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 effect reconciliation with her but she refused. Shortly before his death, he had instructed his solicitor to institute divorce proceedings. The plaintiff claimed as widow and administratrix of the husband’s estate.
Held: Her claim for dependency failed because the court of first instance found that she had not proved that reconciliation with her husband was more probable than not. While the plaintiff could arguably make a claim for loss of chance, she had not shown any significant chance or probability of reconciliation with her husband before his death. To obtain anything under a head of substantial losses of future chance, the plaintiff must establish that that chance: ‘was substantial. If it was, it must be evaluated. If it was a mere possibility, it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than ‘substantial’, on the one hand, or ‘speculative’ on the other. It must be left to the good sense of the tribunal to decide on broad lines, without regard to legal niceties, but on a consideration of all the facts in proper perspective.’
Lord Reid said: ‘When the question is whether a certain thing is or is not true – whether a certain event did or did not happen – then the court must decide one way or the other. There is no question of chance or probability. Either it did or it did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is proved that it did in fact happen.
But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent; sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent. and a probability of 49 per cent . . If the balance of probability were the proper test what is to happen in the two cases which I have supposed of a 60 per cent. and a 40 per cent. probability. The 40 per cent. case will get nothing but what about the 60 per cent. case. Is it to get a full award on the basis that it has been proved that the wife would have returned to her husband? That would be the logical result. I can see no ground at all for saying that the 40 per cent. case fails altogether but the 60 per cent. case gets 100 per cent. But it would be almost absurd to say that the 40 per cent. case gets nothing while the 60 per cent. case award is scaled down to that proportion of what the award would have been if the spouses had been living together. That would be applying two different rules to the two cases. So I reject the balance of probability test in this case.’
Lord Cross of Chelsea said that ‘The word ‘likely’ which occurs in the last two of the three passages from the judgment which I have quoted above, may be used in different senses. Sometimes it may be used to mean ‘more likely than not’ at other times to mean ‘quite likely’ or ‘not improbably’ though less likely than not.’

Lord Reid, Lord Cross of Chelsea
[1974] AC 207
Fatal Accidents Act 1959
England and Wales
Citing:
See Also – Davies v Taylor (No 2) HL 2-Jan-1974
The plaintiff argued that no costs had been incurred by the successful defendant, as he was insured, and the insurance company was bound to pay his costs.
Held: ‘In this case the solicitors, no doubt first instructed by the insurance company, . .

Cited by:
See Also – Davies v Taylor (No 2) HL 2-Jan-1974
The plaintiff argued that no costs had been incurred by the successful defendant, as he was insured, and the insurance company was bound to pay his costs.
Held: ‘In this case the solicitors, no doubt first instructed by the insurance company, . .
Cited – Dixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Brown v Ministry of Defence CA 10-May-2006
Claim for injury suffered whilst training in Army. The claimant was committed to a career in the Army, and had anticipated promotion. She complained that her loss of pension rights had been calculated at a rate to reflect an average length career. . .
Cited – Collett v Smith and Another QBD 11-Aug-2008
The claimant had been an eighteen year old playing football for Manchester United reserves when he was injured by a foul tackle which ended his football career. The defendant admitted liability, but denied that he would have gone on to be a premier . .
Applied – 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 – Joyce v Bowman Law Ltd ChD 18-Feb-2010
The claimant asserted negligence by the defendant licensed conveyancers in not warning him of the effect of an option in the contract. He had been advised that it would allow him to choose to buy additional land, but it was in fact a put option. The . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
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 – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Leading Case

Updated: 10 November 2021; Ref: scu.219084

Kpohraror v Woolwich Building Society: CA 1996

The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Held: The bank was in breach of contract and in principle liable for injury to the customer’s business reputation if any, where it knew that he was a trader, but not for further business opportunities alleged to have been lost by reason of circumstances of which the bank was unaware on the basis of the limited facts known to it.
In this case, there was nothing to indicate that the cheque, even one drawn in favor of a goods wholesaler, was required for the purposes of international trade and would or might cause the loss of a transaction or a substantial trading profit for the plaintiff. The claim for loss of profits failed. Damages were awarded for the dishonour of the cheque and the ‘discreditable reason given by them for doing so’ and even though the plaintiff was not strictly speaking in business. The damages included a small allowance for loss of reputation in Nigeria.
Evans LJ said: ‘I would prefer to hold that the starting point for any application of Hadley -v- Baxendale is the extent of the shared knowledge of both parties when the contract was made . . When that is established, it may often be the case that the first and the second parts of the rule overlap, or at least that it is unnecessary to draw a clear line of demarcation between them. This seems to me to be consistent with the commonsense approach suggested by Scarman LJ in H. Parsons (Livestock) Limited -v- Uttley Ingham and Co. Limited [1978] QB 791 at 813, and to be applicable here.’
and ‘It is abundantly clear, in my judgment, that history has changed the social factors which moulded the rule in the nineteenth century. It is not only a tradesman of whom it can be said that the refusal to meet his cheque is ‘so obviously injurious to [his] credit’ that he should ‘recover, without allegation of special damage, reasonable compensation for the injury done to his credit’ (see [1920] AC 102 at 112, [1918-19] All ER Rep 1035 at 1037 per Lord Birkenhead LC). The credit rating of individuals is as important for their personal transactions, including mortgages and hire-purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case, in so far as this is a presumption of fact.’

Evans LJ, Waite LJ, Sir John May
[1996] 4 All ER 119
England and Wales
Citing:
Cited – H Parsons (Livestock) Limited v Uttley Ingham and C. Limited CA 1978
The defendants had installed a pig nut hopper for the plaintiffs, but failed to provide adequate ventilation, causing the nuts to go sour, and the pigs to be poisoned.
Held: Remoteness of damage is a question of law. The death of the pigs . .
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 – Bank of New South Wales v Milvain 1884
The farmer customer’s cheque had not been met by the bank, despite his having adequate funds to meet it. The bank appealed against the award of damages to the customer’s reputation.
Held: The customer, as a farmer, was not a trader, and could . .
Cited – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited – Evans v London and Provincial Bank 1917
Only nominal damages were awarded by a jury for damage to the plaintiff’s reputation after his bank had wrongly failed to pay on his cheque. . .
Cited – Wilson v United Counties Bank Ltd HL 1920
Bank’s duty to client’s reputation and credit
Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business . .
Cited – Gibbons v Westminster Bank Ltd 1939
For a non-trading customer of a bank whose cheque has been wrongfully dishonoured, injury to credit in law must be pleaded and proved as special damages. . .
Cited – Davidson v Barclays Bank Ltd 1940
The Plaintiff, a credit bookmaker successfully sued the Bank in libel. The libel proved was writing the words ‘not sufficient’ on a cheque issued by the Plaintiff when they dishonoured it. He would have had sufficient funds ad the bank followed his . .
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 – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – Bliss v South East Thames Regional Health Authority CA 1985
General damages cannot be awarded for frustration, mental distress or injured feelings arising from an employer’s breach of the implied term of confidence and trust. Dillon LJ said that damages for mental distress in contract are limited to certain . .
Cited – Rae v Yorkshire Bank plc CA 1987
The court considered the award of damages for the wrongful dishonour of its customer’s cheque. . .
Cited – Joyce v Sengupta and Another CA 31-Jul-1992
The defendant published an article accusing the plaintiff of theft. Not having funds to launch a claim in libel, the plaintiff obtained legal aid to claim in malicious falsehood. She now appealed against a strike out of that claim.
Held: A . .

Cited by:
Cited – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – Shah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages, Banking

Leading Case

Updated: 10 November 2021; Ref: scu.222086

Attorney General v De Keyser’s Royal Hotel Ltd: HL 10 May 1920

A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an established general principle, of high constitutional importance, that there is no common law power to take or confiscate property without compensation. The powers of the Judicial Committee of the Privy Council are now governed by the Acts of 1833 and 1844 which must be recognised as superseding the royal prerogative. In the exercise of the War Prerogative the Crown’s power to requisition property had been limited by Defence Act 1842 so as to require compensation to be paid to the subject.
Lord Parmoor said: ‘The growth of constitutional liberties has largely consisted in the reduction of the discretionary power of the executive, and in the extension of Parliamentary protection in favour of the subject, under a series of statutory enactments. The result is that, whereas at one time the Royal Prerogative gave legal sanction to a large majority of the executive functions of the Government, it is now restricted within comparatively narrow limits. The Royal Prerogative has of necessity been gradually curtailed, as a settled rule of law has taken the place of an uncertain and arbitrary administrative discretion.’
. . And ‘The constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject.’
Lord Dunedin discussed when the prerogative is overtaken by statute: ‘it is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. On this point I think the observation of the learned Master of the Rolls is unanswerable. He says: ‘What use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?”
. . And ‘In as much as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before the Act could be effected by the prerogative, and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that, and by that Act, to the prerogative being curtailed.’

Lord Dunedin, Lord Parmoor, Lord Atkinson
[1920] AC 508, [1920] UKHL 1, [1920] All ER 80, (1920) 36 TLR 600, (1920) 122 LT 691, [1920] UKHL 757
Bailii, Bailii
Defence Act 1842
England and Wales
Cited by:
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Cited – Regina v Secretary of State for Home Department Ex Parte Fire Brigades Union and Others CA 10-Nov-1994
The Home Secretary’s non-statutory scheme for the compensation for criminal injuries was unlawful pending implementation of the Act. It amounted to an abuse of power. He had power to delay implementing the new Act, with no duty to bring it into . .
Cited – Regina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Child Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
Cited – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Cited – Regina v Secretary of State for the Home Department, ex Parte Northumbria Police Authority CA 18-Nov-1987
The Authority appealed from refusal of judicial review of a circular issued by the respondent as to the supply of Plastic Baton Rounds and CS gas from central resources only. The authority suggested that the circular amounted to permission for the . .
Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Damages

Leading Case

Updated: 10 November 2021; Ref: scu.180896

Jobling v Associated Dairies: HL 1980

The claimant suffered an accident at work which left him with continuing disabling back pain. Before the trial of his claim he was diagnosed as suffering from a disease, in no way connected with the accident, which would in any event have wholly disabled him.
Held: The supervening disease had to be taken into account, effectively in reduction of the claimant’s damages, since ‘the court must provide just and sufficient but not excessive compensation, taking all factors into account.’

[1982] AC 794, [1981] UKHL 3, [1981] 2 All ER 752
Bailii
England and Wales
Citing:
Distinguished – Chapman v Hearse, Baker v Willoughby HL 26-Nov-1969
The plaintiff, a pedestrian had been struck by the defendant’s car while crossing the road. The plaintiff had negligently failed to see the defendant’s car approaching. The defendant had a clear view of the plaintiff prior to the collision, but was . .

Cited by:
Cited – Rahman v Arearose Limited and Another, University College London, NHS Trust CA 15-Jun-2000
The claimant had suffered a vicious physical assault from which the claimant’s employers should have protected him, and an incompetently performed surgical operation. Three psychiatrists agreed that the aetiology of the claimant’s very severe . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered severe psychiatric injured in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had gone on to kill another person, and he had been detained under section . .
Cited – Halsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Cited – Heil v Rankin CA 13-Jun-2000
Where supervening events might contribute to the personal injury suffered, the proper approach in apportioning compensation in respect of one occasion was in general terms to provide just and sufficient compensation for the injury caused without . .
Cited – Soutzos v Asombang and Others ChD 21-Jun-2011
The claimant had obtained a freezing order against the defendants. His claim having been dismissed, the court now considered if and what damages should be paid under the cross-undertaking he had given.
Held: Setting out and applying the . .

Lists of cited by and citing cases may be incomplete.

Damages

Leading Case

Updated: 10 November 2021; Ref: scu.189977

Kuddus v Chief Constable of Leicestershire Constabulary: HL 7 Jun 2001

There is no rule of law preventing the award of exemplary damages against police officers. The fact that no case of misfeasance in public office had led to such awards before 1964, did not prevent such an award now. Although damages are generally not to be punitive, they might be so in appropriate cases. The distinction in Rookes v Barnard between misbehaviour by government officers and officers of independent companies should no longer be followed. The test was whether the basic criteria set down in Rookes v Barnard were met.
Lord Nicholls said: ‘Exemplary damages or punitive damages, the terms are synonymous, stand apart from awards of compensatory damages. They are additional to an award which is intended to compensate a plaintiff fully for the loss he has suffered, both pecuniary and non-pecuniary. They are intended to punish and deter.’ and ‘The availability of exemplary damages has played a significant role in buttressing civil liberties, in claims for false imprisonment and wrongful arrest. From time to time cases do arise where awards of compensatory damages are perceived as inadequate . . . The nature of the defendant’s conduct calls for a further response from the courts. On occasion conscious wrongdoing by a defendant is so outrageous, his disregard for the plaintiff’s rights so contumelious, that something more is needed to show that the law will not tolerate such behaviour. Without an award of exemplary damages, justice will not have been done. Exemplary damages, as a remedy of last resort, fill what would otherwise be a regrettable lacuna.’ Exemplary damages could in principle be awarded where misfeasance in public office was established.
Lord Hutton discussed Rookes v Barnard saying: ‘In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum.’ The conduct had to be ‘outrageous’ and to be such that it called for exemplary damages to mark disapproval, to deter and to vindicate the strength of the law.

Lord Nicholls, Lord Hutton
Times 13-Jun-2001, Gazette 12-Jul-2001, [2001] UKHL 29, [2002] 2 AC 122, [2001] 3 All ER 193, [2001] 2 WLR 1789, (2001) 3 LGLR 45
House of Lords, Bailii
England and Wales
Citing:
Cited – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Appeal from – Kuddus v Chief Constable of Leicestershire CA 10-Feb-2000
Misfeasance in public office was not a tort in which exemplary damages would be available before 1964, and, following the restriction on such awards in Rookes v Barnard was not now a tort for which such damages night be payable. Kindred torts, which . .

Cited by:
Cited – Keegan and Others v Chief Constable of Merseyside CA 3-Jul-2003
The police had information suggesting (wrongly) that a fugitive resided at an address. An armed raid followed, and the claimant occupant sought damages.
Held: The tort of malicious procurement of a search warrant required it to be established . .
Cited – Keegan and Others v Chief Constable of Merseyside CA 3-Jul-2003
The police had information suggesting (wrongly) that a fugitive resided at an address. An armed raid followed, and the claimant occupant sought damages.
Held: The tort of malicious procurement of a search warrant required it to be established . .
Cited – Design Progression Limited v Thurloe Properties Limited ChD 25-Feb-2004
The tenant applied for a licence to assign. The landlord failed to reply, anticipating that delay would allow it to generate a better lease renewal.
Held: The delay was unreasonable and a breach of the landlord’s statutory duty, and was an act . .
Cited – Watkins v Secretary of State for The Home Departmentand others CA 20-Jul-2004
The claimant complained that prison officers had abused the system of reading his solicitor’s correspondence whilst he was in prison. The defendant argued that there was no proof of damage.
Held: Proof of damage was not necessary in the tort . .
Cited – Borders (UK) Ltd and others v Commissioner of Police of the Metropolis and Another CA 3-Mar-2005
The second defendant had received large numbers of stolen books and sold them from his stall. An application for compensation was made at his trial. Compensatory and exemplary damages were sought, but the court had to consider how to estimate the . .
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Cited – A v Bottrill PC 9-Jul-2002
PC (New Zealand) The defendant was a pathologist who carried out cervical smears. His actions were found to be negligent.
Held: The Board considered whether it would be correct to require an additional . .
Cited – Rowlands v Chief Constable of Merseyside Police CA 20-Dec-2006
The claimant succeeded in her claims for general damages against the respondent for personal injury, false imprisonment and malicious prosecution, but appealed refusal of the court to award aggravated damages against the chief constable.
Held: . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
mosley_newsgroupQBD2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Cited – Muuse v Secretary of State for The Home Department CA 27-Apr-2010
The claimant, a Dutch national, was detained pending deportation. He was arrested ‘for immigration’ after being given bail in other proceedings. It had been found that that detention was unlawful. He did not come within the criteria for deportation, . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .

Lists of cited by and citing cases may be incomplete.

Police, Torts – Other, Damages

Leading Case

Updated: 10 November 2021; Ref: scu.162837

Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another: SC 1 May 2013

The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not been, and each had claimed there was no basis for his continued detention, and sought damages. In one case the Secretary now appealed against the level of damages awarded, and in the other the prisoner appealed against the quashing of the damages award.
Held: Though an appellate court should not normally interfere in a damages assessment because it would have set a different figure, in this case it was being asked to set guideline figures. The proper figure in Falkner’s case was andpound;6,500.
A delay in the review after the completion of the minimum term was not tortious false imprisonment, and would only amont to a breach of article 5(1) in exceptional circumstances. Damages under section 8 of the 1998 Act should follow Greenfield, and ‘First, at the present stage of the development of the remedy of damages under section 8 of the 1998 Act, courts should be guided, following Greenfield, primarily by any clear and consistent practice of the European court. Secondly, it should be borne in mind that awards by the European court reflect the real value of money in the country in question. The most reliable guidance as to the quantum of awards under section 8 will therefore be awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living. Thirdly, courts should resolve disputed issues of fact in the usual way even if the European court, in similar circumstances, would not do so. ‘
The ordinary approach to the relationship between domestic law and the Convention was that the courts endeavour to apply and if need be develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UK’s international obligations, the starting point being our own legal principles rather than the judgments of the international court.
The Court considered the differences in practice and law between national and European Court decisions on damages, saying: ‘First, at the present stage of the development of the remedy of damages under section 8 of the 1998 Act, courts should be guided, following Greenfield, primarily by any clear and consistent practice of the European court. Secondly, it should be borne in mind that awards by the European court reflect the real value of money in the country in question. The most reliable guidance as to the quantum of awards under section 8 will therefore be awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living. Thirdly, courts should resolve disputed issues of fact in the usual way even if the European court, in similar circumstances, would not do so. ‘
. . And ‘awards where detention has been prolonged for several months, as the result of a violation of article 5(4), could reasonably be expected to be significantly above awards for frustration and anxiety alone, but well below the level of awards for a loss of unrestricted liberty. It is however impossible to derive any precise guidance from these awards. In accordance with section 8(1) and (4), a judgment has to be made by domestic courts as to what is just and appropriate in the individual case, taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases. ‘

Lord Neuberger, President, Lord Mance, Lord Kerr, Lord Reed, Lord Carnwath
[2013] UKSC 23, [2013] WLR(D) 162, [2013] 2 WLR 1157, UKSC 2011/0156, UKSC 2011/0124, [2013] 2 AC 254, 35 BHRC 378, [2013] 2 All ER 1013, [2013] HRLR 24
Bailii, WLRD, SC Summary, SC, Bailii Summary
European Convention on Human Rights 5, Crime (Sentences) Act 1997 2, Powers of Criminal Courts (Sentencing) Act 2000 109, Criminal Justice Act 2003 225, Human Rights Act 1998 8
England and Wales
Citing:
Cited – Weeks v The United Kingdom ECHR 5-Oct-1988
The Court was asked as to the recall to prison of a prisoner who had been released on licence. His recall and subsequent detention were considered by the Board, but under the system then in place it could only make a non-binding recommendation. . .
Cited – Thynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
Cited – Stafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
Cited – Regina (Noorkoiv) v Secretary of State for the Home Department and Another CA 30-May-2002
The claimant was a prisoner. He became entitled to be considered for release on parole, but was not released because the Parole Board had not made a decision.
Held: The system for consideration of the release of discretionary and life . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – Secretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
Cited – Bezicheri v Italy ECHR 25-Oct-1989
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses – claim rejected . .
Cited – Cesky v The Czech Republic ECHR 6-Jun-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3; Pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Denizci And Others v Cyprus ECHR 23-May-2001
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Struck out of the list in respect of Aziz Marthoca; No violation of Art. 2; Violation of Art. 3; Violation of Art. 5; . .
Cited – Rutten v The Netherlands ECHR 24-Jul-2001
The claimant prisoner complained of the delay in his release, awaiting a review. Domestic court proceedings had lasted two and a half months at first instance and a further three months on appeal. The proceedings had been brought by the public . .
Cited – Oldham v The United Kingdom ECHR 26-Sep-2000
Where a parole board took two years to consider the applicant’s parole, this was unreasonable, and a breach of the Article 5.4 requirement to deal with such matters speedily. Accordingly the continued detention of the applicant became unlawful. The . .
Cited – Hirst v United Kingdom ECHR 24-Jul-2001
The applicant asserted that the delays in the reviews, undertaken by the Parole Board, of his continued detention as a discretionary life prisoner, was a breach of his right to a speedy decision. The delays were between 21 and 24 months. Such delays . .
At First Instance – Faulkner, Regina (On the Application of) v Secretary of State for Justice and Another Admn 5-Jun-2009
The claimant had sought to challenge his continued detention in prison when his situation should have been reviewed but had not been. As a lifer he had served the time set in his tariff.
Held: The applicant was unlawfully at large and had not . .
Main Appeal (Faulkner) – Faulkner, Regina (on The Application of) v Secretary of State for Justice The Parole Board CA 14-Dec-2010
The claimant sought damages saying that his detention in prison beyond the minimum period pending a review was unlawful when that review was delayed. He now appealed against dismissal of his claim when he had not appeared at court, being unlawfully . .
At first Instance – Sturnham, Regina (on The Application of) v Parole Board, Secretary of State for Justice Admn 14-Mar-2011
S was serving a term of life imprisonment. After serving the tariff, his detention should have been reviewed. After several serious delays, and a decision that he should instead be transferred to open conditions, he brought proceedings for judicial . .
Cited – Guntrip, Regina (on The Application of) v Secretary of State for Justice and Another Admn 9-Dec-2010
The claimant prisoner should have had his detention reviewed after serving the tariff part of his sentence. He sought damages for the delay. The first hearing before the Board, following the expiry of the tariff, had not taken place until about two . .
Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice The Parole Board CA 29-Mar-2011
The court considered the approriate level of damages where the claimant’s detention had been wrongly extended through a failure to hold a timely review of his continued detention.
Held: A sum of andpound;10,000 was awarded. The court should . .
Cited – James, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .
Cited – Niedbala v Poland ECHR 4-Jul-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3; Violation of Art. 5-4; Violation of Art. 8; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award
A warrant . .
Cited – Migon v Poland ECHR 25-Jun-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Non-pecuniary damage – finding of violation sufficient; Costs and expenses (domestic proceedings) – claim rejected
‘In the present case, . .
Cited – K B and Others, Regina (on the Application of) v Mental Health Review Tribunal and Another Admn 13-Feb-2003
The claimants were entitled to damages for their detention as mental patients, where this had been found to be wrongful as an infringement of their human rights. The court considered the appropriate level of damages.
Held: There was no clear . .
Cited – Al-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .
Cited – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Appeal from – Sturnham v Secretary of State for Justice CA 23-Feb-2012
The claimant life sentence prisoner had inter alia been detained after the expiry of his tarriff pending a review of whether his continued detention was required for public protection. That review had been delayed, and the claimant was awarded . .
Cited – Van Droogenbroeck v Belgium ECHR 25-Apr-1983
Hudoc Judgment (Just satisfaction) Non-pecuniary damage – financial award; Pecuniary damage – claim rejected; Costs and expenses – claim rejected
For an imprisonment to be lawful, the ‘detention’ must result . .
Cited – E v Norway ECHR 29-Aug-1990
The applicant suffered serious brain damage and was an untreatable psychopath. He was convicted of numerous violent offences and sentenced to a period of imprisonment. He was also sentenced to preventive detention under the Norwegian Penal Code, as . .
Cited – Koendjbiharie v The Netherlands ECHR 25-Oct-1990
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – Convention proceedings
Unsuccessful proceedings brought . .
Cited – Pavletic v Slovakia ECHR 22-Jun-2004
ECHR Judgment (Merits and just satisfaction) Preliminary objections dismissed (victim, non-exhaustion of domestic remedies) ; Violation of Art. 5-3 ; Violation of Art. 5-4 ; Violation of Art. 5-5 ; No separate . .
Cited – Neumeister v Austria ECHR 7-May-1974
The applicant complained, inter alia, of the length of time he had spent in detention while on remand from 24 February to 12 May 1961, that is, two months and sixteen days, and from 12 July 1962 to 16 September 1964, that is two years, two months . .
Cited – Scordino v Italy ECHR 29-Jul-2004
(French Text) Grand Chamber. In the context of unreasonable delay in violation of article 6(1), there was a strong but rebuttable presumption that excessively long proceedings would occasion non-pecuniary damage. . .
Cited – Scordino v Italy ECHR 29-Mar-2006
Grand Chamber – Unreasonable delay had been found.
Held: There was a strong but rebuttable presumption that excessively long proceedings would occasion non-pecuniary damage. . .
Cited – Johnson v The United Kingdom ECHR 24-Oct-1997
Mr Johnson awaited trial for crimes of violence. He was diagnosed mentally ill, and on conviction made subject to a hospital order, and restricted without limit of time. He made progress, but was not discharged or re-classified. At a fourth tribunal . .
Cited – Caballero v United Kingdom ECHR 29-Feb-2000
Provisions were in place which said that a person charged with a very serious crime of violence having once been convicted previously of rape or murder he was to be refused bail automatically. Although the provision had later been altered, the . .
Cited – Jecius v Lithuania ECHR 31-Jul-2000
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (six month period); Violation of Art. 5-1 as regards the applicant
The applicant complained of violation of his article 5 rights . .
Cited – HL v United Kingdom ECHR 2004
Patient’s lack of Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
Cited – Beet And Others v The United Kingdom ECHR 1-Mar-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 5-1 with regard to one applicant; Violation of Art. 5-5 with regard to one applicant; Violation of Art. 6-1+6-3-c with regard to four applicants; . .
Cited – Kolanis v The United Kingdom ECHR 21-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – No violation of Art. 5-1-e; Violation of Art. 5-4; Violation of Art. 5-5; No separate issue under Art. 13; Non-pecuniary damage – financial award; Costs and expenses . .
Cited – Veniosov v Ukraine ECHR 15-Dec-2011
. .
Cited – Blackstock v The United Kingdom ECHR 21-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 5-4; Violation of Art. 5-5; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings.
The claimant . .
Cited – Medvedyev And Others v France ECHR 29-Mar-2010
(Grand Chamber) A Cambodian vessel, The Winner, trafficked drugs on the high seas (Cape Verde). It was detected and boarded by the French authorities, detaining the crew on board and took them on the vessel to France for trial. France was, but . .
Cited – Kucheruk v Ukraine ECHR 6-Sep-2007
. .

Cited by:
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Cited – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
Cited – Lee-Hirons v Secretary of State for Justice SC 27-Jul-2016
The appellant had been detained in a mental hospital after a conviction. Later released, he was recalled, but he was not given written reasons as required by a DoH circular. However the SS referred the recall immediately to the Tribunal. He appealed . .

Lists of cited by and citing cases may be incomplete.

Prisons, Torts – Other, Damages, Human Rights, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.503500

Bowman v MGN Ltd: QBD 26 Apr 2010

The claimant complained of an article on the defendant’s web-site. The defendant offered an unqualified offer of amends. The court was asked to settle an amount of compensation. Though the article was removed within a few hours and upon receipt of the complaint, the claimant said that it had generated repeats of the libel.
Held: Damages after an offer of amends were to be assessed as in a normal damages claim recognising the particular circumstances. Here the libel was mere celebrity gossip, but had been hurtful to the claimant. The starting point in this case was andpound;8,500. The defendant’s apology had not been given the same prominence as the original libel, and it had taken an unco-operative approach to the claim. Even so, the apology earned a discount of 50%.

Eady J
[2010] EWHC 895 (QB)
Bailii
Defamation Act 1996 2 3 4
England and Wales
Citing:
Cited – Nail and Another v News Group Newspapers Ltd and others CA 20-Dec-2004
The claimant appealed the award of damages in his claim for defamation. The defendants had variously issued apologies. The claimant had not complained initially as to one publication.
Held: In defamation proceedings the damage to feelings is . .
Cited – Slipper v British Broadcasting Corporation CA 1990
The plaintiff, a retired policeman was featured in a film about the Great Train Robbery. He sought to say that paper reviews of the film, and trailers worked to spread the libel, and should count in the assessment of damages against the defendant, . .
Cited – Abu v MGN Ltd QBD 2003
There should be nothing in any sense ‘rough and ready’ about the assessment of the claimant’s reputation under the offer of amends procedure in the 1996 Act. If compensation is not agreed it should be determined by the court on the same principles . .
Cited – Cleese v Clark QBD 2003
The court looked at the calculation of damages after an offer of amends under the Act by the defendant.
Held: Such calculations have to be linked to the very different circumstances of each case. Comparisons with awards after jury trial were . .

Lists of cited by and citing cases may be incomplete.

Defamation, Damages

Updated: 10 November 2021; Ref: scu.408602

Davies v Powell Duffryn Associated Collieries Limited: HL 1941

Damages under the Fatal Accidents Acts are calculated having regard to ‘a balance of gains and losses for the injury sustained by the death.
An appellate court should be slow to interfere with a judge’s assessment of damages. Lord Wright said: ‘An appellate court is always reluctant to interfere with a finding of a trial judge on any question of fact, but it is particularly reluctant to interfere with a finding on damages which differs from an ordinary finding of fact in that it is generally much more a matter of speculation and estimate. No doubt, this statement is truer in respect of some cases than of others . . It is difficult to lay down any precise rule which will cover all cases, but . . the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered.’
Lord Wright described an action for personal injury by an employee for breach of statutory duty, saying: ‘A common law action based on the purpose of the statute to protect the workman, and belonging to the category often described as that of cases of strict or absolute liability.’

Lord Wright
111 LJKB 418, [1942] 1 All ER 657, [1942] AC 601, [1941] 1 KB 519
England and Wales
Cited by:
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 – Hay v Hughes CA 17-Oct-1974
A couple had died in a road accident. The court considered the award of damages for dependency. . .
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

Leading Case

Updated: 10 November 2021; Ref: scu.412278

Skipper v Calderdale Metropolitan Borough Council and Governors of Crossley Heath School: CA 15 Mar 2006

The claimant sought damages alleging that the defendants had failed her by not identifying and ameliorating her dyslexia whilst she was a student. The judge had found that she might establish negligence but that she had not established any loss. She had not established that she would have followed the professional career she asserted.
Held: ‘as a matter of principle general damages can be awarded for the consequences for a failure to take appropriate steps to ameliorate dyslexia, including frustration, loss of self confidence and loss of self esteem’ and ‘if it can be shown that a claimant’s disability had a real effect on his or her ability to cope with school and work, or has otherwise interfered significantly with his enjoyment of life, that will be a loss of amenity which can properly sound in damages. ‘ The court allowed the appeal since there was an arguable case for damages, but expressed real concern at the relative costs and that proving a loss might remain difficult.

[2006] EWCA Civ 238
Bailii
England and Wales
Citing:
Cited – E (A Minor) v Dorset County Council CA 1995
It is generally unwise to give summary judgment in cases where the relevant law is uncertain or in a state of development: ‘This must mean that where the legal viability of a cause of action is unclear (perhaps because the law is in a state of . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Education, Damages

Updated: 10 November 2021; Ref: scu.239140

Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others: CA 14 Oct 2008

The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Held: The appeal failed. An account of profits should be available in a cartel case. Community law did not support the suggestion that it should. The decision in Wass was binding on the court. It had not been cited in Blake, and was not overruled by it. The claimant was entitled to the loss it had actually suffered but no more.
Arden LJ discussed whether mesne profits was a compensatory award: ‘In general, the common golden thread that runs through each of these three categories of remedy mentioned above [tort, contract and restitution] is that the claimant has suffered loss. But that is not always the case: see, for example, user damages discussed below. Similarly, in an action for breach of fiduciary duty, an account of profits can be awarded in circumstances where the claimant has suffered no loss, as in Regal (Hastings) Ltd v Gulliver (Note) [1967] 2 AC 134 (and a claim for an account of profits consequent on a breach of duty could arise even though there is no misuse of a property right, as where a director uses a power to make calls on shares for a collateral purpose). Moreover, user damages are not always assessed by reference to the fair price for what has been taken from the claimant. They may be assessed by reference to the profit that the defendant has made: see, for example, Ministry of Defence v Ashman (1993) 66 P and CR 195. Wrotham Park damages likewise may be awarded even though there is no loss. But the user damages and Wrotham Park damages still have an element of compensation within them in this sense, that while there may be no actual loss they are clearly cases where the law takes the view as a matter of policy that the claimants if they prove their claims are entitled to substantial compensation for the mere invasion of their rights.
It follows that the categories of damages identified above are not mutually exclusive. User damages can be restitutionary: they can be awarded where the claimant has suffered no loss and on the basis that the defendant is ordered to pay a sum by reference to the gain he would otherwise make. Damages for trespass to property, for instance, are awarded on the basis of market rent even if the claimant would not have let the property if vacant: see Swordheath Properties Ltd v Tabet [1979] 1 WLR 285. At the same time they can be described as compensatory. The view that they combine elements of both compensatory and restitutionary awards is supported by the decision of the Privy Council in Inverugie Investments Ltd v Hackett [1995] 1 WLR 713, 718b. Damages for trespass to land, for instance, are intended to compensate the claimant for being kept out of his land on whatever basis they are assessed. I do not therefore agree with the judge that user damages or Wrotham Park damages are necessarily compensatory. Nor do I consider that Lord Nicholls so held in Attorney General v Blake [2001] 1 AC 268. Lord Nicholls considered, at p 279e, that user damages were probably best regarded as exceptions to the general rule that damages are assessed on the basis that they compensate the claimant for his loss or injury. He also regarded Wrotham Park damages as, at p 284a: ‘payment [by the defendant] in respect of the benefit he has gained.’ If user damages and Wrotham Park damages were purely compensatory, they would not have been stepping stones to the conclusion that the court could grant an account of profits for a breach of contract.
What, however, does distinguish user damages from other compensatory damages is the fact that they are in general awarded because the defendant has made improper use of an asset of the claimant. In economic terms, there has been a transfer of value for which the wrongdoer must account. But that is also a feature of the present case. Devenish seeks in economic terms, by means of its claim for an account of profits for breach of statutory duty, to recover the amount of the overcharge that it has paid to the defendants out of its assets and in diminution of its net worth. Not all non-proprietary torts share this feature: for example, this feature is not present in claims for damages for defamation or personal injury. It is, however, often present in claims for breach of contract and for invasion of a statutory right where rights of property in the broadest sense are invaded for the benefit of the wrongdoer. A contractual right is a form of property (though it lacks some of the qualities of a property right). If the law of remedies were to be required to be coherent in economic terms, and this were the critical factor, the same remedies ought to be provided in each of these situations. However, even so, they would under Blake’s case be subject to strict judicial control through the requirement for exceptional circumstances.’

Tuckey LJ, Arden LJ, Longmore LJ
[2008] EWCA Civ 1086, [2009] Ch 390, [2009] Bus LR 858, [2009] 3 WLR 198, [2009] 3 All ER 27, [2008] UKCLR 783
Bailii, Times
England and Wales
Citing:
Appeal from – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Cited – 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 – Stoke-on-Trent City Council v W and J Wass Ltd CA 1988
The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council . .
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Cited – Crehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
Cited – Halifax Building Society v Thomas and Another CA 29-Jun-1995
Defrauded Mortgagee cannot take surplus on sale
A Building Society cannot keep any excess proceeds of sale of a house mortgaged to it by fraud. Policy was against unjust enrichment and will not allow a lender to take a profit from a fraudulent borrower.
Peter Gibson LJ said: ‘I remain wholly . .
Cited – Forsyth-Grant v Allen and Another CA 8-Apr-2008
Claimant’s appeal against judgment in action for trespass and nuisance, arising out of the construction by the defendants of a pair of semi-detached houses on land adjoining the Hotel Picardie at Ventnor on the Isle of Wight, which was owned by the . .
Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Cited – Esso Petroleum Co Ltd v Niad Ltd ChD 2001
Esso had entered into a solus agreement with Naid covering one filling station. Esso introduced a marketing scheme called ‘Pricewatch’ under which it made financial support available to its dealers in return for their selling petrol at recommended . .
Cited – Regal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – 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 – Ministry of Defence v Ashman and Another CA 3-May-1993
A person who has profited from trespassing on someone else’s land may be ordered to pay what are sometimes called ‘restitutionary damages’ to the landowner. Mesne profits can be calculated as the cost of alternative Local Authority Housing. Kennedy . .
Cited – Swordheath Properties Ltd v Tabet CA 1979
The amount of damages payable by a trespasser on land is ordinarily the letting value of the premises. Megaw LJ said: ‘It appears to me to be clear, both as a matter of principle and of authority, that in a case of this sort the plaintiff, when he . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – Inverugie Investments Ltd v Hackett PC 1995
The plaintiff was the lessee of 30 apartments within a hotel complex. The defendants ejected the plaintiff and for some years used the apartments as part of the hotel with an average occupancy rate of not more than 40%.
Held: The defendants . .
Cited – AB and others v British Coal Corporation and others CA 19-Oct-2006
A collective compensation agreement, which required affected persons to submit their claims, along with medical evidence, through authorised solicitors to be compensated on the basis of agreed damages formula, was introduced. . .
Cited – Caffrey v Darby 1801
A fiduciary has a strict duty to account; equity imposes stringent liability on a fiduciary as a deterrent – pour encourager les autres. Lord Eldon LC said: ‘It would be very dangerous, though no fraud could be imputed to the trustees, and no kind . .
Mentioned – My Kinda Town Ltd v Soll QBD 1982
Although there was no acquiescence on the part of the plaintiffs, such as to have destroyed their rights, the court was not persuaded that, nevertheless, they should be deprived of an injunction. . .
mentioned – My Kinda Town Ltd v Soll CA 1983
The appeal succeeded. Where there is already a substantial potentiality for confusion of two businesses simply by reason of their being engaged in the same trade, a trader cannot legitimately build on and increase that potentiality in such a way . .
Cited – Just I/S v Danish Ministry For Fiscal Affairs ECJ 27-Feb-1980
ECJ Whilst the treaty does not exclude, in principle, a difference in the taxation of various alcoholic products, such a distinction may not be used for the purposes of tax discrimination or in such a manner as . .
Cited – von Colson and Kamann v Land Nordrhein-Westfalen ECJ 10-Apr-1984
sabineECJ1984
LMA Art.177[Art.234] EC proceedings – Ms Van Colson had applied for a job with the prison service and Ms Harz had applied for a job with a private company Deutsche Tradex GmbH. Both had been rejected. The German . .
Cited – Manfredi v Lloyd Adriatico Assicurazioni SpA; Antonio Cannito v Fondiaria Sai SpA, Nicolo Tricarico; Pasqualina Murgolo v Assitalia SpA C-297/04 ECJ 13-Jul-2006
Europa Article 81 EC- Competition – Agreements, decisions and concerted practices – Accidents caused by motor vehicles, vessels and mopeds – Compulsory civil liability insurance – Increase in premiums – Effect on . .
Cited – Masterfoods Ltd v HB Ice Cream Ltd ECJ 14-Dec-2000
Masterfoods Ltd, a subsidiary of Mars Inc, brought proceedings in Ireland against HB Ice Cream Ltd, a subsidiary of Unilever, for a declaration that its agreements to provide retailers with freezer cabinets on terms that they stocked only HB ice . .
Cited – Occidental Worldwide Investment Corporation v Skibs A/S Avanti (The Siboen and Sibotre) 1976
The effect of a rescission of a compromise agreement settling the dispute may be to revive the original agreement. As to the liability of a principal for misrepresentations by his agent: ‘If one agent makes a fraudulent statement to another agent, . .
Cited – Albacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .

Cited by:
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 – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages

Updated: 10 November 2021; Ref: scu.276840

Muuse v Secretary of State for The Home Department: CA 27 Apr 2010

The claimant, a Dutch national, was detained pending deportation. He was arrested ‘for immigration’ after being given bail in other proceedings. It had been found that that detention was unlawful. He did not come within the criteria for deportation, and he was not informed as to the reasons for his detention, and the reviews of his detention were inadequate. Despite the centre having evidence his Dutch nationality, he was told he was not Dutch ‘because of his colour’. His detention continued for several months. The judge commented: ‘One mistake would be bad enough but at least one could be forgiven. But this number of mistakes and the failure to implement clear procedures is unforgiveable. This is an appalling indictment of the way the Home Office and HMPS were operating in 2006 when detaining M. Such conduct reflects an indifference to doing justice on the part of those who dealt with M’s case on the [Home Secretary]’s behalf. ‘ The defendant appealed against award of exemplary damages.
Held: The judge had failed to recognise that the essence of misfeasance is in the action of the official and not in its consequences. He had not established the knowledge of or reckless indifference to legality. The appeal succeeded on the limited issue of public misfeasance.
It was not permissible for the defendant not to allow its junior officers to give evidence: ‘it is difficult to understand the policy of attempting to give officials anonymity and of exempting them from giving an explanation, as those who make decisions that deprive a person of his liberty should not be permitted to claim anonymity and be shielded from explaining their conduct to a court. It is moreover difficult to see how such a policy is consistent with the rule of law in a democracy.’
The defendant’s appeal on damages failed. The unlawful imprisonment of M was not merely unconstitutional but an arbitrary and outrageous exercise of executive power. It called for the award of exemplary damages by way of punishment, to deter and to vindicate the strength of the law . . The outrageous nature of the conduct is exhibited partly by the way in which they treated M and ignored his protests that he was Dutch, partly by the manifest incompetence in which they acted throughout and partly by their failure to take the most elementary steps to check his documents which they held.
When awarding exemplary damages for oppressive, arbitrary or unconstitutional conduct by government officials, it was not necessary to ask also whether the outrageous conduct disclosed malice.

Thomas LJ, Sir Scott Baker
[2010] EWCA Civ 453, Times 11-May-2010
Bailii
England and Wales
Citing:
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .
Cited – Stockwell and others v Society of Lloyd’s; Society of Lloyd’s v Henderson and Others; Lowe and Others v Society of Lloyd’s CA 27-Jul-2007
The claimants sought to recover damages from the defendants in their alleged mishandling of their agencies. They had sought to amend the pleadings to add a claim for misfeasance in public office, and now appealed refusal of leave.
Held: the . .
Cited – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Cited – PB, Regina (on the Application of) v Secretary of State for the Home Department Admn 4-Dec-2008
The court considered the applicable level of basic damages for false imprisonment. . .
Cited – London Borough of Southwark v Dennett CA 7-Nov-2007
The defendant tenant had been delayed for over five years by the claimant in buying his council house. He stopped paying rent in protest, and the council brought possession proceedings. He then paid his rent and continued in his counterclaim to . .
Cited – Kuddus v Chief Constable of Leicestershire Constabulary HL 7-Jun-2001
There is no rule of law preventing the award of exemplary damages against police officers. The fact that no case of misfeasance in public office had led to such awards before 1964, did not prevent such an award now. Although damages are generally . .
Cited – Holden v Chief Constable of Lancashire CA 1987
The claimant sought damages after false imprisonment by the defendant for 20 minutes. The Judge had withdrawn from the jury the possibility of awarding exemplary damages on the basis that there was no suggestion of oppressive behaviour on the part . .
Cited – Thompson v Commissioner of Police of Metropolis; Hsu v Same CA 20-Feb-1997
CS Damages of 200,000 pounds by way of exemplary damages had been awarded against the police for unlawful arrest and assault.
Held: The court gave a guideline maximum pounds 50,000 award against police for . .
Cited – AB v South West Water Services Ltd CA 1993
Exemplary and aggravated damages were claimed in an action for nuisance arising out of the contamination of water by the defendant utility.
Held: Sir Thomas Bingham MR said: ‘A defendant accused of crime may ordinarily be ordered (if . .
Appeal from – Muuse v Secretary of State for The Home Department QBD 17-Jul-2009
. .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages

Updated: 10 November 2021; Ref: scu.408609

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 necrosis of the epiphysis, involving disability of the hip joint with the virtual certainty that osteoarthritis would later develop. Prior to the intervention of the doctor, he had a 75% chance of a similar result. The court found that there was a 25% chance that if the doctor had not been negligent, that the outcome would have been better, and had awarded damages for that ‘loss of a chance’.
Held: Damages could not be awarded for that 25% chance because the effect of the judge’s finding as to the chances of the condition resulting from the fall being 75% was a finding in law that that would actually have been the result. The relevant factual question about the plaintiff’s condition immediately prior to the negligence was whether his fall from the tree had left sufficient blood vessels intact to keep his left femoral epiphysis alive. The answer to this question of fact answered the hypothetical question: would a vascular necrosis have been avoided if his leg had been treated promptly? The answer to the first question also answered the second question, because the second question is a mirror image of the first. Built into the formulation of the first question was the answer to the second question.

Lord Mackay of Clashfern
[1987] AC 750, [1988] UKHL 1, [1987] 2 All ER 909
Bailii
England and Wales
Citing:
Cited – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .

