market. He was dismissed. The ET had found that the sales targets were impossible. The EAT considered what was the effect of his failure to appeal against his dismissal.
Held: The . .
Cited – Standard Chartered Bank v Pakistan National Shipping Corporation; Seaways Maritime Limited; Oakprime International Limited; Arvind Mehra and Sgs United Kingdom Limited CA 26-Jan-2001
As part of its attempt to mitigate its loss caused by deceit perpetrated in relation to it by the defendants, the claimant bank presided over the sale of a cargo of bitumen in Vietnam. To do this, it sent one of its officers, to Vietnam on two . .
Cited – Iggleden v Fairview New Homes (Shooters Hill) Ltd TCC 1-Jun-2007
The claimants bought a newly built home from the defendants. Defects were alleged and admitted, but the defendants said the claimants had failed to mitigate their losses or accept offers to have work done. The claimants now sought leave to add . .
Cited – Driskel v Peninsula Business Services Ltd and Another EAT 7-Dec-2001
The claimant sought leave to appeal against a finding that though there had been serious sex discrimination, the affect on her had been low, and the damages for injury to feelings reduced accordingly.
Held: The appeal was dismissed. The . .
Cited – Driskel v Peninsula Business Services Ltd Michael Huss Anthony Sutcliffe, Peter Done EAT 17-Dec-1999
EAT The claimant said that she had been subjected to crass sexual banter by her senior manager. She refused to take up a post unless he was moved, and when he declined to so, she was dismissed.
The court . .
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: 10 December 2021; Ref: scu.263200

Moule v Garrett: CA 3 Feb 1872

An original tenant sought an indemnity from an assignee for a later claim by the landlord.
Held: The principles of recoupment are that where a plaintiff has been compelled by law to pay, or, being compellable by law, has paid, money which the defendant was ultimately liable to pay, so that the latter obtains the benefit of the payment by the discharge of his liability; under such circumstances the defendant is held indebted to the plaintiff in the amount.

Cockburn CJ
(1872) LR 7 Exch 101, [1872] UKLawRpExch 18
Commonlii
England and Wales
Cited by:
Cited – NIRU Battery Manufacturing Company and Another v Milestone Trading Ltd and others ComC 8-May-2003
There was a contract for the sale of lead ingots. The sale was supported by letters of credit but inaccurate certificates were issued to release payment. The parties sought now to amend the contributions in the light of the Royal Brompton Hospital . .
Cited – Scottish and Newcastle Plc v Raguz CA 6-Mar-2007
The claimant was the original tenant under two 99 year underleases granted in 1967, and assigned them to the defendant who then himself assigned them. The eventual assignee had become insolvent. The landlord recovered the rents from the claimant who . .

Lists of cited by and citing cases may be incomplete.

Equity, Damages, Landlord and Tenant

Updated: 10 December 2021; Ref: scu.181986

Mary Elizabeth Berry v Newport Borough Council: CA 16 Mar 2000

The correct measure of damages to be recovered by a council tenant who had purchased the freehold of a council house from the local housing authority with the benefit of a discount where the local authority has been in breach of their duty under s. 563(1) of the Housing Act, 1985, to give the purchasing tenant notice that the house is a defective dwelling and that the purchasing tenant will not be eligible for relief under the scheme in Part XVI of the Act. Liability was not an issue before the judge.

Lord Justice Roch,
Lord Justice Brooke,
And,
Mr Justice Ferris
[2000] EWCA Civ 76
Bailii
England and Wales

Damages

Updated: 10 December 2021; Ref: scu.147109

Cusack v London Borough of Harrow: SC 19 Jun 2013

The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road when leaving. That use was recognised as lawful under planning law. The authority decided to erect barriers making such use impossible, and the claimant sought compensation for damage to his practice. The Court of Appeal had decided that the erection of the barriers was under section 66 of the 1980 Act, and not section 80, and that therefore compensation would be payable. The Council appealed.
Held: The appeal succeeded. The common law rights of access from property to a public have been severely curtailed by statute, and in general no compensation would be payable. Neither of the sections could be seen as more specific than the other.
The Council were entitled to choose section 80 for their purpose if it was not an attempt to circumvent a restriction provided elsewhere (eg section 66).
That choice did not amount to a deprivation of the claimant’s use of his land, but was merely a control of his use for the purposes of safety. This was happening in the context of planning control in which a state enjoyed a wide margin of appreciation.
A use of property immune from planning control did not amount to a permission for that use.
Carnwath L said: ‘The issue is not simply whether the council’s action is an abuse of its powers under section 80, but whether in that action ‘a fair balance was . . struck between the competing general and individual interests.’ On the other hand, there is no challenge to the compatibility of section 80 as such. Accordingly, the mere fact that another statutory route was available involving compensation does not in itself lead to the conclusion that reliance on section 80 was disproportionate. ‘

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Carnwath, Lord Hughes
[2013] UKSC 40, [2013] PTSR 921, [2013] WLR(D) 250, [2013] HRLR 26, [2014] RVR 148, [2013] 26 EG 106, [2013] RTR 26, [2013] WLR(D) 250, [2013] 3 EGLR 29, [2013] 1 WLR 2022, [2013] 4 All ER 97, UKSC 2012/0006
Bailii, Bailii Summary, SC Summary, SC, WLRD
Highways Act 1980 66(2) 80, European Convention on Human Rights A1P1
England and Wales
Citing:
Cited – Pretty v Solly CA 24-Jan-1859
In a statutory construction the specific overrides the general – generalia specialibus non derogant. Sir John Romilly MR said: ‘The general rules which are applicable to particular and general enactments in statutes are very clear, the only . .
Cited – Marshall v Blackpool Corporation HL 1934
A land-owner having land adjacent to a public highway has, at common law, free access to and from the highway at any point where they abut.
Lord Atkin said: ‘The owner of land adjoining a highway has a right of access to the highway from any . .
Cited – Ching Garage Ltd v Chingford Corporation HL 1961
Lord Radcliffe said: ‘I think, however, that it needs to be remembered in connection with this statement that the full extent of the common law right to enter the highway at every point of the frontage for any highway purpose must have been modified . .
Cited – Westminster Bank Limited v The Minister for Housing and Local Government, Beverley Borough Council HL 1971
The Bank’s application for planning permission was refused on the grounds that the development might prejudice the possible future widening of a road. The local authority could have prescribed a building line in accordance with a provision of the . .
Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Chassagnou and Others v France ECHR 29-Apr-1999
A law permitted local authorities to oblige landowners to transfer hunting rights over private land to approved hunting associations. The landowners could not prevent hunting on their property. Landowners so affected were made members automatically . .
Cited – Thomas and Others v Bridgend County Borough Council CA 26-Jul-2011
Carnwath LJ considered the effect of Bugajny and other cases after Sporrong: ‘ Later cases (see eg Bugajny v Poland (Application No 22531/05) (unreported) given 6 November 2007, para 56 and following) have given further guidance on the practical . .
Cited – Depalle v France ECHR 29-Mar-2010
Grand Chamber
The Court summarised the effect of Sporrong: ‘The Court reiterates that, according to its case-law, Article 1 of Protocol No 1, which guarantees in substance the right of property, comprises three distinct rules (see, inter alia, . .
Cited – Bugajny And Others v Poland ECHR 6-Nov-2007
The claimants complained that their land had been expropriated. Certain plots in a development area had been designated as ‘internal roads’, which were in due course built and opened to the public. The developers sought to transfer ownership to the . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .

Cited by:
Cited – London Borough of Southwark and Another v Transport for London SC 5-Dec-2018
Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Planning, Damages, Human Rights

Updated: 10 December 2021; Ref: scu.510916

Pope v D Murphy and Son Ltd: QBD 1961

Both the injured plaintiff’s earning capacity and his expectation of life had been diminished and in assessing damages for the diminution of his earning capacity his Lordship had regard to the plaintiff’s pre-accident expectation of life.
Streatfeild J said: ‘In my view the proper approach to this question of loss of earning capacity is to compensate the plaintiff, who is alive now, for what he has in fact lost. What he has lost is the prospect of earning whatever it was he did earn from his business over the period of time that he might otherwise, apart from the accident, have reasonably expected to earn it.’

Streatfeild J
[1961] 1 QB 222
England and Wales
Citing:
Not Followed – Harris v Brights Asphalt Contractors Ltd QBD 1953
The plaintiff was not to be prevented from recovering the costs of private medical treatment.
It was argued and decided that (a) damages for the loss of earnings for the ‘lost years’ is nil, and (b) ‘the only relevance of earnings which would . .

Cited by:
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Updated: 06 December 2021; Ref: scu.654045

Nottinghamshire Healthcare National Health Service Trust v News Group Newspapers Ltd: ChD 14 Mar 2002

The claimant sought additional and punitive damages for infringement of copyright by the defendant.
Held: The section of the 1988 Act should not normally justify an award of purely punitive or exemplary damages. The existence of several copyrights in any work might otherwise leave an infringer open to several such claims. Criminal offences had been created for infringement carried out knowingly. Nevertheless for additional damages can be made for cases of carelessness amounting to an attitude of ‘couldn’t care less’: recklessness could also be equated to deliberation.

Pumfrey J
Times 01-Apr-2002, Gazette 23-May-2002, [2002] EWHC 409 (Ch), [2002] EMLR 33
lip
Copyright, Design and Patents Act 1988 97(2)
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 . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Updated: 06 December 2021; Ref: scu.168116

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 intended to be ‘purely compensatory’: it cannot be emphasised too often when considering the assessment of damages for negligence that they are intended to be purely compensatory. Where the damages claimed are essentially financial in character, being the measure on the one hand of the injured plaintiff’s consequential loss of earnings, profits or other gains which he would have made if not injured, or on the other hand, of consequential expenses to which he has been and will be put which, if not injured, he would not have needed to incur, the basic rule is that it is the net consequential loss and expense which the court must measure. If, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set against the aggregate of the plaintiff’s losses and expenses in arriving at the measure of his damages.’ The basic rule is that the court must measure the net consequential loss and expense. To the basic rule there are well-established exceptions, although they are not always ‘precisely defined and delineated’. The rule is ‘fundamental and axiomatic and the exceptions to it which are only to be admitted on grounds which clearly justify their treatment as such’ The benevolence exception applies where: ‘moneys [are] received by the plaintiff from the bounty or benevolence of third parties motivated by sympathy for his misfortune.’ and ‘In the end the issue in these cases is not so much one of statutory construction as of public policy. If we have regard to the realities, awards of damages for personal injuries are met from the insurance premiums payable by motorists, employers, occupiers of property, professional men and others. Statutory benefits payable to those in need by reason of impecuniosity or disability are met by the taxpayer. In this context to ask whether the taxpayer, as the ‘benevolent donor,’ intends to benefit ‘the wrongdoer’ as represented by the insurer who meets the claim at the expense of the appropriate class of policy holders, seems to me entirely artificial. There could hardly be a clearer case than that of the attendance allowance payable under the Act of 1975 where the statutory benefit and the special damages claimed for cost of care are designed to meet the identical expenses. To allow double recovery in such a case at the expense of both taxpayers and insurers seems to me incapable of justification on a rational ground. It could only add to the enormous disparity, to which the advocates of a ‘no-fault’ system of compensation constantly draw attention, between the position of those who are able to establish a third party’s fault as the cause of their injury and the position of those who are not.’
and as to the availability of benefits allowances: ‘If, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set against the aggregate of the plaintiff’s losses and expense in arriving at the measure of his damages. . . . I see no reason why the whole of the mobility allowance should not be regarded, just as the attendance allowance, as available to meet the cost of her care generally and thus as mitigating the damages recoverable in respect of the cost of that care.’

Lord Bridge of Harwich
[1989] AC 807, [1988] UKHL 9
Bailii
England and Wales
Citing:
Cited – 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 . .

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 – 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 – Clenshaw v Tanner and others CA 27-Nov-2002
The claimant was a cyclist. He passed along inside a line of traffic, and collided with a lorry turning left into a petrol station ahead of him, suffering serious injuries. He appealed against a finding that the lorry driver had signalled and that . .
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 – 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, Personal Injury

Updated: 05 December 2021; Ref: scu.183222

Caxton Publishing v Sutherland Publishing: HL 1939

The normal measure of damages in conversion is the market value of the goods converted at the date of conversion.
Mere possession is not a conversion. Some act interfering with the true ownrs right must be shown.