Cited by:
Cited – 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 – Wardlaw v Dr Farrar CA 27-Nov-2003
The claimant appealed an award of andpound;1,000 damages for the death of his wife for professional negligence. Doctors had differed as to whether the delay complained of had contributed to the death.
Held: It was vital now that medical . .
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 – 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 – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – 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 – Nestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Cited – Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Leading Case

Updated: 10 November 2021; Ref: scu.183100

East v Maurer: CA 1991

The plaintiffs had bought a hair dressing salon from the defendant, who continued to trade from another he owned, despite telling the plaintiffs that he intended not to. The plaintiffs lost business to the defendant. They invested to try to make a success of the business but eventually sold it at a loss. The defendant appealed against the award of damages for deceit.
Held: The plaintiffs had established that they had suffered a loss due to the defendants’ misrepresentation which arose from their inability to earn the profits in the business, and ‘I would therefore reject the submission . . that loss of profits is not a recoverable head of damage in cases of this kind.’ However the amount of damages was recalculated.

Mustill LJ, Butler-Sloss LJ, Beldam LJ
[1991] 1 WLR 461, [1990] EWCA Civ 6, [1991] 2 All ER 733
Bailii
England and Wales
Citing:
Approved – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .
Cited – Clark v Urquhart HL 1930
The House considered the measurement of damages where property had been purchased as the result of a misrepresentation. Lord Atkin said: ‘I find it difficult to suppose that there is any difference in the measure of damages in an action of deceit . .
Cited – Toteff v Antonas 1952
(High Court of Australia) Dixon J said: ‘In an action of deceit a plaintiff is entitled to recover as damages a sum representing the prejudice or disadvantage he has suffered in consequence of his altering his position under the inducement of the . .
Cited – Cullinane v British ‘Rema’ Manufacturing Co Ltd CA 1954
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which . .

Cited by:
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – 4 Eng Ltd v Harper and Another ChD 29-Apr-2008
The claimant sought damages for deceit in the purchase of shareholdings fropm the defendants. The defendants objected that the damages claimed were for a loss of chance and were irrecoverable.
Held: Such damages might be recoverable in an . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .

Lists of cited by and citing cases may be incomplete.

Damages, Torts – Other

Leading Case

Updated: 10 November 2021; Ref: scu.191179

Loveridge v London Borough of Lambeth: SC 3 Dec 2014

The Council had granted a weekly secure tenancy of the premises to the appellant. The Court considered the calculation of damages awarded for an unlawful eviction of a residential tenant.
Held: Section 28(1)(a) requires the basis of the valuation to be that Mr Loveridge ‘continues’ following the eviction to have ‘the same right’ to occupy as he had prior to the eviction. The appeal was allowed and the judge’s order restored, though the court did suggest that Parliament might wish to revisit the legislation.

Lord Neuberger, President, Lord Wilson, Lord Sumption, Lord Carnwath, Lord Toulson
[2014] UKSC 65, [2014] 1 WLR 4516, UKSC 2013/0273
Bailii, SC, SC Summary, SC Video Summary
Housing Act 1988 28, Housing Act 1985 79
England and Wales
Citing:
Appeal from – London Borough of Lambeth v Loveridge CA 10-May-2013
The Council had been found to have unlawfully evicted the respondent, and now appealed against the calculation of statutory damages awarded. It said that the court should in its valuation have allowed for the propensity for a move from a secure . .
Cited – Raja Vyricherla Narayana Gajapathiraju v Revenue Divisional Officer, Vizagapatam PC 23-Feb-1939
Land adjoining a harbour at Vizagapatam which at that time was malarial was to be valued for compulsory purchase. The land contained a spring of clean water. The only potential purchaser of the special adaptability of the land as a water supply was . .
Cited – Tagro v Cafane and Another CA 23-Jan-1991
The private landlord held premises under a lease from a local authority which prohibited sub-letting and assignment. He sub-let to the plaintiff and then unlawfully evicted her. He appealed against an award to her of statutory damages, submitting . .
Cited – Wandsworth London Borough Council v Osei-Bonsu CA 22-Oct-1998
Where one joint tenant had given notice and the landlord mistakenly excluded the other tenant, the husband, from possession, the landlord could not rely on the defence of ‘reasonable cause’. The tenant has the choice of possession or statutory . .
Cited – AA v London Borough of Southwark QBD 14-Oct-2014
The claimant sought damages after, he said, being unlawfully evicted by the respondent.
Held: The authority had behaved unlawfully and officers had conspired to evict the claimant at any cost. . .

Lists of cited by and citing cases may be incomplete.

Housing, Damages

Leading Case

Updated: 10 November 2021; Ref: scu.539566

Ministry of Defence v Fletcher: EAT 9 Oct 2009

mod_fletcherEAT2009

EAT SEX DISCRIMINATION
Injury to feelings
SEXUAL ORIENTATION DISCRIMINATION
Where there is overlap between the basis of aggravated damages and compensation for injury to feelings, double counting should be avoided but a reasonable sum may be awarded for uncompensated aggravating elements of the conduct which forms the basis of the awards – Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 paragraph 68 applied. Conduct of proceedings justified part of the award of aggravated damages – Zaiwalla and Co v Walia [2002] IRLR 697 applied. The ET erred in double counting and failing to have regard to the totality of awards for non-pecuniary loss. Aggravated damages reduced to andpound;8,000.
The basis for the award of exemplary damages – the failure of the Army to provide a mechanism for redress of Ms Fletcher’s complaints – did not cross the high threshold of oppressive, arbitrary or contumelious conduct for making such an award – Kuddus v Chief Constable of Leicestershire [2002] AC 122 applied. Further there was no proper basis for the amount of the award of andpound;50,000, arrived at by aggregating the amount awarded in compensation for injury to feelings and aggravated damages. Award of exemplary damages set aside.

Slade J
[2009] UKEAT 0044 – 09 – 0910, [2010] IRLR 25
Bailii
Citing:
Cited – Zaiwalla and Co (a Firm) v Walia EAT 24-Jul-2002
The claimant sought aggravated damages for the aggressive way the respondent firm had defended her action for sex discrimination.
Held: In exceptional circumstances, and this was one, the tribunal could award additional damages where a . .
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Cited – Okonu v G4S Security Services (UK) Ltd EAT 11-Feb-2007
EAT Race discrimination
The burden of proof in section 54A of the Race Relations Act 1976 does not apply to cases of direct discrimination on the grounds of nationality or colour. In such cases the less . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Damages

Updated: 09 November 2021; Ref: scu.375966

Attorney-General v Guardian Newspapers Ltd: QBD 1988

A Mr Peter Wright had written a book about his service in MI5. The Crown sought to restrain publication of the book by newspapers and also, as against The Sunday Times, an account of profits.
Held: As to this latter Scott J, said: ‘I had supposed that the claim against ‘The Sunday Times’ for an account would be based on the proposition that in equity the Crown should be treated as the owner of the copyright. Prima facie, this approach would seem to have some merit. If Mr. Wright in writing the book was acting in breach of a continuing duty of confidence and fidelity that he owed to the Crown, there would, in my view, be a strong argument for regarding the product of the breach of duty as belonging in equity to the Crown. If that were so, and on the footing that ‘The Sunday Times’ could not claim to be a bona fide purchaser without notice of the Crown’s equity, it would follow that ‘The Sunday Times’ would be accountable to the Crown for any profit it made in serialising Spycatcher. It would also follow that the Crown would, in this jurisdiction at least, be entitled to prevent further publication of the book by anyone who could be shown to be on notice of the Crown’s equity. The Crown would be entitled to do so on straightforward proprietary grounds. The equitable owner of copyright in a book can choose to suppress the book and forego any profit therefrom if he chooses’.

Scott J
[1988] 2 WLR 805
England and Wales
Citing:
See Also – Attorney General v Guardian Newspapers Ltd (No.1) HL 13-Aug-1987
A retired secret service officer intended to publish his memoirs through the defendant. The house heard an appeal against a temporary injunction restraining publication.
Held: Lord Bridge delivered his dissenting speech in the case of . .

Cited by:
Appeal from – Attorney-General v Guardian Newspapers Ltd CA 2-Jan-1988
A former employee of the Secret Service had written a book (‘Spycatcher’). The AG sought several remedies including damages against a newspaper for serialising it. Dillon LJ said: ‘It has seemed to me throughout the hearing of this appeal that there . .
At First Instance – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Twentieth Century Fox Film Corp and Others v Harris and Others ChD 5-Feb-2013
The court was asked whether a copyright owner has a proprietary claim to money derived from infringement of the copyright.
Held: He did not. No such argument could be shown to have suceeded before. . .

Lists of cited by and citing cases may be incomplete.

Media, Contempt of Court, Damages, Equity

Leading Case

Updated: 09 November 2021; Ref: scu.473039

Bacciottini and Another v Gotelee and Goldsmith (A Firm): CA 18 Mar 2016

A property subject to a planning condition was purchased by the appellant under the advice of the respondent, who failed to notify him of the existence of a planning condition. The judge had awarded the claimant pounds 250 being the cost of the successful application for the removal of the condition. The claimant sought pounds 100,000, being the difference in value before the application succeeded.
Held: The appeal failed. The later removal of the condition meant that the claimant had not suffered the losses alleged.

David, Lloyd Jones, Underhill LJJ
[2016] EWCA Civ 170, [2016] WLR(D) 152, [2016] 4 WLR 98, [2016] PNLR 22
Bailii, WLRD
England and Wales
Citing:
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to 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 – Philips v Ward CA 1956
The Plaintiff had relied on a negligent survey to purchase a substantial Elizabethan property and land. The report did not mention that the timbers of the house were badly affected by death watch beetle and worm so that the only course left to him . .
Cited – County Personnel (Employment Agency) Ltd v Alan R Pulver and Co (a Firm) CA 1987
The claimant sought damages after his negligent solicitors had saddled him with a ruinous underlease. They had had to buy themselves out of the lease. The court considered the date at which damages were to be calculated.
Held: The starting . .
Cited – Hussey v Eels CA 1990
Profits made on development were not deductible
The purchasers of a property for a price of 53,250 pounds had relied on a negligent misrepresentation that the property had not been the subject of subsidence. In fact it had. The cost of the required works was 17,000 pounds, which they could not . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Wapshott v Davis Donovan and Co CA 1996
The defendant solicitors had negligently in 1986 failed to advise purchasers that there was no good title to part (an extension over an adjoining property) of a leasehold flat which they were buying. The problem came to light in 1988 when they . .
Cited – Kennedy v K B Van Emden and Co; Jordan v Gershon Young Finer and Green and Similar CA 27-Mar-1996
A solicitor failed in 1983 to advise a purchaser of the fact that premium she was paying on purchasing a leasehold flat was unlawful under the Act, and would be unrecoverable on the sale. Before trial however, in 1989 the law changed and the premium . .
Cited – Gardner v Marsh and Parsons (a Firm), Dyson CA 2-Dec-1996
Damages awarded against a surveyor for a negligent survey which had missed certain defects, were not to be reduced for repairs later carried out by the landlord at his own expense. The trial judge decided to award damages reflecting the difference . .

Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 09 November 2021; Ref: scu.561202

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 against a builder at the cost of recreating a swimming pool which would fit the initial description.
Held: The appeal succeeded. The damages award was disproportionate, and should have been limited to the loss of amenity only. The cost of reinstatement or reconstruction may be an inappropriate standard if it was disproportionate to the loss. ‘There are not two alternative measures of damages, as opposite poles, but only one; namely, the loss truly suffered by the promisee.’ Where the defect is minor it may be appropriate for an award for disappointed expectation rather than any difference in value. The fact that such damages could not be calculated mathematically did not mean they could not be calculated.
HL Lord Jauncey of Tullichettle said: ‘Damages are designed to compensate for an established loss and not provide a gratuitous benefit for an aggrieved party from which it follows that the reasonableness of an award of damages is to be linked directly to the loss sustained does not extend to the need to reinstate.’ and
‘What constitutes the aggrieved party’s loss is in every case a question of fact and degree. Where the contract breaker has entirely failed to achieve the contractual objective it may not be difficult to conclude that the loss is the necessary cost of achieving that objective. Thus if a building is constructed so defectively that it is of no use for its designed purpose the owner may have little difficulty in establishing that his loss is the necessary cost of reconstructing. Furthermore in taking reasonableness into account in determining the extent of loss it is reasonableness in relation to the particular contract and not at large.’
Lord Mustill stated: ‘the law must cater for those occasions where the value of the promise to the promisee exceeds the financial enhancement of his position which full performance will secure. This excess . . is usually incapable of precise valuation in terms of money, exactly because it represents a personal, subjective and non-monetary gain. Nevertheless where it exists the law should recognise it and compensate the promisee if the misperformance takes it away . . [I]n several fields the judges are well accustomed to putting figures to intangibles, and I see no reason why the imprecision of the exercise should be a barrier, if that is what fairness demands.’

Lord Mustill, Lord Lloyd of Berwick, Lord Jauncey of Tullichettle
Independent 12-Jul-1995, Gazette 06-Sep-1995, Times 03-Jul-1995, [1996] 1 AC 344, [1995] 3 WLR 118, [1995] UKHL 8, [1995] CLC 905, [1995] 3 All ER 268
Bailii
England and Wales
Citing:
Appeal from – Ruxley Electronics and Construction Ltd v Forsyth CA 7-Jan-1994
In 1986, the defendant, wanted a swimming pool adjoining his house. He contracted with the plaintiffs. The contract price for the pool, with certain extras, was 17,797.40 pounds including VAT. The depth of the pool was to be 6 ft 6 in at the deep . .
Considered – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Considered – Jacob and Youngs v Kent 1921
. .
Considered – 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 – 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 – 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 – 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 – Jacob and Youngs Inc v Kent 1921
Court of Appeals of New York. A building contract specified that the plumbing should use a particular type of piping. In fact the builder used a different type of piping. Cardozo J. stated: ‘In the circumstances of this case, we think the measure of . .
Cited – Bellgrove v Eldridge 1954
High Court of Australia. The builder built a house with defective foundations, as a result of which the house was unstable. The building owner brought an action against the builder claiming the cost of reinstatement.
Held: His claim succeeded . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
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 – Minscombe Properties Ltd v Sir Alfred McAlpine and Sons Ltd CA 1986
O’Connor LJ applied the test of reasonableness in determining whether the cost of reinstatement of land to its contracted for condition should be recoverable as damages. . .
Cited – Imodco Ltd v Wimpey Major Projects Ltd CA 1987
Glidewell LJ stated that the cost of work to put pipes in the position contracted for would be recoverable if there was an intention to carry out the work and if it was reasonable so to do. . .
Cited – Mottram Consultants Ltd v Bernard Sunley and Sons Ltd HL 1975
Stone panels which had been fixed to the external walls of a school fell off, owing to defective fixing by the contractor.
Held: The contractor was liable for the cost of reinstating the stone panels, calculated at the date when the defect was . .
Cited – G W Atkins Ltd v Scott CA 1980
A building owner complained of defective tiling installed by the appellant. He claimed the cost of retiling the whole roof. The county court judge found that the tiling was defective, but that the defects were mostly cosmetic and of a minor . .
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 – Channel Island Ferries Ltd v Cenargo Navigation Ltd (The Rozel) QBD 5-Apr-1994
Arbitrator to award all costs even if award much less than original claim.
Phillips J said: ‘It is always necessary to exercise the greatest care before applying the reasoning in one case to a different factual situation, and this is . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd CA 28-Jun-1994
The plaintiff council complained of the work done for it by the defendant builder.
Held: Steyn LJ said: ‘in the case of a building contract, the prima facie rule is cost of cure, i.e., the cost of remedying the defect: East Ham Corporation v. . .
Cited – Jarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
Cited – Jackson v Horizon Holidays Ltd CA 5-Feb-1974
A family claimed damages for a disappointing holiday. The generous measure of damages given to the father was that the father was being fully compensated for his own mental distress, but the rule of privity of contract operated to bar the claim for . .
Cited – Sealace Shipping Co Ltd v Oceanvoice Ltd, The Alecos M CA 1991
The parties contracted for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for secondhand propellers. So the only way of providing a spare . .

Cited by:
Cited – Farley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
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 – Catlin Estates Ltd and Another v Carter Jonas (A Firm) TCC 31-Oct-2005
The defendants had been employed to manage a building project which it was said went wrong. The court had to consider several different factual claims. . .
Cited – Latimer and Another v Carney and others CA 27-Oct-2006
The landlords appealed disissal of their request for relief against their tenants for non-repair of the premises. The judge had held that the landlord had not provided appropriate evidence of the damage and costs of repair which it claimed.
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Regus (Uk) Ltd v Epcot Solutions Ltd ComC 4-May-2007
Claim for unpaid fees for the use of serviced office accommodation and a very large counter-claim for mis-representation and breach of contract over allegedly defective air conditioning. . .
Cited – Dobson and others v Thames Water Utilities Ltd and Another CA 29-Jan-2009
The claimants complained of odours and mosquitoes affecting their properties from the activities of the defendants in the conduct of their adjoining Sewage Treatment plant. The issue was as to the rights of non title holders to damages in nuisance . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

Lists of cited by and citing cases may be incomplete.

Construction, Damages, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.88938

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 decisions of the House of Lords and Privy Council. The essential test remains that of close connection with the acts which the worker was employed to do. When one applies this test the employer was vicariously liable for the shooting and the judge was quite justified in so holding. The appeal was allowed, but the damages award was adjusted

Lord Bingham of Cornhill, Lord Clyde, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2004] UKPC 56
Bailii, PC
Commonwealth
Citing:
Cited – Radley v London Council 1909
. .
Cited – Vasey v Surrey Free Inns Plc CA 5-May-1995
The claimant had been refused entry to the nightclub and in a temper he had kicked the door and damaged glass in it. Employees of the defendants’ nightclub, two employed as doormen, pursued the group of whom the claimant was one, to a public car . .
Cited – Poland v Parr (John) and Sons CA 1926
A carter, who had handed over his wagon and was going home to his dinner, struck a boy whom he suspected, wrongly but on reasonable grounds, of stealing his master’s property.
Held: The master was responsible. A servant has implied authority, . .
Cited – Daniels v Whetstone Entertainments Ltd 1962
Allender, a steward at a dance hall, and employed to keep order, assaulted a customer inside the hall in the mistaken belief that he had previously been himself assaulted by the customer. Allender explicitly rejected his employer’s instructions to . .
Cited – Keppel Bus Co v Ahmad PC 20-May-1974
Singapore – The respondent, the plaintiff was a passenger in a bus belonging to the appellants. They employed as conductor of the bus the second defendant. The conductor treated an elderly lady passenger in a high-handed and rude fashion. The . .
Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Cited – Bernard v The Attorney General of Jamaica PC 7-Oct-2004
PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . .
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – ST v North Yorkshire County Council CA 14-Jul-1998
The court considered the liability of the respondent for sexual assaults committed by an employee teacher when taking students on school trips.
Held: The Local Authority was not vicariously liable for sexual assault committed by employee . .
Cited – 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.
Cited – The Attorney General v Hartwell PC 23-Feb-2004
PC (The British Virgin Islands) A police officer had taken the police revolver, and used it to shoot the claimant. It was alleged that the respondent police force were vicariously liable for his acts and also . .

Cited by:
Cited – Subiah v The Attorney General of Trinidad and Tobago PC 3-Nov-2008
(Trinidad and Tobago) The Board considered the extent of damages for infringement of the claimant’s constitutional rights. He had been on board a bus. He complained when a policeman was allowed not to buy a ticket. The same constable arrested him as . .
Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
Cited – Mohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .

Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Personal Injury, Damages

Updated: 09 November 2021; Ref: scu.220293

Downs and Another v Chappell and Another: CA 3 Apr 1996

The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: Where a plaintiff has been induced to enter into a transaction by a misrepresentation, whether fraudulent or negligent, he is entitled to recover as damages the amount of the (consequential) loss which he has suffered by reason of entering into the transaction. The principle is the same. Where the representation relates to the profitability and, by necessary inference, the viability of the business, the plaintiff can recover both his income and his capital losses in the business.
‘Causation and the assessment of damages is a matter of fact. In a misrepresentation case, where the plaintiff would not have entered into the transaction, he is entitled to recover all the losses he has suffered, both capital and income, down to the date that he discovers that he had been misled and he has an opportunity to avoid further loss. The diminution in value test will normally be inappropriate. Where what is bought is a business the losses made in the business are prima facie recoverable as is the reduction in the value of the business and its premises. Foreseeable market fluctuations are not too remote and should be taken into account either way in the relevant account. These cases do not however discuss whether there is any question of causation beyond the no-transaction test. In my judgment it may still be necessary to consider whether it can fairly and properly be said that all the losses flowing from the entry into the transaction in question were caused by the tort of the defendant. ‘

Butler-Sloss, Roch, Hobhouse LJJ
[1996] EWCA Civ 1358, [1996] 3 All ER 344, [1996] CLC 1492, [1997] 1 WLR 426
Bailii
England and Wales
Citing:
Cited – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .
Cited – Esso Petroleum Company Ltd v Mardon CA 6-Feb-1976
Statements had been made by employees of Esso in the course of pre-contractual negotiations with Mr Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the station. Mr Mardon was persuaded by the . .
Cited – County Personnel (Employment Agency) Ltd v Alan R Pulver and Co (a Firm) CA 1987
The claimant sought damages after his negligent solicitors had saddled him with a ruinous underlease. They had had to buy themselves out of the lease. The court considered the date at which damages were to be calculated.
Held: The starting . .
Cited – Hayes and Another v Dodd CA 7-Jul-1988
The court considered what damages might be paid for inconvenience and distress. . .
Cited – Naughton v O’Callaghan 1990
Damages Award to Restore Plaintiff’s Poistion
In 1981 the plaintiffs had bought a thoroughbred yearling colt called ‘Fondu’ for 26,000 guineas. In fact a mistake had been made and its pedigree was not as represented. Its true pedigree made it suitable only for dirt track racing in the United . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – The United Motor Finance Company v Messrs Addison and Company Limited PC 10-Dec-1936
(Madras) ‘Nor can they [the dealers] modify the resulting damages on the footing that though in the absence of misrepresentation the plaintiff firm [the finance company] would not have made the contract with the defendants [the dealers] or with the . .
Cited – Phillips v Ward CA 1956
A negligent survey had been provided to prospective purchasers of a house. It would have cost andpound;7,000 to put the property into the condition in which it had been described in the report.
Held: The correct measure of damages was not . .
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 – 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 – 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 – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – East v Maurer CA 1991
The plaintiffs had bought a hair dressing salon from the defendant, who continued to trade from another he owned, despite telling the plaintiffs that he intended not to. The plaintiffs lost business to the defendant. They invested to try to make a . .
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 – Corporation of Sheffield v Barclay and Others HL 3-Jul-1905
Lord Davey said: ‘I think that the appellants [Sheffield Corporation] have a statutory duty to register all valid transfers, and on the demand of the transferee to issue to him a fresh certificate of title to the stock comprised therein. But, 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 . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages

Leading Case

Updated: 09 November 2021; Ref: scu.567829

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 providing future samples. They appealed a finding that they they had no losses, based on the suggestion that the 1990 Act so circumscribed the management of the samples as to deny any assertion of a proprietary interest in the samples. They claimed psychological injury and losses.
Held: The appeal was allowed. The hospital owed the claimants a duty of care. The concept of ownership is no more than a convenient global description of different collections of rights held by persons over physical and other things. The men owned the specimens. The Act itself required expicit consent from the donors for various acts, and this itself acknowledged rights. Doodward was framed as an exception to the common law rule, and was not a good basis for the modern law. The common law needed re-examination.
The court considered and set out the law of bailment as it might apply to the case. The defendants were bailees.

Lord Judge CJ, Sir Anthony Clarke MR, Wilson LJ
[2009] EWCA Civ 37, Times 10-Feb-2009, [2009] WLR (D) 34, (2009) 107 BMLR 47, [2009] LS Law Medical 126, [2009] 2 All ER 986, [2009] 3 WLR 118, [2010] 1 QB 1
Bailii
Human Fertilisation and Embryology Act 1990
England and Wales
Citing:
Cited – Walkin v South Manchester Health Authority CA 3-Jul-1995
A claim for damages for an unwanted pregnancy occurring after a failed sterilisation. The plaintiff claimed damages for her economic losses. She issued only four years after the birth.
Held: The limitation period ran from the date of . .
Cited – Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) HL 24-Apr-1985
The plaintiff contracted to buy a cargo to be shipped on the defendant’s vessel. Because of poor stowage, the cargo was damaged. At the time of the damage the claimant was neither the owner nor possessor of the cargo, but under the terms of the . .
Cited – Williams v Williams 1882
By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
Cited – Doodeward v Spence 1908
(High Court of Australia) The police seized from an exhibitor the body of a two headed still born baby which had been preserved in a bottle.
Held: An order was made for its return: ‘If, then, there can, under some circumstances, be a continued . .
Cited – Regina v Kelly; Regina v Lindsay CACD 21-May-1998
Kelly was an artist allowed to draw anatomical specimens at the hospital, and Lindsay was a technician. They removed body parts from the hospital, and now appealed their convictions for theft.
Held: There is an exception to the traditional . .
Cited – Bentham, Regina v HL 10-Mar-2005
In the course of a theft, the defendant had held his fingers in his pocket so as to suggest that he had a gun. He appealed conviction for possessing an imitation firearm.
Held: ‘Rules of statutory construction have a valuable role when the . .
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 – Coggs v Bernard 1703
The defendant had care of the plaintiff’s cask of brandy. He broke the cask and spilt the brandy.
Held: A bailment can exist notwithstanding that it is gratuitous, i.e. without consideration passing from the bailor to the bailee. The . .
Cited – Evans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB CA 6-Feb-1997
At the applicant’s request samples of sperm were taken from her husband hours prior to his death, when he was in a coma.
Held: Sperm cannot lawfully be taken from a comatose man in order later to allow his surviving wife to be artificially . .
Cited – Midland Silicones Ltd v Scruttons Ltd QBD 1959
A bailment arises when, albeit on a limited or temporary basis, the bailee acquires exclusive possession of the chattel or a right thereto. . .
Cited – Midland Silicones Ltd v Scruttons Ltd CA 1960
. .
Cited – Gilchrist Watt and Sanderson Pty Ltd v York Products Pty Ltd PC 1970
(New South Wales – Australia) The defendants were stevedores who had lost two cases of clocks that they had received as sub-bailees of the shipowners, who in turn owed a duty to deliver them to the plaintiffs under the bills of lading.
Held: . .
Cited – Midland Silicones Ltd v Scruttons Ltd HL 6-Dec-1961
The defendant stevedores, engaged by the carrier, negligently damaged a drum containing chemicals. When the cargo-owners sued in tort, the stevedores unsuccessfully attempted to rely on a limitation clause contained in the bill of lading between the . .
Cited – Port Swettenham Authority v T W Wu and Co (M) Sdn Bhd PC 19-Jun-1978
A gratuitous bailee assumes a duty to take reasonable care of the chattel: ‘This standard, although high, may be a less exacting standard than that which the common law requires of a bailee for reward [but] the line between the two standards is a . .
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 – Attia v British Gas CA 26-Jun-1987
The defendant set the plaintiff’s house on fire when installing central heating. She claimed damages for the shock she suffered on hearing of the fire.
Held: The plaintiff could recover damages for psychiatric injury she suffered when the . .
Cited – Jarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
Cited – Farley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .

Lists of cited by and citing cases may be incomplete.

Health, Damages, Personal Injury, Agency

Updated: 09 November 2021; Ref: scu.280434

D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others: QBD 31 Mar 2009

The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed was for economic loss. The number of people who would be brought within the scope of the duty of care asserted by the claimanst was too numerous. The claimants had no real prospect of succeeding, and the claim was struck out.

Tugendhat J
[2009] EWHC 685 (QB)
Bailii
England and Wales
Citing:
Cited – Morrison Steamship Co Ltd v Greystoke Castle (Cargo Owners) HL 1946
A ship was damaged in a collision. Though their goods were not damaged, the owners of cargo on the first ship became liable to the owners of the ship for a general average contribution. The owners sued the other ship owners for their negligence. The . .
Cited – Weller v Foot and Mouth Disease Research Institute 1966
The plaintiff auctioneers sought damages in negligence from the defendants in having failed to prevent an outbreak of foot and mouth disease which led to damage to their business.
Held: Widgery J said: ‘Mr. Eveleigh says that, since the . .
Cited – Murphy v Brentwood District Council HL 26-Jul-1990
Anns v Merton Overruled
The claimant appellant was a house owner. He had bought the house from its builders. Those builders had employed civil engineers to design the foundations. That design was negligent. They had submitted the plans to the defendant Council for approval . .
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 – Sutradhar v Natural Environment Research Council HL 5-Jul-2006
Preliminary Report of Risk – No Duty of Care
The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .
Cited – Muirhead v Industrial Tank Specialities Ltd CA 31-Jul-1985
The plaintiff reared lobsters in tanks into which seawater was pumped for the purpose of oxygenation. The whole purpose of the pumps was to preserve the health of the lobsters. Due to the negligence of the third defendant, the pumps cut out and the . .
Cited – F and H Contractors v Commercial Union CA 18-May-1993
Contractors had spread fertiliser unevenly on a field preparatory to the planting of a crop of potatoes. The result was ‘striping’, some potatoes showing signs of nutrient deficiency, whilst the remainder grew too quickly, resulting in an overall . .
Cited – Landcatch Ltd v The Braer Corporation and Others OHCS 6-Mar-1998
The pursuers reared salmon eggs to the age of two years (smolt), before then selling them on. The defenders caused an oil spill, and the area was designated as an exclusion zone preventing the pursuers continuing their trade and could not sell their . .
Cited – Landcatch Limited v The Braer Corporation and Williams and Jones and Hudner and Assurance Foreningen Skuld and the International Oil Pollution Compensation Fund IHCS 19-May-1999
The pursuers raised freshwater salmon (smolt) to the age of two before selling them on. An oil spill prevented them trading. They appealed a refusal of damages on the baiss that this was pure relational economic loss.
Held: The appeal failed. . .
Cited – Caltex Oil (Australia) Pty Ltd v Dredge ‘Willemstad’ 9-Dec-1976
Austlii (High Court of Australia) Negligence – Duty of care – Foreseeability of harm – Economic loss not consequential upon damage to person or property – Damage to property of one person – Economic loss suffered . .
Cited – Candlewood Navigation Corporation Limited v Mitsui OSK Lines Limited and Matsuoka Steamship Co Limited PC 1-Jul-1985
(New South Wales) Two ships had collided, after, without negligence, an anchor on one ship failed. The Supreme Court had found the crew negligent after failing to react appropriately to the loss of the anchor. The company now appealed against the . .
Cited – Lojinska Plovidba v Transco Overseas Ltd (The Orjula) 1995
A layer of hydrochloric acid had leaked on to the deck of a ship. The port authorities required the vessel to be decontaminated of the acid before she could sail. The defendants applied to have the claim struck out.
Held: Mance J considered . .
Cited – Perre v Apand Pty Ltd 12-Aug-1999
(High Court of Australia) The plaintiff farmers sought damages for financial losses incurred after the defendant negligently introduced a disease. Although the disease was not shown to have spread, neighbouring farm owners suffered economic loss by . .
Cited – Spartan Steel and Alloys Ltd v Martin and Co (Contractors) Ltd. CA 22-Jun-1972
Damage was negligently inflicted by the defendants on the power line which they knew to be the direct electricity supply to the plaintiff’s factory.
Held: Damages were recovered for depreciation in value of one spoiled melt, plus consequential . .
Cited – Jan De Nul (Uk) Limited v NV Royale Belge CA 10-Oct-2001
The contractor undertook to dredge a stretch of river. Due to its failure to investigate properly, the result was the release of substantial volumes of silt into the estuary, to the damage of other river users and frontagers. The act amounted to a . .
Cited – Transco Plc v United Utilities Water Plc QBD 25-Oct-2005
The defendant’s employee closed off a valve, cutting off the gas supply to the claimant’s customers. The claimant incurred costs investigating and restoring the gas supply.
Held: The tort of wrongful interference with goods was made out. . .
Cited – SCM (United Kingdom) Ltd v W J Whittall and Son Ltd CA 1970
The defendants’ workmen damaged an electric cable belonging to the electricity board, cutting off several factories, including the plaintiff’s. The defendant sought to have the claim struck out.
Held: The part of the claim arising from . .
Cited – Cattle v The Stockton Waterworks 1875
The owner of land had contracted with the plaintiff for him to build a tunnel under a road, along which there was a defective water pipe. The pipe leaked, and when the contractor started to dig, the water that had accumulated under the road flowed . .
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Cited – British Celanese Ltd v A H Hunt (Capacitors) Ltd QBD 1969
Metal foil had been blown from the defendant’s factory premises on to an electricity sub-station, which in turn brought the plaintiff’s machines to a halt.
Held: The meaning Lawton J would give to the phrase ‘direct victim’ was a person whose . .
Cited – R J Tilbury and Sons (Devon) Ltd t/A East Devon Shellfish v Alegrete Shipping Co Inc (Owners of the Ship ‘Sea Empress’), Assurance Foreningen Skuld (Gjensidig) and the International Oil Pollution Compensation Fund 1971 CA 7-Feb-2003
The applicants had a business processing whelks. After the loss of the Sea Empress, an order was made prohibiting the sale of seafood from the area. They appealed a refusal of compensation for their losses. The respondents would be liable to make . .
Cited – Marc Rich and Co Ag and Others v Bishop Rock Marine Co Ltd and Others HL 6-Jul-1995
A surveyor acting on behalf of the classification society had recommended that after repairs specified by him had been carried out a vessel, the Nicholas H, should be allowed to proceed. It was lost at sea.
Held: The marine classification . .
Cited – Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) HL 24-Apr-1985
The plaintiff contracted to buy a cargo to be shipped on the defendant’s vessel. Because of poor stowage, the cargo was damaged. At the time of the damage the claimant was neither the owner nor possessor of the cargo, but under the terms of the . .
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 . .
Cited – Lyons Son and Co v Gulliver CA 1914
The defendants operated the Palladium theatre. People wanting to attend queued either along the footpath or along the roadway itself in front of the premises from which the plaintiff neighbour carried on its business as lace merchants and wholesale . .

Lists of cited by and citing cases may be incomplete.

Agriculture, Torts – Other, Damages, Negligence

Updated: 09 November 2021; Ref: scu.328004

O’Connell v Jackson: CA 7 Jul 1971

Motorcyclist negligent without helmet

The plaintiff sought damages after an accident. The defendant car driver had negligently moved forward into the path of the plaintiff motor cyclist who was injured. The defendant argued that the plaintiff, a motorcyclist, was contributorily negligent in not wearing a crash helmet.
Held: Once the court had established that the plaintiff was contibutorily negligent, it then had to allow both for the extent of his responsibility for the injury and the blameworthiness of his conduct in comparison to that of the defendant in order to assess the proper reduction in damages. The Highway Code was to be relied upon, and that said that a helmet should be worn.

Russell, Edmund Davies, Cairns LJJ
[1972] 1 QB 270, [1971] CLY 3115, [1971] EWCA Civ 5, [1971] 3 All ER 129, [1971] 2 Lloyd’s Rep 354, [1971] 3 WLR 463, [1972] RTR 51, [1971] 2 LLR 354
Bailii
Law Reform (Contributory Negligence) Act 1947 81, Road Traffic Act I960 74
England and Wales
Citing:
Approved – Jones v Livox Quarries CA 25-Apr-1952
The plaintiff had ridden on the back of a kind of tractor in a quarry and in defiance of his employer’s instructions, risking being thrown off and injured. Another vehicle ran into the back of the first vehicle, injuring the plaintiff. He contended . .
Adopted – Jones v Livox Quarries CA 25-Apr-1952
The plaintiff had ridden on the back of a kind of tractor in a quarry and in defiance of his employer’s instructions, risking being thrown off and injured. Another vehicle ran into the back of the first vehicle, injuring the plaintiff. He contended . .
Cited – Davies v Swan Motor Co (Swansea) Ltd CA 1949
A plaintiff brought an action for damages for personal injury against the drivers of two cars.
Held: There are two aspects to apportioning responsibility between a plaintiff and defendant in an action for negligence, the respective causative . .
Cited – Hilder v Associated Portland Cement Co 1961
A motor cyclist was killed after being hit by a ball kicked by a boy playing in a field adjoining the highway.
Held: The failure of the motor cyclist to wear a crash helmet was not contributory negligence on his part, because (a) no advice on . .

Cited by:
Distinguished – Capps v Miller CA 30-Nov-1988
The plaintiff was injured riding with the defendant on a motor-cycle. The defendant drove negligently, and crashed. The plaintiff’s crash hemet came off and he sustained severe head injuries. He had not fastened it. The defendant appealed an . .
Cited – Badger v The Ministry of Defence QBD 16-Dec-2005
The widow of the deceased sought damages after his exposure to asbestos whilst working for the defendant. He had contracted lung cancer. The defendant argued that the deceased had continued to smoke knowing of the risks, and that he had made a . .

Lists of cited by and citing cases may be incomplete.

Negligence, Personal Injury, Damages, Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.216372

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 left unattended. A new factory had to be built. What were the damages to be paid?
Held: The plaintiffs had no choice if they were to continue their business of making plasticine. They were not allowed to rebuild the old mill, so they had to put up a new factory. The defendants said that damages should be limited to the difference in the value of the old mill before and after the fire and that the plaintiffs should not be allowed the cost of replacing it with a new building. This argument was rejected.
Lord Denning MR: ‘If a second-hand car is destroyed, the owner only gets its value; because he can go into the market and get another second-hand car to replace it. He cannot charge the other party with the cost of replacing it with a new car. But when this mill was destroyed, the plasticine company had no choice. They were bound to replace it as soon as they could, not only to keep their business going, but also to mitigate the loss of profit (for which they would be able to charge to defendants). They replaced it in the only possible way, without adding any extras. I think they should be allowed the cost of replacement. True it is that they got new for old; but I do not think the wrongdoer can diminish the claim on that account. If they had added extra accommodation or made extra improvements, they would have to give credit. But that is not this case.’
Widgery LJ remarks on betterment ‘It was clear in the present case that it was reasonable for the plaintiffs to rebuild their factory, because there was no other way in which they could carry on their business and retain their labour force. The plaintiffs rebuilt their factory to a substantially different design, and if this had involved expenditure beyond the cost of replacing the old, the difference might not have been recoverable, but there is no suggestion of this here. Nor do I accept that the plaintiffs must give credit under the heading of ‘betterment’ for the fact that their new factory is modern in design and materials. To do so would be the equivalent of forcing the plaintiffs to invest their money in the modernising of their plant which might be highly inconvenient for them. Accordingly I agree with the sum allowed by the trial judge as the cost of replacement.’
Cross LJ: ‘I can well understand that if the plaintiffs in rebuilding the factory with a different and more convenient lay-out had spent more money than they would have spent had they rebuilt it according to the old plan, the defendants would have been entitled to claim that the excess should be deducted in calculating the damages. But the defendants did not call any evidence to make out a case of betterment on these lines and we were told that in fact the planning authorities would not have allowed the factory to be rebuilt on the old lines. Accordingly, in my judgment, the capital sum awarded by the judge was right.’

Lord Denning MR, Widgery LJ, Cross LJ
[1970] 1 QB 447, [1970] 1 All ER 225, [1970] 2 WLR 198, [1970] 1 Lloyds Rep 15
England and Wales
Cited by:
Cited – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Cited – 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 – 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 – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Cited – Glen Haysman v Rogers Films Ltd QBD 28-Oct-2008
The claimant sought payment for damages to his property after he had hired it out to a film production company.
Held: the claim for repair of damage to the driveway did not include any element of improvement. . .
Cited – Stocznia Gdynia Sa v Gearbulk Holdings Ltd CA 13-Feb-2009
Orders were placed for the construction of ships. They were not delivered. The buyer, the defendant, cancelled the orders. The defendants sought the loss of profit. The claimants said they were entitled only to the repayment of instalments. The . .
Cited – Petroleo Brasileiro Sa v Ene Kos 1 Ltd (‘The MT Kos’) SC 2-May-2012
The MT Kos had been chartered by the appellants. The respondents failed to make payments, and notice was given to withdraw the vessel. The contract said that such a notice was without prejudice to any claim. At the time, the vessel was laden. The . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .

Lists of cited by and citing cases may be incomplete.

Damages

Leading Case

Updated: 09 November 2021; Ref: scu.188638

R and M Gaskarth v Mooney and Another (Unfair Dismissal : Compensation): EAT 5 Aug 2013

gaskarth_mooneyEAT082013

EAT UNFAIR DISMISSAL
Compensation
Mitigation of loss
The Respondents sought to challenge the award of compensation awarded to a husband and wife who had been summarily and unfairly dismissed from their jobs running the Golden Lion. The first challenge was based on the argument that the award for loss of earnings covered a period during which the wife was unable to work not because of depression caused by the dismissal but because of organic symptoms not so caused and the husband, in not working in order to look after his wife, was away from work for reasons not attributable to the dismissals.
On that ‘attribution issue’, the Employment Tribunal had found that the depression caused the disputed absence ‘in no small part’. The correct test, derived from the Court of Session’s decision in Dignity Funerals v Bruce ([2005] IRLR 189) (which was not cited to the ET) is -was the loss caused by the dismissal ‘to any material extent’. The ET applied a more stringent test. It was open to them on the evidence, applying that test, to find in the wife’s favour. If the appeal failed in her case, it must fail in the husband’s case too.
There was a second issue as to whether the ET had, in calculating their awards, permitted to each Claimant a small sum by way of double recovery. On proper examination, it became clear that they had not done so.

Jeffrey Burke QC
[2013] UKEAT 0196 – 12 – 0508
Bailii
England and Wales

Employment, Damages

Updated: 09 November 2021; Ref: scu.514291

Wallis v Smith: CA 1882

Jessel MR said: ‘You may depart from the literal meaning of words, if reading the words literally leads to an absurdity.’ and ‘It has always appeared to me that the doctrine of the English law as to non-payment of money – the general rule being that you cannot recover damages because it is not paid by a certain day, is not quite consistent with reason. A man may be utterly ruined by the non-payment of a sum of money on a given day, the damages may be enormous, and the other party may be wealthy.’
He dealt with the question of whether a sum of money was a penalty or liquidated damages, saying: ‘I now come to the last class of cases. There is a class of cases relating to deposits. Where a deposit is to be forfeited for the breach of a number of stipulations, some of which may be trifling, some of which may be for the payment of money on a given day, in all those cases the Judges have held that this rule does not apply, and that the bargain of the parties is to be carried out. I think that exhausts the substance of the cases.’ However, he also observed that ‘The ground of that doctrine I do not know’

Sir George Jessel MR
(1882) 21 Ch D 243
England and Wales
Cited by:
Cited – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Leading Case

Updated: 09 November 2021; Ref: scu.440840

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 rate to a drama teacher’s pay rate.

Nourse LJ, Otton LJ, Chadwick LJ
Times 22-Jul-1998, Gazette 29-Jul-1998, [1998] EWCA Civ 1030, [1998] PIQR Q146
Bailii
England and Wales
Cited by:
Cited – Herring v Ministry of Defence CA 10-Apr-2003
The claimant had suffered serious injury in a parachuting accident which deprived him of the opportunity of pursuing his chosen career in the police force. The judge found ‘to the extent of virtual certainty’ that he would have applied to join the . .
Cited – Dixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Brown v Ministry of Defence CA 10-May-2006
Claim for injury suffered whilst training in Army. The claimant was committed to a career in the Army, and had anticipated promotion. She complained that her loss of pension rights had been calculated at a rate to reflect an average length career. . .
Cited – Lawson v Glaves-Smith, Executor of the Estate of Dawes (Deceased) QBD 14-Nov-2006
The claimant sought damages saying that she had been falsely imprisoned, raped and drugged by the defendant who had since died.
Held: The court had only the evidence of the claimant, and must be careful in examining it. On that evidence the . .
Cited – Collett v Smith and Another QBD 11-Aug-2008
The claimant had been an eighteen year old playing football for Manchester United reserves when he was injured by a foul tackle which ended his football career. The defendant admitted liability, but denied that he would have gone on to be a premier . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Leading Case

Updated: 09 November 2021; Ref: scu.80116

Williams v Williams (The Estate of): CA 30 Apr 2013

A child aged three had been injured as a passenger in her mother’s car when it was hit by another negligently driven vehicle. The mother appealed against a finding that she was 25% contributorily negligent in that the child seat used had been inappropriate.
Held: The appeal failed. The judge had approached the matter correctly. He had doubted the choice of restraint, but causation issues cannot be considered in a vacuum, and the actual circumstances matter, and ‘the judge directed himself properly as to the issue he had to decide which revolved around this particular child in this particular car in which there were two alternative child seats available. He was right to reject an enquiry into what would have happened to the hypothetical child.’

Arden, Elias, Black LJJ
[2013] EWCA Civ 455
Bailii
Civil Liability (Contribution) Act 1978
England and Wales
Citing:
Cited – Froom v Butcher CA 21-Jul-1975
The court asked what reduction if any should be made to a plaintiff’s damages where injuries were caused not only by the defendant’s negligent driving but also by the failure of the plaintiff to wear a seat belt. It had been submitted that, since . .
Cited – Jones (A Minor) v Wilkins (Wynn and Another, Third Parties) CA 6-Feb-2001
Where a child had not been properly restrained by a seat belt, the damages should be reduced but not by a great percentage. Here, although the child was partially restrained by sharing her mother’s lap belt, in fact this had made the injuries worse. . .
Cited – Capps v Miller CA 30-Nov-1988
The plaintiff was injured riding with the defendant on a motor-cycle. The defendant drove negligently, and crashed. The plaintiff’s crash hemet came off and he sustained severe head injuries. He had not fastened it. The defendant appealed an . .
Cited – Perry and Another v Harris (A Minor) CA 31-Jul-2008
The defendant had organised a children’s party. The claimant (11) was injured when a bigger boy was allowed to use the bouncy castle at the same time. The defendants appealed the award of damages.
Held: The appeal succeeded. The relevant . .
Cited – Stanton v Collinson CA 24-Feb-2010
The defendant driver appealed against a refusal to reduce the claimant’s damages for contributory negligence. The claimant sat in the front seat and was severely injured in the accident, but had not been wearing a seat belt.
Held: ‘there is a . .

Lists of cited by and citing cases may be incomplete.

Damages, Negligence

Updated: 09 November 2021; Ref: scu.478065

Somerville v Scottish Ministers: HL 24 Oct 2007

The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; whether time ran from the date of the first breach, whether want of proportionality is a relevant complaint of unlawfulness at common law, and whether claims for public interest mmunity had been properly allowed.
Held: Under the Human Rights Act 1988, a claim must be brought within one year. Two means were provided of seeking a remedy when the Scottish Executive acted outside its competence. That one choice might sidestep a limitation was no bar to using it. Damages may be payable for a breach of the Scotland Act.
The court must acknowledge the distinction between the acts of the governor of the prison and of the Scottish ministers. The time bar in section 7(5)(a) HRA did not apply to the proceedings as drafted because the petitioners’ case was that the acts of the Scottish Ministers were outside the limits of their devolved competence in terms of the Scotland Act.
The court should itself have examined the documents for which public interest immunity was claimed before allowing that claim.

Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Mance
[2007] UKHL 44, 2007 SC 140, [2007] 1 WLR 2734, 2007 GWD 37-656, 2008 SC (HL) 45, 2007 SLT 1113, [2008] UKHRR 570, (2007) 151 SJLB 1398, [2008] HRLR 3, 2007 SCLR 830
Bailii
Human Rights Act 1998 7(5), European Convention on Human Rights, Scotland Act 1998 100
Scotland
Citing:
Appeal from – Somerville, Cairns, Ralston, Blanco and Henderson v The Scottish Ministers OHCS 3-Nov-2006
. .
Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – Carltona Ltd v Commissioners of Works CA 1943
Ministers May Act through Civil Servants
The plaintiffs owned a factory which was to be requisitioned. They sought a judicial review of the lawfulness of the order making the requisition, saying that the 1939 Regulations had been implemented not by the Minister as required, but by an . .
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
Cited – Regina v Secretary of State for the Environment, ex parte Nottinghamshire County Council HL 12-Dec-1985
The House heard a judicial review of the Secretary of State’s assessment of the proper level of expenditure by a local authority.
Held: A ‘low intensity’ of review is applied to cases involving issues ‘depending essentially on political . .
Cited – Regina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
Cited – Regina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .
Cited – Vilvarajah and Others v The United Kingdom ECHR 30-Oct-1991
Five Tamils were refused asylum in the UK and returned to Sri Lanka but then continued to suffer ill-treatment. Their complaints to Strasbourg were rejected under both Articles 3 and 13, but with regard to Article 3, it held: ‘108. The court’s . .
Cited – Sempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame Ltd and others (No 5) HL 28-Oct-1999
A member state’s breach of European Law, where the law was clear and the national legislation had the effect of discriminating unlawfully against citizens of other members states, was sufficiently serious to justify an award of damages against that . .
Cited – Francovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .
Cited – F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
Cited – Girvan v Inverness Farmers Dairy and Another HL 13-Nov-1997
(Scotland) A second re-trial in order to obtain a jury assessment of damages more in line with that assessed by judges would be wrong. Lord Clyde: ‘In a system in which damages may be assessed in different cases either by a jury or by a judge it is . .
Cited – Regina v HM Advocate and The Advocate General for Scotland PC 28-Nov-2002
(The High Court of Justiciary) The prosecution had accepted that the matter had been the subject of unreasonable delay, but wished to continue. The defendant sought a plea in bar, on the basis that continuing would infringe his rights.
Held: . .
Cited – Balfour v Foreign and Commonwealth Office CA 10-Dec-1993
A judge may choose not to inspect the documents behind a Public Interest immunity certificate if that certificate had been given for reasons of National Security. The court must always be vigilant to ensure that public interest immunity of whatever . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – 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 – O’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .
Cited – King v East Ayrshire Council IHCS 3-Nov-1997
An application for the closure of a school need not be based upon an assessment of school’s pupil capacity as at time of assessment. The court may exercise its discretion to refuse judicial review where that is appropriate, having regard to the . .
Cited – Leech v Governor of Parkhurst Prison HL 1988
The House was asked whether a disciplinary decision by a governor was amenable to judicial review.
Held: The functions of a governor adjudicating upon disciplinary charges are separate and distinct from his functions in running the prison; . .
Cited – Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Brasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Attorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
Cited – Regina v Governor of Her Majesty’s Prison Brockhill ex parte Evans (No 2) HL 27-Jul-2000
The release date for a prisoner was calculated correctly according to guidance issued by the Home Office, but case law required the guidance to be altered, and the prisoner had been detained too long. The tort of false imprisonment is one of strict . .

Cited by:
Cited – Cameron and Another v Hughes Dowdall SCS 28-Oct-2008
The pursuer sought damages for negligence by his solicitors. They had sold their business, but the solicitors were said to have failed to include in their contracts clauses necessary for their protection. The defenders claimed that the action should . .
Cited – Axa General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
axaReSCS201
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Jude v Her Majesty’s Advocate SC 23-Nov-2011
The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of . .
Cited – Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
Cited – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
Cited – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – O’Connor v Bar Standards Board SC 6-Dec-2017
The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Damages, Limitation

Leading Case

Updated: 09 November 2021; Ref: scu.260315

Adelson and Another v Associated Newspapers Ltd: QBD 19 Dec 2007

Applications were launched with in defamation proceedings to seek to recover damages for parties who had not previously been part of the proceedings.
Held: The amendments were refused. The new claimants were now out of time, and it was clear that they had taken steps before the limitation period had expired, but chose to pursue a different and failed approach. Moreover, ‘I accept that Parliament, following the recommendations of the Neill Committee, decided to put in place a more flexible regime, in the sense that the much reduced period of limitation should be balanced by a broader discretion on the court’s part to extend the period, having regard to what is perceived to be ‘equitable’ in all the circumstances of the case. But genuine libel claims must still be pursued with vigour: that is the most important policy consideration underlying the legislative change.’

Eady J
[2007] EWHC 3028 (QB)
Bailii
Defamation Act 1996
England and Wales
Citing:
Cited – D and L Caterers Ltd v D’Ajou 1945
Damages in favour of a corporate body in defamation cases are limited to financial damage. . .
Cited – Grovit and others v Doctor and others HL 24-Apr-1997
The plaintiff began a defamation action against seven defendants. Each had admitted publication but pleaded justification. The claims against the fourth to seventh defendants were dismissed by consent, and the third had gone into liquidation. The . .
Cited – Steedman, Clohosy, Smith, Kiernan, Newman, Creevy, Anderson v The British Broadcasting Corporation CA 23-Oct-2001
The claimants had issued defamation proceedings. The defendant said they were out of time, having begun the action more than one year after the alleged publication, but accepted that they had not been prejudiced in their defence. The court refused . .
Cited – Hartley v Birmingham City District Council CA 1992
The writ was issued one day late; there had been early notification of the claim; and the defendant’s ability to defend the case was unaffected. The plaintiff asked the court to exercide its discretion to allow the claim t proceed.
Held: The . .
See Also – Adelson and Another v Associated Newspapers Ltd QBD 1-May-2007
. .
See Also – Adelson and Another v Associated Newspapers Ltd CA 9-Jul-2007
The claimant sought to add the name of a further claimant. The defendant objected, saying that it was after the expiry of the limitation period.
Held: The claimant was seeking to use the rules for substitution of parties to add a party. In . .

Cited by:
See Also – Adelson and Another v Associated Newspapers QBD 19-Feb-2008
Complaint was made that an article was defamatory of the owner of Manchester United. The defendant now argued that the game was not worth the candle. The costs vastly exceeded any possible recovery, and it had openly offered vindication, and that . .
Cited – Bewry v Reed Elseveir (UK) Ltd and Another QBD 10-Oct-2013
The claimant had begin proceedings against the defendant legal publishers, saying that their summary of a cash had brought was defamatory. He now sought leave to extend the limitation period for his claim, and the defendants argued that, given the . .

Lists of cited by and citing cases may be incomplete.

Defamation, Damages, Limitation

Updated: 09 November 2021; Ref: scu.263254

CIA Barca de Panama SA v George Wimpey and Co Ltd: CA 1980

Claim to Legal Professional Privilege Lost

Barca and Wimpey had been 50/50 joint venturers through the medium of a company called DLW which had provided services to oil companies in the Middle East, including the Aramco Group. Wimpey agreed to buy out Barca’s interest in DLW on terms which included detailed provision for the further conduct of claims against Aramco, including the provision as between Barca and Wimpey of mutual assistance, information, documents and evidence. Acting on DLW’s behalf, Wimpey settled a claim in litigation between DLW and Aramco, and Barca challenged the reasonableness of Wimpey’s settlement. In litigation between Barka and Wimpey, Wimpey claimed legal professional privilege as an answer to the production of documents about the negotiation of the settlement with Aramco.
Held: The claim for privilege was rejected. The terms of the buy-out and cooperation agreement between Barka and Wimpey created such a common interest between those parties in relation to the conduct of the DLW v Aramco proceedings that there could be no confidence or privilege between Wimpey and Barka in relation to the settlement negotiations.
Bridge LJ discussed the position of a solicitor and claims to legal privilege where he had multiple clients: ‘As regards the claim for legal professional privilege, it seems to me that the general principle underlying several authorities to which our attention has been called by Mr Lincoln, can be accurately stated in quite broad terms, and I would put it in this way. If A and B have a common interest in litigation against C and if at that point there is no dispute between A and B then if subsequently A and B fall out and litigate between themselves and the litigation against C is relevant to the disputes between A and B then in the litigation between A and B neither A nor B can claim legal professional privilege for documents which came into existence in relation to the earlier litigation against C.’
Stephenson LJ said: ‘So here, it seems to me, however you define the relationship which their joint interest creates, it is enough to entitle the plaintiffs . . whether as beneficiaries, cestui que trust, or as partners in a joint venture or as principals, to the same inspection of documents relating to the Aramco claims as the defendants themselves had.’

Bridge LJ
[1980] 1 Lloyds Rep 598
England and Wales
Cited by:
Cited – Portsmouth City Football Club v Sellar Properties (Portsmouth) Limited, Singer and Friedlander Properties Plc ChD 17-Sep-2003
Various contracts were entered into for the sale of land, with compensation being paid in certain circumstances. One contract required a calculation of consideration as a set figure less a sum to be calculated as the cost of acquiring land. The sum . .
Cited – Winters v Mishcon De Reya ChD 15-Oct-2008
The claimant sought an injunction to prevent the defendant firm of solicitors acting for his employers against him. He said that they possessed information confidential to him having acted for him in a similar matter previously. The solicitors . .
Cited – Hellenic Mutual War Risks Association (Bermuda) Ltd v Harrison (‘The Sagheera’) ChD 1997
The dominant purpose test applies in relation to legal advice privilege in a different way from the way it applies in relation to litigation privilege. In legal advice privilege the practical emphasis is upon the purpose of the retainer. If the . .
Cited – Ford, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
Cited – Singla v Stockler and Another ChD 10-May-2012
The claimant appealed against the striking out of his action for an injunction against the defendant solicitors to restrain them for action for a person, saying that whilst there had been no formal retainer, they had informally advised him. The . .
Cited – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .

Lists of cited by and citing cases may be incomplete.

Damages, Contract, Legal Professions

Leading Case

Updated: 09 November 2021; Ref: scu.186486

Czarnikow (C ) Ltd v Koufos; The Heron II: HL 17 Oct 1967

The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the market price of the sugar during the period of delay. The owners did not know what the charterers intended to do with the sugar. But they did know that there was a market in sugar at Basrah and, if they had thought about it, must have realised that, at the least, it was ‘not unlikely’ that the sugar would be sold in the market at its market price on arrival.
Held: The House explained the rule in Hadley v Baxendale: ‘I do not think that it was intended that there were to be two rules or that two different standards or tests were to be applied.’ and ‘The crucial question is whether, on the information available to the defendant when the contract was made, he should, or the reasonable man in his position would, have realised that such loss was sufficiently likely to result from the breach of contract to make it proper to hold that the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation.’
Lord Upjohn: ‘If parties enter into the contract with knowledge of some special circumstances, and it is reasonable to infer a particular loss as a result of those circumstances that is something which both must contemplate as a result of a breach. It is quite unnecessary that it should be a term of the contract’.

Lord Reid, Lord Upjohn, Lord Morris of Both-y-Gest, Lord Hodson, Lord Pearce
[1967] 3 All ER 686, [1969] 1 AC 350, [1967] 3 WLR 1491, [1967] UKHL 4
Bailii
England and Wales
Citing:
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .

Cited by:
Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
Cited – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
Cited – Hone v Six Continents Retail Ltd CA 29-Jun-2005
The employer appealed a finding that it was liable in damages for negligence to the claimant, and employee who suffered psychiatric injury cause by stress at work. He said he had been left to work very excessive hours, between 89 and 92 hours a . .
Cited – Wiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Cited – The ‘Pegase’ 1981
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single . .
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
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 . .
Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Contract, Damages, Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.180940

Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another: HL 25 Apr 2002

The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Held: The question of whether such a settlement would prevent any further action depended upon the particular document sought to be applied. Where the remedy wanted properly fell outside the scope of the agreement, a further action was possible. A claim for damages became liquidated by a judgement which assessed it, but a compromise agreement might not be. The agreement in this case was not to be construed so as to oust the later action.
Lord Bingham of Cornhill said in his analysis of the effect of a settlement of a claim against some, but not all, concurrent tortfeasors: ‘the agreement must be construed in its appropriate factual context. In construing it various significant points must in my opinion be borne clearly in mind: 1) The release of one concurrent tortfeasor does not have the effect in law of releasing another concurrent tortfeasor . . ‘

Lord Bingham of Cornhill, Lord Mackay of Clashfern, Lord Steyn, Lord Hope of Craighead and Lord Rodger of Earlsferry
Times 15-May-2002, [2002] UKHL 15, [2002] CPLR 475, [2002] CP Rep 52, [2003] 1 CLC 37, [2002] 2 AC 329, [2002] 2 WLR 1081, [2002] 2 All ER 961
House of Lords, Bailii
England and Wales
Citing:
Explained – Jameson and Another v Central Electricity Generating Board and others HL 16-Dec-1998
A joint tortfeasor’s concurrent liability was discharged entirely by a full and final settlement and compromise of the claim against the other tortfeasor if in respect of the same harm. A dependency claim made by the claimant’s executors could not . .
Appeal from – Heaton and others v AXA Equity and Law Life Assurance Society Plc and Another CA 19-May-2000
Where a claimant had settled one claim with one of two joint tortfeasors on an issue which also concerned the action against the second, it was a matter for interpretation of that settlement as to whether or not the claimant could continue the . .
Cited – Steven v Broady Norman and Co 1928
. .
Cited – Crawford v Springfield Steel Co Ltd 18-Jul-1958
The pursuer, a steelworker, had been diagnosed with pneumoconiosis. He had worked for a previous company, and had claimed damages from them
Held: In an exceptional case such as this, a judgment may not conclusively decide the full measure of . .
Cited – Allison v KPMG Peat Marwick 2000
(New Zealand Court of Appeal) If one tortfeasor settles the victim’s claim by paying him a sum which fully satisfies his right to damages for loss and injury, the victim cannot then sue any concurrent tortfeasor for damages for the same loss and . .
Cited – Personal Representatives of Tang Man Sit v Capacious Investments Ltd PC 18-Dec-1995
The claimant, Capacious Investments Ltd, brought proceedings against Tang’s estate for damages for the loss of use and occupation, and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with . .
Cited – Balfour v Archibald Baird and Sons Ltd SCS 1959
Lord Justice-Clerk Thomson said that if the pursuer ‘has invited a competent court to give him full satisfaction for the loss sustained by him and if he is awarded damages on that footing that is an end of it. He has got all he is entitled to.’ . .
Cited – Bryce v Swan Hunter Group plc 1987
The court considered the difficulties of establishing liability in negligence or breach of statutory duty against an employer for exposure to asbestos giving rise to mesothelioma. . .

Cited by:
Cited – Cape and Dalgleish v Fitzgerald and others HL 25-Apr-2002
The employee was dismissed. After a compromise of the claims and counter claims, the employers sought damages from their accountants for failing to spot the losses. The accountants then sought to recover the damages awarded from the employee, not . .
Cited – Barrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .
Cited – L’Oreal Sa and others v eBay International Ag and others ChD 15-Jul-2008
In interlouctory proceedings, Ebay sought disclosure of a Tomlin settlement reached by the claimants with a co-defendant. The claimant resisted, saying that the Tomlin order was confidential.
Held: Master Gragg said: ‘on balance it must be . .
Cited – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
Cited – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .

Lists of cited by and citing cases may be incomplete.

Damages, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.170285

Cox v Ergo Versicherung Ag: CA 25 Jun 2012

The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There is no difficulty in identifying the critical issues on this appeal for the purpose of ascertaining by which law they are to be determined. They are, first, the head of damages recoverable by the appellant, and, secondly, the assessment or quantification of those damages. It is well established that the former is a matter of substantive law and so governed by the applicable law . . and the latter is regarded, under conflict of law rules, as procedural and so governed by the law of the forum.’ To the extent that the judge said that the level of damages were to be assessed according to German law, he was incorrect. However there was no form of damages in England equivalent to the basis on which damages would be recoverable in Germany, and the court having to find such a method had only been referred to the way it was done in Germany, and that could be used as a starting point at least. It would be wrong also to extend the head of damges so as to make it equivalent to a Fatal Accidents award in England.

Maurice Kay, VP, Etherton LJJ, Dame Janet Smith
[2012] EWCA Civ 854
Bailii
Fatal Accidents Act 1976, Private International Law (Miscellaneous Provisions) Act 1995, Regulation EC No 864/2007, Directive 2000/26/EC 3
England and Wales
Citing:
Cited – Welsh Ambulance Services NHS Trust and Another v Williams CA 15-Feb-2008
The court considered the essential philosophy underwriting the 1976 Act. Smith LJ said: ‘nothing that a dependant (or for that matter anyone else) could do after death could either increase or decrease the dependency. The dependency is fixed at the . .
Cited – Davidsson v Hill CA 1901
Ships collided at sea. The negligent crew were aboard the British ship. A crew member on the Norwegian ship died in the collision, and his family sued here.
Held: The family had a right of action against the defendant owners of the British . .
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 – The Esso Malaysia 1974
A Russian seaman died as the result of a collision in international waters between two foreign registered vessels. His family sought to claim here.
Held: The benefit of the Fatal Accidents Acts can, in principle, be claimed by a foreigner. The . .
Cited – Arab Monetary Fund v Hashim 11-Oct-1994
In cases under the 1978 Act the court does not ask whether, under some rule of English private international law to be found independently of that Act, the contribution claim is to be determined by reference to the 1978 Act. Rather, the court asks . .
Cited – Macmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) CA 2-Nov-1995
The question of ownership of a company is to be decided according to law of country where the company is incorporated. Conflict of laws rules are to be used to look to the issue in the case not the cause of action.
Staughton LJ said: ‘In any . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Cited – Maher and Another v Groupama Grand Est CA 12-Nov-2009
Two English claimants respectively suffered injury in a French road accident. They brought claims for damages against the French insurer of the other driver. Judgment on liability was entered by consent. There were issues as to the assessment of . .
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Cited – 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 – 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 . .
Appeal from – Cox v Ergo Versicherung Ag and Another QBD 28-Oct-2011
The deceased died in a road traffic accident whilst serving in the Armed forces in Germany. The driver was insured under German law. The widow now claimed damages in England. She had entered a new relationship.
Held: The object of section 844 . .

Cited by:
Appeal from – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
See Also – Cox v Ergo Versicherung Ag and Another CA 19-Jul-2012
The deceased army officer had been injured in a road traffic accident in Germany. His widow brought proceedings in the UK, anticipating a better damages award than might be available in Germany. She had assigned certain elements of her claim to the . .
Cited – Four Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .

Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury, International

Updated: 09 November 2021; Ref: scu.460854

West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation: HL 1970

The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the enactment were such that they would only be workable if the law was as Parliament supposed it to be. The date of entry into land under a compulsory purchase is what fixes the date for the assessment of compensation. No question regarding interest arose because ‘the claimants had been allowed to remain in possession on the terms that they claimed no interest on the compensation and paid no rent.’ The House considered the possibility of prospective rulings, rulings which would take effect only as to the future.
Lord Morris of Borth-y-Gest said: ‘The word ‘compensation’ would be a mockery if what was paid was something that did not compensate.’
Lord Reid said: ‘We cannot say that the law was one thing yesterday but is to be something different tomorrow. If we decide that [the existing rule] is wrong we must decide that it always has been wrong, and that would mean that in many completed transactions owners have received too little compensation. But that often happens when an existing decision is reversed.’
and ‘These provisions do show that Parliament (or the draftsman) must have thought that the law was that compensation was assessable on the basis of value as at the date of notice to treat. But the mere fact that an enactment shows that Parliament must have thought that the law was one thing does not preclude the courts from deciding that the law was in fact something different. This has been stated in a number of cases including Inland Revenue Commissioners v Dowdall, O’Mahoney and Co Ltd [1952] AC 401. No doubt the position would be different if the provisions of the enactment were such that they would only be workable if the law was as Parliament supposed it to be. But, in my view, all that can be said here is that these enactments would have a narrower scope if the law was found to be that compensation must be assessed at a date later than that of the notice to treat.’

Reid L, Lord Donovan, Lord Morris of Borth-Y-Gest, Lord Upjohn, Lord Wilbeforce
[1970] AC 874, [1969] 3 All ER 172
Compulsory Purchase Act 1965 11(1)
England and Wales
Citing:
Cited – Inland Revenue Commissioners v Dowdall, O’Mahoney and Co Ltd HL 1952
A court is not prevented from interpreting the common law by an Act of parliament being based upon a different view. . .

Cited by:
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – BP Oil UK Ltd v Kent County Council CA 13-Jun-2003
BP sought compensation after its land had been acquired compulsorily. The council said its claim was time barred. BP appealed from the Lands Tribunal, saying an agreement with the Authority had kept its claim alive.
Held: The fact of entry did . .
Cited – Halstead v Council of City of Manchester CA 23-Oct-1997
Land had been compulsorily purchased, and the compensation agreed, but after long delays in payment, not as to the calculation of interest.
Held: Interest would be payable from the date of entry. The limitation period arose only once the . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – H, Regina v (Interlocutory application: Disclosure) HL 28-Feb-2007
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Land, Damages

Leading Case

Updated: 09 November 2021; Ref: scu.182109

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 plaintiffs had been contributorily negligent in failing to note that the borrowers had not completed part of their own form which required a statement of the original purchase price, and in lending too high a proportion of the valuation. The judge found that the 680,000 pounds figure should have been reduced by 20% making about 489,000 pounds. Since that figure exceeded the amount of the overvaluation the whole of it was recoverable.
Held: The reduction of damages for contributory negligence in professional negligence valuation cases was to be calculated once and before limiting the damages to the lenders overall loss. To do otherwise could result in the contribution being applied twice. The right answer on the application of section 1(1) of the Act of 1945 is to be arrived at by applying the traditional percentage reduction to the lender’s basic loss before making any further deduction on account of the SAAMCO principle.
Lord Hobhouse said that the damages: ‘are confined to that part of the plaintiffs’ basic loss caused by the defendants’ negligence which can be equated in money terms to the amount of the defendants’ overvaluation.’
Where the contribution of the defendant is to supply material which the client will take into account in making his own decision on the basis of a broader assessment of the risks, the defendant has no legal responsibility for his decision. Lord Hoffmann spoke of SAAMCO: ‘The principle approved by the House was that the valuer owes no duty of care to the lender in respect of his entering into the transaction as such and that it is therefore insufficient, for the purpose of establishing liability on the part of the valuer, to prove that the lender is worse off than he would have been if he had not lent the money at all. What he must show is that he is worse off as a lender than he would have been if the security had been worth what the valuer said.’
and: ‘It is important to emphasise that this is a consequence of the limited way in which the House defined the valuer’s duty of care and has nothing to do with questions of causation or any limit or ‘cap’ imposed upon damages which would otherwise be recoverable. It was accepted that the whole loss suffered by reason of the fall in the property market was, as a matter of causation, properly attributable to the lender having entered into the transaction and that, but for the negligent valuation, he would not have done so. It was not suggested that the possibility of a fall in the market was unforeseeable or that there was any other factor which negatived the causal connection between lending and losing the money . . Nor, if one started from the proposition that the valuer was responsible for the consequences of the loan being made, could there be any logical basis for limiting the recoverable damages to the amount of the overvaluation. The essence of the decision was that this is not where one starts and that the valuer is responsible only for the consequences of the lender having too little security.’

Lloyd of Berwick, Lord Cooke of Thorndon, Lord Hope of Craighead, Lord Hobhouse of Wood-borough, Lord Millett
Gazette 10-Mar-1999, Times 19-Feb-1999, [1999] UKHL 10, [2000] 2 AC 190, [1999] 1 All ER 833, [1999] 2 WLR 518
House of Lords, Bailii
Law Reform (Contributory Negligence) Act 1945 1(1)
England and Wales
Citing:
Applied – 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 – Platform Homes Limited v Oyston Shipways Limited and others CA 19-Dec-1997
A lender’s imprudent lending policies could be taken into account and set off against damages for negligent valuation as contributory negligence. . .
Cited – Drinkwater v Kimber CA 1952
The female plaintiff had been injured in a collision caused by the concurrent negligence of her husband and the defendant. She could not succeed in a negligence action against her husband, so the defendant could not recover under the Law Reform . .
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 – Froom v Butcher CA 21-Jul-1975
The court asked what reduction if any should be made to a plaintiff’s damages where injuries were caused not only by the defendant’s negligent driving but also by the failure of the plaintiff to wear a seat belt. It had been submitted that, since . .
Cited – 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 – 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 – County Ltd v Girozentrale Securities CA 1996
The plaintiff bank had agreed to underwrite a share placement. The defendant brokers made representations to potential investors outside and in breach of the terms of the engagement letter. The bank failed to check on the status of indicative . .
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 – Smith v Eric S Bush, a firm etc HL 20-Apr-1989
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and . .

Cited by:
Cited – Nationwide Building Society v Dunlop Haywards (HLl) Ltd (T/A Dunlop Heywood Lorenz) and Cobbetts ComC 18-Feb-2009
The claimant had leant money on a property fraudulently overvalued by an employee of the now insolvent first defendant. A contribution order had been agreed by the solicitors. The court heard applications by the claimants and the solicitors against . .
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.

Damages

Leading Case

Updated: 09 November 2021; Ref: scu.158993

Forster v Outred and Co: CA 1981

A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for payment was made, but when she signed the mortgage deed.
Held: The cause of action was complete when the mother relied on the solicitor’s negligent advice and acted to her detriment by signing the deed. ‘Actual damage suffered’ so as to give rise to a claim in tort, and to begin the limitation period, is any detriment, liability or loss capable of assessment in money terms and includes liability which may arise on a contingency.
Dunn LJ said: ‘As soon as she executed the mortgage the plaintiff not only became liable under its express terms but also – and more importantly – the value of the equity of redemption of her property was reduced. Before she executed the mortgage deed she owned the property free from incumbrances; thereafter she became the owner of a property subject to a mortgage. That, in my view, was a quantifiable loss and as from that date her cause of action against her solicitor was complete. The actual quantum of damages would, of course, depend on events between that date and the date when the damages had finally to be assessed, but the cause of action was complete when she executed the mortgage, without proof of special damage.’
Stephenson LJ asked: ‘What is meant by actual damage? Mr Stuart-Smith says that it is any detriment, liability or loss capable of assessment in money terms and it includes liabilities which may arise on a contingency, particularly a contingency over which the plaintiff has no control; things like loss of earning capacity, loss of a chance or bargain, loss of profit, losses incurred from onerous provisions or covenants in leases. They are all illustrations of a kind of loss which is meant by ‘actual’ damage. It was also suggested in argument, and I would accept it, that ‘actual’ is really used in contrast to ‘presumed’ or ‘assumed.’ Whereas damage is presumed in trespass and libel, it is not presumed in negligence and has to be proved. There has to be some actual damage.’
He concluded: ‘Although there is no more direct authority than those cases among those which have been cited to us, I would accept Mr. Stuart-Smith’s statement of the law and would conclude that, on the facts of this case, the plaintiff has suffered actual damage through the negligence of her solicitors by entering into the mortgage deed, the effect of which has been to encumber her interest in her freehold estate with this legal charge and subject her to a liability which may, according to matters completely outside her control, mature into financial loss – as indeed it did. It seems to me that the plaintiff did suffer actual damage in those ways; and subject to that liability and with that encumbrance on the mortgage property was then entitled to claim damages, not, I would think, an indemnity and probably not a declaration, for the alleged negligence of the solicitor which she alleges caused her that damage. In those circumstances her cause of action was complete on February 8, 1973, and the writ which she issued on March 25, 1980, was issued too late to come within the six years’ period of limitation.’

Stephenson LJ, Dunn LJ
[1982] 1 WLR 86
England and Wales
Cited by:
Approved – 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 – Hatton v Messrs Chafes (A Firm) CA 13-Mar-2003
The defendant firm appealed against a refusal to strike out the claimant’s claim for professional negligence, asserting that the judge should have considered the limitation issue in the light of Khan v Falvey.
Held: By the time that the . .
Considered – UBAF Ltd v European American Banking Corporation CA 1984
The defendant invited the plaintiff to take part in a syndicated loan. The defendant’s assistant secretary signed a letter to the plaintiff making representations, now claimed to be fraudulent. The defendant succeeded at first instance arguing that . .
Cited – Daniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Applied – Milton v Walker and Stanger 1981
The plaintiff instructed her solicitor to prepare documents and advise on a gift from P’s uncle to P and her cousin W in the proportions 2/3:1/3. P and W agreed that, should the farm be sold, the costs and capital gains tax (CGT) arising there from . .
Cited – Baker v Ollard and Bentley CA 12-May-1982
The plaintiff and a Mr and Mrs Bodman agreed to buy a house. The plaintiff intended to live on the first floor and the Bodmans on the ground floor. The solicitor should have advised them to convey the freehold into their joint names and then to . .
Cited – D W Moore and Co Ltd v Ferrier CA 1988
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied . .
Cited – Bell v Peter Browne and Co CA 1990
Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted . .
Cited – Knapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
Followed – D W Moore and Co Ltd v Ferrier CA 1988
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied . .
Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Distinguished – Telfair Shipping Operation SA v Inersea Carriers SA, the Caroline P 1984
A claim was made in contract based on an indemnity.
Held: The claim was not time-barred. Time normally begins to run against a claim on a general indemnity only from the moment when the liability of the indemnified is accepted by him or . .
Cited – Robert Mark Gordon v J B Wheatley and Co (a Firm) CA 24-May-2000
The defendant solicitors had negligently advised the claimant in connection with a mortgage scheme he operated for customers. His case was that the defendants had negligently failed to advise him to register under s3 of the 1986 Act. The claimant . .
Cited – Pirelli General Cable Works v Oscar Faber and Partners HL 2-Jan-1983
The plaintiff asked the defendant consulting engineer to design an extension to their factory in 1969. Not later than in April 1970, cracks developed in the chimney. In 1977 the cause of the damage was discovered. It arose from design faults in the . .
Cited – Abbott and Another v Will Gannon and Smith Ltd CA 2-Mar-2005
The claimant had employed the defendants to design refurbishment works for their hotel. The work was said to be negligent, and the claimant sought damages. The defendant argued as a preliminary point that the claim was time barred. The question was . .
Cited – Iqbal v Legal Services Commission CA 10-May-2005
The claimant had been a partner in a firm of solicitors. They came to be suspected by the respondent of overclaiming legal aid payments and sums were withheld. For this and other reasons the practice folded, and the claimant became insolvent. He . .
Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Rejected – Wardley Australia Ltd v Western Australia 1992
(High Court of Australia) A claim was based on a statutory trade indemnity scheme. The insurers claimed damages from Wardley, on the basis that its alleged deceit induced them to grant an indemnity, which was subsequently called on.
Held: . .
Cited – Law Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Cited – First National Comercial Bank plc v Humberts CA 27-Jan-1995
The plaintiff loaned money on the basis of a negligent survey by the defendant. The borrower subsequently defaulted, and the lender issued a writ. The defendant said that the claim was time barred.
Held: The court allowed the plaintiff’s . .
Cited – Watkins and Another v Jones Maidment Wilson (A Firm) CA 4-Mar-2008
The claimants alleged professional negligence by the defendant solicitors in advising them to agree to a postponment of a completion. The defendants raised as a preliminary issue the question of limitation. The claimant said that the limitation . .
Cited – Tabarrok v E D C Lord and Co (A Firm) CA 14-Feb-1997
The appellant wanted to open a pizza restaurant. He and his partners acquired a company for the purpose, which was to take a lease of premises. They sought advice from the defendants who, they said, failed to advise them of the need to be aware of . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Bowling and Co Solicitors v Edehomo ChD 2-Mar-2011
The court was asked ‘when an innocent vendor whose signature is forged on the documents for the conveyance of land suffers damage, for the purposes of limitation of an action arising from a solicitor’s breach of duty. Is it on the exchange of . .

Lists of cited by and citing cases may be incomplete.

Limitation, Damages, Professional Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.179760

Polkey v A E Dayton Services Limited: HL 19 Nov 1987

Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been made redundant, given a redundancy letter setting out the payments due to him, and sent home. His complaint of unfair dismissal was dismissed, the industrial tribunal holding that even though the employer had been in breach of its obligation to consult under the relevant code of practice, Mr Polkey would still have been dismissed even if the employer had consulted properly.
Held: A dismissal may exceptionally not be unfair despite a failure to follow procedure. Where a dismissal is unfair for procedural reasons, it is not rendered fair merely because the dismissal would probably have occurred in any event even if proper procedures had been adopted. The dismissal remains unfair but the compensation is calculated by reference to the extent of the chance that the employee would have remained in his job had proper procedures been adopted. If dismissal was a certainty, there is no loss.
Lord Bridge said: ‘If it is held that taking the appropriate steps which the employer failed to take before dismissing the employee would not have affected the outcome, this will often lead to the result that the employee, though unfairly dismissed, will recover no compensation, or, in the case of redundancy no compensation in excess of his redundancy payment.’ and ‘an employer having prima facie grounds to dismiss . . in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as ‘procedural’ which are necessary in the circumstances of the case to justify that course of action . . in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. If any employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test or reasonableness posed by [the Act] is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of section 57(3) this question is simply irrelevant.’
As to the question of the need for consultation in compliance with the code of practice: ‘If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee.’
Lord Mackay of Clashfern said: ‘It is what the employer did that is to be judged, not what he might have done. On the other hand, in judging whether what the employer did was reasonable it is right to consider what a reasonable employer would have had in mind at the time he decided to dismiss as the consequence of not consulting or not warning.
If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee.’

Lord Bridge, Lord Mackay of Clashfern
[1988] ICR 142, [1987] 3 WLR 1153, [1988] AC 344, [1987] IRLR 503, [1987] UKHL 8, [1987] 3 All ER 974
Bailii
Employment Protection (Consolidation) Act 1978 57(3)
England and Wales
Citing:
Appeal from – Polkey v A E Dayton Services Limited CA 1986
The employee had been made redundant with no attempt at consultation and in breach of procedures.
Held: His claim of unfair dismissal was dismissed because even if the procedures had been followed, the result would have been the same. What . .
Wrongly decided – British Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .
Adopted – Sillifant v Powell Duffryn Timber Ltd CA 1983
The court explained the principle on ‘British Labour Pump’ as follows: ‘even if, judged in the light of the circumstances known at the time of dismissal, the employer’s decision was not reasonable because of some failure to follow a fair procedure . .
Overruled – W and J Wass Ltd v Binns CA 1982
. .
Cited – Williams and Others v Compair Maxam Ltd EAT 22-Jan-1982
Four employees said that they had been dismissed for redundancy, and now appealed against rejection of their claims.
Held: The court set out the obligations on an employer in a redundancy situation, including the need to look for alternatives . .
Approved – Earl v Slater and Wheeler (Airlyne) Ltd 1973
Sir John Donaldson said: ‘With respect to the tribunal, we think that it erred in holding that an unfair procedure which led to no injustice is incapable of rendering unfair a dismissal which would otherwise be fair. The question in every case is . .
Approved – Vokes Ltd v Bear 1973
The court discussed whether, having found errors in the employer’s dismissal of the emploee, the tribunal can take into account other circumstances to say that the employee might have been dismissed in any event.
Held: Sir Hugh Griffiths said: . .
Cited – W Devis and Sons Ltd v Atkins HL 6-Jul-1977
The ‘just and equitable’ test warranted the reduction or extinction of compensation for an employee who has been unfairly dismissed and then found to have been liable to summary dismissal. ‘The paragraph does not, nor did s. 116 of the Act of 1971, . .
Cited – Charles Letts and Co v Howard EAT 1976
Abusive language between employer and employee may be repudiatory of the contract. However, an apology may lead to the conclusion that the conduct is not repudiatory but this is likely to be only the position where the words were spoken in heat and . .
Cited – British United Shoe Machinery Co Ltd v Clarke EAT 11-Jul-1977
The respondent had been employed in a senior position by the appellant. He had complained that when being made redundant, the appellant had failed to make reasonable efforts to find him alternative employment. . .
Cited – Lowndes v Specialist Heavy Engineering Ltd 1977
. .
Cited – W and J Wass Ltd v Binns CA 1982
. .
Cited – Charles Letts and Co v Howard EAT 1976
Abusive language between employer and employee may be repudiatory of the contract. However, an apology may lead to the conclusion that the conduct is not repudiatory but this is likely to be only the position where the words were spoken in heat and . .

Cited by:
Cited – Thomas T/A Teddy Bears Day Nursery v Overton, Marsh EAT 17-Jul-2001
The employer, a nursery, appealed a finding of unfair dismissal of two nurses. The nursery had been called on by social services to deal with allegations of child abuse by the workers, on penalty of the nursery being closed, and, in any event, the . .
Applied – L Friend v Hazemead Ltd EAT 25-Mar-2002
EAT Unfair Dismissal – Compensation
The appellant had been dismissed summarily, but had not been given a chance to explain her position. She succeeded in a claim for unfair dismissal, but even thought there . .
Cited – Denco Ltd v Joinson EAT 14-Nov-1991
cw Employment – Unfair dismissal – Reasonableness of dismissal – Misconduct – Computer – Deliberate and unauthorised access to computer files – Summary dismissal for gross misconduct – Whether purpose for which . .
Cited – Pay v Lancashire Probation Service EAT 29-Oct-2003
The appellant challenged refusal of his claim for unfair dismissal. A probation officer, he had business interests in fire breathing and bondage merchandising which the service said were incompatible with his duties, and dismissed him. He complained . .
Cited – Capitol Security Services Ltd v T J Lloyd EAT 21-Apr-1998
EAT Unfair Dismissal – Procedural Fairness
Mr Lloyd had been dismissed on allegations of intimidation and discrimination. Neither at the first hearing nor on appeal was he told of the findings of fact upon . .
Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Cited – Middlesborough Borough Council v TGWU EAT 2002
The EAT discussed the need to focus on the seriousness of the employer’s default in complying with the mandatory obligation to consult employees before making redundancies: ‘The duties under the section are mandatory. It is not open to an employer, . .
Cited – Steel Stockholders (Birmingham) Ltd v Kirkwood EAT 1993
The tribunal considered the use of the word ‘procedural’ in the Polkey, and doubted whether Lord Bridge could have meant to classify matters such as the choice of a pool for redundancy, or the adoption of criteria for selection as procedural as . .
Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
Cited – King v Eaton Ltd (No 2) IHCS 1998
Employees were made redundant. The tribunal held the dismissals to be unfair because that there had been no consultation worthy of the name with any of the employees and because it was impossible to decide whether the selection criteria had been . .
Cited – Warner v Adnet Limited CA 26-Feb-1998
A dismissal of employees by administrative receivers just before the sale of a company as going concern was a redundancy outside the protection given by the TUPE provisions. ‘in view of the facts found by the tribunal about the appointment of the . .
Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Reversed by Statute – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .
Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
Cited – Sandhu v Jan De Rijk Transport Ltd CA 10-May-2007
The court was asked whether the claimant had been dismissed or had resigned. He had attended a meeting to be told that his contract was to be finished. The company later complained that he had resigned when they were unable to reach a compromise on . .
Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Cited – Kelly-Madden v Manor Surgery EAT 19-Oct-2006
EAT The employee was the practice manager at a general medical practice. She was dismissed for dishonesty, taking unauthorised pay for overtime hours. She alleged that she had been told by the former practice . .
Cited – C James and Sons v Puglia EAT 15-Jan-1992
The claimant had been made redundant after many years. He had worked for a farming partnership, and there had been recent changes in the partnership constitution. . .
Cited – Todd (T/A Hygia Professional Training) v Cutter EAT 13-Jul-2007
EAT PRACTICE AND PROCEDURE
Perversity
Appeal by Respondent based on an application for fresh evidence, which was clearly material and credible, but which did not satisfy the third Ladd v Marshall test . .
Cited – Swallow Security Services Ltd v Millicent EAT 19-Mar-2009
EAT UNFAIR DISMISSAL: Contributory fault
The employers dismissed the employee after a bogus redundancy exercise, after she had knowingly taken paid holiday in excess of her holiday allowance and failed to . .
Cited – McAdie v Royal Bank of Scotland CA 31-Jul-2007
The claimant succeeded in her claim for unfair dismissal, but now appealed against the reversal of the decision by the EAT. She had been dismissed for incapability to which she had contributed by her conduct. She had refused a move to another bank . .
Cited – London Borough of Tower Hamlets v Wooster EAT 10-Sep-2009
EAT AGE DISCRIMINATION
UNFAIR DISMISSAL – Polkey deduction
Council employee seconded to registered social landlord – Secondment comes to an end, so that he is formally redundant – Employee aged 49 and . .
Cited – Strand Transport Services Ltd v Whitworth CA 6-Aug-2009
The process of the company making the claimant redundant had been declared a sham. The company appealed against a decision that even had the correct procedures been followed, the decision would have been the same. The tribunal said that insufficient . .
Cited – Chagger v Abbey National Plc and Another CA 13-Nov-2009
The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the . .
Cited – Wolesley Centers Ltd v Simmons EAT 24-May-1993
The EAT considered the Polkey principle: ‘a finding that a dismissal is unfair does not mean that an employee is entitled to full compensation for the loss resulting from the loss of his job. He is only entitled to the loss he has sustained which is . .
Cited – Rolls Royce Motor Cars Ltd v Price and others EAT 2-Feb-1993
The company appealed against findings of unfair dismissal of the claimants, saying that they had been made redundant. The claimants said that the company had broken the agreed procedure, and that the dismissals were automatically unfair.
Held: . .
Cited – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .
Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Cited – Ward v Ashkenazi CA 2-Feb-2011
The claimant had been awarded damages after being found to have been unfairly dismissed for an automatically unfair reason in requesting written particulars of her employment. The EAT had awarded a 50% uplift for non-compliance with statutory . .
Cited – Dunelm (Soft Furnishings) Ltd v Baker and Another EAT 30-Oct-2012
EAT Practice and Procedure : Amendment
Bias, misconduct and procedural irregularity
In the claim for unfair dismissal and wrongful dismissal, parties proceeded on common basis that dismissal was on 17 . .
Cited – P v West Dorset General Hospital NHS Trust EAT 9-Jun-2004
EAT Practice and Procedure – Postponement or stay – Application for stay of ET proceedings pending GMC professional misconduct hearing refused. No error of law; if so; stay appropriate. . .
Cited – Orr v Milton Keynes Council CA 1-Feb-2011
The employee was involved in offensive and insubordinate behaviour with his team leader. He was dismissed by a more senior manager, after a hearing in which the first manager gave evidence but which the claimant did not attend. It was later shown . .

Lists of cited by and citing cases may be incomplete.

Employment, Damages

Leading Case

Updated: 09 November 2021; Ref: scu.182080

Cox v Ergo Versicherung Ag: SC 2 Apr 2014

The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court was asked whether German or UK law applied to the assessment of the damages.
Held: Broadly, German law was similar to the English common law before the Fatal Acidents Acts. It was unnecessary to classify the sections 1A, 3 and 4 of the Fatal Accidents Act as procedural or substantive, because they were irrelevant. If substantive, they were irrelevant because the substantive law in this case is German law. They do not lay down general rules of English law relating to the assessment of damages, even in personal injury actions, but only rules applicable to actions under the Act itself. Our general law of damages approximated to the German Law.