Lord Porter
[1939] AC 178, [1938] 4 All ER 389, 108 LJCh 5
England and Wales
Cited by:
Cited – HM Revenue and Customs, Regina (on the Application of) v Raymond Machell QC and others Admn 21-Nov-2005
The claimant had had goods taken and destroyed by Revenue and Customs, which had been found to be wrongfully condemned. They had been awarded the market value of the goods at UK prices, though they had been bought in France.
Held: The market . .

Lists of cited by and citing cases may be incomplete.

Damages, Torts – Other

Updated: 05 December 2021; Ref: scu.235497

Irvine, Tidswell Ltd v Talksport Ltd: ChD 13 Mar 2002

The defendants used a distorted image of the claimant, a famous racing driver, to endorse its product. He claimed damages in passing off.
Held: On the facts, the famous racing driver Eddie Irvine had a property right in his goodwill which he could protect from unlicensed appropriation consisting of a false claim or suggestion of endorsement of a third party’s goods or business. Nothing prevented an action for passing off succeeding in a false endorsement case. The claimant had to show significant reputation and goodwill, and that a false message had been delivered which would have been understood by sufficient people to indicate his desire to associate himself with the defendant.
It is not a necessary feature of merchandising that members of the public will think the products are in any sense endorsed by the film makers or actors in the film. They are bought by members of the public who found the film enjoyable and want a reminder of it.
The defendant’s financial position was irrelevant to the measure of damages because there was ‘no question of a reasonable endorsement fee being assessed on the basis that the defendant had no money and therefore could not pay’
Laddie J said: ‘The fact that the claimant, no doubt for tax reasons, makes his endorsement available through companies does not alter the fact that it is his fame and personality which is being exploited and that the misrepresentation made to the relevant public, who would know nothing about his corporate arrangements, is that it is he who had endorsed the defendant’s radio station.’

Laddie J
Gazette 23-May-2002, [2002] EWHC 367 (Ch), [2002] EMLR 32, [2002] 2 All ER 414, (2002) 25(6) IPD 25039, [2002] 1 WLR 2355, [2002] FSR 60
Bailii
England and Wales
Citing:
See Also – Irvine and Another v Talksport Ltd CA 18-Jan-2002
The claimants renewed their application for permission to appeal from an order granting an application made by the defendant, Talksport Ltd, to exclude certain evidence which the claimants appeared to wish to adduce at the trial of the action. Mr . .

Cited by:
Cited – Future Publishing Ltd v The Edge Interactive Media Inc and Others ChD 13-Jun-2011
The claimant said that the defendant had infriged its rights by the use of its logo on their publications. . .
Appeal from – Irvine and others v Talksport Ltd CA 1-Apr-2003
Mr Irvine brought an action in passing off against the defendants who were said to have used his image in its advertising, but without his consent. The claimant appealed against the damages awarded (andpound;2,000) and the defendant appealed against . .
Cited – 32Red Plc v WHG (International) Ltd and Others ChD 12-Apr-2013
The court had found trade mark infringement by the defendant and now considered the quantification of damages. . .
Cited – Fenty and Others v Arcadia Group Brands Ltd and Another CA 22-Jan-2015
. .
Cited – Bhayani and Another v Taylor Bracewell Llp IPEC 22-Dec-2016
Distinction between reputation and goodwill
The claimant had practised independently as an employment solicitor. For a period, she was a partner with the defendant firm practising under the name ‘Bhayani Bracewell’. Having departed the firm, she now objected to the continued use of her name, . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Updated: 05 December 2021; Ref: scu.170107

North Sea Energy Holdings Nv (Formerly Midland and Scottish Holdings Nv) v Petroleum Authority of Thailand: CA 16 Dec 1998

The buyers repudiated an oil purchase agreement and the sellers accepted their repudiation. The sellers could not show that they would have been able to obtain the oil to sell.
Held: They were not entitled to substantial damages.

Lord Justice Roch,
Lord Justice Ward,
Lord Justice Waller
[1999] 1 All ER (Comm) 173, [1999] 1 Lloyds Rep 483, [1998] EWCA Civ 1953
Bailii
England and Wales
Citing:
Appeal from – North Sea Energy Holdings NV v Petroleum Authority of Thailand ComC 25-Mar-1997
ComC Damages – repudiation by buyer – need for seller claiming profits by reference to a specific supply contract to establish ability to obtain supply – claim to damages by reference to loss of profit on . .
Approved (Megaw LJ) – Maredelanto Compania Naviera SA v BergbauHandel GmbH (The Mihalis Angelos) CA 1-Jul-1970
The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .
Approved – Lavarack v Woods of Colchester Ltd CA 1967
Damages for wrongful dismissal could not confer on an employee extra benefits that the contract did not oblige the employer to confer. There is a clear distinction between expectations, however reasonable, and contractual obligations.
Diplock . .

Cited by:
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 05 December 2021; Ref: scu.145432

Harris v Brights Asphalt Contractors Ltd: QBD 1953

The plaintiff was not to be prevented from recovering the costs of private medical treatment.
It was argued and decided that (a) damages for the loss of earnings for the ‘lost years’ is nil, and (b) ‘the only relevance of earnings which would have been earned after death is that they are an element for consideration in assessing damages for loss of expectation of life, in the sense that a person earning a reasonable livelihood is more likely to have an enjoyable life.’
Slade J held that no compensation could be awarded for earnings during the ‘lost years’ to the plaintiff of thirty-seven whose expectation of life had been reduced to two years: ‘I cannot think it right that I should give damages for loss of earnings for a period during which ex hypothesi he is not alive to earn them . . In my judgment, therefore, the only relevance of earnings which would have been earned after death is that they are an element for consideration in assessing damages for loss of expectation of life, in the sense that a person earning a reasonable
‘ livelihood is more likely to have an enjoyable life.’