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Toulson, Lord Hodge
[2014] WLR(D) 150, [2014] UKSC 22, UKSC 2012/0225, [2014] 1 AC 1379, [2014] 2 WLR 948, [2014] 1 CLC 430, [2014] 2 All ER 926, [2014] RTR 20
WLRD, Bailii, Bailii Summary, SC, SC Summary
Regulation EC 44/2001, Fatal Accidents Act 1976 1(1) 1(2), Fatal Accidents Act 1846
England and Wales
Citing:
Cited – Baker v Bolton and others KBD 8-Dec-1808
The plaintiff and his wife had been thrown from the roof of a coach. The plaintiff sought damages for the loss of his wife’s ‘comfort, fellowship, and assistance’.
Held: The claim failed in part: ‘the jury could only take into consideration . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Appeal from – Cox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
At first instance – Cox v Ergo Versicherung Ag and Another QBD 28-Oct-2011
The deceased died in a road traffic accident whilst serving in the Armed forces in Germany. The driver was insured under German law. The widow now claimed damages in England. She had entered a new relationship.
Held: The object of section 844 . .
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Cited – Seward v The Vera Cruz HL 1884
The House was asked to rule upon the nature of a fatal accident claim as established by the 1846 Act, Lord Campbell’s Act – was it such as to be within the jurisdiction of the Admiralty Division?
Held: Earl of Selbourne LC said: ‘Lord . .
Cited – Phrantzes v Argenti CA 1960
The court was asked to enforce payment of a dowry which was owed under Greek law.
Held: English law does not guarantee a remedy for every foreign cause of action. Lord Parker CJ said that to be available in support of a foreign cause of . .
Cited – Clark (Inspector of Taxes) v Oceanic Contractors Inc HL 16-Dec-1982
HL Income tax, Schedule E – Non-resident employer – Employees working in U.K. sector of North Sea – Whether employer liable to deduct tax from emoluments – Income Tax (Employments) Regulations 1973 – Income and . .
Cited – Coupland v Arabian Gulf Oil Co QBD 1983
The plaintiff employee, injured whilst working for the defendant in Libya, sued in contract and tort. The judge held that Libyan law was the proper law of the contract, but that this was of no relevance to the claim in tort which could proceed here . .
Cited – Davidsson v Hill CA 1901
Ships collided at sea. The negligent crew were aboard the British ship. A crew member on the Norwegian ship died in the collision, and his family sued here.
Held: The family had a right of action against the defendant owners of the British . .
Cited – Boys v Chaplin HL 1969
The plaintiff sued in England for a traffic accident which had happened in Malta. The law of Malta would have denied certain elements of damages which would be available in this jurisdiction.
Held: Liability in respect of the road accident in . .
Cited – The Esso Malaysia 1974
A Russian seaman died as the result of a collision in international waters between two foreign registered vessels. His family sought to claim here.
Held: The benefit of the Fatal Accidents Acts can, in principle, be claimed by a foreigner. The . .
Cited – M’Elroy v M’Allister SCS 4-Nov-1948
The court rejected the renvoi doctrine in tort. An act done in a foreign country was actionable in Scotland only if it was, if done in Scotland, a tort, and was also actionable according to the law of the place in which it was done. . .
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 . .
Cited – Raffelsen Zentralbank Osterreich Ag v Five Star General Trading Llc and Others CA 1-Mar-2001
An assigned marine insurance policy was subject to a claim. The issue was the ability of an assignee to claim as a claim in contract where the proper law was that under which the contract was made, or a claim of an intangible right to claim against . .
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 – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families (No 2) SC 15-Jul-2011
The court considered whether a teacher employed by the Secretary of State to teach in one of its European Schools was entitled to protection against unfair dismissal.
Held: The claimants’ appeals were allowed and the cases remitted to the . .
Cited – Ravat v Halliburton Manufacturing and Services Ltd SC 8-Feb-2012
The respondent was employed by the appellant. He was resident in GB, and was based here, but much work was overseas. At the time of his dismissal he was working in Libya. The company denied that UK law applied. He alleged unfair dismissal.
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families (No 2) SC 15-Jul-2011
The court considered whether a teacher employed by the Secretary of State to teach in one of its European Schools was entitled to protection against unfair dismissal.
Held: The claimants’ appeals were allowed and the cases remitted to the . .

Cited by:
Cited – Moreno v The Motor Insurers’ Bureau SC 3-Aug-2016
The claimant had been severely injured when hit by a car in Greece. The car’s driver was uninsured. The Court was now asked whether the scope of her claim to damages was to be determined in accordance with English or Greek law. The implementation of . .

Lists of cited by and citing cases may be incomplete.

European, Damages, Personal Injury

Leading Case

Updated: 09 November 2021; Ref: scu.523422

Wilson v United Counties Bank Ltd: HL 1920

Bank’s duty to client’s reputation and credit

Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business affairs and to take reasonable steps to maintain his credit and reputation. Major Wilson was made bankrupt and he and his trustee in bankruptcy joined in an action against the bank. The jury awarded damages of about andpound;45,000 for depreciation in the bankrupt’s business and estate caused by the bank’s negligence (although the House was not unanimous as to whether this finding was justified on the evidence) and andpound;7,500 for damage to his credit and reputation.
Held: The former sum was recoverable by the trustee in bankruptcy, and the latter by the bankrupt personally, even though the damages arose from the same breach of contract.
Lord Birkenhead applied Rolin, saying: ‘The defendants undertook for consideration to sustain the credit of the trading customer. On principle the case seems to me to belong to that very special class of cases in which a banker, though his customer’s account is in funds, nevertheless dishonours his cheque. The ratio decidendi in such cases, is so obviously injurious to the credit of the trader that the latter can recover, without allegation of special damage, reasonable compensation for the injury due to his credit.’
Lord Atkinson said: ‘If one man inflicts an injury upon another the resort by the sufferer to reasonable expedients for the bona fide purpose of counteracting, curing or lessening the evil effects of the injury done him, does not necessarily absolve the wrongdoer, even though the sufferer’s efforts should, in the result, undesignedly aggravate the result of injury.’

Lord Atkinson, Lord Birkenhead LC
[1918-19] All ER Rep1035, [1920] LR AC 102, [1920] AC 102
England and Wales
Citing:
Cited – Beckham v Drake HL 11-Jul-1849
Non-property assets do not pass on bankruptcy
An action was brought on a contract for hiring and service, where the plaintiff was to serve for seven years, and the defendant to pay weekly wages during that time; and the breach was a dismissal during the seven years. The plaintiff, after this . .
Followed – Rolin And Another v Steward, Public Officer of The East of England Bank 8-May-1854
Substantial damages may be recovered against a banker, for dishonouring an acceptance and cheques of a customer, there being sufficient assets in his hands at the time to meet them. . .

Cited by:
Cited – Mulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
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 – Shah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .
Cited – Kpohraror v Woolwich Building Society CA 10-Jan-1996
The defendants had wrongfully refused payment of the claimant’s cheque for pounds 4,550. The error was realised on the same day, and corrected. The master awarded damages of pounds 5,550 as general damages to the claimant’s credit by reason of the . .
Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Insolvency, Damages, Banking

Leading Case

Updated: 02 November 2021; Ref: scu.185413

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 a real and not a merely speculative chance that the plaintiffs, had they been properly advised, would have successfully re-negotiated with the vendor to obtain proper protection.
Held: The judgment was upheld. To avoid an action for damages against solicitors being struck out, the plaintiff must satisfy the court that he had at least a ‘real’ or ‘substantial’ chance that he would have succeeded in the primary action, not merely a speculative chance. The court rejected the proposition that in order to succeed the plaintiff was required to prove on a balance of probabilities that the third party (there another party to a commercial transaction) would have acted so as to confer the relative benefit on the plaintiff. A plaintiff must prove that he has (or had) a real or substantial chance (as opposed to a speculative chance) of that occurring, that chance then being evaluated having regard to how it stands in the spectrum between something that just qualifies as real or substantial on the one hand and near certainty on the other. If a chance having been found to be real or substantial was evaluated at less than 50%, an award of damages would follow. ‘In many cases the plaintiff’s loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff, as in this case, or independently of it. In such a case, does the plaintiff have to prove on balance of probability, … that the third party would have acted so as to confer the benefit or avoid the risk to the plaintiff, or can the plaintiff succeed provided he shows that he had a substantial chance rather than a speculative one, the evaluation of the substantial chance being a question of quantification of damages? . . . I have no doubt that … the second alternative is correct.’
Stuart Smith LJ said: ‘the plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other. I do not think that it is helpful to seek to lay down in percentage terms what the lower and upper ends of the bracket s
Hobhouse LJ said: ‘The plaintiffs have satisfied the court that the loss they have suffered is not nominal. They are not obliged to prove more than that they have lost something of substance. This they have done by showing that they had a measurable chance of negotiating significantly better terms. They are entitled to an assessment of their damages.
I agree with Stuart-Smith L.J. that the correct approach is that summarised by Lord Reid in Davies v. Taylor [1974] A.C. 207′

Stuart-Smith LJ, Hobhouse LJ
[1995] 1 WLR 1602, [1995] 4 All ER 907, [1995] EWCA Civ 17, [1995] NPC 83, 46 Con LR 134, [1996] CLC 153, (1995) 70 P and CR D14, [1955-95] PNLR 701
Bailii
England and Wales
Citing:
Cited – McWilliams v Sir William Arrol and Company Ltd HL 21-Feb-1962
Damages were sought after the death of the pursuer’s husband working for the respondent. The trial judge had been satisfied that even if the defendants had performed their duty at common law and pursuant to statute, and had provided the deceased . .
Applied – 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 by:
Cited – Brown and Another v Bennett and Others (No 2) ChD 16-Nov-2001
The power to make a wasted costs order did not apply only against advocates in court, and not only against the applicant’s own representatives. The test was as to the causing of additional costs. In this case several barristers had been involved at . .
Cited – Prosser v Castle Sanderson Solicitors (a Firm), Geoffrey Martin and Co (A Firm) CA 31-Jul-2002
The claimant sought damages from the respondent solicitors and insolvency practitioners for professional negligence. He had substantial business interests, but fell into financial difficulties, and sought assistance from the defendants. He failed to . .
Cited – Equitable Life Assurance Society v Ernst and Young (A Firm) ComC 10-Feb-2003
The company complained that its auditors had failed to give appropriate warning of the Society’s exposure to risk in awarding larger bonuses than were justified, and that had the true position been known, it xould have put itself up for sale . .
Cited – Herring v Ministry of Defence CA 10-Apr-2003
The claimant had suffered serious injury in a parachuting accident which deprived him of the opportunity of pursuing his chosen career in the police force. The judge found ‘to the extent of virtual certainty’ that he would have applied to join the . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – Mount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Cited – Harrison and Another v Bloom Camillin ChD 28-Oct-1999
When assessing the losses suffered by a plaintiff alleging that, through the professional negligence of his solicitors, he had lost the opportunity to pursue a similar action against his accountants, it was right to acknowledge, and allow for the . .
Cited – 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 – Dixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
Cited – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
Cited – 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 – The Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006
The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
Cited – Lawson v Glaves-Smith, Executor of the Estate of Dawes (Deceased) QBD 14-Nov-2006
The claimant sought damages saying that she had been falsely imprisoned, raped and drugged by the defendant who had since died.
Held: The court had only the evidence of the claimant, and must be careful in examining it. On that evidence the . .
Cited – Veitch and Another v Avery CA 12-Jul-2007
The claimants appealed the award of only nominal damages after they succeeded in their claim against their solicitors for negligence in their conduct of the defence of a mortgage possession action.
Held: The appeal failed. The judge was . .
Cited – 4 Eng Ltd v Harper and Another ChD 29-Apr-2008
The claimant sought damages for deceit in the purchase of shareholdings fropm the defendants. The defendants objected that the damages claimed were for a loss of chance and were irrecoverable.
Held: Such damages might be recoverable in an . .
Cited – Parker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Cited – Martin v Triggs Turner Bartons (A Firm) and Others ChD 31-Jul-2009
The claimant sought damages alleging professional negligence against her solicitors for herself and her late husband’s estate. She said that the will should have allowed advances of capital for all but pounds 100,000 of the estate, rather than the . .
Cited – Chagger v Abbey National Plc and Another CA 13-Nov-2009
The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the . .
Cited – Joyce v Bowman Law Ltd ChD 18-Feb-2010
The claimant asserted negligence by the defendant licensed conveyancers in not warning him of the effect of an option in the contract. He had been advised that it would allow him to choose to buy additional land, but it was in fact a put option. The . .
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 – Channon (T/A Channon and Co) v Ward QBD 12-May-2015
The claimant had lost significant sums through his accountancy practice, but now claimed that his insurance broker, the defendant had negligently failed to renew his professional indemnity policies, even though he had supplied policy numbers to the . .
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.

Damages, Professional Negligence

Leading Case

Updated: 02 November 2021; Ref: scu.180542

Kemble v Farren: 6 Jul 1829

Liquidated Damages Clause to Specify Which Loss

The manager of Covent Garden sought damages from an actor (a principal comedian) in the form of liquidated damages for breach of a contract. He had contracted to perform for four seasons, but had refused to continue after the first.
Held: Liquidated damages cannot be reserved on an agreement containing various stipuations, of various degrees of importance, unless the agreement specify the particular stipulation or stipulations to which the liquidated damages are to be confined.
Tindall CJ said: ‘We see nothing illegal or unreasonable in the parties, by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree. In many cases, such an agreement fixes that which is almost impossible to be accurately ascertained; and in all cases, it saves the expense and difficulty of bringing witnesses to that point.’
If the terms had been limited to breaches which were of an uncertain nature and amount, it would have been good. But the provision extended to any term including the payment of small amounts of money, or other trivial non-money breaches: ‘But that a very large sum should become immediately payable, in consequence of the nonpayment of a very small sum, and that the former should not be considered as a penalty, appears to be a contradiction in terms; the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by breach of the agreement.’

Tindall CJ
[1829] EngR 590, (1829) 5 Bing 141, (1829) 130 ER 1234
Commonlii
England and Wales
Citing:
See Also – Kemble v Farren CCP 13-Jun-1829
Where it appeared on the record, that an agreement sued on was made by the plaintiff, on behalf of himself and the other proprietors of a theatre, evidence of the declarations of one of such other proprietors was held admissible on the part of the . .

Cited by:
Cited – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Cited – Parkingeye Ltd v Beavis CA 23-Apr-2015
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages, Equity

Leading Case

Updated: 02 November 2021; Ref: scu.322458

Jervis v Harris: CA 9 Nov 1995

A provision in the lease obliged a tenant to carry out repairs and provided that if he did not do so, the landlord might do the repairs and recover from the tenant the costs and expenses of doing so.
Held: The provision was not a penalty. The money was payable not upon the breach but because the landlord decided to do the repairs himself and upon him doing them, notwithstanding that the tenant’s breach was, of course, necessarily a part of the sequence of events whereby the money came to be payable. A landlord’s claim for rent is a claim in debt and the rule requiring an injured party to mitigate his losses does not apply to a claim in debt.

Millett LJ, Otton LJ
Ind Summary 04-Dec-1995, Gazette 24-Jan-1996, Times 14-Nov-1995, [1996] Ch 195, [1995] EWCA Civ 9, [1996] 2 WLR 220, [1996] 1 All ER 303, [1996] 1 EGLR 78, [1996] 10 EG 159
Bailii
Leasehold Property (Repairs) Act 1938 1
England and Wales
Cited by:
Cited – Broadway Investments Hackney Ltd v Grant CA 20-Dec-2006
The respondent had taken a tenancy of premises from the local authority. The ground floor was for use as a shop, and the first was residential. He had previously taken a licence and had refurbished the premises. The authority sold the freehold to . .
Cited – Office of Fair Trading v Abbey National Plc and others ComC 8-Oct-2008
The director sought a further judgment as to whether charges imposed by banks on a customer taking an unauthorised overdraft, and otherwise were unlawful penalties. . .
Cited – Scottish and Newcastle Plc v Raguz ChD 11-Apr-2006
The defendant had taken assignments of the term of two underleases from the claimant, and then re-assigned them to a limited company with guarantors of the rent, and they in turn re-assigned the leases. The last company became insolvent. The . .
Cited – Reichman and Another v Beveridge CA 13-Dec-2006
The defendants were tenants of the claimant. They vacated the premises and stopped paying the rent. The claimant sought payment of the arrears of rent. The defendants said that the claimants should have taken steps to reduce their damages by seeking . .
Cited – Agricullo Ltd v Yorkshire Housing Ltd CA 16-Mar-2010
The landlord sought leave to appeal against a refusal to award it costs associated with the service of a section 146 notice on the tenant. The tenant had covenanted to repair, and to indemnify the landlord against expenses of such notices. The . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.82521

Anufrijeva and Another v London Borough of Southwark: CA 16 Oct 2003

The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the claimant?
Held: A finding that a Convention right has been infringed, including a right under Article 5, does not necessarily result in an award of damages. The discretionary exercise of deciding whether to award compensation under the HRA is not to be compared to the approach adopted where damages are claimed for breach of an obligation under civil law. The level of awards by the Ombudsman were a better guide. A claim for damages under the HRA for maladministration is likely to cost substantially more to try than the amount of any damages that are likely to be awarded, and procedures should be followed to ensure that costs were not wasted.

The Lord Chief Justice Of England And Wales, The Master Of The Rolls, And Lord Justice Auld
Gazette 20-Nov-2003, Times 17-Oct-2003, [2003] EWCA Civ 1406, [2003] 3 FCR 673, [2004] QB 1124, [2004] 2 WLR 603, [2004] HLR 22, [2004] HRLR 1, 15 BHRC 526, [2004] 1 FLR 8, (2003) 6 CCL Rep 415, [2004] Fam Law 12, [2004] UKHRR 1, [2004] BLGR 184
Bailii
European Convention on Human Rights 8
England and Wales
Citing:
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Abdulaziz etc v The United Kingdom ECHR 28-May-1985
Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had . .
Cited – Glaser v The United Kingdom ECHR 19-Sep-2000
‘The essential object of Article 8 is to protect individuals against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective ‘respect’ for family life. These obligations may involve the . .
Cited – Nuray Sen v Turkey ECHR 17-Jun-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3 ; Non-pecuniary damage – financial award ; Costs and expenses partial award
A State is under an obligation to admit relatives of settled . .
Cited – Gul v Switzerland ECHR 19-Feb-1996
A Turkish father, who had been permitted on humanitarian grounds to reside with his wife in Switzerland, failed to establish that, by refusing to allow their seven-year-old son to join them in Switzerland, the state had interfered with respect for . .
Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgendered Male/Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Cited – Lopez Ostra v Spain ECHR 9-Dec-1994
A waste treatment plant was built close to the applicant’s home in an urban location and the plant released fumes and smells which caused health problems to local residents.
Held: A duty exists to take reasonable and appropriate measures to . .
Cited – Chapman v United Kingdom; similar ECHR 18-Jan-2001
The question arose as to the refusal of planning permission and the service of an enforcement notice against Mrs Chapman who wished to place her caravan on a plot of land in the Green Belt. The refusal of planning permission and the enforcement . .
Cited – Thames Water Utilities Limited v Marcic CA 7-Feb-2002
The claimant owned land over which sewage and other water had spilled from the appellant’s sewage works. His claim having been dismissed under Rylands v Fletcher, and there being no statutory means of obtaining compensation, the judge was asked to . .
Cited – Andersson and Kullman v Sweden ECHR 1986
The Comission found inadmissible an allegation that Sweden had infringed Article 8 by not providing financial assistance to a mother to allow her to stay at home to look after her children, rather than placing them in a creche and going out to work. . .
Cited – Carson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
Cited – Botta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
Cited – Zehnalova and Zehnal v Czech Republic ECHR 14-May-2002
The applicants were husband and wife and the wife was physically handicapped. They complained that their Article 8 rights were infringed because, in breach of Czech law, the authorities had failed to install facilities that would enable her to gain . .
Cited – Marzari v Italy ECHR 1999
The applicant suffered from metabolic myopathy and was 100 per cent disabled. He was allocated an apartment which he considered inadequate. He ceased paying rent for it, demanding that certain works be carried out to make it suitable for him to live . .
Cited – O’Rourke v United Kingdom ECHR 26-Jun-2001
The applicant was a sex offender who on release from prison had found temporary accommodation from which he had been evicted for pestering female residents. He ignored advice to go to a night shelter whilst a decision on permanent re-housing was . .
Cited – Regina (on the Application of Q and others) v Secretary of State for the Home Department CA 18-Mar-2003
The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
Held: The way in which the section had been operated, by denying consideration and all benefits . .
Cited – Morris v London Borough of Newham Admn 2002
The claimant complained that the defendant authority had failed to provide her and her family with suitable accommodation pursuant to its duty under section 193. Breach of duty was conceded. The relief sought by the claimant included damages for . .
Cited – Regina (Bernard and Another) v Enfield Borough Council Admn 25-Oct-2002
The claimants were husband and wife. They had six children. The wife was severely disabled and confined to a wheelchair. The defendant Council provided the family with a small house but in breach, as they ultimately accepted, of section 21(1) (a) of . .
Cited – Regina (on the Application of J) v London Borough of Enfield and Another Admn 4-Mar-2002
The mother and child were destitute, and sought to oblige the local authority to provide accommodation and support.
Held: The duty to a child under the section could not be extended to include a duty to accommodate and support the child and . .
Cited – H v The United Kingdom ECHR 9-Jun-1988
Hudoc Violation of Art. 6-1; Violation of Art. 8; Just satisfaction reserved
Hudoc Judgment (Just satisfaction) Costs and expenses – struck out of the list (friendly . .
Cited – Askar v United Kingdom ECHR 1995
The Commission held inadmissible a complaint of substantial delay in granting permission for the family of a refugee to join him in this country, observing: ‘The Commission recalls that delay in proceedings concerning matters of ‘family life’ may . .
Cited – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – Lustig-Prean and Beckett v The United Kingdom ECHR 27-Sep-1999
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; No separate issue under Art. 14+8; Just satisfaction reserved
Hudoc Judgment (Just satisfaction) . .
Cited – Silver And Others v The United Kingdom ECHR 25-Mar-1983
There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were . .
Cited – Aksoy v Turkey ECHR 18-Dec-1996
In the context of Kurdish separatist terrorism which had claimed almost 8000 lives, the court accepted a derogation from the Convention because of a state of emergency. However the applicant had been detained, tortured and finally released without . .
Cited – Halford v The United Kingdom ECHR 25-Jun-1997
halford_ukECHR1997
The interception of the telephone calls of an employee in a private exchange was a breach of her right of privacy. She had a reasonable expectation of privacy. The police force’s surveillances of the applicant’s telephone (to obtain information . .
Cited – KB and Others, Regina (on the Applications of) v Mental Health Review Tribunal Admn 23-Apr-2002
Damages were claimed by three mental health patients whose rights under Article 5(4) had been infringed because of inordinate delay in processing their claims to mental health review tribunals.
Held: Article 5.5 did not make an award of . .
Cited – Kopp v Switzerland ECHR 25-Mar-1998
WCHR Switzerland – monitoring of a law firm’s telephone lines on orders of the Federal Public Prosecutor (sections 66(1 bis) and 77 of the Federal Criminal Procedure Act – ‘the FCPA’)
A lawyer’s home . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .

Cited by:
Cited – P, Regina (on the Application of) v Secretary of State for the Home Department Admn 11-Dec-2003
The applicant was a discretionary life prisoner compulsorily detained in a mental hospital. His tariff had now expired. If not detained under the 1983 Act he would now be entitled to a review. He argued that there should be a joint hearing.
Cited – The First Secretary of State, Grant Doe, Gregory Yates, Paul Eames v Chichester District Council CA 29-Sep-2004
The appellants challenged a decision to grant planning consent for a private gipsy with mobile homes. The issue was whether the council in refusing permission and in issuing enforcement proceedings, had infringed the applicants human rights. The . .
Cited – Van Colle and Another v Chief Constable of the Hertfordshire Police CA 24-Apr-2007
The deceased had acted as a witness in an intended prosecution. He had sought protection after being threatened. No effective protection was provided, and he was murdered. The chief constable appealed a finding of liability.
Held: The . .
Cited – Home Office v Mohammed and Others CA 29-Mar-2011
The claimants sought damages saying that after a decision had been made that they should receive indefinite leave to remain in 2001 (latest), the leave was not issued until 2007 (earliest) thus causing them severe losses. The defendant now appealed . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.186817

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 departure from the ordinary principles of assessment in English law, which can fairly be described as anomalous, providing for what Lord Diplock called an ‘artificial and conjectural exercise’ whose ‘purpose is no longer to put dependants, particularly widows, in the same economic position as they would have been in had their late husband lived.’
Lord Fraser of Tullybelton said: ‘The court has to make the best estimates that it can having regard to the deceased’s age and state of health and to his actual earnings immediately before his death, as well as to the prospects of any increases in his earnings due to promotion or other reasons.’
and . . ‘In a personal injury case, if the injured person has survived until the date of trial, that is a known fact and the multiplier appropriate to the length of his future working life has to be ascertained as at the date of trial. But in a fatal accident case the multiplier must be selected once and for all as at the date of death, because everything that might have happened to the deceased after that date remains uncertain.’
Lord Diplock said: ‘When the first Fatal Accidents Act was passed in 1846, its purpose was to put the dependants of the deceased, who had been the bread-winner of the family, in the same position financially as if he had lived his natural span of life. In times of steady money values, wages levels and interest rates this could be achieved in the case of the ordinary working man by awarding to his dependants the capital sum required to purchase an annuity of an amount equal to the annual value of the benefits with which he had provided them while he lived, and for such period as it could reasonably be estimated they would have continued to enjoy them but for his premature death. Although this does not represent the way in which it is calculated such a capital sum may be expressed as the product of multiplying an annual sum which represents the ‘dependency’ by a number of years’ purchase. This latter figure is less than the number of years which represents the period for which it is estimated that the dependants would have continued to enjoy the benefit of the dependency, since the capital sum will not be exhausted until the end of that period and in the meantime so much of it as it not yet exhausted in each year will earn interest from which the dependency for that year could in part be met. The number of years’ purchase to be used in order to calculate the capital value of an annuity for a given period of years thus depends upon the rate of interest which it is assumed that money would earn, during the period. The higher the rate of interest, the lower the number of years’ purchase . . ”

Lord Diplock, Lord Fraser of Tullybelton
[1979] AC 556, [1978] UKHL 3, [1978] 2 WLR 978, [1978] 2 All ER 604
Bailii
Fatal Accidents Act 1976 4
England and Wales
Citing:
Appeal from – 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 . .

Cited by:
Cited – Cooke, Sheppard, Page v United Bristol Health Care, Stibbe and Another, Lee CA 16-Oct-2003
The claimant appealed against his damages award, saying that it should have allowed for the anticipated rises in the cost of providing his care in the future.
Held: Rises in future costs were already factored into the tables used for . .
Cited – A Train and Sons Ltd v Fletcher CA 24-Apr-2008
Appeal re award of interest on claim under Fatal Accidents Act.
Hooper LJ confessed: ‘I do not understand why chronological years are deducted from the multiplier’. . .
Cited – Cox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
Not followed – Knauer v Ministry of Justice SC 24-Feb-2016
The court was asked: ‘whether the current approach to assessing the financial losses suffered by the dependant of a person who is wrongfully killed properly reflects the fundamental principle of full compensation, and if it does not whether we . .

Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Leading Case

Updated: 02 November 2021; Ref: scu.187194

Rhesa Shipping Co SA v Edmonds (The Popi M): HL 16 May 1985

The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was caused by a peril of the sea or alternatively by crew negligence. The suggested peril of the sea was a moving submerged object, i.e. a submarine. The underwriters contended that the vessel was not seaworthy. More specifically, the underwriters advanced a mechanism for unseaworthiness through wear and tear, based on expert metallurgical evidence. The judge rejected that theory. He also rejected the owners’ argument that there had been crew negligence. That left the possibilities that the vessel was in some other way unseaworthy or that it collided with a submarine. There was no clear basis upon for the court to say that burden of proof had been discharged.
Held: The burden of proving this, on a balance of probabilities, lay on the plaintiffs. A trial judge is not bound to accept the evidence of one side or the other: there remains the possibility of deciding the case on the burden of proof. The court should avoid deciding cases on a balance of improbabilities. It was not possible to proceed on the basis of eliminating the impossible and deciding that the remaining explanation, however improbable, must be the cause, unless all the relevant facts were known; that state of affairs did not exist, as the ship had sunk in deep water. The concept of proof on a balance of probabilities had to be applied with common sense. It required a judge, before he found a particular event occurred, to be satisfied on the evidence that it was more likely to have occurred than not.
(1) where the cause of a past event is in issue and two or more competing causes are advanced the burden of proving his case on causation remains on the claimant throughout, and though the defendant can advance a competing cause there is no obligation on him to prove this case.
(2) Even after a prolonged enquiry with a mass of expert evidence, it is open to the courts to conclude that causation remains in doubt and the result will be that the claimant has failed to discharge the burden of proof.
(3) Therefore the effect of this decision is that where the court considers one theory as improbable but also rules out all other theories the court should not treat the improbable theory as the likely cause of the event.
Lord Brandon of Oakbrook said: ‘the appeal does not raise any question of law, except possibly the question what is meant by proof of a case ‘on a balance of probabilities’. Nor do underwriters challenge . . any of the primary findings of fact made by Bingham J. The question, and the sole question, which your Lordships have to decide is whether on the basis of those primary findings of fact, Bingham J and the Court of Appeal were justified in drawing the inference that the ship was, on the balance of probabilities, lost by perils of the sea.
In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the seas is and remains throughout on the shipowners. Although it is open to the underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.
The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship’s loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay on them.’
As to the Sherlock Holmes fallacy that ‘once you have eliminated the impossible, whatever remains, however improbable, is the truth ‘: ‘In my view there are three reasons why it is inappropriate to apply the dictum of Mr. Sherlock Holmes, to which I have just referred, to the process of fact-finding which a Judge of first instance has to perform at the conclusion of a case of the kind here concerned.
The first reason is one which I have already sought to emphasize as being of great importance, namely, that the Judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.
The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated.
The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a Judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the Judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.

In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship’s hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them.’

Lord Brandon of Oakbrook
[1985] 2 All ER 712, [1985] 1 WLR 948, [1985] 2 Lloyds Rep 1, [1985] UKHL 15
Bailii
England and Wales
Citing:
At First Instance – The Popi M; Rhesa Shipping Co SA v Edmonds 1983
The parties disputed the cause of the loss of a ship. The experts suggested different but improbably explanations; each supported as the most likely explanation only because any other hypothesis was regarded as almost (if not altogether) impossible. . .
Approved – La Compania Martiartu v Royal Exchange Assurance Corporation CA 1923
The court found, on limited evidence, that the ship in respect of which her owners had claimed for a total loss of perils by sea, had in fact been scuttled with the connivance of those owners.
Scrutton LJ said: ‘This view renders it . .

Cited by:
Cited – Gibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
Cited – Moiz Ahmed Siddiqui, Ishrat Siddiqui/Bhajan Singh Sohanpal v Council of the London Borough of Hillingdon TCC 15-Apr-2003
The claimants sought damages for cracks in their house caused by the roots of trees on the defendant’s land.
Held: The claimants had failed to establish by evidence that the tree roots were the cause of the damage. The claim failed. . .
Cited – UCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
Cited – Exel Logistics Ltd v Curran and others CA 30-Sep-2004
The claimants sought damages for personal injuries after a crash in a Land Rover maintained by the defendants. The defendants appealed findings of negligence in failing properly to inflate the rear tyres, in continuing despite the danger, and poor . .
Cited – Stephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .
Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Carisbrooke Shipping Cv5 v Bird Port Ltd ComC 13-Sep-2005
. .
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 – Kastor Navigation Co Ltd and Another v AGF M A T and others (‘Kastor Too’) ComC 4-Dec-2002
The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore . .
Cited – Hill Street Services Company Ltd v National Westminster Bank Plc and Burjor Mistry ChD 19-Oct-2007
The claimant company said that the bank had allowed money to be removed from its account without authority. Originally it said the second defendant, its former director had authrised the payments. On the second defendant denying this, the company . .
Explained – Ide v ATB Sales Ltd and Another CA 28-Apr-2008
Each appellant challenged how the judge had decided between alternative proofs of causation of the respective loss. In Ide, the claimant asserted a fault in a cycle handlebar, and in Lexus, the claimant asserted that it caught fire whilst . .
Cited – Fosse Motor Engineers Ltd and others v Conde Nast and National Magazine Distributors Ltd and Another TCC 20-Aug-2008
The claimant said that the defendant’s employees had negligently started a fire which burned down the claimant’s warehouse. There was limited evidence to establish the cause.
Held: The claim failed. The scientific evidence did not point to any . .
Cited – Piper v Hales QBD 18-Jan-2013
The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.
Held: The Defendant as hirer was under an . .
Cited – Nulty and Others v Milton Keynes Borough Council CA 24-Jan-2013
There had been two fires at a depot owned by the claimants. The fires were found to have been likely to have been caused by the deceased employee. His insurers had repudiated liability saying that the had not been notified oin a timely fashion.
Cited – Milton Keynes Borough Council v Nulty and Others TCC 3-Nov-2011
There had been two fires at depots owned by the claimants. They brought proceedings against an employee, but his insurers repudiated liability saying that they had not been promptly notfied of the claim.
Held: The first fire was caused either . .
Cited – Love v Halfords Ltd QBD 8-Apr-2014
The claimant had purchased a new bicycle from the defendants who also maintained it. Several months later, the steerer tube broke causing an accident and severe injury. The cycle had been finally assembled by the defendant after importation, but . .
Cited – The Worshipful Company of Grocers v Keltbray Group Holdings Ltd and Another QBD 19-May-2016
Allegation that a collapse in a nearby building caused a water leak in the claimant’s nearby building.
Held: the effects of the collapse did not cause the major cracking at Grocers’ Hall which was reported on following the flood. The Grocers . .

Lists of cited by and citing cases may be incomplete.

Evidence, Damages, Insurance, Evidence

Leading Case

Updated: 02 November 2021; Ref: scu.184697

Donnelly v NHS Greater Glasgow and Clyde and Others: EAT 15 Aug 2012

donnelly_nhsgg

EAT Equal Pay Act : Damages or Compensation – Equal Pay. Jurisdiction. Statutory limitation.
Claimants alleged that their previous NHS Trust employers breached their rights under the Equal Pay Act 1970. Trusts dissolved and their liabilities under or in connection with the Claimants’ contracts of employment transferred to the respondents by Staff Transfer Orders (under paragraph 26 of Sch 7A to the National Health Service (Scotland) Act 1978). Not a TUPE transfer. Whether claims required to be presented within six months of date of dissolution. On appeal, held that the Tribunal had not erred in finding that time started running from that date.
Separately, lack of consultation with a Claimant was held, on appeal, not to demonstrate that the six month time limit contravened the EU principle of effectiveness. The matter was clear and there was no basis for a reference to the ECJ.

Lady Smith
[2012] UKEAT 0008 – 12 – 1508
Bailii
Equal Pay Act 1970
England and Wales

Employment, Discrimination, Damages, Scotland

Updated: 02 November 2021; Ref: scu.464952

Dingle v Associated Newspapers: HL 1964

The plaintiff complained of an article written in the Daily Mail which included the reporting of a report of a Parliamentary select committee. The reporting of the select committee’s report was privileged under the Parliamentary Papers Act 1840. At trial the judge held that the part of the article which reported on the proceedings in Parliament was privileged. The remainder of the article was found to be defamatory and the judge then set about fixing the damages for the libel. The court had to decide on how the responsibility might be apportioned.
Held: The appeal was dismissed. It was not permissible to mitigate damages by saying that others had said the same thing. ‘Damages for defamation are an expression of many contributing factors, and, as we know, they can be affected one way or another by a defendant’s conduct, by his pleadings, by his counsel’s handling of his case, just as, occasionally, even a plaintiff may find his damages affected by the way that he has behaved.’ The judge had wrongly taken into account evidence that the plaintiff’s reputation had already been damaged by what had been said in Parliament or by what had been said on other occasions, and that the Daily Mail had subsequently published an article which vindicated the plaintiff’s reputation.

Lord Radcliffe, Lord Morton of Henryton, Lord Cohen, Lord Denning and Lord Morris of Borth-y-Guest
[1964] AC 371, [1972] UKHL 2
Bailii
England and Wales
Citing:
Appeal from – Dingle v Associated Newspapers CA 1961
A defamation of the claimant had been published and then repeated by others.
Held: The court discussed the logical impossibility of apportioning damage between different tortfeasors: ‘Where injury has been done to the plaintiff and the injury . .

Cited by:
Cited – Godfrey v Demon Internet Limited (2) QBD 23-Apr-1999
Evidence of Reputation Admissible but Limited
The plaintiff had brought an action for damages for defamation. The defendant wished to amend its defence to include allegations that the plaintiff had courted litigation by his action.
Held: A judge assessing damages should be able see the . .
Cited – Nail v Jones, Harper Collins Publications Ltd; Nail v News Group Newspapers Ltd, Wade etc QBD 26-Mar-2004
The claimant was upset by an article published by the defendant making false allegations that he had behaved in a sexually profligate manner many years earlier. When it was substantially repeated he sued.
Held: The words were defamatory. An . .
Cited – Nail and Another v News Group Newspapers Ltd and others CA 20-Dec-2004
The claimant appealed the award of damages in his claim for defamation. The defendants had variously issued apologies. The claimant had not complained initially as to one publication.
Held: In defamation proceedings the damage to feelings is . .
Cited – Curistan v Times Newspapers Ltd CA 30-Apr-2008
The court considered the availability of qualified privilege for reporting of statements made in parliament and the actionable meaning of the article, which comprised in part those statements and in part other factual material representing the . .
Cited – Mardas v New York Times Company and Another QBD 17-Dec-2008
The claimant sought damages in defamation. The US publisher defendants denied that there had been any sufficient publication in the UK and that the court did not have jurisdiction. The claimant appealed the strike out of the claims.
Held: The . .
Cited – Prince Radu of Hohenzollern v Houston and Another (No 4) QBD 4-Mar-2009
Orders were sought to strike out part of the defendants defence of justification to an allegation of defamation.
Held: Where there remains the possibility of a jury trial, it becomes especially important to identify the issues the jurors are . .
Cited – Cairns v Modi CA 31-Oct-2012
Three appeals against the levels of damages awards were heard together, and the court considered the principles to be applied.
Held: In assessing compensation following a libel, the essential question was how much loss and damage did the . .
Still Good Law – Lachaux v Independent Print Ltd (1) CA 12-Sep-2017
Defamation – presumption of damage after 2013 Act
The claimant said that the defendant had published defamatory statements which were part of a campaign of defamation brought by his former wife. The court now considered the requirement for substantiality in the 2013 Act.
Held: The defendant’s . .
Cited – Turley v Unite The Union and Another QBD 19-Dec-2019
Defamation of Labour MP by Unite and Blogger
The claimant now a former MP had alleged that a posting on a website supported by the first defendant was false and defamatory. The posting suggested that the claimant had acted dishonestly in applying online for a category of membership of the . .

Lists of cited by and citing cases may be incomplete.

Defamation, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.185259

Reformation Publishing Company Ltd v Cruiseco Ltd and Another: ChD 22 Oct 2018

Action for damages for infringement of copyright

The claimants sought damages after the defendants used songs in which they held the rights in a promotional video. The video was removed within five days of the complaint.
Held: The court awarded 38750 pounds by way of ordinary damages. The damages in such a claim were to be calculated according to the hypothetical fee for licence for the duration of the infringement, and not for a fee which might have been for a period which might have been sought in advance.

Nugee J
[2018] EWHC 2761 (Ch), [2018] WLR(D) 657
Bailii, WLRD
Copyright, Designs and Patents Act 1988
England and Wales

Intellectual Property, Damages

Updated: 02 November 2021; Ref: scu.628949

Twycross v Grant: CA 2 Jun 1877

The plaintiff had bought shares in a company promoted by the defendant. The prospectus was fraudulent having failed to mention certain contracts which made the shares valueless.
Held: The shares being worthless, the plaintiff was entitled to have his price repaid.
Cockburn CJ said: ‘If a man buys a horse, as a racehorse, on the false representation that it has won some great race, while in reality it is a horse of very inferior speed, and he pays ten or twenty times as much as the horse is worth, and after the buyer has got the animal home it dies of some latent disease inherent in its system at the time he bought it, he may claim the entire price he gave; the horse was by reason of the latent mischief worthless when he bought; but if it catches some disease and dies, the buyer cannot claim the entire value of the horse, which he is no longer in a condition to restore, but only the difference between the price he gave and the real value at the time he bought.’

Cockburn CJ
(1877) 2 CPD 469, [1877] UKLawRpCP 43
Commonlii
Companies Act 1867 38
England and Wales
Cited by:
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – McConnel v Wright CA 24-Jan-1903
In an action by a shareholder in a limited company against a director for damages for misrepresentation in the prospectus, the time at which the damage is ordered to be assessed, is the date of the allotment to the plaintiff; accordingly, where the . .

Lists of cited by and citing cases may be incomplete.

Damages, Contract

Leading Case

Updated: 02 November 2021; Ref: scu.191171

Bell v Great Northern Railway Co of Ireland: 1890

The plaintiff was a passenger in a railway carriage which ran backwards downhill in terrifying circumstances. Medical witnesses testified that she was suffering from fright and nervous shock, one of them describing it as ‘profound impression on the nervious system’ and stating that the shock from which she suffered would be a natural consequence of the fright. Another said he was unable to detect any physical damage, and put down her symptoms to nervous shock.
Held: She succeeded. The negligent management by the defendants of the carriage in which she was seated was admittedly the cause of the injury she sustained. Murphy J said: ‘It appears . . immaterial whether the injuries may be called nervous shock, brain disturbance, mental shock, or bodily injury.’ She was awarded damages for her ‘nervous shock,’ although she had suffered no physical damage in the accident.

Murphy J
(1890) 26 LR Ir 428

Damages, Ireland

Leading Case

Updated: 02 November 2021; Ref: scu.464276

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.
Held: The arrangement was a consumer credit agreement, and since it was not in proper form, the sums were not recoverable from the claimant and so in turn were not recoverable either from the defendant. The Act was intended to punish those who sought to work around it.
The additional benefits achieved as part of the mitigation of loss must be taken into account. Even if the claimant could have recovered she could have recovered no more than the ‘spot’ charge and not the charges made for an agreement that entitled the claimant to more benefit than the cost of hire itself (eg by way of financing the cost of replacement pending resolution of a claim or the cost of fighting the claim itself).

Lord Browne-Wilkinson, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Saville of Newdigate, Lord Hobhouse of Wood-borough
Gazette 31-May-2000, Times 12-May-2000, [2000] UKHL 27, [2000] 2 All ER 897, [2000] 2 WLR 1121, [2002] 1 AC 384, (2000) Rep LR 62, [2000] CCLR 57, [2000] RTR 243
House of Lords, Bailii
Consumer Credit Act 1974 127(1)
England and Wales
Citing:
Appeal from – 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 – McAll v Brooks CA 1984
After a road accident the plaintiff hired a car. His insurance brokers provided the car under an arrangement that was alleged to be illegal insurance business and would have prevented them from being subrogated to the plaintiff’s claim for damages . .
Cited – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Cited – Donnelly v Joyce CA 18-May-1973
A six year old injured his leg in a road accident, and needed daily attention. His mother gave up her job to look after him. The claim for damages on behalf of he boy included the mother’s loss of earnings. This was objected to on the grounds that . .
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 – 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 – Hunt v Severs HL 7-Sep-1994
The tortfeasor, a member of the claimant’s family provided her with voluntary nursing care after the injury. The equivalent cost of that care, was recoverable, but would be held on trust for the carer. The underlying rationale of English Law is to . .
Cited – Bellingham v Dhillon QBD 1973
The plaintiff claimed damages for personal injuries, and in particular the loss of profits from his driving school business. He lost the opportunity to lease a driving simulator which would have enabled his company to earn a continuing profit. In . .
Cited – Orakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .

Cited by:
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Cited – McMillan Williams (a Firm) v Range CA 17-Mar-2004
The respondent was employed as a solicitor to be paid commission on fees paid. She received advances against those payments. She was dismissed after failing to reach the targets. The employer sought repayment of the excess advances. She replied that . .
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 . .
Cited – Armchair Passenger Transport Ltd v Helical Bar Plc and Another QBD 28-Feb-2003
Objection was made to the use of an expert witness who had formerly been a senior employee of the defendant.
Held: The court set out criteria for testing the independence of a proposed expert witness: ‘i) It is always desirable that an expert . .
Cited – Heath v Southern Pacific Mortgage Ltd ChD 29-Jan-2009
The appellant challenged a mortgagee’s possession order saying that the loan agreements sought to be enforced were invalid and the charges unenforceable. The loan had been in two parts. She said that as a multi-part agreement it fell within section . .
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 – Southern Pacific Mortgage Ltd v Heath CA 5-Nov-2009
The court considered the effect of an agreement within the 1974 Act falling into more than one category of agreement. Part was used to be used for the repayment of an existing mortgage (restricted use credit), and part was unrestricted. The question . .
Cited – Carey v HSBC Bank plc, Yunis v Barclays Bank plc and similar QBD 23-Dec-2009
carey_hsbcQBD2009
(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give . .
Cited – Sternlight v Barclays Bank Plc QBD 22-Jul-2010
Various credit card customers said that the respondent banks had mis-stated the interest rates applied to them, in that the interest charged did not match the APR advertised, and that therefore the agreements were unenforceable.
Held: The . .
Cited – The Office of Fair Trading v Ashbourne Management Services Ltd and Others ChD 27-May-2011
The OFT alleged that the defendant companies had been engaged in breaches of the Act and the Regulations in their practices in selling gym memberships. The defendant were selling and managing memberships for gyms. They advised as to the different . .
Cited – Dickinson and Others v Tesco Plc and Others CA 4-Feb-2013
The court considered the practice on claims for hire of a replacement car on credit terms after a road traffic accident. The defendant resisted paying for the credit where the claimant could have hired without a credit arrangement. The defendants . .
Cited – Salat v Barutis CA 20-Nov-2013
The claimant had been knocked from his motor cyle by the defendant. He hired a replacement, but when he sought payment of the associated hire charges, the defendant said that the hire company had failed to comply with the 208 Regulations, and that . .

Lists of cited by and citing cases may be incomplete.

Consumer, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.79968

Whalley v PF Developments and Another: CA 14 Feb 2013

The claimants appealed against the level of damages awarded to them in respect of a trespass by the respondent developer. The judge had rejected the claim for unpleaded special damages. The claimants said that the sums had been covered in the evidence at the court’s request.
Held: The appeal succeeded. Though the claimants might have sought leave to amend their pleadings, there had been no prejudice to the defendant, and indeed the defendants had responded to the evidence without objection. The damages should be recalculated to assess the sums claimed.
Lewison LJ said: ‘The purpose of a statement of case is to define the issues and to warn each party what will be dealt with at the trial, but the flexibility of modern procedure is such that, provided the mechanics are fair, adequate notice of matters to be dealt with at trial can be given under the direction of the court otherwise than through the formal medium of a statement of case. Under CPR Part 12.7, when the court enters judgment for an amount to be assessed by the court it will give directions. The same point is made in the practice direction accompanying Part 26. In the present case the district judge directed sequential service of witness statements. He could have directed service of a pleaded schedule of loss, but he did not. It is plain in my judgment that the witness statement was to stand as a statement of loss.’

Mummery, Rimer, Lewison LJJ
[2013] EWCA Civ 306
Bailii
England and Wales
Citing:
Cited – Perestrello E Companhia Limitada v United Paint Co Ltd CA 1969
The plaintiff alleged the wrongful repudiation by the defendant of a contract between them. The court considered the requirements as to what had to be pleaded in a claim for damages.
Held: Where a plaintiff claims that he has suffered damage, . .

Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.472891

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 view to profit, and had awarded exemplary damages. The defendant said that they were excessive and duplicated certain elements.
Held: There had been been some duplication of losses and the exemplary damages award had been excessive. The claim for damages for breach of trust and the claim for loss of profit are not cumulative remedies but alternative and inconsistent remedies. However the appeal as to loss of profits amounted to a challenge to her conclusions of fact not law, and must fail.
‘Mesne profits are damages for the loss of use of land, in this case the loss of the use of the store room. A person entitled to land, usually a landlord where the lease or tenancy has terminated, can claim compensation for being deprived of possession by damages representing either the rent he actually lost or the rent that he could have obtained if he had let the premises.’
As to the calculation of interest, there was no reason not to follow Dexter v Courtaulds in the calculation of interest on awards of damages outside personal injury cases.

Arden, Lloyd, Tomlinson LJJ
[2011] EWCA Civ 985
Bailii
England and Wales
Citing:
At County Court – Ramzan v Agra Ltd; Ramzan v Brookwide Limited Misc 4-Apr-2008
(Birmingham County Court) The parties disputed ownership of a room between their adjoining properties, which incuded a flying freehold. The defendant was said to have broken through into the room, and then blocked off the previous door into the . .
Cited – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Cited – Swordheath Properties Ltd v Tabet CA 1979
The amount of damages payable by a trespasser on land is ordinarily the letting value of the premises. Megaw LJ said: ‘It appears to me to be clear, both as a matter of principle and of authority, that in a case of this sort the plaintiff, when he . .
Cited – Whitwham v Westminster Brymbo Coal and Coke Co CA 24-Jun-1896
Common law damages for the misuse of property involved an award of a sum equivalent to the price or hire that a reasonable person would pay for such use, even if the owner would not himself actually have been using the property. This case involved . .
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 – 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 – 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 . .
Mentioned – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Mentioned – Johnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Cited – Island Records Ltd v Tring International Plc and Another ChD 12-Apr-1995
A copyright plaintiff may delay the choice of his remedy between damages and account of profits until information was available from the defendant which would allow him to gauge which remedy suited him best. The court may make the orders necessary . .
Cited – Personal Representatives of Tang Man Sit v Capacious Investments Ltd PC 18-Dec-1995
The claimant, Capacious Investments Ltd, brought proceedings against Tang’s estate for damages for the loss of use and occupation, and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with . .
Cited – Severn Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Cited – Design Progression Limited v Thurloe Properties Limited ChD 25-Feb-2004
The tenant applied for a licence to assign. The landlord failed to reply, anticipating that delay would allow it to generate a better lease renewal.
Held: The delay was unreasonable and a breach of the landlord’s statutory duty, and was an act . .
Appeal from – Ramzan v Brookwide Ltd ChD 8-Oct-2010
The claimant owned a flying freehold room butting into the defendant’s property. Whilst the claimant’s property was unoccupied, the defendant broke through into the room, blocked off the door to the claimant’s property, and included the room in the . .
Cited – Dexter v Courtaulds Ltd CA 1984
The plaintiff had been injured at work, and awarded damages, including for loss of wages. The parties disputed the method of calculation of interest on the damages.
Held: To avoid the laborious detailed calaculations of interest from day to . .

Cited by:
Principal judgment – Ramzan v Brookwide Ltd (Ancillary Matters) CA 19-Aug-2011
Costs award after principal judgment . .

Lists of cited by and citing cases may be incomplete.

Damages

Updated: 02 November 2021; Ref: scu.443236

AT and others v Dulghieru and Another: QBD 19 Feb 2009

The claimants had been subject to unlawful human trafficking. Their abductors had been imprisoned, and they now sought damages. The court was asked now to assess the damages to be awarded for sexual enslavement. Each claimant suffered chronic post traumatic stress disorder.
Held: Awards of about andpound;100,000 were made, excluding any aggravated damages. The award of general damages for psychiatric injury did not include an award for injury to feelings, humiliation and otherwise. The behaviour of the Defendants amounted to insulting and arrogant treatment of these Claimants, trampling, as it did, upon their rights as autonomous human beings and subjecting them to repeated episodes of degrading non consensual sexual activity over a significant period of time. Aggravated damages should also be awarded at andpound;30,000 and andpound;35,000. A further sum of andpound;60,000 exemplary was to be awarded to and divided between the claimants.

Treacy J
[2009] EWHC 225 (QB)
Bailii
England and Wales
Citing:
Cited – Griffiths v Williams CA 21-Nov-1995
The Defendant landlord had demanded rent arrears and said that if the Claimant did not do what he wanted he would evict her from her flat. He forcibly raped her and then fought a criminal trial, alleging that sexual relations had been consensual and . .
Cited – Lunt v Liverpool City Justices CA 5-Mar-1991
A man of good reputation had been imprisoned for forty two days wholly unjustifiably for alleged default in payment of rates. He sought damages.
Held: The Court increased the award from andpound;13,500.00 to andpound;25,000.00. Commenting on . .
Cited – A v Hoare QBD 8-Jul-2008
The claimant sought damages for her rape by the defendant. After his conviction and having served his sentence, the defendant won substantial sums on the lottery.
Held: The sums paid by the Criminal Injuries Compensation Board were not paid by . .
Cited – Martins v Choudhary CA 20-Dec-2007
The appellant appealed the award of damages for personal injury and harrassment. He was said to have driven the claimant off the road and to have made racist remarks. He had previously been found to be in contempt of court for breaches of . .
Cited – Thompson v Commissioner of Police of Metropolis; Hsu v Same CA 20-Feb-1997
CS Damages of 200,000 pounds by way of exemplary damages had been awarded against the police for unlawful arrest and assault.
Held: The court gave a guideline maximum pounds 50,000 award against police for . .
Cited – Lawson v Glaves-Smith, Executor of the Estate of Dawes (Deceased) QBD 14-Nov-2006
The claimant sought damages saying that she had been falsely imprisoned, raped and drugged by the defendant who had since died.
Held: The court had only the evidence of the claimant, and must be careful in examining it. On that evidence the . .
Cited – Regina v Governor HM Prison Brockhill, ex parte Michelle Carol Evans (No 2) CA 19-Jun-1998
The plaintiff was serving a sentence of imprisonment. Her detention was correctly calculated in accordance with the law as understood. That method was later disapproved when the Divisional Court laid down (everyone has assumed correctly) a different . .
Cited – Rowlands v Chief Constable of Merseyside Police CA 20-Dec-2006
The claimant succeeded in her claims for general damages against the respondent for personal injury, false imprisonment and malicious prosecution, but appealed refusal of the court to award aggravated damages against the chief constable.
Held: . .
Cited – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Cited – Riches v News Group Newspapers Ltd CA 20-Feb-1985
The defendant published serious defamatory allegations against several plaintiff police officers. The defendant newspaper appealed against an award of andpound;250,000 exemplary damages for their defamation of the respondent police officers.
Cited – Borders (UK) Ltd and others v Commissioner of Police of the Metropolis and Another CA 3-Mar-2005
The second defendant had received large numbers of stolen books and sold them from his stall. An application for compensation was made at his trial. Compensatory and exemplary damages were sought, but the court had to consider how to estimate the . .
Cited – Riches v News Group Newspapers Ltd CA 20-Feb-1985
The defendant published serious defamatory allegations against several plaintiff police officers. The defendant newspaper appealed against an award of andpound;250,000 exemplary damages for their defamation of the respondent police officers.
Cited by:
Cited – RAR v GGC QBD 10-Aug-2012
rar_ggcQBD2012
The claimant alleged that the defendant, her stepfather, had sexually and otherwise assaulted her when she was a child. He had pleaded guilty to one charge in 1978, and now said that the claim was out of time. The claimant sought the extension of . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages, Personal Injury

Updated: 02 November 2021; Ref: scu.295121

Susie Radin Ltd v GMB and others: CA 20 Feb 2004

The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due.
Held: The purpose of the order was punitive and therefore was not affected by the actual notice given by the employer. The section was intended to give effect to the European Directive, which required some penalty for non-compliance. The discretion given to the court was a judicial discretion to be exercised according to proper legal principles. The proper approach was to start with the maximum award and to reduce it where mitigation was found to justify a reduction.

Lord Justice Laws, Lord Justice Peter Gibson, Lord Justice Longmore
[2004] EWCA Civ 180, Times 16-Mar-2004, Gazette 18-Mar-2004, [2004] IRLR 400, [2004] 2 All ER 279, [2004] ICR 893
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 189(2), Trade Union Reform and Employment Rights Act 1993, Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995, Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999
England and Wales
Citing:
Appeal from – Susie Radin Limited v GMB and others EAT 24-Jun-2003
EAT Redundancy – Protective award . .
Cited – Association of Patternmakers and Allied Craftsmen v Kirvin Ltd EAT 1978
The court discussed the punitive nature of a protective award made where a company failed to consult on redundancies: ‘A Tribunal, however, is specifically enjoined to determine the [protected] period and so the amount of the award by paying regard . .
Cited – Commission v United Kingdom (Judgment) ECJ 8-Jun-1994
ECJ Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for . .
Disapproved – Talke Fashions Ltd v Society of Textile Workers EAT 1978
The employer announced the closure of two factories and the redundancy of the workforce, at one factory in 15 days’ time and, at the other, in 63 days’ time. There was no consultation. The employer appealed a 60 day protective award.
Held: . .
Cited – Joshua Wilson and Bros Ltd v USDAW 1978
Redundancy consultation – protective award . .
Cited – TGWU v Gainsborough Distributors EAT 1978
Redundancy consultation – protective award . .
Cited – Clarks of Hove Ltd v Bakers’ Union EAT 1978
Protective award – redundancy consultation. Kilner Brown J discussed what was meant by special circumstances by comparison with disqualification as a driver and the Road Traffic Acts where ‘special reasons’ have been held to mean ‘special to the . .
Cited – Spillers French (Holdings) Ltd v Union of Shop, Distributive and Allied Workers (USDAW) EAT 1979
The employer closed its bakeries and made redundancies, but without consultation. The ET decided it could make a protective award even if none of the employees had suffered any loss because the redundancies must follow.
Held: In the . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – GMB v Rankin and Harrison EAT 1992
The proper approach when setting a protective award for non-consultation was to start with the maximum period and to make allowance according to any mitigation found. . .
Approved – Middlesborough Borough Council v TGWU EAT 2002
The EAT discussed the need to focus on the seriousness of the employer’s default in complying with the mandatory obligation to consult employees before making redundancies: ‘The duties under the section are mandatory. It is not open to an employer, . .

Cited by:
Cited – Unison v Leicestershire County Council CA 29-Jun-2006
The council had dismissed all workers within a group of employees, and invited them to re-apply for their jobs. The council now appealed a protective award made on the basis that there had been inadequate consultation with the union.
Held: The . .
Cited – Haine v Secretary of State for Business Enterprise and Regulatory Reform and Another; Day v Haine CA 11-Jun-2008
Former employees had obtained a protective award against the company for failing to consult on the impending redundancies and submitted proofs of debt to the liquidator who sought guidance from the court. The judge had held that since the Act . .
Cited – Amicus v Irlandus Circuits Ltd NIIT 25-Apr-2006
The unanimous decision of the tribunal is that the respondent failed to comply with its duty to consult under Article 216 of the Employment Rights (Northern Ireland) Order 1996 and the members of the claimant union are entitled to a protective award . .
Cited – Evans and others v Permacell Finesse Ltd EAT 23-Oct-2007
EAT Protective award
When considering the protective award to the Claimant for grave failure by the Respondent in administration to comply with the regime relating to proposed redundancies, the Employment . .
Cited – Cranwick Country Food Plc v GMB Trade Union EAT 6-Sep-2005
EAT Tribunal correct that consultation about the correspondence of factory closure should have taken place immediately after closure plans announced before contracts exchanged on a new site. Securicor and Susie . .
Cited – Sweetin v Coral Racing EAT 20-Dec-2005
EAT Claimant sought compensation for unfair constructive dismissal and failure to consult prior to a TUPE transfer of a bookmaker’s business for which the claimant worked. Her contract of employment described her . .
Cited – UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area) and Another EAT 27-Sep-2007
The employer appealed against a protective award made for failing to consult the union on prospective redundancies.
Held: The appeal failed. The duty to consult arose as soon as the redundancies were fixed as a clear, even if there had been . .
Cited – Industrial Chemicals Ltd v Reeks and others EAT 7-Jul-2004
. .
Cited – Newage Transmission Ltd v Transport and General Workers Union and others EAT 25-May-2005
EAT Redundancy – Protective award – adequacy of reasons (BARKE) – maximum protective award for redundancies where 20 – 99 employees involved – TULRCA s189(4) – vires of s.1 1925/99. . .
Cited – Smith, and Moore v Cherry Lewis Ltd (In Receivership) EAT 5-Nov-2004
EAT Failure to consult regarding redundancies. Protective Award and insolvent employer. Nature and purpose of ‘sanction’ of protective award. Effect of guidance of Susie Radin Ltd v GMB and Others [2004] ICR 893 . .
Cited – Amicus v GBS Tooling Limited (In Administration) EAT 18-Apr-2005
EAT Redundancy – Protective award. . .
Cited – Alcock and others v Donaghadee Carpets Ltd and others NIIT 14-Sep-2005
. .
Cited – Communication Workers Union v Trivirix International Ltd NIIT 30-Jul-2007
. .
Cited – Leicestershire County Council v Unison EAT 2-Sep-2005
EAT Redundancy: Protective Award
Employment Tribunal correctly applied the judgment in Susie Radin v GMB [2004] ICR 893 in its approach to the calculation of a protective award for one group of workers, . .
Cited – Casson and Another v The Law Society Admn 20-Oct-2009
Two solicitors had been made bankrupt and then discharged from bankruptcy. They suffered adjudications by the SDT awarding compensation for matters occurring before the bankruptcies. They appealed, saying that the awards were bankruptcy debts from . .
Cited – Cable Realisations Ltd v GMB Northern EAT 29-Oct-2009
The company appealed against the upholding of the union’s claim that the company was in breach of the regulations. The company was to close its factory and decided at first to begin consultations for redundancy, but then looked for a buyer for the . .

Lists of cited by and citing cases may be incomplete.

Employment, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.193904

Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International: HL 12 Jun 1997

Allowance of Stigma Damages

The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. An employer might be liable in damages to an employee stigmatised by association with employers’ improper methods of conducting business, even though he had only learned of the misdeeds after the termination. Addis was not concerned with direct economic losses, but rather with injury to feelings, and was decided before the modern idea of trust and cofidence was developed. The breach of duty confidence when the act took place, not later when the employee learned of it. ‘The motives of the employer cannot be determinative or even relevant, in judging the employees’ claims for damages for breach of the implied obligation. If conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’
Lord Steyn said that ‘the employer shall not: ‘without reasonable and proper cause, conduct itself in a manner . . likely to destroy or serious damage the relationship of confidence and trust between employer and employee.”
Lord Nicholls said: ‘The [employer’s] conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances . . The objective standard just mentioned provides the answer to the liquidator’s submission that unless the employee’s confidence is actually undermined there is no breach. A breach occurs when the prescribed conduct takes place . . Proof of a subjective loss of confidence in the employer is not an essential element of the breach, although the time when the employee learns of the misconduct and his response to it may affect his remedy.’

Lord Goff of Chieveley, Lord Mackay of Clashfern, Lord Mustill, Lord Nicholls of Birkenhead, Lord Steyn
Gazette 25-Jun-1997, [1997] 3 WLR 95, [1997] UKHL 23, [1998] AC 20, [1997] ICR 606, [1997] 3 All ER 1, [1997] IRLR 462
House of Lords, Bailii
Employment Rights Act 1996 1(1)
England and Wales
Citing:
Distinguished – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited – Maw v Jones 1890
An assessment of damages on a dismissal from employment might take into account the greater difficulty which an apprentice dismissed with a slur on his character might have in obtaining other employment. . .
Cited – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful . .
Cited – Lonrho Plc and Others v Fayed and Others (No 5) CA 27-Jul-1993
Defamatory statements causing pecuniary loss may give rise to an action in tort only. The boundaries set by the tort of defamation are not to be side-stepped by allowing a claim in contract that would not succeed in defamation. A claimant cannot, by . .
Cited – Foaminol Laboratories Ltd v British Artide Plastics Ltd 1941
There is no justification for artificially excising from the damages recoverable for breach of contract that part of the financial loss which might or might not be the subject of a successful claim in defamation. A claim for mere loss of reputation . .
Cited – Herbert Clayton and Jack Waller Ltd v Oliver HL 1930
When awarding damages for breach of contract courts should take care to confine the damages to their proper ambit: making good financial loss. When considering an award of damages to an actor who should have been billed to appear at the London . .
Cited – GKN Centrax Gears Ltd v Matbro Ltd CA 1976
The court reinforced the distinction between damages in contract for financial losses, and for loss of reputation. . .
Preferred – Marbe v George Edwardes (Daly’s Theatre) Ltd CA 1928
When assessing damages for loss flowing from a failure to provide promised publicity, the loss may include loss to existing reputation. . .
Cited – Withers v General Theatre Corporation Ltd CA 1933
An artist was engaged to appear at the London Palladium. The defendant, in breach of contract, refused to allow him to perform.
Held: the plaintiff was entitled to damages for the loss of reputation which he would have acquired if 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 – Scally v Southern Health and Social Services Board HL 1991
The plaintiffs were junior doctors employed by the respondents. Their terms had been collectively negotiated, and incorporated the Regulations. During the period of their employment different regulations had given and then taken way their right to . .
At First Instance – Malik and Another v Bank of Credit and Commerce International Sa Chd 23-Feb-1994
A stigma arising from an association with a notorious employer gave rise to no cause of action. . .
Appeal from – Malik and Another v Bank of Credit and Commerce International Sa CA 17-Mar-1995
No compensation was payable for a stigma of innocent workers having worked for a fraudulent bank. . .

Cited by:
Cited – Morrow v Safeway Stores Plc EAT 21-Sep-2000
The complainant appealed a decision that she had not been constructively dismissed. She had been told off in public, causing her great distress. The tribunal had found the employer’s behaviour regrettable but not such as to break the duty of trust . .
Cited – Husain and Zafar v Bank of Credit and Commerce International SA CA 31-Jan-2002
The appellants challenged the refusal of their claims for stigma damages following the collapse of their former employer.
Held: If a relevant breach of contract is established, and causation, remoteness and mitigation are satisfied, recovery . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – 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 . .
Cited – Horkulak v Cantor Fitzgerald International QBD 31-Jul-2003
The claimant sought damages for constructive dismissal. He said that verbal abuse he had suffered from the manager damaged his health and destroyed the relationship of trust and confidence.
Held: The manager was dictatorial and saw it as his . .
Cited – Dunnachie v Kingston-upon-Hull City Council HL 15-Jul-2004
The claimant sought damages following his dismissal to include a sum to reflect the manner of his dismissal and the distress caused.
Held: The remarks of Lord Hoffmann in Johnson -v- Unysis were obiter. The court could not, under the section, . .
Cited – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Cited – Nottinghamshire County Council v Meikle CA 8-Jul-2004
The claimant was a teacher who had come to suffer a sight disability. She complained that her employers had failed to make reasonable accomodation for her disability, and subsequently she resigned claiming constructive dismissal and damages for . .
Cited – London Borough of Waltham Forest v Omilaju CA 11-Nov-2004
Final Straw Act – Non-Trivial
The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was . .
Cited – Reda, Abdul-Jalil v Flag Limited PC 11-Jul-2002
PC (Bermuda) The courts should be reluctant to accept a fetter on the employer’s right to dismiss on notice where there is an express term in the contract empowering the employer to do so.
Lord Millet . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Cited – Morshead Mansions Ltd v Mactra Properties Ltd CA 3-Apr-2006
Tenants of a block of flats were in dispute with their management company. Some tenants had ceased paying rent, and forfeiture proceedings had begun. There had been a compromise of the forfeiture proceedings. The parties now disputed the extent to . .
Cited – Wiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – RDF Media Group Plc and Another v Clements QBD 5-Dec-2007
The defendant had sold his business to the claimants and in part consideration had accepted restrictive covenants as to his not competing with them. On indicating his desire to leave the claimants and work for a competitor, made statements which the . .
Cited – SG and R Valuation Service Co v Boudrais and others QBD 12-May-2008
The claimant sought to require the defendants not to work during their notice period to achieve the equivalent of garden leave despite there being no provision for garden leave in the contracts. It was said that the defendants had conspired together . .
Cited – Jamie v Management Solution Partners Ltd EAT 31-Jan-2006
The claimant received an email from his employers and resigned claiming unfair dismissal saying that it was repudiatory. The employers objected to the admission of the email into evidence saying that it was marked without prejudice and subject to . .
Cited – Transco Plc v O’Brien CA 7-Mar-2002
The company appealed against a finding that they were in breach of their contract of employment in not including the claimant in those considered for an enhanced redundancy package.
Held: The appeal failed. Tribunals should be cautious before . .
Cited – Hamilton v Tandberg Televison Ltd EAT 12-Dec-2002
The applicant claimed unfair constructive dismissal.
Held: The appeal failed. McMullen QC J said: ‘It is suggested that the Employment Tribunal erred in law in failing to condemn the investigation. The standard against which investigation . .
Cited – Claridge v Daler Rowney Ltd EAT 4-Jul-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
Cited – Morrow v Safeway Stores Plc EAT 21-Sep-2001
The claimant appealed against dismissal of her claim of unfair constructive dismissal. She complained of having been publicly told off. The court considered whether this amounted to a breach of a fundamental term of her contract entitling her to . .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – Amnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
Cited – GAB Robins (UK) Ltd v Triggs CA 30-Jan-2008
The claimant had been awarded damages for unfair constructive dismissal. The employer appealed an award of damages for the period prior to the acceptance by the employee of the repudiatory breach.
Held: Where a claimant’s losses arose before . .
Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Cited – Chagger v Abbey National Plc and Another CA 13-Nov-2009
The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the . .
Cited – Buckland v Bournemouth University Higher Education Corporation CA 24-Feb-2010
The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust CA 26-May-2010
The claimant, a consultant doctor, sought damages saying that his employer had failed to follow the contract when disciplining and dismissing him. The GMC had dismissed as unfounded the allegation on which the dismissal was based. He sought damages . .
Cited – Botham v The Ministry of Defence QBD 26-Mar-2010
botham_modQBD10
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
Cited – Watson v University of Strathclyde EAT 1-Feb-2011
EAT UNFAIR DISMISSAL – Constructive dismissal
Apparent bias. Whether Employment Tribunal had erred in failing to find that there was apparent bias where a member of the panel (the University Secretary) . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust SC 14-Dec-2011
The claimant had been employed as consultant surgeon. He had been dismissed in a manner inconsistent with the extress terms of his employment contract. He sought common law damages for the manner of his dismissal. The employer appealed.
Held: . .
Cited – Dresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
Cited – Chelsfield Advisers Llp v Qatari Diar Real Estate Investment Company and Another ChD 15-May-2015
Application for summary judgment in respect of an agreement relating to the proposed redevelopment of the site of the embassy of the United States of America in Grosvenor Square.
Held: The court considered the authorities and principles to be . .
Cited – Mr H TV Ltd v ITV2 Ltd ComC 8-Oct-2015
The claimant had contracted with the defendant for the production of a series of reality TV shows featuring celebrities. After severe personal clashes between the people involved on the claimants side, the contract was terminated. The claim was that . .
Cited – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .

Lists of cited by and citing cases may be incomplete.

Employment, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.158898

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 one of them being negligent. But once the valuer has been found to have been negligent, the loss for which he is responsible is that which has been caused by the valuation being wrong. A negligent valuer is not necessarily liable for the whole of the loss in such circumstances. The correct approach has been held to be to ascertain what element of loss suffered as a result of the transaction was attributable to the inaccuracy of the information supplied by the valuer. For this purpose the valuation negligently provided is to be compared with the figure which a reasonable valuer, using the information available at the relevant time, would have put forward as its most likely open market value. Thus the valuer may escape liability for a subsequent fall in market values. The court discussed the ‘mountaineer’s knee’: ‘A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee . . on what I have suggested is the more usual principle, the doctor is not liable. The injury has not been caused by the doctors bad advice because it would have occurred if the advice had been correct’.
Lord Hoffmann: ‘Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled as compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation . . Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful.’
Lord Hoffmann said: ‘The Court of Appeal (Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd and other appeals [1995] 2 All ER 769, [1995] QB 375) decided that in a case in which the lender would not otherwise have lent (which they called a ‘no-transaction’ case), he is entitled to recover the difference between the sum which he lent, together with a reasonable rate of interest, and the net sum which he actually got back. The valuer bears the whole risk of a transaction which, but for his negligence, would not have happened. He is therefore liable for all the loss attributable to a fall in the market. They distinguished what they called a ‘successful transaction’ case, in which the evidence shows that if the lender had been correctly advised, he would still have lent a lesser sum on the same security. In such a case, the lender can recover only the difference between what he has actually lost and what he would have lost if he had lent the lesser amount. Since the fall in the property market is a common element in both the actual and the hypothetical calculations, it does not increase the valuer’s liability.
The valuers appeal. They say that a valuer provides an estimate of the value of the property at the date of the valuation. He does not undertake the role of a prophet. It is unfair that merely because for one reason or other the lender would not otherwise have lent, the valuer should be saddled with the whole risk of the transaction, including a subsequent fall in the value of the property.

Lord Hoffmann, Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Slynn of Hadley, Lord Nicholls of Birkenhead
Gazette 04-Sep-1996, Times 24-Jun-1996, [1997] AC 191, [1996] PNLR 455, [1996] 27 EG 125, [1996] UKHL 10, [1996] 3 WLR 87, [1996] 3 All ER 365, [1996] 2 EGLR 93, 80 BLR 1, [1996] 5 Bank LR 211, [1996] CLC 1179, [1996] 50 Con LR 153
Bailii
England and Wales
Citing:
Appeal from – 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 . .
Appeal from – Craneheath Securities v York Montague CA 1996
When testing whether a valuation was negligent, it would not be enough for the plaintiff to show that there have been errors at some stage of the valuation unless they can also show that the final valuation was wrong. would not be enough for the . .
Applied – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .
Cited – In re the Oropesa CA 1943
Two steam vessels collided. One’s Master sent fifty of his crew in boats to the other ship and about an hour and a half after the collision decided himself to go to that ship and confer with her Master on measures to be taken. He transferred in . .
At first instance – 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 – Regina v Shulman, Regina v Prentice, Regina v Adomako; Regina v Holloway HL 1-Jul-1994
An anaesthetist failed to observe an operation properly, and did not notice that a tube had become disconnected from a ventilator. The patient suffered a cardiac arrest and died, and the defendant was convicted of manslaughter, being guilty of gross . .

Cited by:
Cited – 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 . .
Applied – 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 . .
Cited – Petersen v Personal Petersen (Deceased), Representative of CA 31-Jan-2002
The claim was against a solicitor for negligence. The claimant had purchased a property in respect of which there was an unsettled dispute, He claimed that the solicitor had accepted a condition under which he accepted a proportion of the liability . .
Cited – Equitable Life Assurance Society v Ernst and Young (A Firm) ComC 10-Feb-2003
The company complained that its auditors had failed to give appropriate warning of the Society’s exposure to risk in awarding larger bonuses than were justified, and that had the true position been known, it xould have put itself up for sale . .
Cited – Goldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Cited – DP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
Affirmed – 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 – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – A and Another v Essex County Council CA 17-Dec-2003
The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child.
Held: Any such duty extended only during the period where the child was with the prospective . .
Cited – Humblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would . .
Cited – Roger Michael and others v Douglas Henry Miller and Another ChD 22-Mar-2004
Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
Held: In . .
Cited – McLoughlin v Jones; McLoughlin v Grovers (a Firm) CA 2002
In deciding whether a duty of care is established the court must go to the ‘battery of tests which the House of Lords has taught us to use’, namely: ‘. . the ‘purpose’ test (Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd); the ‘assumption . .
Cited – Crehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
Cited – Green and Another v Alexander Johnson (A Firm) and Another ChD 26-May-2004
The judgment related to the assessment of damages for professional negligence by the defendants. The court deprecated the practice of separating off assessments of damages from the principal claim, since this created a risk of confusion. The . .
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 – London General Holdings Ltd and others v USP Plc and Another CA 22-Jul-2005
Copyright was claimed in a draft legal agreement. Infringement was established, but the court was asked to look at the assessment of damages.
Held: ‘what is the basis upon which damages for breach of copyright are awarded? The question cannot . .
Cited – Weston v Gribben ChD 20-Dec-2005
. .
Cited – Phelps v Stewarts (A Firm) and Another ChD 2-Jul-2007
The claimant sought damages for the negligent drafting of a deed of trust, saying that he had not been advised of a charge to tax which would arise. The defendant said that her duties were limited, and did not include advice on this point, having . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Parker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
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 . .
Cited – Kuddus v Regina CACD 16-May-2019
The defendant appealed his conviction for gross negligence manslaughter. He ran a takeaway food business. A meal was ordered by the victim through a third party website, adding that she suffered mild allergies. There was no evidence that 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 . .
Cited – Manchester Building Society v Grant Thornton UK Llp ComC 2-May-2018
claim for damages by a building society caused by the admitted negligence of its accountant. . .
Cited – Manchester Building Society v Grant Thornton UK Llp CA 30-Jan-2019
Liability of an auditor for losses incurred on long term interest rate swap agreements which were entered into in reliance upon negligent accounting advice and which were closed out at a loss when the negligent advice came to light. . .
Cited – Manchester Building Society v Grant Thornton UK Llp SC 18-Jun-2021
Was the Court of Appeal was right to hold that the break costs claimed by the Appellant fell outside the scope of the Respondent’s duty of care as professional accountants? . .
Cited – Khan v Meadows SC 18-Jun-2021
‘ A woman approaches a general medical practice for testing to establish whether she is a carrier of a hereditary disease. Tests which are inappropriate to answer that question are arranged. A general medical practitioner when informing her of the . .

Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence, Banking

Leading Case

Updated: 02 November 2021; Ref: scu.89405

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 was available only for use as a hopper barge for a further sixteen days while repairs to her machinery were completed. Since the owners were not an ordinary trading organisation and had not obtained a temporary replacement, they were unable to show that they were out of pocket and were thus unable to make a conventional claim for special damages in respect of the period during which the dredger was unavailable for use.
Held: Even though they could not show that they had suffered any specific loss, the owners were entitled to recover damages for loss of use of the dredger. Lord Halsbury regarded it as axiomatic that the owner of property could recover damages for loss of use in such a situation, even though he could not show that he had suffered any specific loss.

Lord Herschell said: ‘I take it to be clear law that in general a person who has been deprived of the use of a chattel through the wrongful act of another is entitled to recover damages in respect thereof, even though he cannot prove what has been called ‘tangible pecuniary loss’, by which I understand is meant that he is a definite sum of money out of pocket owing to the wrong he has sustained. This was not disputed.’ and
‘If the appellants had hired a dredger instead of purchasing one, and had during the months they were deprived of its use been bound to pay for its hire, it cannot be doubted that the sums so paid could have been recovered. How can they the less be entitled to damages because, instead of hiring a dredger, they invested their money in its purchase? The money so invested was out of their pockets, and they were deprived of the use of the dredger, to obtain which they had sacrificed the interest on the money spent on its purchase. A sum equivalent to this, at least, they must surely be entitled to. But I think they are also entitled to general damages in respect of the delay and prejudice caused to them in carrying out the works entrusted to them. It is true these damages cannot be measured by any scale; but that would be equally true in the case of damages in respect of the deprivation of an individual of a chattel which he had purchased for purposes of comfort and not profit.’

Lord Herschell
[1897] AC 596
England and Wales
Cited by:
Cited – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Cited – Carlton Greer v Alstons Engineering Sales and Services Limited PC 19-Jun-2003
PC (Trinidad and Tobago) The claimant had bought an expensiv agriucltural tool (a hoe) from the defendants. It was defective and her returned it repeatedly for repair. Eventually they refused to allow him to test . .
Cited – West Midlands Travel Ltd v Aviva Insurance UK Ltd CA 18-Jul-2013
The claimant bus operator sought damages after one of its buses was off the road for several weeks. It made a claim for general damages for loss of use, using for that purpose a formula produced by the Confederation of Passenger Transport UK, which, . .

Lists of cited by and citing cases may be incomplete.

Damages

Leading Case

Updated: 02 November 2021; Ref: scu.188652

West Lothian Council v Aziz: EAT 21 Nov 2012

EAT Unfair Dismissal : Compensation
Trainee solicitor. Dismissal procedurally unfair. Compensation for unfair dismissal. Tribunal had no basis in the evidence for proceeding on basis that it was likely that the Claimant – whose performance in the employment of the Respondent was completely inadequate and such as to lead them to conclude that he could never be a ‘fit and proper person’ to be admitted as a solicitor – would in fact have qualified and been permanently employed as a solicitor. Tribunal appeared to have been unduly swayed by sympathy for the Claimant. No opposition offered, at the appeal, to Appellant’s submissions. Appeal upheld and award comprising basic award only (andpound;402) substituted for Tribunal’s award of andpound;30,597.62.

Lady Smith
[2012] UKEAT 0043 – 12 – 2111
Bailii
England and Wales

Employment, Damages

Updated: 02 November 2021; Ref: scu.468961

Alcock and Others v Chief Constable of South Yorkshire Police: HL 28 Nov 1991

The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not defended a claim of negligence in their management of safety at the match at Hillsborough football stadium. They appealed against a decision that they had been insufficiently proximate to claim for nervous shock.
Held: The claim failed. The personal relationships were close enough for some claimants, but the scenes were broadcast in such a way that no individuals were capable of being identified. Foreseeability of injury does not of itself, and automatically, lead to a duty of care.
The House (Lord Oliver) distinguished between primary and secondary victims: ‘Broadly [the cases] divide into two categories, that is to say, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others.’ and
‘There is, to begin with, nothing unusual or peculiar in the recognition by the law that compensatable injury may be caused just as much by a direct assault upon the mind or the nervous system as by direct physical contact with the body. This is no more than the natural and inevitable result of the growing appreciation by modern medical science of recognisable causal connections between shock to the nervous system and physical or psychiatric illness. Cases in which damages are claimed for directly inflicted injuries of this nature may present difficulties of proof but they are not, in their essential elements, any different from cases where the damages claimed arise from direct physical injury and they present no very difficult problems of analysis where the plaintiff has himself been directly involved in the accident from which the injury is said to arise. In such a case he can be properly said to be the primary victim of the defendant’s negligence and the fact that the injury which he sustains is inflicted through the medium of an assault on the nerves or senses does not serve to differentiate the case, except possibly in the degree of evidentiary difficulty, from a case of direct physical injury.’

Lord Keith of Kinkel, Lord Ackner, Lord Oliver of Aylmerton, Lord Jauncey of Tullichettle and Lord Lowry
Gazette 22-Jan-1992, [1991] 3 WLR 1057, Times 29-Nov-1991, [1992] 1 AC 310, [1991] UKHL 5
lip, Bailii
Law Reform (Miscellaneous Provisions) Act 1944 4(5)
England and Wales
Citing:
Cited – Bourhill v Young’s Executor HL 5-Aug-1942
When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been . .
Cited – McLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .
Cited – Jaensch v Coffey 20-Aug-1984
(High Court of Australia) The claimant’s husband was injured. She saw his injuries at hospital and was affected. She claimed damages for her own shock.
Held: The driver owed her a duty of care, and was liable for negligence which caused . .
Cited – Hinz v Berry CA 1970
Then plaintiff saw her husband killed and her children injured by a runaway motor car. At trial she was awarded damages for nervous shock. The question was whether, having regard to the fact that she had suffered sorrow and grief it would not be to . .
Doubted – Hevican v Ruane QBD 1991
The plaintiff’s son died in a car crash, and she claimed damages for nervous shock.
Held: Given the relationship, the psychological illness was reasonably foreseeable, and recoverable. . .
Doubted – Ravenscroft v Rederiaktiebolaget Transatlantic 1991
. .
Appeal from – Alcock and Others v Chief Constable of South Yorkshire Police CA 31-May-1991
The defendant policed a football match at which many people died. The plaintiffs, being relatives and friends of the deceased, inter alia suffered nervous shock having seen the events either from within the ground, or from outside or at home on . .
Cited – Currie v Wardrop 1927
The pursuer was walking arm in arm with her fiance when he was hit by a vehicle driven by the defender.
Held: She recovered damages for nervous shock involving apprehension for her own safety and the safety of her fiance, though he was hit and . .
Cited – Dooley v Cammell Laird and Co Ltd 1951
The plaintiff was a crane driver whose load of timber, drums of paint, and bags of bolts etc, and without any fault on his part, fell into the hold of a ship as they were being lowered along with scaffolding. No one was actually injured but the . .
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .

Cited by:
Cited – Keen v Tayside Contracts OHCS 26-Feb-2003
The claimant sought damages for post traumatic stress disorder. He was a road worker instructed to attend by the defendant immediately after a terrible accident.
Held: It was a classic case of nervous shock. He was not a rescuer, and nor had . .
Cited – Giullietta Galli-Atkinson v Seghal CA 21-Mar-2003
The claimant’s daughter was fatally injured in car accident, dying shortly after. The mother came upon the scene, witnessed a police cordon at the scene of the accident and was told of her death. She later saw the injuries at the mortuary and . .
Cited – White, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998
No damages for Psychiatric Harm Alone
The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy.
Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . .
Cited – Salter v UB Frozen Chilled Foods OHCS 25-Jul-2003
The pursuer was involved in an accident at work, where his co-worker died. He suffered only psychiatric injury.
Held: Being directly involved, the pursuer was a primary victim, and accordingly not subject to the limits on claiming for . .
Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – Nobes, Chief Constable of West Yorkshire Police v Schofield CA 14-May-1998
A police constable was entitled to claim damages for nervous shock after a co-officer unexpectedly and unlawfully fired off shots from a gun they had found as part of a search. . .
Cited – Donachie v The Chief Constable of the Greater Manchester Police CA 7-Apr-2004
The claimant had been asked to work under cover. The surveillance equipment he was asked to use was faulty, requiring him to put himself at risk repeatedly to maintain it resulting in a stress disorder and a stroke.
Held: There was a direct . .
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 – 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 – Page v Smith HL 12-May-1995
The plaintiff was driving his car when the defendant turned into his path. Both cars suffered considerable damage but the drivers escaped physical injury. The Plaintiff had a pre-existing chronic fatigue syndrome, which manifested itself from time . .
Cited – French and others v Chief Constable of Sussex Police CA 28-Mar-2006
The claimants sought damages for psychiatric injury. They were police officers who had been subject to unsuccessful proceedings following a shooting of a member of the public by their force.
Held: The claim failed: ‘these claimants have no . .
Cited – Toth v Jarman CA 19-Jul-2006
The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: . .
Cited – Calvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .
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 – Taylor v A Novo (UK) Ltd CA 18-Mar-2013
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Cited – Smith v Lancashire Teaching Hospitals NHS Trust and Another QBD 8-Sep-2016
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .
Cited – Paul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .

Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Leading Case

Updated: 02 November 2021; Ref: scu.174247

Waters and others v Welsh Development Agency: HL 29 Apr 2004

Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this plot.
Held: ‘All that was necessary, since it was clear that the section 6 disregards were irrelevant to the case, was to ask, first, whether the case fell within rule (3) of section 5 and, second, if it did not, to ask whether the alleged enhancement of value was part of the value of the land to the seller.’ Since only an authority seeking to create a nature reserve would attribute the value contended for it, the associated increase in value fell outside the assessment and compensation.
Lord Nicholls criticised the complexity of the law and commented: ‘Meanwhile, until Parliament takes action I suggest your Lordships’ House, so far as it may properly do so, should seek to simplify the law, always having in mind that the aim of compensation is to provide a fair financial equivalent for the land taken.’

Lord Nicholls of Birkenhead, Lord Woolf, Lord Steyn, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood
[2004] UKHL 19, Times 05-May-2004, Gazette 13-May-2004, [2004] 1 WLR 1304, [2004] NPC 68, [2004] RVR 153, [2004] 19 EGCS 165, [2004] 2 All ER 915
House of Lords, Bailii
Land Compensation Act 1961 5(3) 6
England and Wales
Citing:
Appeal from – Waters and others v Welsh Development Agency CA 28-Jun-2002
The claimant’s land was subject to a compulsory purchase order to make land available for a scheme to make possible a much larger and more valuable scheme. He asserted that the compensation should be calculated in accordance with the value of the . .
Cited – Stebbing v Metropolitan Board of Works 1870
In compensation for compulsory purchase (in this case, of graveyards), ‘value’ means value to the owner, not value to the purchaser. The graveyards were therefore of little or no value to the rector.
Cockburn CJ said: ‘When Parliament gives . .
Cited – Countess of Ossalinsky v Manchester Corporation 1883
Land bounding Thirlmere in the Lake District was acquired for use as a reservoir to supply water to Manchester. The prospect that the land, because of its particular characteristics, would be likely to be developed as a reservoir was a matter which . .
Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Cited – Inland Revenue Commissioners v Clay CA 1914
The court considered the market value of a private residence. The evidence was that its value to persons wishing to use it as a private residence was 750 pounds. However, the house adjoined a nurses’ home the trustees of which wanted to extend their . .
Cited – Raja Vyricherla Narayana Gajapathiraju v Revenue Divisional Officer, Vizagapatam PC 23-Feb-1939
Land adjoining a harbour at Vizagapatam which at that time was malarial was to be valued for compulsory purchase. The land contained a spring of clean water. The only potential purchaser of the special adaptability of the land as a water supply was . .
Cited – In re Gough and Aspatria, Silloth and District Joint Water Board CA 1904
. .
Cited – Horn v Sunderland Corporation CA 1941
Compulsory Purchase Damages limited to Actual Loss
Rule (6) was designed to preserve the effect of the 19th Century case-law under the 1845 Act, by which personal loss caused by the compulsory acquisition was treated as part of the value to the owner of the land: ‘the owner in a proper case – that . .
Cited – In re Lucas and Chesterfield Gas and Water Board CA 1909
Land suitable for construction of a reservoir was the subject of a compulsory purchase for that purpose. The circumstances made it very unlikely that anyone other than the Water Board would have wanted, or been able, to construct the reservoir and . .
Cited – Cedars Rapids Manufacturing and Power Co v Lacoste PC 1914
Land at the St Lawrence river was to be valued for a compulsory purchase.
Held: Value does not mean the value of ‘the realized undertaking as it exists in the hands of the undertaker’. It means the price which possible undertakers would give. . .
Cited – Rugby Joint Water Board v Shaw-Fox HL 1973
The water board obtained a compulsory purchase order to buy agricultural land adjoining a reservoir. The land was subject to protected tenancies under the 1948 Act.
Held: (Majority) Because the land subject to notices to treat was required for . .
Doubted – Lambe v Secretary of State for War CA 1955
The acquiring authority was a sitting tenant and the compulsory purchase order related to the freehold reversion.
Held: Rule 3 was inapplicable. The marriage value which a reversion has for a sitting tenant does not clothe the land with a . .
Cited – Fraser v City of Fraserville PC 1917
One ground on which the arbitrators’ valuation award on a compulsory purchase, was set aside was that, in valuing the falls of a river and adjacent land acquired for electricity generation purposes, the arbitrators had taken into account the . .
Cited – Batchelor v Kent County Council CA 1989
The Council had compulsorily acquired land for highway improvement. It was within an area scheduled for residential development. Outline permission for development of neighbouring land had been granted but the development could not proceed until the . .
Cited – Myers v Milton Keynes Development Corporation CA 1974
Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the ‘scheme’ meant that the . .
Cited – Wilson v Liverpool Corporation CA 1971
The claimants owned 74 acres of an area of 391 acres in Liverpool which the Corporation wanted to acquire for residential development. The authority acquired the land by agreement and made a compulsory purchase order in respect of the remainder.
Cited – Kaye v Basingstoke Corporation LT 1968
The Tribunal discussed compensation on compulsory purchase, and how the extent of the underlying scheme was to be identified: ‘Before the 1939 war it is broadly, perhaps entirely, true to say that the application of the common law rule was . .
Cited – Davy v Leeds Corporation HL 1965
The Corporation declared an area in which the appellants owned some slum houses to be a slum clearance area and made a compulsory purchase order. Compensation was to be assessed under the 1919 Act and the 1959 Act. The appellants were entitled to . .
Doubted – Camrose v Basingstoke Corporation CA 1966
Basingstoke was to be expanded to receive overspill population from London and the corporation contracted to purchase about 550 acres from a landowner on terms that the price would be assessed as though the land had been compulsorily acquired under . .
Cited – Bird and Bird v Wakefield Metropolitan Borough Council 1976
The underlying scheme to be disregarded when calculating compensation on a compulsory purchase need not, as a matter of law, be confined to the area of land compulsorily acquired or to the specific purposes of the CPO. The acquisition may be only a . .
Cited – Stokes v Cambridge Corporation LT 1961
The tribunal considered case concerned 5.1 ha of land with an assumption of planning permission for industrial development under Planning legislation. There was only one possible access over adjoining land in different ownership.
Held: When . .
At LT – Waters and others v Welsh Development Agency LT 3-Nov-2000
LT COMPENSATION – Compulsory purchase of land for purpose of nature reserve to compensate for loss of SSSI caused by Cardiff Bay Barrage – preliminary issues – Land Compensation Act 1961 s 5 rule (3) – Pointe . .

Cited by:
Cited – Faraday v Carmarthenshire County Council CA 10-May-2004
The claimant appealed against an award of compensation on the compulsory acquisition of his land by the defendant.
Held: The award was incorrect. The authority had wrongly deducted a sum in respect of ‘freed up time’ – which would have allowed . .
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .

Lists of cited by and citing cases may be incomplete.

Land, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.196078

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 wrong.
Lord Wilberforce identified the normal categories in patent cases. They are the profit, or the royalty, which was or would have been achieved (e.g. where the defendant manufactures, or licences the manufacture of, goods covered by the patent), and the licence fee which would reasonably have been charged (e.g. where it is not possible to assess the level of profit). He went on to say: ‘Where a wrongdoer has failed to pay money which he should have paid, justice, in principle, requires that he should pay interest over the period for which he has withheld the money.’
. . And ‘There are two essential principles in valuing the claim: first, that the plaintiffs have the burden of proving their loss: second, that the defendants being wrongdoers, damages should be liberally assessed but that the object is to compensate the plaintiffs and not to punish the defendants.’
Lord Salmon said that interest: ‘is awarded because it is only just that the person who has been deprived of the use of the money due to him should be paid interest on that money for the period during which he was deprived of its enjoyment. . . [The defendants] enjoyed the use of the money during the whole of this time and in law it is deemed to have been due to them from the beginning of that period.’

Lord Wilberforce, Lord Salmon
[1976] RPC 197, [1975] 1 WLR 819, [1975] 2 All ER 173, [1975] FSR 273
England and Wales
Citing:
Appeal from – General Tire and Rubber Company v Firestone Tyre and Rubber Company Ltd CA 1971
Degree of Novelty Required before patent grant
The court set out the test for novelty required to be established before a patent could properly be granted: ‘To determine whether a patentee’s claim has been anticipated by an earlier publication it is necessary to compare the earlier publication . .
Approved – Meters Limited v Metropolitan Gas Meters Limited CA 1911
The defendant having been found to have infringed the defendants patents, now appealed against the method of calculation of damages.
Held: The appeal failed. Fletcher Moulton LJ emphasised the discretion given to a judge, and said: ‘But I am . .

Cited by:
Cited – Dyson Appliances Limited v Hoover Limited CA 4-Oct-2001
Hoover appealed a finding that Dyson’s patent was valid and infringed. They asserted the patent was not novel in the light of a US patent, and even so was obvious. One test was whether an application of the claimed patent would inevitably infringe . .
Cited – Coflexip Sacoflexip Stena Offshore Limited v Stolt Offshore Limitedstolt Offshore Limited Stolt Offshore A/S CA 13-Mar-2003
In proceedings already heard the defendant had been found liable for patent infringement, and damages remained to be assessed. They claimed for loss of profits and royalties, and for damages through dilution of the market. The claimants said that to . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and others ChD 9-Oct-2008
The claimant had alleged that the defendant was producing generic drugs which infringed its rights in a new drug. The patentee had given a cross-undertaking in damages, but the patent was later ruled invalid. The court had to assess the damages to . .
Cited – BP Exploration Co (Libya) Ltd v Hunt (No 2) 1979
The contract between the parties relating to an oil concession in Libya had been frustrated by the nationalisation of the field.
Held: The court considered the setting of damages where the plaintiff had delayed in notifying the defendant of . .
Cited – Sycamore Bidco Ltd v Breslin and Another ChD 14-Feb-2013
The court considered whether it was correct to award interest on the sum of damages for the period before as well as after judgment, and if so, from what date and at what rate of interest.. . .
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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.179761

The Sash Window Workshop Ltd and Another v King: EAT 1 Dec 2014

sash_kingEAT201412

EAT Contract of Employment : Sick Pay and Holiday Pay – AGE DISCRIMINATION
1. The Tribunal erred in law by assuming, without making any necessary findings, that the Claimant was unable to take paid leave because it would have been refused by the Respondent if he had asked for it. The conclusion that he was on that footing entitled to claim pay for holiday not taken over a 14 year period as a series of deductions from wages could not stand and would be remitted.
2. The Tribunal erred in assessing the proper award for injury to feelings for an unlawfully age discriminatory dismissal by:
(a) erroneously discounting such award on the basis that the Claimant could have been lawfully dismissed at any time; and
(b) failing to apply the 10% increase identified by Simmons v Castle

Simler DBE J
[2014] UKEAT 0057 – 14 – 0112
Bailii
England and Wales

Employment, Discrimination, Damages

Updated: 02 November 2021; Ref: scu.539396

Willis and Another v Derwentside District Council: ChD 10 Apr 2013

The claimants sought damages alleging the escape of noxious CO2 gas from the defendant’s neighbouring land. The gas originated from old coal workings.
Held: There had come to be a liability falling in the defendant from 2006. Its delay in dealing with the issue was culpable. However the animals deaths complained of could not be shown to have been attributable to the escaping gas. The Authority had a duty to beep the claimants up to date on theis dangerous and frightening situation, and in the absence of such information, it was reasnable that they should re-imburse the claimants for the costs of their own inquiries.
As a consequence of the gas, the property had been blighted and unsaleable. The authority having completed remedial works should have obtained and supplied the claimants with an appropriate certificate to remove that blight. However given the possibility of such a recourse providing a remedy it would be inappropriate to award immediately the full continuing cost of the blight.

Briggs J
[2013] EWHC 738 (Ch)
Bailii
England and Wales
Citing:
Cited – Wilson v Waddell HL 1876
In the course of proper mineral workings by the defender, the soil above the coal, which was stiff and impervious to water, so that, whilst it was undisturbed, the greater part of the rainfall flowed away over the surface, was cracked into open . .
Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .
Cited – Sedleigh-Denfield v O’Callaghan HL 24-Jun-1940
Occupier Responsible for Nuisance in adopting it
A trespasser laid a drain along a ditch on the defendant’s land. Later the defendants came to use the drain themselves. A grate was misplaced by them so that in a heavy rainstorm, it became clogged with leaves, and water flowed over into the . .
Cited – Leakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
Cited – Pemberton v Mayor and Burgesses of London Borough of Southwark CA 13-Apr-2000
A tenant had continued in occupation as a tolerated trespasser after a possession order. She made regular payments but failed to comply with the order setting terms for suspension. She sought damages from the landlord for nuisance for not dealing . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Damages

Updated: 02 November 2021; Ref: scu.472533

Chagger v Abbey National Plc and Another: CA 13 Nov 2009

The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the award, and that the claim arise from a procedural failure.
Held: The EAT had been correct. It is necessary to ask what would have occurred had there been no unlawful discrimination. If there were a chance that dismissal would have occurred in any event, even had there been no discrimination, then in the normal way that must be factored into the calculation of loss.
The EAT had awarded no stigma loss. This was incorrect. As to the length of time he might have continued to work for the defendant: ‘the proper assessment of loss is therefore to be determined by asking when Mr Chagger might expect to obtain another job on an equivalent salary to his Abbey salary. His loss is fixed by that period. Whether that is shorter than the period he would have served with Abbey, or whether it is longer and includes time when, but for the discriminatory dismissal he would have been employed elsewhere, is immaterial.’ In view of the reduction in the overall level of damages, it was not necessary to limit the uplift in the way suggested.
The size of the award could be an ‘exceptional circumstance’ within the meaning of subsection (4). Elias LJ said: ‘Parliament would not have intended the sums awarded to be wholly disproportionate to the nature of the breach’.

Smith, Rimer, Elias LJJ
[2009] EWCA Civ 1202, [2010] ICR 397, [2010] IRLR 47
Bailii
Employment Act 2002 31, Race Relations Act 1976 54
England and Wales
Citing:
Appeal from – Abbey National Plc and Another v Chagger EAT 16-Oct-2008
EAT RACE DISCRIMINATION: Direct / Burden of proof / Other losses
PRACTICE AND PROCEDURE: Delay in ET judgment
STATUTORY DISCIPLINE and GRIEVANCE PROCEDURES: Impact on compensation
C, aged 40, . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – M H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching) ECJ 26-Feb-1986
ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority’s provision of an earlier compulsory retirement age for women compared with that . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Laing Limited v Yassin Essa CA 21-Jan-2004
The claimant had been awarded damages for race discrimination. The employer appealed.
Held: In a claim for damages under the 1976 Act, it was not necessary to show that the damage suffered was reasonably forseeable.
Pill LJ said: ‘I see . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – 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 – Ministry of Defence v Cannock and Others EAT 2-Aug-1994
Compensation awarded for a pregnancy dismissal was to assume that the worker would ready to work again after six months. Review and guidelines of damages for unfair dismissal for pregnancy. The hypothetical question requires careful thought before . .
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .

Cited by:
Distinguished – Brown v J and J Baxter (T/A Careham Hall) EAT 7-Jul-2010
brown_baxterEAT10
EAT UNFAIR DISMISSAL – Compensation
This was an appeal by the Claimant against the ET’s decision on amount of compensation for her automatically unfair dismissal. The Claimant advanced two grounds. Firstly, . .
Cited – Wardle v Credit Agricole Corporate and Investment Bank CA 11-May-2011
The claimant had been found to have been unlawfully dismissed and to have suffered nationality discrimination. Each party appealed against aspects of the compensatory award including the application of the statutory uplift, and the calculation of . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Damages

Updated: 02 November 2021; Ref: scu.377909

McLoughlin v O’Brian: HL 6 May 1982

The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had happened. She saw and comforted her injured husband and children, and was told of the death of her youngest child. She brought proceedings for the psychiatric effect of the shock that she sustained as a result.
Held: Her appeal was allowed. The House identified the circumstances in which such a claim could succeed:
1. While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for ‘nervous shock’ caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself.
2. A plaintiff may recover damages for ‘nervous shock’ brought on by injury caused not to him — or herself but to a near relative, or by the fear of such injury.
3. Subject to the next paragraph, there is no English case in which a plaintiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff.
4. An exception has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath.
5. A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer of those involved.
Three issues were to be addressed: the class of persons whose claims should be recognised, the proximity of such persons to the accident and the means by which the shock was caused. Foreseeability in any given set of circumstances is ultimately a question of fact.
On the issue of the court’s role in developing the law, Lord Scarman: ‘By concentrating on principle the judges can keep the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are equipped to resolve. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path.’
Lord Wilberforce said: ‘there remains, in my opinion, just because ‘shock’ in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims.’ and
‘As regards proximity to the accident, it is obvious that this must be close in both time and space . . The shock must come through sight or hearing of the event or of its immediate aftermath.’
and ‘Whatever is unknown about the mind body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. Thus there may be produced what is as identifiable an illness as any that may be caused by direct physical impact.’

Lord Wilberforce, Lord Bridge, Lord Scarman
[1983] 1 AC 410, [1982] 2 All ER 298, [1982] UKHL 3, [1982] 2 WLR 982
Bailii
England and Wales
Citing:
Cited – Hambrook v Stokes Brothers CA 1925
The defendant’s employee left a lorry at the top of a steep narrow street unattended, with the engine running and without having taken proper steps to secure it. The lorry ran violently down the hill. The plaintiff’s wife had been walking up the . .
Cited – Hinz v Berry CA 1970
Then plaintiff saw her husband killed and her children injured by a runaway motor car. At trial she was awarded damages for nervous shock. The question was whether, having regard to the fact that she had suffered sorrow and grief it would not be to . .
Rejected – Bourhill v Young’s Executor HL 5-Aug-1942
When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been . .

Cited by:
Applied – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
Cited – Keen v Tayside Contracts OHCS 26-Feb-2003
The claimant sought damages for post traumatic stress disorder. He was a road worker instructed to attend by the defendant immediately after a terrible accident.
Held: It was a classic case of nervous shock. He was not a rescuer, and nor had . .
Cited – Giullietta Galli-Atkinson v Seghal CA 21-Mar-2003
The claimant’s daughter was fatally injured in car accident, dying shortly after. The mother came upon the scene, witnessed a police cordon at the scene of the accident and was told of her death. She later saw the injuries at the mortuary and . .
Cited – Marvin John Pearson v Anthony Lightning CA 1-Apr-1998
The parties were golfers playing different holes at the same time. The shot of one hit the other in the eye. The shot was a recovery shot over where he should have known others would be playing. Where a golfer hit a shot which was difficult but . .
Cited – Jaensch v Coffey 20-Aug-1984
(High Court of Australia) The claimant’s husband was injured. She saw his injuries at hospital and was affected. She claimed damages for her own shock.
Held: The driver owed her a duty of care, and was liable for negligence which caused . .
Cited – Donachie v The Chief Constable of the Greater Manchester Police CA 7-Apr-2004
The claimant had been asked to work under cover. The surveillance equipment he was asked to use was faulty, requiring him to put himself at risk repeatedly to maintain it resulting in a stress disorder and a stroke.
Held: There was a direct . .
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 – Quayle and others v Regina, Attorney General’s Reference (No. 2 of 2004) CACD 27-May-2005
Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might . .
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 – French and others v Chief Constable of Sussex Police CA 28-Mar-2006
The claimants sought damages for psychiatric injury. They were police officers who had been subject to unsuccessful proceedings following a shooting of a member of the public by their force.
Held: The claim failed: ‘these claimants have no . .
Cited – Fook, Regina v CACD 22-Oct-1993
The defendant appealed his conviction for assault. He had suspected a lodger of theft, and was accused of having assaulted him while interrogating him about it. He locked the complainant in his room, but he then fell whilst escaping through a first . .
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 – Hussain v West Mercia Constabulary CA 3-Nov-2008
The claimant taxi driver complained of misfeasance in public office in the way the defendant had responded to the several calls for assistance made by him to the police.
Held: His appeal against the striking out failed. The damages pleaded . .
Cited – Taylor v A Novo (UK) Ltd CA 18-Mar-2013
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
Cited – OPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Cited – Smith v Lancashire Teaching Hospitals NHS Trust and Another QBD 8-Sep-2016
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .
Cited – Paul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.180105

Doyle v Olby (Ironmongers) Ltd: CA 31 Jan 1969

The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the action. But despite this he had to remain in occupation: ‘he had burned his boats and had to carry on with the business as best he could.’ After three years, he managed to sell the business for 3,700 pounds, but in the meantime he had incurred business debts.
Held: He should recover these losses. The plaintiff in an action for deceit is not entitled to be compensated in accordance with the contractual measure of damage, ie the benefit of the bargain measure. He is not entitled to be protected in respect of his positive interest in the bargain. The plaintiff in an action for deceit is, however, entitled to be compensated in respect of his negative interest. The aim is to put the plaintiff into the position he would have been in if no false representation had been made. The measure of damages where a contract has been induced by fraudulent misrepresentation is reparation for all the actual damage directly flowing from entering into the transaction. In assessing such damages it is not an inflexible rule that the plaintiff must bring into account the value as at the transaction date of the asset acquired: although the point is not adverted to in the judgments, the basis on which the damages were computed shows that there can be circumstances in which it is proper to require a defendant only to bring into account the actual proceeds of the asset provided that he has acted reasonably in retaining it. Damages for deceit are not limited to those which were reasonably foreseeable. The damages recoverable can include consequential loss suffered by reason of having acquired the asset.
Winn LJ said: ‘It appears to me that in a case where there has been a breach of warranty of authority, and still more clearly where there has been a tortious wrong consisting of a fraudulent inducement, the proper starting-point for any court called upon to consider what damages are recoverable by the defrauded person is to compare his position before the representation was made to him with his position after it, brought about by that representation, always bearing in mind that no element in the consequential position can be regarded as attributable loss and damage if it be too remote a consequence . . The damage that he seeks to recover must have flowed directly from the fraud perpetrated upon him.’
Lord Denning MR said: ‘In contract, the defendant has made a promise and broken it. The object of damages is to put the plaintiff in as good a position, as far as money can do it, as if the promise had been performed. In fraud, the defendant has been guilty of deliberate wrong by inducing the plaintiff to act to his detriment. The object of damages is to compensate the plaintiff for all the loss he has suffered, so far, again, as money can do it. In contract, the damages are limited to what may reasonably be supposed to have been in the contemplation of the parties. In fraud, they are not so limited. The defendant is bound to make reparation for all the actual damages directly flowing from the fraudulent inducement. The person who has been defrauded is entitled to say:
‘I would not have entered into this bargain at all but for your representation. Owing to your fraud, I have not only lost all the money I paid you, but, what is more, I have been put to a large amount of extra expense as well and suffered this or that extra damages.’
All such damages can be recovered: and it does not lie in the mouth of the fraudulent person to say that they could not reasonably have been foreseen. For instance, in this very case Mr Doyle has not only lost the money which he paid for the business, which he would never have done if there had been no fraud: he put all that money in and lost it; but also he has been put to expense and loss in trying to run a business which has turned out to be a disaster for him. He is entitled to damages for all his loss, subject, of course to giving credit for any benefit that he has received. There is nothing to be taken off in mitigation: for there is nothing more that he could have done to reduce his loss. He did all that he could reasonably be expected to do.’

Lord Denning MR, Winn LJ
[1969] 2 QB 158, [1969] EWCA Civ 2, [1969] 2 All ER 119, [1969] 2 WLR 673
Bailii
Misrepresentation Act 1967 2(1)
England and Wales
Citing:
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Too Rigid – McConnel v Wright CA 24-Jan-1903
In an action by a shareholder in a limited company against a director for damages for misrepresentation in the prospectus, the time at which the damage is ordered to be assessed, is the date of the allotment to the plaintiff; accordingly, where the . .
Cited – Clark v Urquhart HL 1930
The House considered the measurement of damages where property had been purchased as the result of a misrepresentation. Lord Atkin said: ‘I find it difficult to suppose that there is any difference in the measure of damages in an action of deceit . .

Cited by:
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Approved – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – Clef Aquitaine Sarl and Another v Laporte Materials (Barrow) Ltd (Sued As Sovereign Chemical Industries Ltd) CA 18-May-2000
The defendants appealed a finding of fraudulent misrepresentation, saying that no damages had in fact flowed from any misrepresentation. . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Approved – East v Maurer CA 1991
The plaintiffs had bought a hair dressing salon from the defendant, who continued to trade from another he owned, despite telling the plaintiffs that he intended not to. The plaintiffs lost business to the defendant. They invested to try to make a . .
Approved – Downs v Chappell; Downs v Stephenson Smart (a Firm) CA 1996
The plaintiff purchased a book shop. He claimed that in doing so he had relied upon the accounts prepared and signed off by the respective defendants.
Held: The judge had been wrong by testing what would have been the true figures as against . .
Applied – 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 . .
Applied – Royscot Trust Ltd v Rogerson 1991
Doyle -v- Olby (Ironmongers) Ltd was an appropriate way of assessing damages for an action under the Act, and damages are calculated on the basis of fraud.
A client misled into an investment is entitled to the measure of damages he would . .
Applied – Archer v Brown 1984
The defendant sold shares in his company to the plaintiff. He had however already sold them elsewhere. The plaintiff sought both rescission and damages. The defendant argued that he could not be entitled to both.
Held: The misrepresentation . .
Cited – London Borough of Haringey v Hines CA 20-Oct-2010
The authority sought rescission of a lease granted to the defendant under the right to buy scheme, saying that she had misrepresented her occupation when applying. The tenant replied that no adequate evidence had been brought that she was not a . .
Cited – Esso Petroleum Company Ltd v Mardon CA 6-Feb-1976
Statements had been made by employees of Esso in the course of pre-contractual negotiations with Mr Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the station. Mr Mardon was persuaded by the . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .
Applied – Naughton v O’Callaghan 1990
Damages Award to Restore Plaintiff’s Poistion
In 1981 the plaintiffs had bought a thoroughbred yearling colt called ‘Fondu’ for 26,000 guineas. In fact a mistake had been made and its pedigree was not as represented. Its true pedigree made it suitable only for dirt track racing in the United . .
Cited – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.186451

McCord v Thomson: ScSf 16 Oct 2008

Scots Damages Calculation not as English

The parties disputed the damages payable after a road traffic accident. The pursuer was a passenger on a bus hit by the defendant driver, and suffered various minor injuries, particularly back and ankle pains.
Held: The court urged caution in the use of English cases in personal injury damages claims because of the different calculations of expenses. The court should look at the injuries as a whole. In this case the appropriate figure for solatium was pounds 3,400.

[2008] ScotSC 26
Bailii
Scotland

Damages, Road Traffic, Personal Injury

Updated: 02 November 2021; Ref: scu.277654

Environment Agency v Ellis: CA 17 Oct 2008

The claimant was injured working for the appellants. The appellants now appealed the finding that they were responsible saying that other factors contributed to the injury, and in particular that he had fallen at home. The claimant said that that fall was itself a result of the original injury.
Held: An application of the ‘but for’ test would not result in any deduction. If that test is properly to be applied, the May 1999 accident, if it had any causative effect, would no more reduce Mr Ellis’ damages than would the negligence of a second driver when the injured passenger claimed his full loss against a negligent first driver. There is no free-standing principle which would give apportioning effect to a contributory intervening event. The expression appears to have overtones of contributory negligence which was not in point.

May LJ, Hallett LJ, Lawrence Collins LJ
[2008] EWCA Civ 1117
Bailii
Civil Liability (Contribution) Act 1978
England and Wales
Citing:
Cited – Bonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
Cited – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
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 – Clough v First Choice Holidays and Flights Ltd CA 25-Jan-2006
The appellant broke his neck slipping from a wall in a swimming pool in Lanzarote. The wall was not coated with fully non-slip paint. At first instance the failure to use such paint was held negligent for the purpose of the contract between them and . .
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 – Holtby v Brigham and Cowan (Hull) Ltd CA 6-Apr-2000
A claimant who sought damages for injuries suffered by the ingestion of asbestos whilst working for one employer, but had also worked for other periods for other employers where similar activities had been involved, had the onus in the claim to . .
Cited – Allen and Others v British Rail Engineering Ltd and Another CA 23-Feb-2001
The claimants suffered vibration white finger working for the defendants with percussive tools over many years to 1987, but then continued in other employments which also involved vibrating tools and which caused further damage. The claimants made . .
Cited – Corr v IBC Vehicles Ltd HL 27-Feb-2008
The claimant’s husband had committed suicide. She sought damages for financial loss from his former employers under the 1976 Act. He had suffered a severe and debilitating injury working for them leading to his depression and suicide. The employers . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 02 November 2021; Ref: scu.276974

Edwards v The United Kingdom: ECHR 14 Mar 2002

The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His family asserted that the prison authorities had failed to protect his Article 2 right to life, and Article 13 right to a remedy. A series of shortcomings had been found in the Prison Service’s management, but no remedy had been offered.
Held: The deceased’s article 2 and 13 rights had been infringed. There had been no inquest, and the enquiry, whilst detailed, had been private and without the ability to compel witnesses to attend. The limits placed on the appellants’ involvement meant that that enquiry could not be seen as a proper opportunity for them to represent their interests. The remedies under the 1976 Act would not provide damages for non-financial loses, and legal aid would not be available.
‘The applicants, parents of the deceased, were only able to attend three days of the inquiry when they were themselves giving evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel, or, for example, through the Inquiry Panel. They had to wait for the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject-matter of the Inquiry, the Court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests.’

I Cabral Barreto, President and Judges Sir Nicolas Bratza, L. Caflisch, P. Kuris, R. Turmen, H. S. Greve and K. Traja
Times 01-Apr-2002, 46477/99, (2002) 35 EHRR 487, [2002] ECHR 303
Worldlii, Bailii
European Convention on Human Rights, Fatal Accidents Act 1976
Human Rights
Cited by:
Applied – Regina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
Cited – Khan, Regina (on the Application of) v Secretary of State for Health CA 10-Oct-2003
The claimant’s child had died as a result of negligence in hospital. The parents had been told the result of police investigation and decision not to prosecute, and the hospital’s own investigation, but had not been sufficiently involved. There . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department Admn 28-Apr-2005
D was undergoing trial for offences and was held in prison. He self-harmed repeatedly, and was recorded to require extra vigilance. He attempted to hang himself. Prison staff saved his life, but he was left paraplegic, and was then detained under . .
Cited – Plymouth City Council v HM Coroner for the County of Devon and Another Admn 27-May-2005
The local authority in whose care the deceased child had been held challenged a decision by the coroner not to limit his inquiry to the last few days of the child’s life. The coroner had decided that he had an obligation to conduct a wider enquiry . .
Cited – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department (Inquest Intervening) CA 28-Feb-2006
The respondent appealed from orders made as to the conduct of an investigation into an attempted suicide in prison. The judge had severely criticised the appellant’s treatment of the case.
Held: The appeal failed. The court recited the . .
Cited – Van Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
Cited – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
See Also – Edwards v The United Kingdom ECHR 3-Dec-2009
. .
Cited – Mousa and Others v Secretary of State for Defence and Another Admn 16-Jul-2010
The claimants sought judicial review of the respondent in respect of alleged mistreatment when detained in Iraq. They sought a judicial inquiry. . .
Cited – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.168003

Farley v Skinner: HL 11 Oct 2001

The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not normally cover this question, but he had been asked the question and he had answered it. Could the buyer claim damages for non-pecuniary loss?
Held: The contract was a contract to secure pleasure, relaxation and peace of mind. That did not need to be the very object of the contract for damages to be awarded. The surveyor could not escape liability by saying he had not contracted to produce the result requested. Nor was the claimant obliged to move house or surrender his claim. The innocent party is entitled to be placed in the position that he would have been in had the party in breach exercised due care. Damages might be recoverable for distress and inconvenience for breach of contract where the matter was important to the claimant, that had been made clear to the defendant, and the required action had been incorporated into the contract. The court viewed an award of 10,000 pounds for the discomfort of suffering aircraft noise, as high and at the very top of an appropriate bracket.

Lord Steyn
Times 15-Oct-2001, Gazette 18-Oct-2001, [2001] UKHL 49, [2002] 2 AC 732, [2001] 3 WLR 899, [2001] All ER 801
House of Lords, Bailii
England and Wales
Citing:
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 – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Appeal from – Farley v Skinner CA 6-Apr-2000
A surveyor was engaged to report on a property, and was specifically requested to advise on the levels of aircraft noise from a nearby airport which might affect the property. He failed to report on the proximity of a navigation beacon.
Held: . .
Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .

Cited by:
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. . .
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 . .
Applied – Hamilton Jones v David and Snape (a Firm) ChD 19-Dec-2003
The claimant was represented by the respondent firm of solicitors in an action for custody of her children. Through their negligence the children had been removed from the country. She sought damages for the distress of losing her children.
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 – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
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 . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages, Contract

Leading Case

Updated: 02 November 2021; Ref: scu.166572

Horn v Sunderland Corporation: CA 1941

Compulsory Purchase Damages limited to Actual Loss

Rule (6) was designed to preserve the effect of the 19th Century case-law under the 1845 Act, by which personal loss caused by the compulsory acquisition was treated as part of the value to the owner of the land: ‘the owner in a proper case – that is, in a case where he really does incur a loss of money by disturbance due to the taking over and beyond the loss for which he is to be reimbursed in respect of the land taken – is entitled, because it has to do with the land, to have that element of the loss taken into the reckoning of the fair price of the land, as has been held by the Courts from a very early stage.’ Lord Justice Scott explained the effect of section 68: ‘There is a third kind [of compensation] given by the [1845] Act, namely by section 68, but that has nothing to do with compulsory acquisition. It is a remedy for injuries caused by the works authorised by the Act to the lands of an owner who has had none of the lands taken in that locality. The remedy is given because Parliament, by authorising the works, has prevented damage caused by them from being actionable, and the compensation is given as a substitute for damages at law.’ Scott LJ referred to the: ‘the old sympathetic hypothesis of the unwilling seller and the willing buyer which underlay judicial interpretation of the Act of 1845.’
Sir Wilfrid Greene MR said: ‘In the present case the respondent was occupying for farming purposes land which had a value far higher than that of agricultural land. In other words, he was putting the land to a use which, economically speaking, was not its best use, a thing which he was, of course, perfectly entitled to do. The result of the compulsory purchase will be to give him a sum equal to the true economic value of the land as building land, and he thus will realize from the land a sum which never could have been realized on the basis of agricultural user. Now he is claiming that the land from which he is being expropriated is for the purpose of valuation to be treated as building land and for the purpose of disturbance as agricultural land, and he says that the sum properly payable to him for the loss of his land is (a) its value as building land plus (b) a sum for disturbance of his farming business. It appears to me that, subject to a qualification which I will mention later, these claims are inconsistent with one another. He can only realize the building value in the market if he is willing to abandon his farming business to obtain the higher price. If he claims compensation for disturbance of his farming business, he is saying that he is not willing to abandon his farming business, that is, that he ought to be treated as a man who, but for the compulsory purchase, would have continued to farm the land, and, therefore, could not have realized the building value.’

Scott LJ, Sir Wilfrid Greene MR)
[1941] 2 KB 26, [1941] 1 All ER 480
Land Clauses Consolidation Act 1845 68
England and Wales
Cited by:
Cited – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Cited – Ryde International Plc v London Regional Transport CA 5-Mar-2004
The landowner had developed land which was then made the subject of compulsory purchase. The court was asked how the compensation was to be calculated. The landowner expected to sell the development as a whole. The respondent argued that the profit . .
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Cited – Birmingham Corporation v West Midlands Baptist (Trust) Association Inc HL 1969
There had been a substantial delay of many years after the order for compulsory purchase was made, with a substantial increase in value after the service of the notice to treat.
Held: The physical condition of the reference land and its . .

Lists of cited by and citing cases may be incomplete.

Land, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.196513

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.
Held: The Court limited the damages to 200 pounds. Only small damages should be allowed for the loss of expectation of life.
Viscount Simon LC said that a reasonable figure had to be fixed as damages for ‘the loss of a measure of prospective happiness’ and ‘It would be fallacious to assume, for this purpose, that all human life is continuously an enjoyable thing . . ‘ also: ‘The truth, of course, is that in putting a money value on the prospective balance of happiness in years that the deceased might otherwise have lived, the jury or judge of fact is attempting to equate incommensurables. Damages which would be proper for a disabling injury may well be much greater than for deprivation of life. These considerations lead me to the conclusion that in assessing damages under this head, whether in the case of a child or an adult, very moderate figures should be chosen . . I trust that the views of this House, expressed in dealing with the present appeal, may help to set a lower standard of measurement than has hitherto prevailed for what is in fact incapable of being measured in coin of the realm with any approach to real accuracy.’
and: ‘Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not loss of future pecuniary prospects.’ and: ‘These considerations lead me to the conclusion that in assessing damages under this head, whether in the case of a child or an adult, very moderate figures should be chosen.’

Lord Devlin, Viscount Simon LC
[1941] 1 All ER 7, [1941] AC 157
England and Wales
Citing:
Cited – Roxe v Ford HL 1937
A plaintiff is entitled to damages for the tortious shortening of his expectation of life whether or not he knew that this expectation had been curtailed. . .
Cited – 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 . . . . .

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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Damages

Leading Case

Updated: 01 November 2021; Ref: scu.653960

Wardle v Credit Agricole Corporate and Investment Bank: CA 11 May 2011

The claimant had been found to have been unlawfully dismissed and to have suffered nationality discrimination. Each party appealed against aspects of the compensatory award including the application of the statutory uplift, and the calculation of future losses. The claimant had found alternative lucrative employment which was found to be likely to improve his career prospects further.
Held: The general size of the award, where substantial could in itself amount to an exceptional circumstance allowing the court to reduce the size of the uplift: ‘it would be wrong to see the uplift purely in penal terms. The breach does have adverse consequences for the other party. In the case of a dismissal, the employee is deprived of the opportunity to persuade the employer, before the axe falls, that the dismissal would be inappropriate or unfair. Instead he is compelled to go to law to vindicate his position.’ and ‘an increase to the maximum of 50% should be very rare indeed. It should be given only in the most egregious of cases.’ In this case the ET’s original figure of 10% was not outside the range of proper awards and should be restored. However the Tribunal had erred in applying the uplift to elements, including the award for injury to feelings which could not apply.
As to the asessment of future losses: ‘In this case the Tribunal has in effect approached the case on the assumption that it must award damages until the point when it can be sure that the claimant would find an equivalent job.
In my judgment, that is the wrong approach. In the normal case if a tribunal assesses that the employee is likely to get an equivalent job by a specific date, that will encompass the possibility that he might be lucky and secure the job earlier, in which case he will receive more in compensation than his actual loss, or he might be unlucky and find the job later than predicted, in which case he will receive less than his actual loss. The Tribunal’s best estimate ought in principle to provide the appropriate compensation. The various outcomes are factored into the conclusion. In practice the speculative nature of the exercise means that the Tribunal’s prediction will rarely be accurate. But it is the best solution which the law, seeking finality at the point where the court awards compensation, can provide.’

Lord Neuberger MR, Smith LJ, Elias LJ
[2011] EWCA Civ 545
Bailii
Employment Act 2002 31(3)
England and Wales
Citing:
Appeal from – Wardle v Credit Agricole Corporate and Investment Bank (Known As Calyon UK) EAT 14-Jul-2010
EAT RACE DISCRIMINATION
Other losses
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Impact on compensation
The Employment Tribunal decided that the employee had been unfairly dismissed because . .
Cited – Johnson v HM Prison Service and Others EAT 31-Dec-1996
Awards of damages for race discrimination were proper against both the employer, and an individual racist employee. 28k was not too much. Aggravated damages might be appropriate for direct discrimination where a complainant relied upon malice of . .
Cited – Lawless v Print Plus (Debarred) EAT 27-Apr-2010
EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES: Impact on compensation
UNFAIR DISMISSAL: Polkey deduction
Tribunal wrong to impose no more than a 10% uplift in a case of wholesale non-compliance . .
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Cited – Chagger v Abbey National Plc and Another CA 13-Nov-2009
The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the . .
Cited – McKindless Group v McLaughlin EAT 2-Apr-2008
EAT Unfair Dismissal: Automatically unfair reasons / Compensation
Automatically unfair dismissal. Uplift under section 31 of the Employment Act 2002. Whether or not reference/remit appropriate. . .
Cited – Da’Bell v National Society for Prevention of Cruelty To Children EAT 28-Sep-2009
EAT UNFAIR DISMISSAL
Constructive dismissal
DISABILITY DISCRIMINATION
Compensation
In a claim for constructive unfair dismissal where the last straw doctrine was not relied on, the Employment . .
Cited – Virgin Media Ltd v Seddington and Another EAT 31-Mar-2009
EAT UNFAIR DISMISSAL: Polkey deduction
JURISDICTIONAL POINTS: 2002 Act and pre-action Requirements,
‘Automatic’ unfair dismissal for redundancy by reason of non-compliance with statutory procedure – . .

Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 01 November 2021; Ref: scu.439654

Froom v Butcher: CA 21 Jul 1975

The court asked what reduction if any should be made to a plaintiff’s damages where injuries were caused not only by the defendant’s negligent driving but also by the failure of the plaintiff to wear a seat belt. It had been submitted that, since the defendant was not responsible for the failure of the plaintiff to wear a seat belt, the question should be looked at purely as a matter of causation not as a matter of contributory negligence.
Held: The defendant’s appeal was allowed.
Lord Denning MR said: ‘The question is not what was the cause of the accident. It is rather what was the cause of the damage . . The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt. If the plaintiff was to blame in not wearing a seat belt, the damage is in part the result of his own fault. He must bear some share in the responsibility for the damage: and his damages fall to be reduced to such extent as the court thinks just and equitable.’ and ‘Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable prudent man he might be hurt himself.’
Lord Denning MR continued: ‘It is compulsory for every motorcar to be fitted with seatbelts for the front seats . . Seeing that it is compulsory to fit seatbelts, Parliament must have thought it sensible to wear them. But it did not make it compulsory for anyone to wear a seatbelt. Everyone is free to wear it or not as he pleases. Free in this sense, that if he does not wear it he is free from any penalty by the magistrates. Free in the sense that everyone is free to run his head against a brick wall, if he pleases. He can do it if he likes without being punished by the law. But it is not a sensible thing to do. If he does it, it is his own fault; and he has only himself to thank for the consequences.
Much material has been put before us about the value of wearing a seatbelt. It shows quite plainly that everyone in the front seats of a car should wear a seatbelt. Not only on long trips, but also on short ones. Not only in the town, but also in the country. Not only when there is fog, but also when it is clear. Not only by fast drivers, but also by slow ones. Not only on motorways, but also on side roads . . the provision of the Highway Code which contains this advice’; Fit seat belts in your car and make sure they are always used’. This advice has been in the Highway Code since 1968, and should have been known to the plaintiff at the time of his accident in November 1972.’
and ‘The governments view is also plain. During the years 1972 to 1974 they spent 2.5 million pounds in advertisements telling people to wear seatbelts. Very recently a Bill was introduced into Parliament seeking to make it compulsory. In this respect England is following the example of Australia where it has been compulsory for the last three or four years. The Bill here has been delayed. And so it will not be compulsory yet a while. But, meanwhile, I think the judges should say plainly that it is the sensible practice for all drivers and passengers in front seats to wear seat belt whenever and wherever going by car. It is a wise precaution which everyone should take.’ and ‘In determining responsibility, the law eliminates the personal equation. It takes no notice of the views of the particular individual or of others like him. It requires everyone to exercise all such precautions as a man of ordinary prudence would observe.’ And ‘Whenever there is an accident, the negligent driver must bear by far the greatest share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage. But in so far as the damage might have been avoided or lessened by wearing a seatbelt, the injured person must bear some share. But how much should this be? Is it proper to inquire whether the driver was grossly negligent or only slightly negligent? Or whether the failure to wear a seatbelt was entirely inexcusable or almost forgivable? . . But we live in a practical world. In most of these cases, the liability of the driver is admitted, the failure to wear a seatbelt is admitted, and the only question is: what damages should be payable? This question should not be prolonged by an expensive enquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.
Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seatbelt had been worn. In such case the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25%. But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seatbelt had been worn, but there would still have been some injury to the head. In such case I would suggest that the damage is attributable to the failure to wear a seatbelt should be reduced by 15%.’

Lord Denning MR, Morritt LJ
[1976] QB 286, [1975] EWCA Civ 6, [1975] 3 All ER 520
Bailii
Law Reform (Contributory Negligence) Act 1945 1(1)
England and Wales
Citing:
Cited – Vaughan v Menlove 1837
The defendant had been advised of the probable consequences of allowing a stack of damp hay, which he had erected without proper ventilation, to remain in this condition. Subsequently the hay spontaneously ignited damaging the plaintiff’s house. At . .
Cited – Glasgow Corporation v Muir HL 16-Apr-1943
The House considered the proper test to define the standard of care that must be adopted by the reasonable man in a claim for negligence.
Held: Lord Clauson said that the test is whether the person owing the duty of care ‘had in contemplation . .
Appeal from – Froom v Butcher 24-Jun-1974
The plaintiff was a front seat passenger injured in a car crash. The defendant sought to have the damages award reduced for the contributory negligence of the plaintiff in not wearing a seat belt.
Held: There was considerable disagreement . .

Cited by:
Cited – Jones (A Minor) v Wilkins (Wynn and Another, Third Parties) CA 6-Feb-2001
Where a child had not been properly restrained by a seat belt, the damages should be reduced but not by a great percentage. Here, although the child was partially restrained by sharing her mother’s lap belt, in fact this had made the injuries worse. . .
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 . .
Cited – Parkinson v Dyfed Powys Police CA 10-Jun-2004
. .
Considered – Capps v Miller CA 30-Nov-1988
The plaintiff was injured riding with the defendant on a motor-cycle. The defendant drove negligently, and crashed. The plaintiff’s crash hemet came off and he sustained severe head injuries. He had not fastened it. The defendant appealed an . .
Cited – Owens v Brimmell 1977
Both the driver and his passenger had drunk about eight to nine pints of beer, and on their way home the driver lost control of his car so that it collided with a lamppost. The passenger sued in negligence. The driver said the passenger was . .
Cited – John James William Booth v Simon White CA 18-Nov-2003
The claimant sought damages after being injured in a car driven by the defendant. The defendant now appealed an award at 1005, saying that the plaintiff had known that he had been drinking. The defendant was known to be a heavy drinker, and he said . .
Cited – Badger v The Ministry of Defence QBD 16-Dec-2005
The widow of the deceased sought damages after his exposure to asbestos whilst working for the defendant. He had contracted lung cancer. The defendant argued that the deceased had continued to smoke knowing of the risks, and that he had made a . .
Cited – St George v The Home Office CA 8-Oct-2008
The claimant was taken into prison. He was known to be subject to epilepsy, with high risks on withdrawal from drugs, but was allocated a high bunk. He had a seizure and fell, suffering head injuries. He sought damages in negligence. The defendant . .
Cited – Stanton v Collinson QBD 2-Mar-2009
The claimant was severely injured when a car driven by the defendant crashed. No-one was wearing a seat belt. The driver died. The driver’s estate argued that the claimant was contributorily negligent in not wearing a seat belt. The claimant said . .
Cited – Stanton v Collinson CA 24-Feb-2010
The defendant driver appealed against a refusal to reduce the claimant’s damages for contributory negligence. The claimant sat in the front seat and was severely injured in the accident, but had not been wearing a seat belt.
Held: ‘there is a . .
Cited – Gawler v Raettig (Leave) CA 3-Dec-2007
Application for leave to appeal. . .
Cited – Smith v Finch QBD 22-Jan-2009
The claimant cyclist was severely injured in an accident when hit by a motorcyclist, the defendant. He was not wearing a cycle helmet, and the injuries were to his head. He was slowing down to turn right, and was hit a heavy glancing blow by the . .
Cited – Phethean-Hubble v Coles QBD 24-Feb-2011
The claimant had been very severely injured when knocked from his cycle by the defendant’s car. He had come out onto the roadway at night but without cycle lights, and into the path of the car. The claimant was not wearing a helmet.
Held: . .
Cited – Reynolds v Strutt and Parker LLP ChD 15-Jul-2011
The defendant had organised a team bonding day, including a cycling event. The claimant employee was severely injured falling from his cycle. He said that the defendant had been engligent in not providing cycling helmets. The circuit hosting company . .
Cited – Williams v Williams (The Estate of) CA 30-Apr-2013
A child aged three had been injured as a passenger in her mother’s car when it was hit by another negligently driven vehicle. The mother appealed against a finding that she was 25% contributorily negligent in that the child seat used had been . .