Slade J
[1953] 1 QB 617
Law Reform (Personal Injuries) Act 1948 2(4)
England and Wales
Citing:
Cited – Phillips v London and South Western Railway
Co CA 1879
In an action against the railway company for personal injury to a passenger, a physician, making pounds 5,000 a year, and where is an increasing practice, the jury in assessing the damages to their consideration, besides the pain and suffering of . .
Cited – Roach v Yates CA 1937
The plaintiff had been gravely injured. His wife and sister-in-law had nursed him and gave up their employment for that purpose.
Held: The plaintiff could recover their lost wages, albeit there was no suggestion of any agreement between the . .

Cited by:
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 – Cunningham v Harrison CA 17-May-1973
The plaintiff had been severely injured, and would need nursing care for the rest of his life. His wife nursed him until her death, but had given a statement that if not for her two full time nurses would be required. His employer continued to pay . .
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .
Not Followed – Pope v D Murphy and Son Ltd QBD 1961
Both the injured plaintiff’s earning capacity and his expectation of life had been diminished and in assessing damages for the diminution of his earning capacity his Lordship had regard to the plaintiff’s pre-accident expectation of life.
Personal Injury, Damages

Updated: 04 December 2021; Ref: scu.200631

Econometric Ltd and Others v Greater London Authority: UTLC 22 May 2014

COMPENSATION – Compulsory Purchase – Acquisition of 0.67 acre waste transfer station in connection with the London 2012 Olympic Park development – valuation – rental value – treatment of tenant’s payment on entry into lease – Land Compensation Act 1961 section 5, rule (2) – compensation determined at 1,475,000 pounds

[2014] UKUT 219 (LC)
Bailii
England and Wales

Land, Damages

Updated: 04 December 2021; Ref: scu.526453

Mitsui Sumitomo Insurance Co (Europe) Ltd and Others v Mayor’s Office for Policing and Crime: CA 20 May 2014

The appellant had suffered damage in a riot, and, under the 1886 Act, the respondent was liable to pay compensation.
Held: The MOPC was liable to pay compensation by way of indemnity. Analysis of section 2(1) suggested compensation for loss ‘sustained . . by such injury, stealing, or destruction’. This was loss that was caused by (i) damage to or destruction of a building, or (ii) damage, destruction or stealing of property in the building. Such loss could as a matter of linguistic analysis include consequential losses, such as the loss of rent while an owner repaired his building. Other provisions in the 1886 Act, including the did not counter this view, and case law precedent on earlier legislation suggested that remedial statutes should be given a liberal interpretation. That case law also suggested a principle that the relevant community, which was then the hundred, stood as sureties for the trespassers. There was no reason to think that a rioter would not have been liable in tort for consequential losses before Parliament legislated in 1714. Thus the local authority incurred such liability under statute. The 1886 Act did not depart from what the Court of Appeal described as ‘the fundamental ‘standing as sureties’ principle’.
The court rejected any reliance on the regulations as an aid to the interpretation of the 1886 Act, and also rejected for lack of evidence a submission on behalf of the MOPC that there was a settled practice of interpreting the 1886 Act as excluding compensation for consequential losses.
The court also considered that there was an anomaly if the 1886 Act did not cover consequential loss. An owner of a commercial building which was damaged in a riot might choose to sell it in a damaged state and claim as his compensation the diminution in value caused by the physical damage. Where a building was valued by reference to its capacity to generate income, part of that diminution in value could be attributable to loss of rent or loss of profits that the purchaser would suffer pending the completion of remedial works. By contrast, if an owner decided to repair the building and suffered a loss of rent or a loss of profits while the remedial works were carried out, he could not recover such losses if the 1886 Act did not extend to consequential losses. There was no rational basis for imputing to Parliament an intention to allow recovery for such losses as part of a claim for diminution of value but to exclude a free-standing claim for losses of the same character. Finally, the court derived no assistance from parallel Scottish legislation, namely section 10 of the Riotous Assemblies (Scotland) Act 1822 (3 Geo IV, c 33) because of its use of different language.

Lord Dyson MR, Moore-Bick, Lewison LJJ
[2014] EWCA Civ 682, [2014] 2 All ER (Comm) 785, [2015] 1 QB 180, [2014] WLR(D) 230, [2014] 3 WLR 576, [2014] Lloyd’s Rep IR 612, [2014] 4 All ER 540
Bailii, WLRD
Riot (Damages) Act 1886 3
England and Wales
Citing:
At ComC – Mitsui Sumitomo Insurance Co (Europe) Ltd and Another v The Mayor’s Office for Policing and Crime ComC 12-Sep-2013
In the lead case, Sony’s warehouse at Enfield had been severely damaged in what were said to be riots in August 2011. The court considered preliminary issues as to whether the events constituted a riot within the 1886 Act, and the extent of damages . .
Cited – The Kate 1899
The Kate was totally lost in a collision with the defendants’ ship, whilst on the ballast leg of a charterparty. The issue was whether in a case of total loss as opposed to partial loss of a ship without a cargo, the plaintiffs could recover only . .

Cited by:
At CA – The Mayor’s Office for Policing and Crime v Mitsui Sumitomo Insurance Co (Europe) Ltd and Others SC 20-Apr-2016
The Court considered the quantification of damages to be awarded to a business suffering under riots under the 1886 Act, and in particular whether such recoverable losses included compensation for consequential losses, including loss of profits and . .

Lists of cited by and citing cases may be incomplete.

Damages

Updated: 03 December 2021; Ref: scu.525636

Worrell v Hootenanny Brixton Ltd: EAT 1 Apr 2014

EAT Contract of Employment : Wrongful Dismissal – UNFAIR DISMISSAL
Compensation
Contributory Fault
As explained at paragraphs 111 and 112 of the judgment in Sandwell and West Birmingham Hospitals NHS Trust v Mrs A Westwood [2009] UKEAT 0032/09/172 gross misconduct might take one of two forms, deliberate misconduct or gross negligence: but that possible alternative does not justify an Employment Tribunal not making any factual finding as to conduct on the basis that it must be one form of gross misconduct if it is not the other, which is how the matter was approached by the Employment Tribunal in the instant case. Such an approach is erroneous.
Moreover it leaves issues relating to possible awards and the reduction of awards by reason of fault on the part of the employee without any proper factual matrix and in terms of a reasoned decision compliant with the common law requirements set out in Meek v Birmingham City Council [1987] IRLR 250 or with the Employment Tribunal Rules (see Greenwood v NWF Retail Ltd [2011] ICR 896) makes it impossible to know either why it is had been concluded that the employee’s conduct was the sole cause of the dismissal (section 123(6) of the Employment Rights Act 1996) or why it was not ‘just and equitable’ for the employee to receive a basic award (section 122(2) of the Employment Rights Act 1996) (paragraphs 32, 36, 62 and 63 of the judgment of this Tribunal in Lemonious v Church Commissioners UKEAT/0253/12/KN considered and applied).
The appeal was allowed on the basis of inadequacy of reasons and remitted to the same Employment Tribunal for findings of fact to be made and for re-consideration of the issues of wrongful dismissal and contributory fault.