Lists of cited by and citing cases may be incomplete.

Negligence, Road Traffic, Damages, Personal Injury

Leading Case

Updated: 01 November 2021; Ref: scu.182180

Rookes v Barnard (No 1): HL 21 Jan 1964

The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct has been calculated by him to make a profit for himself which may exceed the compensation payable to the plaintiff.
Lord Devlin said: ‘[W]here a defendant with a cynical disregard for a plaintiff’s rights has calculated that money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity. This category is not confined to money making in the strict sense. It extends to cases in which the defendant is seeking gain at the expense of the plaintiff some object – perhaps some property which he covets – which either he could not obtain at all or not obtain except at a price greater than he wants to put down. Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay . . In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum.’
Lord Evershed: ‘Nowadays, when it is a rare thing to find a preamble in any public general statute, the field of inquiry is even narrower than it was in former times. In the absence of a preamble there can, I think, be only two cases in which it is permissible to depart from the ordinary and natural sense of the words of an enactment. It must be shown either that the words taken in their natural sense lead to some absurdity or that there is some other clause in the body of the Act inconsistent with, or repugnant to, the enactment in question construed in the ordinary sense of the language in which it is expressed.’

Lord Devlin, Lord Evershed
[1964] AC 1129, [1964] UKHL 1
Bailii
England and Wales
Citing:
Cited – Huckle v Money 1763
An action for false imprisonment brought by a journeyman printer who apparently had played no part in printing the famous issue No. 45 of ‘The North Briton ‘ but had been arrested under a warrant issued by a Secretary of State authorising a King’s . .
Cited – Wilkes v Wood CCP 6-Dec-1763
Entry by Force was Unconstitutional
The plaintiff challenged a warrant of commitment to the Tower of London addressed to John Wilkes by name. The plaintiff sought damages after his property was entered by force on behalf of the Secretary of State.
Held: The case was decided on a . .

Cited by:
Cited – Kuddus v Chief Constable of Leicestershire Constabulary HL 7-Jun-2001
There is no rule of law preventing the award of exemplary damages against police officers. The fact that no case of misfeasance in public office had led to such awards before 1964, did not prevent such an award now. Although damages are generally . .
Cited – Kuddus v Chief Constable of Leicestershire CA 10-Feb-2000
Misfeasance in public office was not a tort in which exemplary damages would be available before 1964, and, following the restriction on such awards in Rookes v Barnard was not now a tort for which such damages night be payable. Kindred torts, which . .
Correct – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Cited – Vine v London Borough of Waltham Forest CA 5-Apr-2000
The act of wheel clamping a car which was unlawfully parked is a trespass to goods. To avoid an action for damages, the clamper must show that the car parker consented to the clamping. He can do so by showing, in accordance with established . .
Cited – Gleaner Company Ltd and Another v Abrahams PC 14-Jul-2003
Punitive Defamation Damages Order Sustained
(Jamaica) The appellants challenged a substantial award of damages for defamation. They had wrongfully accused a government minister of corruption. There was evidence of substantial financial loss. ‘For nearly sixteen years the defendants, with all . .
Cited – Australian Consolidated Press Limited v Uren PC 24-Jul-1967
The Board declined to interfere with the decision of the High Court of Australia not to review its jurisprudence on exemplary damages: ‘[I]n a sphere of law where its policy calls for decision and where its policy in a particular country is . .
Applied – Drane v Evangelou CA 1978
The court said of a claim that an award of andpound;1000 for exemplary damages was too high: ‘In my opinion a sum awarded by the way of exemplary damages is not to be weighed in any scales. It is a question for the judge, having heard all the . .
Cited – Design Progression Limited v Thurloe Properties Limited ChD 25-Feb-2004
The tenant applied for a licence to assign. The landlord failed to reply, anticipating that delay would allow it to generate a better lease renewal.
Held: The delay was unreasonable and a breach of the landlord’s statutory duty, and was an act . .
Applied – Riches v News Group Newspapers Ltd CA 20-Feb-1985
The defendant published serious defamatory allegations against several plaintiff police officers. The defendant newspaper appealed against an award of andpound;250,000 exemplary damages for their defamation of the respondent police officers.
Cited – Watkins v Secretary of State for The Home Departmentand others CA 20-Jul-2004
The claimant complained that prison officers had abused the system of reading his solicitor’s correspondence whilst he was in prison. The defendant argued that there was no proof of damage.
Held: Proof of damage was not necessary in the tort . .
Cited – Richardson v Howie CA 13-Aug-2004
The claimant sought damages for assault. In the course of a tempestuous relationship, she said the respondent had physically assaulted her in Barbados. He was later convicted of soliciting her murder. She sought and was awarded aggravated damages, . .
Cited – Borders (UK) Ltd and others v Commissioner of Police of the Metropolis and Another CA 3-Mar-2005
The second defendant had received large numbers of stolen books and sold them from his stall. An application for compensation was made at his trial. Compensatory and exemplary damages were sought, but the court had to consider how to estimate the . .
Applied – Manson v Associated Newspapers Ltd 1965
Widgery J said: ‘Of course, a newspaper is always published for profit. It is the purpose of a newspaper to make money and build up circulation. You must not go away with the idea that because of that any libel in a newspaper is a libel for which . .
Applied – Broadway Approvals Ltd v Odhams Press Ltd (No 2) CA 1965
A company’s mind is not to be assessed on the totality of knowledge of its employees. Malice was not to be established by forensic imagination however eloquently and subtly expressed.
Russell LJ said: ‘the law of libel seems to have . .
Applied – McCarey v Associated Newspapers Ltd (No 2) CA 1965
References to damages awards in personal injury actions were legitimate in directing a defamation jury on quantum. . .
Applied – Fielding v Variety Incorporated CA 1967
. .
Applied – Mafo v Adams CA 1969
The plaintiff tenant was tricked out of the occupancy of the flat he was living in by a blatant fraud perpetrated by the defendant landlord. He sued for damages for fraud, and was awarded compensation for the inconvenience and discomfort. In a case . .
Cited – Uren v John Fairfax and Sons Pty Ltd 2-Jun-1966
(High Court of Australia) ‘It seems to us that, in a case where there is no qualified privilege to report or repeat the defamatory statements of others, the whole cohesion of the law of defamation would be destroyed, if it were permissible merely to . .
Cited – Bryant v Macklin CA 23-Jun-2005
The parties were neighbours. Mature trees had been damaged which had provided a screen against pylons. The cost of one directly equivalent tree would be andpound;400,000.
Held: In this case it was not possible to make an award which could . .
Cited – Merson v Cartwright, The Attorney General PC 13-Oct-2005
(Bahamas) The defendant police had appealed the quantum of damages awarded to the claimant for assault and battery and false imprisonment and malicious prosecution, saying that she had been doubly compensated. The claimant now appealed reduction of . .
Cited – Australian Consolidated Press Ltd v Uren 2-Jun-1966
(High Court of Australia) . .
Cited – W v W; J v Raewyn Bell PC 19-Jan-1999
PC (New Zealand) The claimants sught to recover exemplary damages from defendants convicted of criminal offences against them.
Held: There were differences in the system between New Zealand and the English . .
Cited – A v Bottrill PC 9-Jul-2002
PC (New Zealand) The defendant was a pathologist who carried out cervical smears. His actions were found to be negligent.
Held: The Board considered whether it would be correct to require an additional . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
mosley_newsgroupQBD2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Cited – AT and others v Dulghieru and Another QBD 19-Feb-2009
The claimants had been subject to unlawful human trafficking. Their abductors had been imprisoned, and they now sought damages. The court was asked now to assess the damages to be awarded for sexual enslavement. Each claimant suffered chronic post . .
Cited – Subiah v The Attorney General of Trinidad and Tobago PC 3-Nov-2008
(Trinidad and Tobago) The Board considered the extent of damages for infringement of the claimant’s constitutional rights. He had been on board a bus. He complained when a policeman was allowed not to buy a ticket. The same constable arrested him as . .
Cited – Digicel (St Lucia) Ltd and Others v Cable and Wireless Plc and Others ChD 15-Apr-2010
The claimants alleged breaches of legislation by members of the group of companies named as defendants giving rise to claims in conspiracy to injure by unlawful means. In effect they had been denied the opportunity to make interconnections with . .
Cited – Muuse v Secretary of State for The Home Department CA 27-Apr-2010
The claimant, a Dutch national, was detained pending deportation. He was arrested ‘for immigration’ after being given bail in other proceedings. It had been found that that detention was unlawful. He did not come within the criteria for deportation, . .
Cited – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
Cited – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Ramzan v Brookwide Ltd ChD 8-Oct-2010
The claimant owned a flying freehold room butting into the defendant’s property. Whilst the claimant’s property was unoccupied, the defendant broke through into the room, blocked off the door to the claimant’s property, and included the room in the . .
Cited – Ramzan v Brookwide Ltd CA 19-Aug-2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
Cited – Ramzan v Brookwide Ltd (Ancillary Matters) CA 19-Aug-2011
Costs award after principal judgment . .
Cited – Ramzan v Agra Ltd; Ramzan v Brookwide Limited Misc 4-Apr-2008
(Birmingham County Court) The parties disputed ownership of a room between their adjoining properties, which incuded a flying freehold. The defendant was said to have broken through into the room, and then blocked off the previous door into the . .
Cited – Takitota v The Attorney General and Others PC 18-Mar-2009
Bahamas – The claimant appeald as to the amount of compensation awarded to him for his unlawful detention for over eight years, in appalling prison conditions. The Court of Appeal categorised his treatment not only as ‘less than humane’ but as a . .
Cited – Thakrar v The Secretary of State for Justice Misc 31-Dec-2015
County Court sitting at Milton Keynes. The claimant prisoner sought damages saying that his personal property had been damaged whilst in the care of the defendant.
Held: The claims succeeded in part. Some damage was deliberate. There was a . .
Cited – Secretary of State for Health and Another v Servier Laboratories Ltd and Others SC 2-Jul-2021
Economic tort of causing loss by unlawful means
The Court was asked whether the ‘dealing requirement’ is a constituent part of the tort of causing loss by unlawful means; whether a necessary element of the unlawful means tort is that the unlawful means should have affected the third party’s . .

Lists of cited by and citing cases may be incomplete.

Damages, Defamation

Leading Case

Updated: 01 November 2021; Ref: scu.180662

O’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992): HL 20 May 1999

The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the company’s profits and a salary. Later the respondent in negotiations with the petitioner said he agreed in principle to the petitioner increasing his shareholding to 50% if certain profit targets were reached. No final agreement was arrived at however before the respondent changed his mind and revoked the profit sharing arrangement. The petition was based on the respondents ‘unfair’ refusal to make good the petitioners reasonable expectations that, on achieving the target set, he would be made a 50% shareholder in the company and that meanwhile the profit sharing arrangement would continue.
Held: The majority shareholder’s appeal succeeded. A minority shareholder, seeking relief for oppressive conduct by a majority shareholders, must plead something beyond a mere lack of faith in the management of the company, and show breach of some agreement as to the conduct of the business.
Lord Hoffmann said: ‘In the case of section 459, the background [against which the concept of `fairness’ has to be applied] has the following two features. First, a company is an association of persons for an economic purpose, usually entered into with legal advice and some degree of formality. The terms of the association are contained in the articles of association and sometimes in collateral agreements between the shareholders. Thus the manner in which the affairs of the company may be conducted is closely regulated by rules to which the shareholders have agreed. Secondly, company law has developed seamlessly from the law of partnership, which was treated by equity, like the Roman societas, as a contract of good faith. One of the traditional roles of equity, as a separate jurisdiction, was to restrain the exercise of strict legal rights in certain relationships in which it considered that this would be contrary to good faith. These principles have, with appropriate modification, been carried over into company law. The first of these two features leads to the conclusion that a member of a company will not ordinarily be entitled to complain of unfairness unless there has been some breach of the terms on which he agreed that the affairs of the company should be conducted. But the second leads to the conclusion that there will be cases in which equitable considerations make it unfair for those conducting the affairs of the company to rely on their strict legal powers. Thus unfairness may consist in a breach of the rules or in using the rules in a manner which equity would regard as contrary to good faith.’
Lord Hoffmann discussed the basis of calculation of the value of shares in a buyout in an unfair prejudice petition: ‘I think that parties ought to be encouraged, where at all possible, to avoid the expense of money and spirit inevitably involved in such litigation by making an offer to purchase at an early stage. This was a somewhat unusual case in that Mr Phillips, despite his revised views about Mr O’Neill’s competence, was willing to go on working with him. This is a position which the majority shareholder is entitled to take, even if only because he may consider it less unattractive than having to raise the capital to buy out the minority. Usually, however, the majority shareholder will want to put an end to the association. In such a case, it will almost always be unfair for the minority shareholder to be excluded without an offer to buy his shares or make some other fair arrangement . . the unfairness does not lie in the exclusion alone but in exclusion without a reasonable offer. If the respondent to a petition has plainly made a reasonable offer, then the exclusion as such will not be unfairly prejudicial and he will be entitled to have the petition struck out. It is therefore very important that participants in such companies should be able to know what counts as a reasonable offer.
In the first place, the offer must be to purchase the shares at a fair value. This will ordinarily be a value representing an equivalent proportion of the total issued share capital, that is, without a discount for its being a minority holding . .
Secondly, the value, if not agreed, should be determined by a competent expert. The offer in this case to appoint an accountant agreed by the parties or in default nominated by the President of the Institute of Chartered Accountants satisfied this requirement. One would ordinarily expect the costs of the expert to be shared but he should have the power to decide that they should be borne in some different way.
Thirdly, the offer should be to have the value determined by the expert as an expert. I do not think that the offer should provide for the full machinery of arbitration or the half-way house of an expert who gives reasons. The objective should be economy and expedition, even if this carries the possibility of a rough edge for one side or the other (and both parties in this respect take the same risk) compared with a more elaborate procedure . .
Fourthly, the offer should, as in this case, provide for equality of arms between the parties. Both should have the same right of access to information about the company which bears upon the value of the shares and both should have the right to make submissions to the expert, though the form (written or oral) which these submissions may take should be left to the discretion of the expert himself.
Fifthly, there is the question of costs. In the present case, when the offer was made after nearly three years of litigation, it could not serve as an independent ground for dismissing the petition, on the assumption that it was otherwise well founded, without an offer of costs. But this does not mean that payment of costs need always be offered. If there is a breakdown in relations between the parties, the majority shareholder should be given a reasonable opportunity to make an offer (which may include time to explore the question of how to raise finance) before he becomes obliged to pay costs. As I have said, the unfairness does not usually consist merely in the fact of the breakdown but in failure to make a suitable offer. And the majority shareholder should have a reasonable time to make the offer before his conduct is treated as unfair. The mere fact that the petitioner has presented his petition before the offer does not mean that the respondent must offer to pay the costs if he was not given a reasonable time. ‘

Lord Hoffmann, Lord Jauncey of Tullichettle, Lord Clyde, Lord Hutton, Lord Hobhouse of Wood-borough
Gazette 09-Jun-1999, Times 21-May-1999, Gazette 02-Sep-1999, [1999] UKHL 24, [1999] 1 WLR 1092, [1999] BCC 600, [1999] 2 All ER 961, [1999] 2 BCLC 1
House of Lords, Bailii
Companies Act 1985 459(1)
England and Wales
Citing:
Cited – In re Saul D Harrison and Sons plc CA 1995
The ‘legitimate expectations’ of a party were a label for the ‘correlative right’ to which a relationship between company members may give rise when, on equitable principles, it would be regarded as unfair for a majority to exercise a power . .
Cited – Ebrahimi v Westbourne Galleries Ltd and Others (on Appeal from In Re Westbourne Galleries Ltd) HL 3-May-1972
Unfair Prejudice to Minority Shareholder
A company had operated effectively as a partnership between two and then three directors. No dividends had been paid, but the directors had received salaries. One director was removed and sought an order for the other to purchase his shares, or . .
Cited – In re A Company (No 006834 of 1988) 1989
. .
Appeal from – In the Matter of Pectel Limited; O’Neill; O’Neill v Phillips; Phillips and Pectel Limited CA 1-May-1997
The petitioners sought either the purchase of their shares, or the winding up of the company alleging unfair prejudice in the management of the company. The defendants argued that what was complained of did not fall within section 459 since it was . .
Cited – In re H R Harmer Ltd CA 1958
Shareholders who receive their shares as a gift but afterwards work in the business may become entitled to enforce equitable restraints upon the conduct of the majority shareholder. To succeed the applicant must show some detriment in their capacity . .

Cited by:
Cited – Anderson v Hogg IHCS 14-Dec-2001
The appellant sought an order under the section for repayment to the company of sums paid to a director by way of extra redundancy payments. He said the payments were improper. His application had been refused, in part because he had not chosen the . .
Cited – CVC/Opportunity Equity Partners Limited and Opportunity Invest II Limited v Luis Roberto Demarco Almeida PC 21-Mar-2002
(Cayman Islands) The respondent was a minority shareholder. An offer was made to buy out his interest. He petitioned for the winding up of the company on the just and equitable ground. The claimants obtained an injunction to prevent him doing so, . .
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Cited – Koeller and Another v Coleg Elidyr (Camphill Communities Wales) Ltd CA 12-Jul-2005
The applicants occupied a house as licensees. An order for possession was made against them. The company was a charitable company set up to provide accomodation in communities for handicapped adults. The workers in the communities were not formally . .
Explained – Grace v Biagioli and others CA 4-Nov-2005
The petitioner complained that he had first been removed as director, and that the remaining directors had misdescribed the company’s profits and paid those profits to themselves as management expenses and in breach of a resolution requiring an . .
Cited – Allmark v Ervel Curt Burnham, Distinct Services Ltd ChD 30-Nov-2005
The petitioner sought for relief from alleged prejudicial conduct by the respondents in the management of the company. . .
Cited – Bonham v Crow and others CA 13-Dec-2001
The petitioner complained of unfair prejudice in the way the company had been operated, and sought an order that his shares be bought out. However the judge found that the net value of the company was negative and the shares worthless. The judge had . .
Cited – Bee Tee Alarms, Re ChD 10-Mar-2006
. .
Cited – Kohli v Lit and Others ChD 13-Nov-2009
The claimant asserted that the other shareholders had acted in a manner unfairly prejudicial to her within the company.
Held: The claimant was allowed to bring in without prejudice correspondence to contradict evidence by the defendant which . .
Cited – Bilkus v Stockler Brunton (A Firm) CA 16-Feb-2010
Solicitors appealed against the rejection of their claim for an uplift in their fees amounting to andpound;50,000, based on the value element in the transaction in the 1994 Order. The court had to decide whether the matter came under the rules as a . .
Cited – Harborne Road Nominees Ltd v Karvaski and Another ChD 19-Aug-2011
The claimant asked the court to set aside as an abuse the petition issued by the defendants, saying that it was only an attempt to obtain control of the company.
Held: The application failed. To succeed the claimant must show that his offer . .
Cited – Arrow Nominees Inc, Blackledge (L) v Blackledge (G), Blackledge (M), Blackledge (GR and MM) ChD 21-Jan-2000
The claimants had begun proceedings claiming unfair prejudice by the defendants in the management of the business. The defendants sought to have the petition struck out saying that the claimants had used falsified documents to base their petition. . .
Cited – Kaneria v Kaneria and Others ChD 15-Apr-2014
The parties were embroiled in a company dispute with allegations of conduct prejudicial to minority shareholders. An application was now made for sanctions for a failure to comply with court directions.
Held: Unless and until a higher Court . .
Cited – Macom Gmbh v Bozeat and Others ChD 21-Jun-2021
Order regulating company’s affairs
COMPANY – Unfair prejudice – Petitioner 60% shareholder – Respondents 40% shareholders – Alleged breaches of director’s duties and failures to observe Shareholders’ Agreement – Undermining company’s corporate governance – Appropriate remedy – . .

Lists of cited by and citing cases may be incomplete.

Company, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.84457

Edwards v Chesterfield Royal Hospital NHS Foundation Trust: CA 26 May 2010

The claimant, a consultant doctor, sought damages saying that his employer had failed to follow the contract when disciplining and dismissing him. The GMC had dismissed as unfounded the allegation on which the dismissal was based. He sought damages for the severe and continuing damages to his career. The court had limited his claim to loss of earnings.
Held: The question was whether he was entitled as a matter of law to recover damages for the loss of the opportunity to hold another full-time appointment with the NHS as a consultant surgeon. Damage caused to an employee’s reputation by the manner of his dismissal is not normally recoverable, because the making and conduct of a complaint made does not amount to a breach of contract, and damages are not recoverable for personal distress or loss of reputation, except in a limited class of cases. ‘However, the proposition that a breach of contract in the form of a failure to comply with an agreed disciplinary procedure gives rise to no claim is difficult to accept in principle and is difficult to reconcile with the decision in Gunton.’
Assuming the facts for the purposes of the appeal: ‘Mr. Edwards relies on two breaches of his contract: summary dismissal and a failure to carry out a proper disciplinary procedure. He can also point to the fact that the failure to carry out the proper disciplinary procedure resulted in the very findings of misconduct that have prevented him from obtaining similar employment elsewhere in the NHS. On the facts that must be assumed in his favour, therefore, wrongful dismissal is not his only cause of action and his claim for damages for failure to carry out proper disciplinary proceedings is not excluded by Johnson v Unisys.’

Ward LJ, Lloyd LJ, Moore-Bick LJ
[2010] EWCA Civ 571, [2010] WLR (D) 135, [2010] IRLR 702, [2010] Med LR 307
Bailii, WLRD
England and Wales
Citing:
Appeal from – Edwards v Chesterfield Royal Hospital NHS Foundation Trust QBD 31-Jul-2009
The claimant, a consultant surgeon had been subject to disciplinary proceedings by his employer. They were however conducted in a manner which breached his contract. The GMC had summarily dismissed the same allegations. The claimant now appealed . .
Cited – Gunton v Richmond-upon-Thames London Borough Council CA 1980
The plaintiff college registrar had been the subject of disciplinary proceedings, but the defendant had not followed the contractual procedure. The judge had ordered an inquiry as to damages on the basis that the Plaintiff was entitled to remain in . .
Cited – Malloch v Aberdeen Corporation HL 1971
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: ‘At common law a master is not bound to hear his . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited – Botham v The Ministry of Defence QBD 26-Mar-2010
botham_modQBD10
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Eastwood v Magnox Electric plc CA 2002
There was a claim for damages in respect of psychiatric injury said to result from a breach of the implied term of trust and confidence, which was asserted to be recoverable notwithstanding Johnson, on the basis that the acts of the employer . .
Cited – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .

Cited by:
Appeal from – Edwards v Chesterfield Royal Hospital NHS Foundation Trust SC 14-Dec-2011
The claimant had been employed as consultant surgeon. He had been dismissed in a manner inconsistent with the extress terms of his employment contract. He sought common law damages for the manner of his dismissal. The employer appealed.
Held: . .

Lists of cited by and citing cases may be incomplete.

Employment, Damages, Health Professions

Updated: 01 November 2021; Ref: scu.416099

Jones and Another v Ruth and Another: CA 12 Jul 2011

The parties were neighbours. The claimants succeeded in their assertion of trespass and nuisance in building works carried out by the defendant. The claimant appealed against the judge’s failure to award damages for harassment, saying that though the judge had found harassment, he had made no award saying that the damage was not reasonably forseeable.
Held: The claimant’s appeal succeeded. The 1997 Act created a statutory tort, and: ‘There is nothing in the statutory language to import an additional requirement of foreseeability. Nor is the foreseeability of damage the gist of the tort. Section 1 is concerned with deliberate conduct of a kind which the defendant knows or ought to know will amount to harassment of the claimant. Once that is proved the defendant is responsible in damages for the injury and loss which flow from that conduct. There is nothing in the nature of the cause of action which calls for further qualification in order to give effect to the obvious policy objectives of the statute.’
The defendant succeded also in his appeal against the quantum of damages awarded in lieu of an injunction.
As to costs, no sufficient error had been found in the judge’s decision to allow the appeal court to intervene.

Arden, Aikens, Patten LJJ
[2011] EWCA Civ 804, [2012] 1 All ER 490, [2012] 1 WLR 1495, [2011] CILL 3085
Bailii
Protection from Harassment Act 1997 3
England and Wales
Citing:
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Cited – Thomas v News Group Newspapers Ltd CA 18-Jul-2001
The publication of articles in a newspaper describing how a ‘black clerk’ had complained about the allegedly racist comments of two policemen was said to have caused the claimant to receive racist hate mail.
Held: The court considered the type . .
Cited – Laing Limited v Yassin Essa CA 21-Jan-2004
The claimant had been awarded damages for race discrimination. The employer appealed.
Held: In a claim for damages under the 1976 Act, it was not necessary to show that the damage suffered was reasonably forseeable.
Pill LJ said: ‘I see . .
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 – Whitwham v Westminster Brymbo Coal and Coke Co CA 24-Jun-1896
Common law damages for the misuse of property involved an award of a sum equivalent to the price or hire that a reasonable person would pay for such use, even if the owner would not himself actually have been using the property. This case involved . .
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 – Amec Developments Ltd v Jurys Hotel Management (UK) Ltd ChD 17-Nov-2000
The court considered the award of damages after building works by the defendant in breach of a restrictive covenant.
Held: The complexity of the financing and other factors relevant to the calculation of the developer’s profit mean that the . .
Cited – Islam v Ali CA 26-Mar-2003
For a costs appeal to succeed it must be established that the judge has exceeded the limits of his proper discretion by the order made. Auld LJ said that the Court should only intervene: ‘the judge has either erred in principle in his approach, or . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – Other, Damages

Updated: 01 November 2021; Ref: scu.441586

Wells v Wells; Thomas v Brighton Health Authority; etc: HL 16 Jul 1998

In each of three cases, the plaintiffs had suffered serious injury. They complained that the court had made a substantial reduction of their damages award for loss of future earnings and the costs of future care.
Held: The appeals succeeded.
The purpose of an award of damages in tort was to make good to the injured Plaintiff, so far as money can do so, the loss that he had suffered as a result of the wrong done to him. In awarding damages in the form of a lump sum the Court had to calculate as best it could the sum that would be adequate, by drawing down both capital and income, to apply periodical sums equal to the Plaintiff’s estimated loss over the period during which that loss was likely to continue. The injured Plaintiff was not in the same position as an ordinary prudent investor and was entitled to the greater security and certainty achieved by investment in index-linked government securities, in respect of which the current net discount rate was 3%. The courts should allow for the indexation of investment returns linked with the index-linked government securities index, since the claimants would be unable to risk fluctuations in investment returns from equity based investments.
Lord Hope said: ‘the object of the award of damages for future expenditure is to place the injured party as nearly as possible in the same financial position as he or she would have been in but for the accident. The aim is to award such a sum of money that will amount to no more, and at the same time no less, than the net loss.’
Lord Lloyd of Berwick said of the Ogden Tables: ‘I do not suggest that the judge should be a slave to the tables. There may well be special factors in particular cases. But the tables should now be regarded as the starting-point, rather than a check. A judge should be slow to depart from the relevant actuarial multiplier on impressionistic grounds, or by reference to ‘a spread of multipliers in comparable cases’ especially when the multipliers were fixed before actuarial tables were widely used.’
Lord Clyde said: ‘One clear principle is that what the successful plaintiff will in the event actually do with the award is irrelevant.’

Lord Lloyd of Berwick, Lord Steyn, Lord Hope of Craighead, Lord Clyde, Lord Hutton
Times 20-Jul-1998, Gazette 16-Sep-1998, [1998] UKHL 27, [1999] 1 AC 345, [1998] 3 WLR 329, [1998] 3 All ER 481, [1998] PIQR Q56, [1998] IRLR 536, [1998] 2 FLR 507, (1998) 43 BMLR 99, [1998] Fam Law 593
House of Lords, Bailii
Damages Act 1996 2(1)
England and Wales
Citing:
Appeal from – Wells v Wells; Thomas v Brighton Health Authority; Page v Sheerness Steel Company Limited CA 23-Oct-1996
The plaintiff was a member of a scheme providing permanent health insurance benefits. The issue was whether the insurance monies received by the plaintiff were to be treated as sick pay (and therefore deductible from the damages) or insurance monies . .

Cited by:
Cited – McNulty v Marshalls Food Group Ltd OHCS 7-Jan-1999
(Scotland) The pursuer had no pre-existing degenerative condition of his lower spine, although he had degenerative changes in his cervical spine. As a result of an accident he sustained a prolapsed inter vertebral disc in his lumbar spine as a . .
Cited – Warren v Northern General Hospital Trust CA 10-Apr-2000
It was not open to lower courts to reduce the guideline discount interest rate applied to damages awards to account for future returns. The original figure was set in the Act and by the House of Lords in Wells v Wells. Also the lower rates of . .
Cited – Ogden Tables LCJ 3-May-1999
Given the reduction in levels of interest on government index-linked stocks, and the assumed rate of return for the purposes of the assumed rate of return, the committee would continue to fix the return rate rather than set a method of calculation. . .
Cited – Dharamshi v Dharamshi CA 5-Dec-2000
On a divorce where there were fairly substantial sums at issue, the two parties argued for different bases for calculation of the wife’s interests, either her reasonable needs according to Duxbury tables, or otherwise to reflect the particular . .
Cited – Cooke, Sheppard, Page v United Bristol Health Care, Stibbe and Another, Lee CA 16-Oct-2003
The claimant appealed against his damages award, saying that it should have allowed for the anticipated rises in the cost of providing his care in the future.
Held: Rises in future costs were already factored into the tables used for . .
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 – Collett v Smith and Another QBD 11-Aug-2008
The claimant had been an eighteen year old playing football for Manchester United reserves when he was injured by a foul tackle which ended his football career. The defendant admitted liability, but denied that he would have gone on to be a premier . .
Cited – A v B Hospitals NHS Trust Admn 10-Nov-2006
The claimant baby had suffered catastrophic injuries at birth in the defendant’s hospital. Liability having been admitted, the court now considered whether damages should be paid as a lump sum or by periodical payments.
Held: ‘ the form of . .
Applied – Barry v Ablerex Construction (Midlands) Ltd QBD 22-Mar-2000
After a delay of delay 5 years, the judge deducted two years interest from the award to reflect the plaintiff’s delay. . .
Cited – Barry v Ablerex Construction (Midlands) Ltd CA 30-Mar-2001
It was appropriate to reduce the interest discount rate used to calculate damages awards in personal injury cases for future losses, from 3 per cent to 2 per cent. This reflected the general reduction in such interest rates since the Act came into . .
Cited – Knauer v Ministry of Justice SC 24-Feb-2016
The court was asked: ‘whether the current approach to assessing the financial losses suffered by the dependant of a person who is wrongfully killed properly reflects the fundamental principle of full compensation, and if it does not whether we . .
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. . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.158958

Page v Smith: HL 12 May 1995

The plaintiff was driving his car when the defendant turned into his path. Both cars suffered considerable damage but the drivers escaped physical injury. The Plaintiff had a pre-existing chronic fatigue syndrome, which manifested itself from time to time.
Held: (Majority) A claim in contract or tort for damages for psychiatric injury is a claim in respect of personal injuries. A claim for damages for nervous shock was possible where a physical injury was foreseeable even though not the nervous shock itself might not be foreseeable. The court must approach such questions considering the ‘control mechanisms’. Once it was established that the defendant was under a duty of care to avoid causing personal injury to the claimant, it mattered not whether the injury sustained was physical, psychiatric or both. Liability would be established without the necessity to prove as an independent part of the cause of action that psychiatric injury, in the absence of physical injury, was foreseeable.
It was sufficient that the defendant should have foreseen that his negligent driving might cause some physical injury. It did not matter that he could not have foreseen that the event which actually happened, namely a minor collision, would cause psychiatric injury.
Lord Lloyd of Berwick spoke as to the decision of the Court of Appeal: ‘In all these cases the plaintiff was the secondary victim of the defendant’s negligence. He or she was in the position of a spectator or bystander. In the present case, by contrast, the plaintiff was a participant. He was himself directly involved in an accident and well within the range of foreseeable physical injury. ‘ to which question the provisional answer was: ‘Foreseeability of psychiatric injury remains a crucial ingredient when the plaintiff is the secondary victim, for the very reason that the secondary victim is almost always outside the area of physical impact, and therefore outside the range of foreseeable physical injury. But where the plaintiff is the primary victim of the defendant’s negligence, the nervous shock cases, by which I mean the cases following on from Bourhill v Young, are not in point. Since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury.’ and
‘Liability for physical injury depends on what was reasonably foreseeable by the defendant before the event. It could not be right that a negligent defendant should escape liability for psychiatric injury just because, though serious physical injury was foreseeable, it did not in fact transpire. Such a result in the case of a primary victim is neither necessary, logical nor just. To introduce hindsight into the trial of an ordinary running-down action would do the law no service.’
Lord Lloyd of Berwick: ‘The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff. If a working definition of ‘personal injury’ is needed, it can be found in section 38(1) of the Limitation Act 1980: ‘Personal injuries’ includes any disease and any impairment of a person’s physical or mental condition . . ‘. There are numerous other statutory definitions to the same effect. In the case of a secondary victim, the question would usually turn on whether the foreseeable injury is psychiatric, for reasons already explained. In the case of a primary victim the question will almost always turn on whether the foreseeable injury is physical. But it is the same test in both cases, with different applications. There is no justification for regarding physical and psychiatric injury as different ‘kinds’ of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to a plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both. … Applying that test in the present case, it was enough to ask whether the defendant should reasonably have foreseen that the plaintiff might suffer physical injury as a result of the defendant’s negligence, so as to bring him within the range of the defendant’s duty of care. It was unnecessary to ask, as a separate question, whether the defendant should reasonably have foreseen injury by shock; and it is irrelevant that the defendant did not, in fact, suffer any external physical injury.’
Lord Browne-Wilkinson: ‘Medical science has also demonstrated that there are other injuries the body can suffer as a consequence of an accident, such injuries not being demonstrably attributable directly to physical injury to the plaintiff. Injuries of this type may take two forms. First, physical illness or injury not brought about by the chain of demonstrable physical events, but by mental or emotional stresses, i.e. by a psychiatric route. Examples are a heart attack or a miscarriage produced by shock. In this case, the end product is a physical condition although it has been brought about by a process which is not demonstrably a physical one but lies in the mental or nervous system. The second form is psychiatric illness itself which is brought about by mental or emotional stresses, i.e. by a psychiatric route. . . . I am therefore of opinion that any driver of a car should reasonably foresee that, if he drives carelessly, he will be liable to cause injury, either physical or psychiatric or both, to other users of the highway who become involved in an accident. Therefore he owes to such persons a duty of care to avoid such injury. In the present case the defendant could not foresee the exact type of psychiatric damage in fact suffered by the plaintiff who, due to his M.E., was ‘an eggshell personality’ but that is of no significance since the defendant did owe a duty of care to prevent foreseeable damage, including psychiatric damage. Once such a duty of care is established, the defendant must take the plaintiff as he finds him.’

Lord Lloyd of Berwick, Lord Browne-Wilkinson, Lord Ackner
Gazette 14-Jun-1995, Independent 12-May-1995, Times 12-May-1995, (1995) 92 LSG 33, [1995] RTR 210, [1996] AC 155, [1995] 2 All ER 736, [1995] UKHL 7, [1995] PIQR P329, [1995] 2 WLR 644, [1995] 2 Lloyds Rep 95
Bailii
England and Wales
Citing:
Appeal from – Page v Smith CA 4-May-1994
The plaintiff was driving his car at 30 miles an hour when the defendant turned right immediately into his path. In the accident both cars suffered damage but the occupants all escaped physical injury. The Plaintiff, however, had suffered for 20 . .
Cited – King v Phillips CA 1952
Denning LJ said: ‘there can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock.’ A person ‘who suffers shock on being told of an accident to a loved one cannot recover damages from the . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .

Cited by:
Cited – Keen v Tayside Contracts OHCS 26-Feb-2003
The claimant sought damages for post traumatic stress disorder. He was a road worker instructed to attend by the defendant immediately after a terrible accident.
Held: It was a classic case of nervous shock. He was not a rescuer, and nor had . .
Cited – Giullietta Galli-Atkinson v Seghal CA 21-Mar-2003
The claimant’s daughter was fatally injured in car accident, dying shortly after. The mother came upon the scene, witnessed a police cordon at the scene of the accident and was told of her death. She later saw the injuries at the mortuary and . .
Cited – Gogay v Hertfordshire County Council CA 26-Jul-2000
The employee sought damages for breach of the implied term of trust and confidence, even though she remained throughout the employment of the Council against whom she was bringing proceedings.
Held: Her remaining in employment was a factor . .
Cited – 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 . .
Regretted – White, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998
No damages for Psychiatric Harm Alone
The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy.
Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . .
Applied – A and Another v Essex County Council CA 17-Dec-2003
The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child.
Held: Any such duty extended only during the period where the child was with the prospective . .
Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – Simmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
Cited – Donachie v The Chief Constable of the Greater Manchester Police CA 7-Apr-2004
The claimant had been asked to work under cover. The surveillance equipment he was asked to use was faulty, requiring him to put himself at risk repeatedly to maintain it resulting in a stress disorder and a stroke.
Held: There was a direct . .
Cited – Nobes, Chief Constable of West Yorkshire Police v Schofield CA 14-May-1998
A police constable was entitled to claim damages for nervous shock after a co-officer unexpectedly and unlawfully fired off shots from a gun they had found as part of a search. . .
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Cited – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
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 . .
Criticised – White, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998
No damages for Psychiatric Harm Alone
The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy.
Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . .
Cited – Corr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
Cited – French and others v Chief Constable of Sussex Police CA 28-Mar-2006
The claimants sought damages for psychiatric injury. They were police officers who had been subject to unsuccessful proceedings following a shooting of a member of the public by their force.
Held: The claim failed: ‘these claimants have no . .
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 – Calvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .
Cited – Corr v IBC Vehicles Ltd HL 27-Feb-2008
The claimant’s husband had committed suicide. She sought damages for financial loss from his former employers under the 1976 Act. He had suffered a severe and debilitating injury working for them leading to his depression and suicide. The employers . .
Cited – Flood v The University Court of the University of Glasgow OHCS 8-Jul-2008
The pursuer, a college lecturer claimed damages for stress related injury suffered as a result of overwork. She had communicated with her managers many times about the overload. Other staff had resigned for similar reasons.
Held: The pursuer . .
Cited – Taylor v A Novo (UK) Ltd CA 18-Mar-2013
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
Cited – Paul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.84536

Yemgas Fzco and Others v Superior Pescadores Sa: CA 24 Feb 2016

The court considered the limitation on a shipowner’s liability, and how this had been implemented by Belgium.
Held: Given the absence of any evidence as to how Belgium had implemented the Hague Visby Rules, the court went on the basis that it was similar to the way it had been implemented in the UK. The English rules provided that the Rules had the force of statute. The matter was therefore subject to those rules, nd liability limited accordingly.

Longmore, Tomlinson, McCombe LJJ
[2016] EWCA Civ 101, [2016] WLR(D) 97
Bailii, WLRD
Carriage of Goods by Sea Act 1971
England and Wales

Transport, International, Damages

Updated: 02 November 2021; Ref: scu.560238

Fox v British Airways Plc: EAT 30 Jul 2012

dox_baEAT2012

EAT UNFAIR DISMISSAL
JURISDICTIONAL POINTS
PRACTICE AND PROCEDURE
A former employee died within days of being dismissed, it was said both unfairly, and by because of discrimination. He had enjoyed the right to death-in-service benefit whilst in employment. The ET, rejecting an argument that the loss was real loss of substance to the deceased, and considering it was in reality a benefit to the dependents, held that a sum of around andpound;350 akin to the conventional award for loss of statutory rights should be awarded (if liability were made out). The deceased’s father appealed against the assessment of quantum.
The father had initially issued proceedings without first obtaining appointment as a person authorised to bring them by application to the ET by appointment under s. 206(4) ERA 1996 – instead he included such an application in the body of his ET1. The EJ declined to apply Court of Appeal common-law authority to the effect that proceedings brought without authorisation were a nullity and could not retrospectively be validated, though purporting to take a literal approach to the wording of s.206; and regarded the claims as being in time; but in the alternative held that duplicate proceedings brought within a reasonable time of the father realising that an ET had not (yet) dealt with his application for appointment, and that there might be a problem with his entitlement to bring them, had been brought within time.
Held that the EJ was in error in assessing loss in the way he did: it was a real loss, which might normally be compensated for by payment of an appropriate premium to ensure death cover in the amount contracted for in employment, but since in the circumstances it was not argued that there should have been mitigation by obtaining such a policy, the loss was prima facie the loss of the full sum payable on death. The EJ was also wrong not to have held the initial proceedings a nullity incapable of retrospective validation. However, his alternative conclusion was open to him. The ET thus had jurisdiction.

Langstaff J P
[2012] UKEAT 0033 – 12 – 3007
Bailii
England and Wales

Employment, Damages

Updated: 02 November 2021; Ref: scu.463349

Nationwide Building Society v Dunlop Haywards (HLl) Ltd (T/A Dunlop Heywood Lorenz) and Cobbetts: ComC 18 Feb 2009

The claimant had leant money on a property fraudulently overvalued by an employee of the now insolvent first defendant. A contribution order had been agreed by the solicitors. The court heard applications by the claimants and the solicitors against the insolvent company.
Held: Given the nature and size of the fraud, it was inevitable and proper that the claimant would expend serious resources both to investigate this matter and in review of its procedures. Publicity about the case also led to a loss of confidence in the claimant and its need for rescue and merger, and substantial associated financial losses. The defendant solicitors had failed to note and report the indicia of fraud and were negligent, but the different basis of claim left them at risk of a wider liability than the principal in seeking a contribution. The Court should examine the nature and extent of the defendants’ common liability when determining whether two defendants are liable for the same damage, and ‘It seems to me neither just nor equitable that the amount of contribution which Cobbetts are to be ordered to make should be assessed by treating the damage for which both defendants are responsible as the totality of the claimant’s loss, ignoring contributory negligence, when the only reason for ignoring it is that the claim against DHL is in deceit. To do so would be to visit on Cobbetts the approach taken by the Court, partly for reasons of deterrence, against fraudsters, when Cobbetts are innocent of any fraud.’

Christopher Clarke J
[2009] EWHC 254 (Comm)
Bailii
Civil Liability (Contribution) Act 1978 1
England and Wales
Citing:
Cited – R+V Versicherung Ag v Risk Insurance and Reinsurance Solutions Sa and others ComC 29-Jan-2007
A company may be able to claim for the wasted time spent by its staff investigating the matter at issue without having to show additional expenditure or loss of revenue or profit. . .
Cited – Fitzgerald v Lane HL 14-Jul-1988
The plaintiff crossed road at a pelican crossing. The lights were against him but one car had stopped. As he passed that car he was struck by another in the second lane and again by a car coming the other way. The judge had held the three equally . .
Cited – Royal Brompton Hospital National Health Service Trust v Hammond and others HL 25-Apr-2002
The claimants sought damages against the defendants for their late delivery of a building. The contractors sought to share the damages with the architects who had certified the delays, defeating their own claims.
Held: The Act sought to extend . .
Cited – Ball v Banner and Others; Neill Clark (A Firm) v Healey and Baker (A Firm) ChD 23-Mar-2000
A valuer had described expected values for an property proposed as an investment promoted by a co-defendant. The valuation and prediction as to how long it might take to have it let had contributed to the representations leading to the investments . .
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 . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Insolvency, Damages

Updated: 02 November 2021; Ref: scu.293981

Foss v Harbottle: 25 Mar 1843

Company alone may sue for legal wrong against it.

A bill was lodged by two of the proprietors of shares in a company incorporated by Act of Parliament, on their own and the other shareholders’ behalf. They claimed against three bankrupt directors, a proprietor, solicitor and architect charging them with fraudulent transactions misapplying the company’s assets, that there had ceased to be a sufficient number of qualified directors to make up a board, and the company had no clerk or office, that in such circumstance the proprietors had no power to take the property out of the hands of the defendant directors.
Held: If a company suffers a legal wrong it is the company itself which must sue in respect of damage resulting from it. The company has its own separate legal identity which must be respected. Observations were made on the point at which a relationship of trust arises between company promoters and the company. The possibility of avoiding a transaction does not necessarily create a void transaction. A corporation may later choose to adopt the transaction, and hold the directors bound by them. They can be confirmed if a transaction is a mortgage not authorised by powers given by the Act, this is an act beyond the powers of the corporation and can not be confirmed whilst there is any one dissenting voice raised against it.
Jenkins LJ said: ‘The proper plaintiff in an action in respect of a wrong alleged to be done to a corporation is, prima facie, the corporation.’