Hand QC J
[2014] UKEAT 0381 – 13 – 0104
Bailii
England and Wales

Employment, Damages

Updated: 02 December 2021; Ref: scu.523397

Konczak v BAE Systems (Operations) Ltd: EAT 13 Jan 2014

EAT Sex Discrimination : Other Losses – UNFAIR DISMISSAL – Compensation
DISABILITY DISCRIMINATION – Compensation
The Employment Tribunal had erred by not considering whether the psychiatric illness, which resulted in the loss in this case, had divisible causes and whether, if it did, the award fell to be apportioned. In concluding that there had been a failure to mitigate commencing three years after the date of dismissal the Employment Tribunal had failed to give any comprehensible account as to why that date had been chosen. Both of these matters raised on the Employer’s appeal were remitted for further consideration by the same Employment Tribunal on the evidence already heard and the facts already found.
On the cross-appeal mathematical errors of calculation in the judgment were remitted to the Employment Tribunal for reconsideration, but although the cross-appeal was also allowed in relation to a decision made by the Employment Tribunal wrongly limiting the scope of the cross-examination of the Employer’s psychiatric expert witness, no further order was made because the terms of the remission in relation to the appeal rendered the point academic.

Judge Hand QC
[2014] UKEAT 0277 – 13 – 1301
Bailii
England and Wales

Employment, Damages, Discrimination

Updated: 01 December 2021; Ref: scu.522638

Callaway v Royal Mail Group Ltd and Another: EAT 10 Oct 2013

EAT Disability Discrimination : Compensation – The appeal was only against the amount of awards of compensation for injury to feelings. The Appellant failed to show that the awards were made in error of principle or were perverse. Appeal dismissed.

Burke QC
[2013] UKEAT 0549 – 12 – 1010
Bailii
England and Wales

Employment, Damages

Updated: 01 December 2021; Ref: scu.522342

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 two of its standard terms and conditions, the remaining conditions were incorporated wholesale into the contract and therefore the contract fell within s3 of the 1977 Act. It was unreasonable to impose the standard terms on Pegler, who had no choice but to accept them. The exclusion of liability clauses relied on by Wang are unenforceable. As to damages, Pegler had failed to keep records of the time taken to deal with the issues which arose. The court considered in detail and at length the different heads of recovery including for lost management time. Rectification was awarded and damages assessed.