Wigram VC, Jenkins LJ
[1843] 67 ER 189, [1843] EngR 478, (1843) 2 Hare 461
Commonlii
England and Wales
Cited by:
Cited – Johnson v Gore Wood and Co (a Firm) CA 12-Nov-1998
The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
Cited – Heyting v Dupont CA 1964
The plaintiff owned shares in a company registered in Jersey and created to make the most of an invention. The articles contained a deadlock provision.
Held: This was ‘essentially a dispute between two discordant partners’ There was a general . .
Explained – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
Cited – Cabvision Ltd v Feetum and others CA 20-Dec-2005
The company challenged the appointment of administrative receivers, saying there had been no insolvency.
Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were . .
Cited – Stuart v Goldberg and Linde (a firm) CA 17-Jan-2008
The claimant appealed against orders preventing him from suing his former solicitors in respect of heads of claim which the court said should have been included in earlier proceedings.
Held: When deciding whether a claim was an abuse of . .
Cited – Webster v Sandersons Solicitors (A Firm) CA 31-Jul-2009
The claimant apealed against refusal of permission to amend his claim for negligence against his former solicitors by adding claims from 1993 and 1994 . .
Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Iesini and Others v Westrip Holdings Ltd and Others ChD 16-Oct-2009
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
Cited – Smith v Croft (No 3) ChD 1987
Knox J said: ‘Ultimately the question which has to be answered in order to determine whether the rule in Foss v. Harbottle applies to prevent a minority shareholder seeking relief as plaintiff for the benefit of the company is, ‘Is the plaintiff . .
Cited – Bracken Partners Ltd v Gutteridge and Others ChD 31-Mar-2003
The claimant sought to claim against former directors of a company in which it held shares under the rule in Foss v Harbottle. . .
Cited – Smith v Croft (No 2) 1987
A registered shareholder who is absolute beneficial owner can vote as he pleases, subject only to rather imprecise constraints imposed by company law.
It is essential to the exception to the rule in Foss v Harbottle that the alleged wrongdoing . .

Lists of cited by and citing cases may be incomplete.

Company, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.180903

Jameel v Wall Street Journal Europe Sprl: HL 11 Oct 2006

The House was asked as to the capacity of a limited company to sue for damage to its reputation, where it had no trading activity within the jurisdiction, and as to the extent of the Reynolds defence. The defendants/appellants had published an article which was said falsely to associate the claimants with terrorist activity.
Held: The ability to publish an article which was in its nature defamatory but where there were proper matters of public concern, and where the defendant had taken reasonable steps to verify its contents, was not to be lost only because steps had not been taken to obtain a coment on the proposed article from the claimant before publication. ‘the good name of a company, as that of an individual, is a thing of value. A damaging libel may lower its standing in the eyes of the public and even its own staff, make people less ready to deal with it, less willing or less proud to work for it. If this were not so, corporations would not go to the lengths they do to protect and burnish their corporate images. I find nothing repugnant in the notion that this is a value which the law should protect. Nor do I think it an adequate answer that the corporation can itself seek to answer the defamatory statement by press release or public statement, since protestations of innocence by the impugned party necessarily carry less weight with the public than the prompt issue of proceedings which culminate in a favourable verdict by judge or jury. Secondly, I do not accept that a publication, if truly damaging to a corporation’s commercial reputation, will result in provable financial loss, since the more prompt and public a company’s issue of proceedings, and the more diligent its pursuit of a claim, the less the chance that financial loss will actually accrue. ‘
Lord Hoffmann distinguished between reportage cases and those where the published would rely on a Reynolds privilege: ‘In most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true, but there are cases (‘reportage’) in which the public interest lies simply in the fact that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth.’

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond
Times 12-Oct-2006, [2006] UKHL 44, [2006] 3 WLR 642, [2007] AC 359, [2007] Bus LR 291, [2007] EMLR 2, [2007] EMLR 14, [2006] 4 All ER 1279, 21 BHRC 471, [2006] HRLR 41
Bailii
England and Wales
Citing:
At First Instance – Jameel, Abdul Latif Jameel Company Limited v The Wall Street Journal Europe Sprl QBD 2003
. .
Appeal From – Jameel and Another v Wall Street Journal Europe Sprl (No 2) CA 3-Feb-2005
The claimant sought damages for an article published by the defendant, who argued that as a corporation, the claimant corporation needed to show special damage, and also that the publication had qualified privilege.
Held: ‘It is an established . .
At First Instance – Jameel, Abdul Latif Jameel Company Limited v The Wall Street Journal Europe SPRL QBD 20-Jan-2004
It is almost inevitable that in a Reynolds privilege case to be tried by jury there will be presented to them a list of questions, sometimes no doubt formidably long. The object is to enable the judge to have the factual matrix upon which to make . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – South Hetton Coal Company Ltd v North Eastern News Association Limited CA 1894
The plaintiff company sued for defamation in respect of an article which alleged that it neglected its workforce. The defendants contended that no action for libel would lie on the part of a company unless actual pecuniary damage was proved.
Cited – Lewis v Daily Telegraph Ltd HL 1964
Ascertaining Meaning of Words for Defamation
The Daily Telegraph had published an article headed ‘Inquiry on Firm by City Police’ and the Daily Mail had published an article headed ‘Fraud Squad Probe Firm’. The plaintiffs claimed that those articles carried the meaning that they were guilty of . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others QBD 1991
The defendant published articles suggesting links between the Council and certain businessmen. The Council sued in defamation. The defendant argued that a local authority should not be able to sue for defamation.
Held: Applying South Hetton, . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others CA 19-Apr-1992
In two issues of ‘The Sunday Times’ newspaper on 17 and 24 September 1989 there appeared articles concerning share deals involving the superannuation fund of the Derbyshire County Council. The articles in the issue of 17 September were headed . .
Cited – National Union of General and Municipal Workers v Gillian 1946
A non-trading corporation (a trade union) which had been assimilated to a trading corporation sought damages for defamation. . .
Cited – Steel and Morris v United Kingdom ECHR 15-Feb-2005
The applicants had been sued in defamation by McDonalds. They had no resources, and English law precluded legal aid for such cases. The trial was the longest in English legal history. They complained that the non-availablility of legal aid infringed . .
Cited – Jameel, Abdul Latif Jameel Company Limited v The Wall Street Journal Europe Sprl (No 1) CA 26-Nov-2003
The court considered the levels of meaning in an article falsely connecting the claimant with terrorist activity: ‘Once it is recognised that the article may be asserting no more than that in one way or another the respondents may unwittingly have . .
Cited – S and M v United Kingdom ECHR 1993
The defendants to an action in defamation by McDonalds, who were acting in person, sought to make a complaint to the Strasbourg Court that the proceedings infringed their Article 10 rights of freedom of expression. One ground was that the law of the . .
Cited – Shevill and Others v Presse Alliance SA HL 26-Jul-1996
A libel case against a French paper was rightly brought in UK despite the small (250 copies nationally and 5 in the plaintiff’s local area (Yorkshire)) circulation here. The Brussels Convention allows a claim for defamation in UK though the main . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others HL 18-Feb-1993
Local Council may not Sue in Defamation
Local Authorities must be open to criticism as political and administrative bodies, and so cannot be allowed to sue in defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech was the underlying value which . .
Cited – Harrison v Bush 1855
The office of Secretary of State is in theory one and indivisible.
Lord Campbell CJ stated: ‘In practice, to the Secretary of State for the Home Department . . belongs peculiarly the maintenance of the peace within the kingdom, with the . .
Cited – Markt Intern Verlag Gmbh And Klaus Beermann v Germany ECHR 20-Nov-1989
. .
Cited – Webb v Times Publishing Co Ltd 1960
The Times newspaper published a report of the criminal trial in Switzerland of a British subject. When sued in defamation they sought to rely upon the defence of fair reporting of judicial proceedings.
Held: A blanket protection for reporting . .
Cited – Cox v Feeny 1863
. .
Cited – Allbutt v General Council of Medical Education and Registration CA 1889
The defendant had published a book with minutes of a meeting of the council recording that the plaintiff’s name had been removed from the medical register for infamous professional conduct. This followed an inquiry at which the plaintiff had been . .
Cited – Perera v Peiris PC 1949
Qualified privilege claim upheld
(Ceylon) The ‘Ceylon Daily News’ had published extracts from a report of the Bribery Commission which was critical of Dr. Perera’s lack of frankness in his evidence. The Judicial Committee upheld a claim to qualified privilege. In the light of the . .
Cited – Watt v Longsdon 1930
. .
Cited – Pullman v Hill and Co CA 1891
The plaintiff claimed publication of a defamation when the defendant was said to have dictated it to his typist.
Held: That was sufficient publication. The Court considered what would amount to publication in the law of defamation.
Lord . .
Cited – Adam v Ward HL 1917
The plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus bringing his charge into the national arena. The Army Council investigated the charge, rejected it and directed their secretary, Sir E Ward, the . .
Cited – Bonnick v Morris, The Gleaner Company Ltd and Allen PC 17-Jun-2002
(Jamaica) The appellant sought damages from the respondent journalists in defamation. They had claimed qualified privilege. The words alleged to be defamatory were ambiguous.
Held: The publishers were protected by Reynolds privilege. The court . .

Cited by:
Cited – Roberts and Another v Gable and others CA 12-Jul-2007
The claimants appealed a finding of qualified privilege in their claim of defamation by the defendant author and magazine which was said to have accused them of theft and threats of violence against other members of the BNP.
Held: The appeal . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – Flood v Times Newspapers Ltd QBD 2-Oct-2009
The defendant had published a story in its newspaper. At that time it attracted Reynolds qualified privilege. After the circumstances changed, the paper offered an updating item. That offer was rejected as inadequate.
Held: The qualified . .
Cited – Hays Plc v Hartley QBD 17-May-2010
hays_hartleyQBD10
Mr Hartley operated a news agency, and provided to the publisher of the Sunday Mirror, MGN Ltd, allegations of racism that had been levelled at the claimant company by former employees. The allegations were reported in an article headed ”KKK . .
Cited – Flood v Times Newspapers Ltd CA 13-Jul-2010
The claimant police officer complained of an article he said was defamatory in saying he was being investigated for allegations of accepting bribes. The article remained on the internet even after he was cleared. Each party appealed interim orders. . .
Cited – Baturina v Times Newspapers Ltd CA 23-Mar-2011
The claimant appealed against directions given in her defamation action against the defendant. It had been said that she owned a house, and the defendant said that this was not defamatory. The claimant said that as the wife of the Mayor of Moscow . .
Cited – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
ctb_newsQBD11
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .
Cited – Flood v Times Newspapers Ltd SC 21-Mar-2012
The defendant had published an article which was defamatory of the claimant police officer, saying that he was under investigation for alleged corruption. The inquiry later cleared him. The court was now asked whether the paper had Reynolds type . .
Cited – Chesterton Global Ltd (t/a Chestertons) and Another v Nurmohamed (Victimisation Discrimination: Whistleblowing) EAT 8-Apr-2015
chesteron_nurmohamedEAT201504
EAT VICTIMISATION DISCRIMINATION
Whistleblowing
Protected disclosure
This appeal concerns the meaning of the words ‘in the public interest’ inserted into section 43B(1) of the Employment Rights . .
Cited – Lachaux v Independent Print Ltd (1) CA 12-Sep-2017
Defamation – presumption of damage after 2013 Act
The claimant said that the defendant had published defamatory statements which were part of a campaign of defamation brought by his former wife. The court now considered the requirement for substantiality in the 2013 Act.
Held: The defendant’s . .

Lists of cited by and citing cases may be incomplete.

Defamation, Damages, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.245333

Paul and Another v The Royal Wolverhampton NHS Trust: QBD 4 Jun 2020

Nervous shock – liability to third parties

The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care to a primary victim may be liable to a secondary victim for a psychiatric injury suffered as a result of witnessing the death or injury of the primary victim. This type of injury is referred to in the authorities, inaptly, as ‘nervous shock’.
Held: The appeal against the strike out of the claim succeeded: ‘the principle in Taylor v A. Novo is no bar to recovery in this case if it is shown that Mr Paul’s collapse from a heart attack on 26 January 2014 was the first occasion on which the damage caused by the hospital’s negligent failure to diagnose and treat his heart condition became manifest.’

Chamberlain J
[2020] EWHC 1415 (QB)
Bailii
England and Wales
Citing:
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Cited – McLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .
Appeal from – Paul v The Royal Wolverhampton NHS Trust QBD 4-Nov-2019
Claim for damages – witnesses to father’s death from heart attack.
Held: On the facts pleaded, Saffron’s and Mya’s claims were bound to fail. . .
Cited – White, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998
No damages for Psychiatric Harm Alone
The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy.
Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
Cited – Page v Smith HL 12-May-1995
The plaintiff was driving his car when the defendant turned into his path. Both cars suffered considerable damage but the drivers escaped physical injury. The Plaintiff had a pre-existing chronic fatigue syndrome, which manifested itself from time . .
Cited – Taylor v Somerset Health Authority 1993
The plaintiff’s husband had suffered a heart attack at work and soon died at the defendant’s hospital. She went to the hospital within an hour and was told of his death by a doctor about 20 minutes after her arrival. She was shocked and distressed. . .
Cited – Shorter v Surrey and Sussex Healthcare NHS Trust QBD 25-Mar-2015
The claimant saw her sister in undeniably distressing circumstances in hospital. It was suggested that the claimant’s professional background, as a radiographer, gave her an unusual degree of insight into her sister’s medical condition and that, as . .
Cited – Sion v Hampstead Health Authority CA 27-May-1994
An amendment to pleadings was allowed after the limitation period had expired in order to add a claim based on the same facts. The claim was brought by the father of a young man injured in a motor cycle accident. For fourteen days the father stayed . .
Cited – North Glamorgan NHS Trust v Walters CA 6-Dec-2002
A new mother woke in hospital to see her baby (E) fitting. E suffered a major epileptic seizure leading to coma and irreparable brain damage. E was transferred to a London hospital and the following day the claimant was told by a consultant that E’s . .
Cited – White v Lidl UK Ltd QBD 2005
The primary victim suffered an accident in the supermarket car park when a crash barrier which had been poorly maintained came through her windscreen. Her mental state deteriorated and, some months later, she committed suicide by hanging herself. . .
Cited – W v Essex County Council and Another HL 17-Mar-2000
A foster child was placed with a family. The child had a history of abusing other children, but the foster parents, who had other children were not told. The foster child caused psychiatric damage to the carers.
Held: It was wrong to strike . .
Cited – Taylor v A Novo (UK) Ltd CA 18-Mar-2013
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
Cited – Wild and Another v Southend University Hospital NHS Foundation Trust QBD 3-Dec-2014
Claim for damages arising from alleged want of care of child in the womb, leading to a stillbirth. The claimant father suffered psychiatric damage after being told of the death of his wife’s baby in utero as a result of negligent treatment by . .
Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Cited – Dryden and Others v Johnson Matthey Plc SC 21-Mar-2018
Sensitisation to salt can be personal injury
The claimants, had developed platinum salt sensitisation due to the defendant employer’s breach of health and safety regulations and common law duty, claimed a cause of action for personal injury. Platinum salt sensitisation is, in itself, an . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Negligence, Damages

Updated: 01 November 2021; Ref: scu.651242

Granchester Construction (Eastern) Ltd v Attrill: EAT 14 Jan 2013

EAT UNFAIR DISMISSAL
Compensation
Polkey deduction
A Tribunal found that an employee who had left site an hour and a half or so early on two consecutive days and subsequently had submitted time sheets claiming to have worked full days was unfairly dismissed because there was no proper investigation. It thought the employee guilty of significant contributory fault, but because it assessed the ‘Polkey’ chances of a fair dismissal at 50% it moderated the further deduction for contributory fault to 10% only. It applied this both to the basic and compensatory awards. Held it was wrong to apply the moderated figure to the basic award, since ‘Polkey’ would have no effect on that. Secondly, the Tribunal had approached its assessment of the ‘Polkey’ deduction by asking the chances of a reasonable employer dismissing an employee in such circumstances. That was the wrong approach. Though the postulated dismissal must be a fair one, it is the chances of the actual employer in the case, not some hypothetical reasonable employer, dismissing this employee which has to be assessed. The case was remitted to the same Tribunal for further consideration.

Langstaff P J
[2013] UKEAT 0327 – 12 – 1401
Bailii
England and Wales
Citing:
Cited – Polkey v A E Dayton Services Limited CA 1986
The employee had been made redundant with no attempt at consultation and in breach of procedures.
Held: His claim of unfair dismissal was dismissed because even if the procedures had been followed, the result would have been the same. What . .

Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 01 November 2021; Ref: scu.471350

Shifferaw v Hudson Music Co Ltd: EAT 30 Aug 2016

EAT Unfair dismissal compensation – appeal against Judgment on Remedy – ACAS uplift – assessment of loss – holiday pay entitlement and pension benefits – limitation on period of loss
Having previously found that the Appellant had been wrongfully and unfairly (constructively) dismissed and that an uplift of 20% should be applied to the unfair dismissal compensatory award due to the Respondent’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2009, the ET proceeded to calculate the compensatory award as from the end of the notice period for which it had awarded damages for wrongful dismissal; it then applied the ACAS uplift. The ET had also previously found that the Appellant was entitled to pay for an earlier period of sickness absence, which she had been required to take as holiday. It had not applied the ACAS uplift to this sum.
Otherwise, in calculating the Appellant’s losses, the ET had not included an element for her paid holiday entitlement and had limited her pension losses to the employer’s contributions up to the period when the ET found the Appellant would have moved on to SSP. The ET had further considered that the Appellant’s loss would have ended upon the cessation of her entitlement to SSP; her employment would either then have ended or she would have moved on to zero pay in any event.

On the Appellant’s appeal on various grounds.
Held: allowing the appeal in part.
On the ACAS uplift:
When calculating the compensatory award in respect of an unfair dismissal claim in circumstances in which there was a concurrent claim of wrongful dismissal, the ET had a choice as to how to approach its task. It could either start at the expiry of the period compensated by the wrongful dismissal award (the course adopted by the ET in the present case) or it could calculate the unfair dismissal compensation from the effective date of termination and then deduct any sum due by way of pay for the notice period. Where the ACAS uplift was only to apply to the unfair dismissal award, this might be a relevant consideration for the ET in deciding which method to adopt. As it was not possible to tell if the ET in the present case had considered this issue, the appeal would be allowed in this respect and the point remitted for reconsideration.

As for the past holiday pay claim, the ET had made no finding that this should be subject to the ACAS uplift and the Appellant’s appeal on this point had been founded upon an error in the Respondent’s Counter-Schedule. That had not been a concession and did not serve to extend the ET’s ruling. The appeal on this point was dismissed.
Paid holiday as part of the post-dismissal losses:
When assessing the Appellant’s losses post-dismissal, the ET failed to include any element for her paid holiday entitlement. As the Respondent conceded, that had been part of the Appellant’s claim and should have been addressed by the ET. The appeal in this regard was allowed.
Pension losses:
The ET had not erred in failing to expressly refer to the booklet, Compensation for Loss of Pension Rights – Employment Tribunals. In any event, it was apparent that it had effectively applied the simplified approach suggested in that booklet, in circumstances in which – given that the ET had found that the Appellant’s employment would, in any event, have ended some time before her expected retirement date – it had been appropriate for it to do so.
As for whether the Respondent would have continued to make pension contributions during the period of SSP, the ET had not referred to the evidence of an earlier period of SSP, during which contributions had continued. In the circumstances, it was unclear whether it had given proper regard to this relevant evidence and the appeal would be allowed on this issue.
Limitation of loss:
The Appellant had also taken issue with the ET’s decision not to make any award for future loss, having found that she would have moved on to zero pay at the end of her SSP entitlement and would have been dismissed before the Remedy Hearing, given her lengthy period unfit for work due to ill-health. That was a permissible finding of a lawful reason for dismissal and the ET’s reasoning was adequately explained. The appeal against this finding was dismissed.

Eady QC HHJ
[2016] UKEAT 0294 – 15 – 3008
Bailii
England and Wales

Employment, Damages

Updated: 01 November 2021; Ref: scu.570389

TTM v London Borough of Hackney and Others: CA 14 Jan 2011

The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the restriction on compensation under the 1983 Act contravened the ECHR.
Held: The detention was otherwise than provided for and was unlawful. Later acts by the Authority could not cure that unlawfulness. Section 139 provided that the Authority should be free of having to pay compensation. This was in contrast to the claimant’s Human Rights and the section must be read down accordingly. In order to be Convention-compliant section 139 is to be read as though it had added at the end the words ‘or is otherwise unlawful, for example because of a contravention of s 11(4).
There had been a change in the way public law approached the consequences of non-compliance with a procedural requirement in the exercise of a statutory power, and the approach now is more flexible.
Toulson LJ said ‘Lawfulness or unlawfulness is an attribute of the conduct of the defendant which caused the claimant’s loss of liberty . . There may be false imprisonment by A, although it was B who took the person into custody and B acted lawfully, provided that A directly caused B’s act and that A’s act was done without lawful justification.’

Sir Kenneth May P, Toulson, Jackson LJJ
[2011] EWCA Civ 4, [2011] HRLR 14, [2011] PTSR 1419, [2011] Med LR 38, [2011] 1 WLR 2873
Bailii
Mental Health Act 1983 3 6(3) 12(2) 139, European Convention on Human Rights 5, Magna Carta 1297 29
England and Wales
Citing:
Cited – Regina v Managers of South Western Hospital and Another, Ex Parte M QBD 24-Mar-1993
The patient was detained on the application of an AMHP. In purported pursuance of section 11(4) the AMHP had consulted the patient’s mother as her nearest relative. However, the patient’s mother was not ordinarily resident in the UK, and, according . .
Cited – Davidson v Chief Constable of North Wales Police and Another CA 31-May-1993
A store detective said the plaintiffs had stolen from the store. He was wrong. The plaintiffs sought damages from the defendant for false imprisonment.
Held: If the police use their own discretion to arrest a suspect, an informer is not liable . .
Appeal from – TTM v London Borough of Hackney and Others Admn 11-Jun-2010
The claimant had said that his detention under the 1983 Act was unlawful, and that the court should issue a writ of habeas corpus for his release. Having been released he sought damages on the basis that his human rights had been infringed. The . .
Cited – In re S-C (Mental Patient: Habeas Corpus) CA 22-Nov-1995
The Court of Appeal issued habeas corpus because the applicant was committed to a mental institution pursuant to an application which was made by somebody who lacked the statutory authority to make it. The right of personal freedom is fundamental. . .
Cited – Regina v Central London County Court and Managers of Gordon Hospital ex parte AX London CA 15-Mar-1999
An application to the court to exclude a person as a patient’s relative under the Act, could be made ex parte in appropriate situations, though it was preferable to take that application to an inter partes determination before other procedures . .
Cited – E, Regina (on the Application of) v Bristol City Council Admn 13-Jan-2005
The patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to . .
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Cited – New Zealand Institute of Agriculture Science Inc v Ellesmere County 1976
(New Zealand High Court) Cooke J said: ‘Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and . .
Cited – Project Blue Sky Inc v Australian Broadcasting Authority 28-Apr-1998
(High Court of Australia) ‘In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of . .
Cited – Society Promoting Environmental Conservation v Canada (Attorney-General) 2003
(Canada – Federal Court of Appeal) The court considered the exercise of its ability to declare a statute invalid: ‘the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Director of Public Prosecutions of the Virgin Islands v Penn PC 8-May-2008
(British Virgin Islands) The Board considered a case about a failure to comply with the statutory provisions for the empanelling of jurors to try a criminal case. Lord Mance said: ‘The modern tendency is no longer to seek to identify or distinguish . .
Cited – The Montreal Street Railway Company and Another v Roch Normandin PC 23-Jan-1917
(Quebec) . .
Cited – Director of Public Prosecutions of the Virgin Islands v Penn PC 8-May-2008
(British Virgin Islands) The Board considered a case about a failure to comply with the statutory provisions for the empanelling of jurors to try a criminal case. Lord Mance said: ‘The modern tendency is no longer to seek to identify or distinguish . .

Cited by:
Cited – TW v London Borough of Enfield and Another QBD 8-May-2013
The claimant sought damages after being detained under the 1983 Act, and a declaration that the section used was incompatible with her human rights.
Held: The test for allowing proceedings was set at a low level, and even if section 139 does . .
Cited – Commissioner of Police of The Metropolis v Copeland CA 22-Jul-2014
The defendant appealed against the award of damages for assault, false imprisonment and malicious prosection, saying that the question posed for the jury were misdirections, and that the jury’s decision was perverse. The claimant was attending the . .
Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Damages, Torts – Other

Updated: 01 November 2021; Ref: scu.428028

Faulkner, Regina (on The Application of) v Director of Legal Aid Casework: Admn 8 Mar 2016

Claim in judicial review proceedings concerning a sum of andpound;6,500. This sum of andpound;6,500 was awarded to him in damages for unlawful State detention in contravention of Article 5 of the European Convention on Human Rights by the Supreme Court on 1 May 2013. The question that falls for decision is whether Mr Faulkner should receive that sum of andpound;6,500 intact or whether it should be subjected to the Legal Aid Statutory Charge which would result in him receiving nothing.

Mostyn J
[2016] EWHC 717 (Admin)
Bailii
England and Wales

Damages, Legal Aid

Updated: 01 November 2021; Ref: scu.562889

Balfour Beatty Construction (Scotland) Ltd v Scottish Power Plc: HL 23 Mar 1994

The House was asked as to the treatment of the idea of remoteness of damages in a claim under contract in Scotland.
Held: A supplier was not to be imputed with knowledge of his purchaser’s technical processes.

Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Jauncey of Tullichettle, Lord Brown Wilkinson, Lord Nolan
Times 23-Mar-1994, [1994] UKHL 11, [1994] CLC 321, 1994 SC (HL) 20, 1994 SLT 807
Bailii
Scotland

Damages, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.78106

Commercial Motors (Wales) Ltd v Howley: EAT 6 Aug 2012

commercial_howleyEAT2012

EAT UNFAIR DISMISSAL – Compensation
In a hearing on remedies for unfair dismissal, the Employment Tribunal held that the Respondent employer had to pay compensation for, inter alia, the losses suffered by the Claimant employee, who as a result of his dismissal was deprived of the use of the car, the mobile phone and the fuel allowance provided by the Respondent employer.
The Respondent appealed on the basis that the chain of causation for the Claimant’s loss had been broken because the Claimant had been working for a short period after his dismissal with the consequence that his subsequent losses were not attributed to his dismissal by the respondent.
Held:
1. The Employment Tribunal was entitled to hold that the fact that the Claimant had been working did not prevent it from holding that subsequent losses incurred by him were attributable to his dismissal by the Respondent and that the chain of causation had not been broken (Dench v Flynn and Partners [1998] IRLR 653 applied).
2. The remaining appeals and cross-appeals were dismissed, subject to some recalculations

Silber J
[2012] UKEAT 0636 – 11 – 0608
Bailii
England and Wales
Citing:
Cited – Dench v Flynn and Partners (a Firm) CA 9-Jun-1998
The appellant had been dismissed for redundancy. She sought to appeal saying that there had been no redundancy. The tribunal had refused to award damages for the period after she had found alternative employment.
Held: The obtaining of . .

Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 01 November 2021; Ref: scu.463522

London Borough of Hackney v Sivanandan and Others: CA 29 Jan 2013

The council having been found to have unlawfully discrimited against the respondent, now appealed against the damages award: ‘The core question is whether, in its assessment of compensation, the Employment Tribunal (ET) acted on a fundamentally flawed view of the juristic nature of the Council’s vicarious liability for acts of discrimination committed by its employee and the legal consequences flowing from that liability.’ In particular it disputed the proportion of the damages awarded against it for an act committed by an employee.

Mummery, Rimer, Pitchford LJJ
[2013] EWCA Civ 22, [2013] WLR(D) 34, [2013] IRLR 408, [2013] Eq LR 249
Bailii, WLRD
England and Wales

Employment, Discrimination, Damages, Vicarious Liability

Updated: 01 November 2021; Ref: scu.470619

Farstad Supply As v Enviroco Ltd: SC 5 May 2010

The defendants (E) were liable to F after a serious offshore accident, but sought a contribution from a third party (A), the main charterers, seeking to rely on section 3(2) o the 1940 Act saying that ‘if sued they might have been liable’. The court was asked to interpret the section, saying whether this answer was affected the existing charterparty under which F had in any event given an indemnity to A, and if so, the existence of the indemnity disqualified A as a person who might have been held liable.
Held: E was not entitled to a contribution from A because the indeminty provision meant that it could not satisfy the requirement that ‘if sued’ A would have been liable. The charterparty agreement affected the situation because it effectively excused A from liability.
Lord Clarke said: ‘if Asco is not liable to the owner because it has a contractual defence under the charterparty, Enviroco will not be entitled to contribution from Asco and . . the reason for that cannot be described as the result of a ‘whim’ on the part of the owner but is the result of deliberate contractual arrangements apportioning risk between them as owner and charterer under the charterparty.’
Lord Collins of Mapesbury JSC considered what was ‘membership’ of a company, saying: ‘The starting point is that the definition of ‘member’ in what is now section 112 of the 2006 Act . . reflects a fundamental principle of United Kingdom company law, namely that, except where express provision is made to the contrary, the person on the register of the members is the member to the exclusion of any other person . . Ever since the Companies Clauses Consolidation Act 1845 and the Companies Act 1862 . . membership has been determined by entry on the register of members. The company’s legislation proceeds on that basis and would be unworkable if that were not so . . For those and other purposes the legislation makes it clear that the member is the person on the register, and where it is necessary to apply the legislation to persons who are not on the register, special provision is made . .’

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lord Mance, Lord Clarke
[2010] UKSC 18, [2010] WLR (D) 113, [2010] 1 CLC 692, [2010] 2 Lloyd’s Rep 387, [2010] Bus LR 1087, 2010 SCLR 379
SC, SC Summ, Bailii, Bailii Summary, WLRD
Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 3, Companies Act 2006 112, Companies Clauses Consolidation Act 1845, Companies Act 1862
Scotland
Citing:
See also – Farstad Supply As v Enviroco Ltd and Another SCS 23-Apr-2008
(Outer House) The pursuers alleged that the defendant service company was responsible in negligence for damage by fire to its oil rig supply vessel. It was said that oil they had failed to clear was released by piping when opened flowing onto a hot . .
Cited – Comex Houlder Diving Ltd v Colne Fishing Co Ltd HL 19-Mar-1987
The House considered the means of imposing liability under the 1940 Act. The House was asked whether or not a draft agreement was binding notwithstanding that it had not been formally executed as apparently envisaged by the parties.
Held: No . .
See Also – Enviroco Ltd v Farstad Supply A/S CA 18-Dec-2009
A company which would otherwise undoubtedly be the subsidiary of another company ceased to be so when the shares in the former company were charged by the latter company to a Scottish bank. . .
Appeal from – Farstad Supply AS v Enviroco Ltd and Another SCS 1-May-2009
. .
Cited – Power v Central SMT Co Ltd SCS 23-Mar-1949
Lord Keith said that the words ‘if sued’ in the subsection assume that the person from whom the contribution was sought had been: ‘relevantly, competently and timeously sued; in other words, that all the essential preliminaries to a determination of . .
Cited – Post Office v Hampshire County Council 1980
Leading counsel for the appellants argued unsuccessfully that a pre-1875 edition of Bullen and Leake’s Precedents of Pleadings had referred to an equitable doctrine of circuity in certain classes of cases, but that nothing had been heard of it for a . .
Cited – French Marine v Compagnie Napolitaine d’Eclairage et de Chauffage par le Gaz HL 1921
A ship had been requisitioned after an instalment of advance hire had become due, leading to the frustration of the charterparty. The parties disputed whether the charterers were still liable to pay the hire in full.
Held: They were. The . .
Cited – Post Office v Hampshire County Council 1980
Leading counsel for the appellants argued unsuccessfully that a pre-1875 edition of Bullen and Leake’s Precedents of Pleadings had referred to an equitable doctrine of circuity in certain classes of cases, but that nothing had been heard of it for a . .
Cited – Workington Harbour and Dock Board v Towerfield (Owners) (‘The Towerfield’) HL 1951
The occasions upon which the master is called upon to exercise his reserve of authority either by interfering with the conduct of the ship or by taking the navigation out of the hands of a competent pilot are rare and should the master exercise that . .

Cited by:
Cited – Eckerle and Others v Wickeder Westfalenstahl Gmbh and Another ChD 23-Jan-2013
By acting together, two shareholders had first refused the proposed dividend, and replaced the board. They then acquired fiurther shares and achieved a majority of more than 75%, sufficient to pass a special resolution, and proposed the cancellation . .

Lists of cited by and citing cases may be incomplete.

Damages, Contract, Company

Updated: 01 November 2021; Ref: scu.409978

Wapshott v Davis Donovan and Co: CA 1996

The defendant solicitors had negligently in 1986 failed to advise purchasers that there was no good title to part (an extension over an adjoining property) of a leasehold flat which they were buying. The problem came to light in 1988 when they wished to sell. They were unable to do so. In 1990 a property company, which had in the interim acquired the freeholds of both properties, registered the titles; and eventually in 1992 the original purchasers of the flat successfully registered the leasehold title to their flat, which thereby became sellable. The solicitors applied to adduce further evidence in negligence proceedings then current in order to rely on these subsequent events, it being said that the plaintiffs would otherwise be overcompensated.
Held: Such subsequent events were ‘irrelevant’ to the issue which had to be determined. Thus the Master assessing the actual value of the lease with a defective title in 1986 could not properly pay regard to events which were taking place in 1992.
Hobhouse LJ emphasised that: ‘Cases of this kind depend on their own facts.’

Beldam LJ, Hobhouse LJ
[1996] PNLR 361
England and Wales
Cited by:
Cited – Bacciottini and Another v Gotelee and Goldsmith (A Firm) CA 18-Mar-2016
A property subject to a planning condition was purchased by the appellant under the advice of the respondent, who failed to notify him of the existence of a planning condition. The judge had awarded the claimant pounds 250 being the cost of the . .

Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 01 November 2021; Ref: scu.561224

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 that the damages were too remote.
Held: The case was to be retried.
Alderson B said: ‘Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may be fairly and reasonably be considered either as arising naturally, ie according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made where communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants. The Judge ought, therefore, to have told the jury, that, upon the facts then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. There must therefore be a new trial in this case.’

Alderson B
[1854] EWHC Exch J70, [1854] EngR 296, (1854) 9 Exch 341, (1854) 156 ER 145
Bailii, Commonlii
England and Wales
Cited by:
Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
Cited – Watford Electronics Ltd v Sanderson CFL Ltd CA 23-Feb-2001
The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
Held: It is for the party claiming that a contract . .
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 . .
Cited – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Jackson and Davies (Trading As Samson Lancastrian) v Royal Bank of Scotland CA 28-Jun-2000
In error, the bank disclosed to one customer, the mark up being taken by another in selling on goods to that first customer. The second customer went to make its purchasers direct, and the first customer sought damages from the bank. The bank . .
Applied – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
Restated – Victoria Laundry (Windsor) Ltd v Newman Industries CA 1949
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Applied – Cox v Philips Industries Ltd 15-Oct-1975
Damages for distress, vexation and frustration, including consequent ill-health, could be recovered for breach of a contract of employment if it could be said to have been in the contemplation of the parties that the breach would cause such distress . .
Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – 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 – 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 – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Cited – Wiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – The ‘Pegase’ 1981
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single . .
Cited – Sempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Cited – Penwith District Council v VP Developments Ltd TCC 2-Nov-2007
The council sought to appeal against an interim arbitration award.
Held: Leave to appeal was refused. The application was wholly unjustified. This was an appeal on the facts dressed up as an appeal on law. . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Cited – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .
Cited – Markerstudy Insurance Company Ltd and Others v Endsleigh Insurance Services Ltd ComC 18-Feb-2010
The claimant insurers alleged the mishandling of insurance claims by the defendant of many claims leading to substantial losses. The parties asked the court to determine a basis for calculation of damages under the contract.
Held: A similar . .
Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Applied – Herbert Clayton and Jack Waller Ltd v Oliver HL 1930
When awarding damages for breach of contract courts should take care to confine the damages to their proper ambit: making good financial loss. When considering an award of damages to an actor who should have been billed to appear at the London . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.182804

Godfrey v Demon Internet Limited (2): QBD 23 Apr 1999

Evidence of Reputation Admissible but Limited

The plaintiff had brought an action for damages for defamation. The defendant wished to amend its defence to include allegations that the plaintiff had courted litigation by his action.
Held: A judge assessing damages should be able see the reputation claimed to be damaged, and the defendant had to be free to put forward evidence in this regard. This has to be balanced against a need to keep such litigation within bounds, and therefore the general rule severely limits admission of such evidence. In this case the defendant was to be allowed to argue a causal connection between the bad conduct alleged and the defamation complained of.

Morland J
1998-G-No 30, [1999] EWHC QB 240, [1999] 4 All ER 342, [1999] Masons CLR 267, [1999] ITCLR 282, [2001] QB 201, [1999] EMLR 542, [2000] 3 WLR 1020
Bailii
Defamation Act 1996
England and Wales
Citing:
Cited – Mackenzie v Business Magazines (UK) Ltd and Others CA 18-Jan-1996
Consent to amendment of defence wrongfully refused without finding of mala fides. . .
Cited – Basham v Gregory and Little Brown and Co CA 2-Jul-1998
The defendant sought a retrial of his action for defamation.
Held: The judge’s directions on meaning as to the respective contentions was correct, and also the allocation of the burden of proof. Whilst the court had reservations about the . .
Cited – Scott v Sampson QBD 1882
The court explained why evidence of particular acts of misconduct on the part of the Plaintiff tending to show his character and disposition should be excluded, saying ‘Both principle and authority seems equally against its admission. It would give . .
Cited – Dingle v Associated Newspapers HL 1964
The plaintiff complained of an article written in the Daily Mail which included the reporting of a report of a Parliamentary select committee. The reporting of the select committee’s report was privileged under the Parliamentary Papers Act 1840. At . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Cited – Kelly v Sherlock 1866
The defendant had claimed that the plaintiff preached a sermon against the appointment of a Roman Catholic chaplain to the Liverpool borough gaol, and another sermon reflecting in strong terms on the conduct of the town council of Liverpool electing . .
Cited – Judd v Sun Newspapers 1930
(Australia) The plaintiff was put in the box as a witness but not asked any questions by his counsel, nor did he give any evidence in chief; he was, however, cross-examined by counsel for the defendants, at great length, not only in regard to . .
See Also – Godfrey v Demon Internet Limited QBD 26-Mar-1999
An Internet Service Provider who was re-distributing Usenet postings it had received, to its users in general, remained a publisher at common law, even though he was not such within the definitions of the Act, and it was therefore liable in . .

Cited by:
Cited – Smith v ADVFN Plc and others QBD 25-Jul-2008
The claimant had brought multiple actions in defamation against anonymous posters on an online forum. The claimant sought to lift the stay which had been imposed because of the number of actions. The claimant had not yet paid outstanding costs . .
Cited – Metropolitan International Schools Ltd. (T/A Skillstrain And/Or Train2Game) v Designtechnica Corp (T/A Digital Trends) and Others QBD 16-Jul-2009
The claimant complained that the defendant had published on its internet forums comments by posters which were defamatory of it, and which were then made available by the second defendant search engine. The court was asked what responsibility a . .
Cited – Tamiz v Google Inc Google UK Ltd QBD 2-Mar-2012
The claimant sought damages in defamation against the defendant company offering internet search facilities. The words complained of had been published in a blog, and in comments published on the blog.
Held: Jurisdiction should be declined. . .

Lists of cited by and citing cases may be incomplete.

Defamation, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.163130

Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands: PC 29 Jul 1947

Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used to provide materials to construct the air base. It used compulsory powers to do so. Compensation was to be assessed. The landowner said that the limestone was now more valuable because of the need for it for the air base.
Held: The Board set out the basis for valuation of land purchased compulsorily at common law. The 1919 Act, following the Scott Committee limited compensation payable for the ‘special suitability or adaptability’ of the land with a Rule for assessing compensation; that it should not for any purpose be be taken into account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers, or for which there is no market apart from the special needs of a particular purchaser or the requirements of any Government Department or any local or public authority.
The Act modified ‘the effect of certain decisions of the Courts relating to the quantum of compensation in cases of compulsory purchase’.
The rule did not apply to the facts of this case. The word ‘purpose’ here meant ‘a purpose to which the land can be applied. It therefore connotes ‘a use, actual or potential, of the land itself, and cannot be regarded as meaning a purpose which is only concerned with the use of the products of the land elsewhere’.
The award of andpound;15,000 ‘for special adaptability’ was disallowed because it could only relate to the additional value which was given to the quarry land by the scheme for which the land was acquired, the establishment by the United States of a naval base in Trinidad. In general, any increase or decrease in value due solely to the scheme under which the land is acquired is to be discounted.
Lord MacDermott said: ‘It is well settled that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition.’

Lord MacDermott, Lord Oaksey, Lord Morton
[1947] AC 565, (1947) 63 TLR 486, [1947] UKPC 71
Bailii
Acquisition of Land (Assessment of Compensation) Act 1919
England and Wales
Citing:
Cited – South Eastern Railway Co v London County Council 1915
Compulsory purchase – compensation assessment – ‘Increase in value consequent on the execution of the undertaking for or in connection with which the purchase is made must be disregarded.’ . .
Cited – Fraser v City of Fraserville PC 1917
One ground on which the arbitrators’ valuation award on a compulsory purchase, was set aside was that, in valuing the falls of a river and adjacent land acquired for electricity generation purposes, the arbitrators had taken into account the . .

Cited by:
Cited – Waters and others v Welsh Development Agency CA 28-Jun-2002
The claimant’s land was subject to a compulsory purchase order to make land available for a scheme to make possible a much larger and more valuable scheme. He asserted that the compensation should be calculated in accordance with the value of the . .
Cited – C F and M G Roberts v South Gloucestershire District Council LT 31-Dec-1994
LT COMPENSATION – Compulsory purchase of land for the construction of a road – value – assumed planning permission – value of minerals – planning permission for a commercial minerals operation not granted or to . .
Cited – Bolton Metropolitan Borough Council v Tudor Properties Ltd and Others CA 19-Apr-2000
The court had to consider the compensation to be awarded on the compulsory purchase of land.
Held: The appeal failed. The tribunal had not erred in ascertaining the extent of the underlying scheme. In deciding that, they were entitled to have . .
Explained – Wilson v Liverpool Corporation CA 1971
The claimants owned 74 acres of an area of 391 acres in Liverpool which the Corporation wanted to acquire for residential development. The authority acquired the land by agreement and made a compulsory purchase order in respect of the remainder.
Cited – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Applied – Rugby Joint Water Board v Shaw-Fox HL 1973
The water board obtained a compulsory purchase order to buy agricultural land adjoining a reservoir. The land was subject to protected tenancies under the 1948 Act.
Held: (Majority) Because the land subject to notices to treat was required for . .
Cited – Davy v Leeds Corporation HL 1965
The Corporation declared an area in which the appellants owned some slum houses to be a slum clearance area and made a compulsory purchase order. Compensation was to be assessed under the 1919 Act and the 1959 Act. The appellants were entitled to . .
Cited – Camrose v Basingstoke Corporation CA 1966
Basingstoke was to be expanded to receive overspill population from London and the corporation contracted to purchase about 550 acres from a landowner on terms that the price would be assessed as though the land had been compulsorily acquired under . .
Applied – Myers v Milton Keynes Development Corporation CA 1974
Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the ‘scheme’ meant that the . .
Developed – Bird and Bird v Wakefield Metropolitan Borough Council 1976
The underlying scheme to be disregarded when calculating compensation on a compulsory purchase need not, as a matter of law, be confined to the area of land compulsorily acquired or to the specific purposes of the CPO. The acquisition may be only a . .
Cited – Batchelor v Kent County Council CA 1989
The Council had compulsorily acquired land for highway improvement. It was within an area scheduled for residential development. Outline permission for development of neighbouring land had been granted but the development could not proceed until the . .
Cited – J A Pye (Oxford) Limited v Kingswood Borough Council CA 6-Apr-1998
The purchase of land which was to form the last part of a development was to be valued without taking account of the enhanced value which would be attributed to the much larger scheme of development. To ascertain what is to be ignored by the valuer . .
Cited – Batchelor v Kent County Council LT 1-Mar-1987
The tribunal was asked to determine compensation to be paid on the acquisition of two plots of land. The land-owner claimed andpound;9,000,000 and the council offered andpound;5,490. The land-owner claimed the value as ransom as necessary access to . .
Cited – Newell and others v Secretary of State for the Environment and Another; Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment and Another HL 17-Feb-2000
Where a certificate of appropriate development was issued for land to be acquired compulsorily, the land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Cited – Graham v The Council of The City of Newcastle Upon Tyne UTLC 20-Jan-2010
UTLC COMPENSATION – compulsory purchase – open storage land acquired as part of Morrisons foodstore – whether Case 2 of First Schedule to Land Compensation Act 1961 applies where other land not developed in . .
Applied – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Roberts and Another v South Gloucestershire Council CA 7-Nov-2002
The landowner appealed against the compensation awarded for the compulsory acquisition of his land for use as a road. The owners had been compensated only for its agricultural value, but said that it should have allowed for its value for minerals . .
Cited – Homes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .
Cited – Waters and others v Welsh Development Agency LT 3-Nov-2000
LT COMPENSATION – Compulsory purchase of land for purpose of nature reserve to compensate for loss of SSSI caused by Cardiff Bay Barrage – preliminary issues – Land Compensation Act 1961 s 5 rule (3) – Pointe . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Land

Leading Case

Updated: 01 November 2021; Ref: scu.182824