Bowsher QC J
[2000] EWHC Technology 137, 1997 TCC No 219
Bailii
Unfair Contract Terms Act 1977 3
England and Wales
Citing:
Cited – Suisse Atlantique Societe d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale HL 1966
No magic in the words “fundamental breach”
There is no rule of law which prevents parties to a contract agreeing to limit their respective liabilities. It is a question of the construction of the particular clause as to whether it applies to a fundamental breach or not. The court doubted the . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Croudace Construction Limited v Cawoods CA 1978
A clause in a contract provided that: ‘We are not under any circumstances to be liable for any consequential loss or damage caused or arising by reason of late supply or any fault, failure or defect in any material or goods supplied by us or by . .
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 – The Glendarroch CA 9-Feb-1894
The plaintiffs brought an action against the defendants for non-delivery of goods shipped under a bill of lading containing the usual exceptions, but not excepting negligence. The goods had been damaged by sea water through the stranding of the . .
Cited – Millar’s Machinery Co Ltd v David Way and Son CA 1935
The contract provided that the seller would make good certain defects in workmanship, but the sellers stated: ‘We do not give any other guarantee and we do not accept responsibility for consequential damages.’
Held: The purchaser recovered the . .
Cited – British Sugar Plc v NEI Power Projects Limited and Anr CA 8-Oct-1997
The plaintiffs contracted for the delivery and installation of equipment by the defendant. After delays and defects the claimants sought damages. The defendants said that the contract provided that any liabiity for consequential losses was to be . .
Cited – Wraight Limited v PH and T (Holdings) Limited 1968
. .
Cited – Saint Line Limited v Richardsons Westgarth and Co. 1940
A clause excluding liability for ‘any indirect or consequential damages or claims whatsoever’. A claim was made for for loss of profit.
Held: ‘What does one mean by ‘direct damage’? Direct damage is that which flows naturally from the breach . .
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 – Midland GW Railway of Ireland v Johnson 1858
Rectification is not available where the mistake is one of law as to the legal effect of particular terms, rather than a mistake of fact. . .
Cited – British Fermentation Products Limited v Compair Reavell Limited TCC 8-Jun-1999
The terms ”on the other’s written standard terms of business’ in the Act was not defined in the Act after a deliberate decision by the Law Commission. . .
Cited – The Ypatia Halcoussi 1985
Rectification is not available where the written agreement fails to deal with an issue because the parties have overlooked it. . .
Cited – Johnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Cited – Frederick E Rose (London) Limited v William H Pim Junior and Co Limited 1953
The plaintiffs, who were London merchants, had been asked by Egyptian buyers to supply ‘feveroles’. Not knowing what this term meant, they asked the defendants’ representative, who responded that ‘feveroles’ meant horsebeans. Relying on this . .
Cited – McCrone v Boots Farm Sales Limited 1981
The court considered the meaning of ‘standard form contract’ as it applied in Scotland under the 1977 Act: ‘The Act does not define ‘standard form contract’, but its meaning is not difficult to comprehend. In some cases there may be difficulty . .
Cited – Joscelyne v Nissen CA 1970
A father entered into a written contract with his daughter by which he transferred to her his car hire business in return for her agreement to pay him a pension and discharge certain expenses. In their discussions it had been agreed between them . .
Cited – Stewart Gill Ltd v Horatio Myer and Co Ltd CA 1992
The ‘guidelines’ in Schedule 2 are usually regarded as of general application to the question of reasonableness under the 1977 Act. The effect of s13 which deals with exemption clauses, is to apply s3 inter alia to ‘no set off’ clauses. The . .
Cited – Customglass Boats Limited v Salthouse Brothers Limited 1976
(New Zealand) The court examined the question of whether market resarch was admissible as expert evidence as to damages.
Held: ‘So far as I can see, public opinion or survey evidence is not now in practice treated as hearsay in trade mark or . .
Cited – Reckitt and Coleman Properties Ltd v Borden Inc 1987
Evidence as to the results of market research surveys was not admissible as expert evidence. . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
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 . .
Cited – Harbutt’s Plasticine Ltd v Wayne Tank and Pump Co Ltd CA 1970
The plaintiffs’ factory in an old mill, burned down because Wayne Tank had installed a pipeline made of unsuitable and dangerous plastic material and wrapped in heating tape attached to a useless thermostat. It had been switched on and the plant . .
Cited – East Ham Corporation v Bernard Sunley and Sons Ltd HL 1965
In cases in which the plaintiff is seeking damages for the defective performance of a building contract, which is a contract for labour and materials, the normal measure of his damages is the cost of carrying out remedial work, or re-instatement. . .
Cited – General Electric Co v General Electric Co Ltd ChD 1969
A form of co-branding was held to be non-deceptive. Grahame J said: ‘The registered use provisions are permissive only and not a compulsory prerequisite for retention of validity of the mark and that, provided the conditions of control are adequate, . .
Cited – 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 . .
Cited – General Electric Co v General Electric Co Limited; GE TM; Re GE Trade Mark CA 1970
. .
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 – Sealce Shipping Company Limited v Oceanvoice Limited CA 1991
The parties contracted for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for second-hand propellers. So the only way of providing a spare . .
Cited – 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. . .
Cited – Oswald v Countrywide Surveyors Ltd 1996
The evidential burden of establishing betterment is on the defendant. . .
Cited – H Cousins and Co Ltd v D and C Carriers 1971
. .
Cited – Moore v DER Ltd 1971
Where there is no ready second hand market for goods, or where there might be uncertainty as to the reliability of such goods, no credit need be given for the fact that a new and up-to-date replacement has been purchased. . .
Cited – Bacon v Cooper (Metals) Ltd 1982
A machine, a fragmentiser was broken. The defendant had supplied unsuitable scrap to be fed into the machine in breach of contract. The rotor had broken which would normally have had a life of 7 years of which it had nearly four years to run. The . .
Cited – Tate and Lyle Food Distribution Ltd v Greater London Council 1981
Forbes J considered the principles to be applied when considering the award of interest on damages between the date of the loss and the judgment: ‘Despite the way in which Lord Herschell LC in London, Chatham and Dover Railway Co v South Eastern . .
Cited – Dominion Mosaics Limited v Trafalgar Trucking Co Limited CA 1990
The claimant’s building was destroyed by fire as a result of the defendant’s negligence. It was impracticable to rebuild and so, to keep its business going the claimant bought a 36 year lease of another building with 20% more floor space. In the . .
Cited – Metal Box Co Ltd v Curreys 1988
. .
Cited – Empresso Cubana v Octainer 1986
. .

Cited by:
Appeal from – Pegler Ltd v Wang (Uk) Ltd and Another CA 18-Jun-2001
Costs had been awarded against the third party, the parent company of the defendant. Leave to appeal was sought.
Held: It was arguable that the judge had not taken into account properly the interest of the company in protecting the interests . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 01 December 2021; Ref: scu.201800

Reid v Lanarkshire Traction Co: SCS 1934

(Inner House) The shortening of life was accepted as a head of damage: ‘while the doctrine of an award in respect of the shortening of life may have originated in the theory of mental disquiet about the prospect or the possibility of death . . . that doctrine is now a matter positivi juris irrespective of the presence or absence of evidence as to the sufferer’s state of mind in the particular case’. But, Lord Devlin said, he should warn the jury that the weight to be given to this element must be moderate and they must not consider what price the man would have put upon his life.

Lord Blackburn Lord Devlin
1934 SC 79
Scotland
Cited by:
Cited – Benham v Gambling HL 1941
The injured person was a child of two and a half. He was unconscious from the moment of the accident until his death, which occurred later on the same day. He had acquired at the time of injury a cause of action for loss of expectation of life.
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 30 November 2021; Ref: scu.654041

Phillips v London and South Western Railway Co: CA 1879

In an action against the railway company for personal injury to a passenger, a physician, making pounds 5,000 a year, and where is an increasing practice, the jury in assessing the damages to their consideration, besides the pain and suffering of the plaintiff, and the expense incurred by him for medical and other and necessary attendance, the loss he sustained through his inability to continue a lucrative professional practice.
James LJ said: ‘You are to consider what his income would probably have been, how long that income would probably have lasted, and you have to take into consideration all the other contingencies to which a practice is liable.’
A new trial will be granted in an action for personal injuries sustained through the defendant’s negligence by the damages found by the jury are so small as to show that they must have omitted to take into consideration some of the elements of damage. The verdicts of juries as to the amount of damages, are subject, and must, for the sake of justice, be subject to the supervision of a court of first instance, and, if necessary by a court of Appeal in this way, that is to say, if in the judgement of the court, the damages are unreasonably large or unreasonably small then the court is bound to send the matter for reconsideration by another jury.

James LJ
(1879) 5 CPD 280, [1874-80] All ER Rep 1176, (1879) 49 LJQB 233, (1879) 42 LT 6, (1879) 44 JP 217
England and Wales
Cited by:
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .
Cited – Harris v Brights Asphalt Contractors Ltd QBD 1953
The plaintiff was not to be prevented from recovering the costs of private medical treatment.
It was argued and decided that (a) damages for the loss of earnings for the ‘lost years’ is nil, and (b) ‘the only relevance of earnings which would . .
Cited – Roach v Yates CA 1937
The plaintiff had been gravely injured. His wife and sister-in-law had nursed him and gave up their employment for that purpose.
Held: The plaintiff could recover their lost wages, albeit there was no suggestion of any agreement between the . .

Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Updated: 30 November 2021; Ref: scu.654044

Cookson v Knowles: CA 1977

Lord Denning MR said: ‘In Jefford v Gee . . we said that, in personal injury cases, when a lump sum is awarded for pain and suffering and loss of amenities, interest should run ‘ from the date of service of the ‘writ to the date of trial’. At that time inflation did not stare us in the face. We had not in mind continuing inflation and its effect on awards. It is obvious now that that guide-line should be changed.
The courts invariably assess the lump sum on the ‘scale’ for figures current at the date of trial – which is much higher than the figure current at the date of the injury or at the date of the writ. The plaintiff thus stands to gain by the delay in bringing the case to trial.
He ought not to gain still more by having interest from the date of service of the writ.’

Lord Denning MR
[1977] 3 WLR 279
England and Wales
Citing:
Cited – Jefford v Gee CA 4-Mar-1970
The courts of Scotland followed the civil law in the award of interest on damages. The court gave examples of the way in which they apply the ex mora rule when calculating the interest payable in a judgment. If money was wrongfully withheld, then . .

Cited by:
Appeal from – 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 – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 30 November 2021; Ref: scu.654046

Roach v Yates: CA 1937

The plaintiff had been gravely injured. His wife and sister-in-law had nursed him and gave up their employment for that purpose.
Held: The plaintiff could recover their lost wages, albeit there was no suggestion of any agreement between the plaintiff and the two ladies that he would reimburse them.
Greer LJ said: ‘He can get those services, and perhaps get them better than in any other way, from the attendance which is being given to him by his wife and his sister-in-law; but he would naturally feel that he ought to compensate them for what they have lost by giving up the work at which they were earning the sum of pounds 3 a week. I think that Mr Beyfus was right in saying that we must take into account, at any rate for the period during which the plaintiff may now be expected to live, the sum of pounds 3 a week as the minimum expense which the plaintiff would have to incur in retaining the nursing services of his wife and his sister-in-law.’
Slesser LJ said: ‘Criticism has been made of the suggestion that one method of estimating his loss [of wages] is to consider what he would have earned during his life. Speaking for myself, I see no justification for approaching that problem by starting with the assumption that he would only have lived so long as the accident has now allowed him to live. I think the proper way of approaching the problem is that which was followed in Phillips v. London and South Western Railway Co. (1879)5 QBD 78, the leading case on this matter – namely, first to consider what sum he would have been likely to make during his normal life if he had not met with his accident.’

Paull J, Greer LJ, Slesser LJ
[1937] 3 All ER 442, [1938] 1 KB 256
England and Wales
Citing:
Cited – Phillips v London and South Western Railway
Co CA 1879
In an action against the railway company for personal injury to a passenger, a physician, making pounds 5,000 a year, and where is an increasing practice, the jury in assessing the damages to their consideration, besides the pain and suffering of . .

Cited by:
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .
Cited – Harris v Brights Asphalt Contractors Ltd QBD 1953
The plaintiff was not to be prevented from recovering the costs of private medical treatment.
It was argued and decided that (a) damages for the loss of earnings for the ‘lost years’ is nil, and (b) ‘the only relevance of earnings which would . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 30 November 2021; Ref: scu.654042

Flint v Lovell: CA 1934

The Court considered the conditions for it to interfere with an assessment of damages at first instance.
Greer LJ said: ‘I think it right to say that this Court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.’

Greer LJ
[1935] 1 KB 354, 51 TLR 127, (1934) 152 LT 231, [1934] All ER 200, (1934) 104 LJKB 199
England and Wales
Cited by:
Approved – Rose v Ford HL 1937
Damages might be recovered for a loss of expectation of life. A claim for loss of expectation of life survived under the Act of 1934, and was not a claim for damages based on the death of a person and so barred at common law.
Lord Wright . .

Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice

Updated: 30 November 2021; Ref: scu.654040

In re Steamship “Prinz Adalber” Hamburg-Amerika Line v Her Majesty’s Procurator Genera and similar: PC 4 Feb 1918

[1918] UKPC 9
Bailii
England and Wales
Citing:
See Also – Admiralty Commissioners v Steamship Amerika (Owners), The Amerika PC 13-Aug-1917
The Admiralty sought to recover as an item of loss the pensions payable to the widows of sailors killed in an accident to a submarine: . .

Lists of cited by and citing cases may be incomplete.

Transport, Damages

Updated: 30 November 2021; Ref: scu.423388

Wise v Kaye: CA 1 Dec 1961

Sellers LJ, Upjohn LJ, Diplock LJ
[1961] EWCA Civ 2, [1962] 1 QB 638, [1962] 1 All ER 257, [1962] 2 WLR 96
Bailii
England and Wales
Cited by:
Cited – Shephard v H West and Son Ltd HL 27-May-1963
The House looked at how personal injury damages shoud be set in cases of severe injury.
Lord Pearce said: ‘[i]f a plaintiff has lost a leg, the court approaches the matter on the basis that he has suffered a serious physical deprivation no . .
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 30 November 2021; Ref: scu.262816

Admiralty Commissioners v Steamship Amerika (Owners), The Amerika: PC 13 Aug 1917

The Admiralty sought to recover as an item of loss the pensions payable to the widows of sailors killed in an accident to a submarine:

Parker, Wrenbury LL
[1916-17] All ER Rep 177, [1917] AC 38, [1917] UKPC 71
Bailii
England and Wales
Citing:
Approved – Bradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .

Cited by:
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 . .
See Also – In re Steamship ‘Prinz Adalber’ Hamburg-Amerika Line v Her Majesty’s Procurator Genera and similar PC 4-Feb-1918
. .
Cited – Oliver v Ashman CA 1961
The rule that loss of earnings, in the years lost to an injured plaintiff whose life expectancy had been shortened, were not recoverable, was still good law.
Pearce LJ summarised the authorities: ‘The Law Reform Miscellaneous Provisions Act . .
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Damages, Transport

Updated: 30 November 2021; Ref: scu.237519

Shephard v H West and Son Ltd: HL 27 May 1963

The House looked at how personal injury damages shoud be set in cases of severe injury.
Lord Pearce said: ‘[i]f a plaintiff has lost a leg, the court approaches the matter on the basis that he has suffered a serious physical deprivation no matter what his condition or temperament or state of mind may be’.
And: ‘The court has to perform the difficult and artificial task of converting into monetary damages the physical injury and deprivation and pain and to give judgment for what it considers to be a reasonable sum. It does not look beyond the judgment to the spending of the damages.’
Lord Morris of Borth-y-Gest observed: ‘ . . money cannot renew a physical frame that has been battered and shattered. All the judges and courts can do is to award sums which must be regarded as giving reasonable compensation . . as far as possible comparable injuries should be compensated by comparable awards . . ‘

Lord Reid, Lord Tucker, Lord Morris of Borth-y-Gest, Lord Devlin, Lord Pearce
[1963] UKHL 3, [1963] 2 All ER 625, [1963] 2 WLR 1359, [1964] AC 326
Bailii
England and Wales
Citing:
Cited – Wise v Kaye CA 1-Dec-1961
. .
Cited – Benham v Gambling HL 1941
The injured person was a child of two and a half. He was unconscious from the moment of the accident until his death, which occurred later on the same day. He had acquired at the time of injury a cause of action for loss of expectation of life.
Cited by:
Cited – Heil v Rankin, Rees v Mabco (102) Ltd, Schofield v Saunders and Taylor Ltd and Other cases CA 23-Mar-2000
The Law Commission had recommended that the general level of damages awarded for pain suffering and loss of amenity in personal injury cases should be raised. The Court now considered several cases on the issue.
Held: The court would do so. . .
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 30 November 2021; Ref: scu.248551

Rose v Ford: HL 1937

Damages might be recovered for a loss of expectation of life. A claim for loss of expectation of life survived under the Act of 1934, and was not a claim for damages based on the death of a person and so barred at common law.
Lord Wright explained the object of the 1934 Act: ‘The purpose . . was to abolish in a special and particular way the rule preventing the prosecution of a claim in tort for personal injuries where the person who would otherwise be plaintiff or defendant in an action has died. The rule was expressed in the maxim ‘actio personalis moritur cum persona”.

Lord Wright
[1937] AC 826, [1937] 3 All ER 359
Law Reform (Miscellaneous Provisions) Act 1934 1
England and Wales
Citing:
Approved – Flint v Lovell CA 1934
The Court considered the conditions for it to interfere with an assessment of damages at first instance.
Greer LJ said: ‘I think it right to say that this Court will be disinclined to reverse the finding of a trial judge as to the amount of . .

Cited by:
Cited – Derrick v Williams CA 1939
The plaintiff had accepted a payment into court on a basis that a Court of Appeal decision declared the law in a form which precluded the recovery of certain types of damages. Subsequently the House of Lords reversed the Court of Appeal decision and . .
Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Updated: 30 November 2021; Ref: scu.236538

McCann v Sheppard: CA 1973

The injured plaintiff succeeded in his action for damages for personal injury. The defendants appealed the quantum of damage but before the appeal was heard the plaintiff died. The court was now asked to reduce the award because of the death.
Held: Damages for pain and suffering and loss of amenities should be limited to an amount appropriate for the length of time that the injured party survived.
The court also considered what cause of action the widow might have. Lord Denning MR said: ‘It is open to doubt whether the widow here would have any claim under the Fatal Accidents Act. Her husband had sued Mr Sheppard to judgment. Under that Act, the matter must be looked at as at the time of his death. Applying the words of the statute ‘If death had not ensued’, would he himself have been entitled to maintain an action and recover damages for negligence? I do not think so: for the simple reason that he had already recovered judgment and having done that he could not maintain another action for the same cause.’

Lord Denning MR
[1973] 1 WLR 540, [1973] 2 All ER 881
England and Wales
Cited by:
Cited – Brown v Robinson and Sentry PC 14-Dec-2004
(Jamaica) The deceased claimant had been shot by a sentry employed by the respondent company. His estate appealed a finding that the sentry was not acting in the course of his employment.
Held: Older authorities had now been replaced by recent . .
Cited – Reader and others v Molesworths Bright Clegg Solicitors CA 2-Mar-2007
The claimants were children of the victim of a road traffic accident. The solicitors were conducting a claim on his behalf for damages, but when he died, they negligently discontinued the action.
Held: The claimants’ action as dependants of . .
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 30 November 2021; Ref: scu.220487

Cunningham v Harrison: CA 17 May 1973

The plaintiff had been severely injured, and would need nursing care for the rest of his life. His wife nursed him until her death, but had given a statement that if not for her two full time nurses would be required. His employer continued to pay his full salary for a long time, and then paid an annual grant ex gratia and promised to do so for life.
Held: The plaintiff could recover the costs of private medical care despite the availability of free assistance on the NHS. The employer’s ex gratia payments were not to be taken to reduce the damages.

Lord Denning MR, Orr, Lawton LJJ
[1973] QB 942
Law Reform (Personal Injuries) Act 1948 2(4)
England and Wales
Citing:
Applied – Bradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .
Cited – Harris v Brights Asphalt Contractors Ltd QBD 1953
The plaintiff was not to be prevented from recovering the costs of private medical treatment.
It was argued and decided that (a) damages for the loss of earnings for the ‘lost years’ is nil, and (b) ‘the only relevance of earnings which would . .
Considered – George v Pinnock CA 1973
The court awarded pounds 19,000 for general damages for pain and suffering and loss of amenity for severe disablement. . .
Cited – Haggar v de Placido 1972
andpound;13,500.00 was awarded for pain and suffering and loss of amenities for a case involving severe disablement. . .
Cited – Mitchell v Mulholland (No. 2) CA 1972
The plaintiff was severely injured, and recovered substantial damages. andpound;20,000 for pain and suffering and loss of amenity, and andpound;21,350 for nursing care. The court declined to adjust the award for anticipated inflation: ‘an award of . .
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 – Browning v War Office CA 1962
The plaintiff had been a technical sergeant in the United States Air Force; his pay had been $450 per month and after his injuries caused by the negligence of the defendants’ driver he received only a ‘veteran’s benefit’ of $217 per month
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 30 November 2021; Ref: scu.200632