Category: Damages

Taunoa v Attorney General for New Zealand: 31 Aug 2007

Supreme Court of New Zealand – The claimants sought damages after their treatment in prison. They challenged the legality of a behaviour modification regime which five prisoners had been subjected to. The regime had been operated at Auckland Prison by the Department of Corrections over the period 1998-2004, to deal with extremely disruptive prisoners. There was a distinctly punitive element to the regime. The point of the regime was to change the prisoners’ behaviour. The regime involved a highly controlled environment and severe restrictions on association and maximum security conditions, which could become progressively less restrictive depending on a prisoner’s behaviour.
Held: (majority) Sections 9 and 23(5) establish a hierarchy of proscribed conduct:
(a) Blanchard J considered that there are ‘degrees of reprehensibility’ evident in sections 9 and 23(5). He considered that section 9 is concerned with conduct on the part of the state and its officials which is to be utterly condemned as outrageous and unacceptable in any circumstances; section 23(5) is confined in its application to persons deprived of their liberty. It proscribes conduct which is unacceptable in our society, but is of a lesser order, not rising to a level deserving to be called outrageous.
(b) Tipping J considered that s 9 can be seen as prohibiting inhumane treatment, whereas s 23(5) requires prisoners to be treated with humanity. He warned that there is a danger of these concepts being conflated in a way which reduces the degree of seriousness required for a section 9 breach. He considered that s 9 is reserved for truly egregious cases which call for a level of denunciation of the same order as that appropriate to torture.
(c) McGrath J considered that s 9 affirms the rights of all not to be tortured or subjected to cruel, degrading or disproportionately severe treatment or punishment, while s 23(5) focuses on the rights of those deprived of their liberty to be treated with respect for human dignity. He considered that there is a hierarchy between the two sections, and that they are separate, though complementary, affirmations of rights. That hierarchal relationship reflects the graduated standards of the two provisions in the relative gravity of breaches of the rights they respectively affirm. There is a high threshold to be met before the Court can find that there has been a breach of the prohibition in s 9. (d) Henry J agreed with Tipping J.
Tipping J noted that conduct breaching s 9 will usually involve intention to harm or at least consciously reckless indifference as to the causing of harm, as well as significant physical or mental suffering. It seems that s 9 could extend to: (a) torture involving the deliberate infliction of severe physical or mental suffering for a prescribed purpose, such as the obtaining of information; (b) cruel treatment which inflicts suffering, or results in severe or substantial suffering or distress. Views differed on whether or not this needs to be deliberate.
Elias CJ (dissenting) said that ss 9 and 23(5) are not simply different points of seriousness on a continuum, but that they involve distinct, though overlapping rights. She considered that s 9 is concerned with the prevention of treatment properly characterised as inhuman, amounting to a denial of humanity; s 23(5) is directed to an additional, but complementary requirement that prisoners be treated humanely. She considered that denial of humanity could occur through deprivation of basic human needs, including personal dignity and physical and mental integrity. In contrast, inhumane treatment was treatment that was not fitting for human beings, ‘even those behaving badly in prison.’
Elias CJ, Blanchard J, Tipping J, McGrath J
[2007] NZSC 70, [2008] 1 NZLR 429, [2007] 5 LRC 680
Nzlii
New Zealand Bill of Rights Act 1990 9 23(5)
England and Wales
Cited by:
Cited – Takitota v The Attorney General and Others PC 18-Mar-2009
Bahamas – The claimant appeald as to the amount of compensation awarded to him for his unlawful detention for over eight years, in appalling prison conditions. The Court of Appeal categorised his treatment not only as ‘less than humane’ but as a . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.471045

Gawler v Raettig (Leave): CA 3 Dec 2007

Application for leave to appeal.
Sir Anthony Clark MR, Wall, Smith LJJ
[2007] EWCA Civ 1560
Bailii
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 . .
Main Appeal – Gawler v Raettig CA 3-Dec-2007
The parties had resolved their claims of negligence, but asked the court to set the level of contributory negligence even though the appeal was academic.
Held: The court refused leave to appeal, but stated that its judgment could be reported. . .

Cited by:
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
rolls_uniteCA2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Cited – AVS v A NHS Foundation Trust and Another CA 17-Jan-2011
The claimant contracted sporadic Creutzfeldt Jakob’s Disease disease. He executed a Lasting Power of Attorney in favour of his brother, expressing to him that he should do whatever was possible to protract his life. The brother now sought treatment . .
See Also – Farstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.341673

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 calculated for its own financial advantage. The court awarded exemplary damages. The award was appropriate in theis case. It fell within the categories set out in Rookes v Barnard.
The Honourable Mr Justice Peter Smith
Times 02-Mar-2004, [2004] EWHC 324 (Ch), Gazette 25-Mar-2004, [2005] 1 WLR 1, [2004] 1 EGLR 121
Bailii
England and Wales
Citing:
Cited – International Drilling Fluids v Louisville Investments (Uxbridge) Ltd CA 20-Nov-1985
Consent to Assignment Unreasonably Withheld
The landlord had refused a proposed assignment of office premises from a tenant who had occupied the premises as its permanent offices, to a tenant who proposed to use the premises as serviced offices – that is, for short-term rent to others. The . .
Cited – Footwear Corporation Ltd v Amplight Properties Ltd ChD 1-Apr-1998
The plaintiff was tenant of premises under a lease granted by the defendant’s predecessor in title. He vacated the premises in July 1996, and on 17 November 1997 wrote asking the defendant for a licence to sublet them to a pet shop business. The . .
Cited – Norwich Union Life Insurance Society v Shopmoor Ltd ChD 1999
Shopmoor’s predecessors demised premises for 150 years at a yearly rent of andpound;100 on payment of a premium. A covenant provided that the tenant was not to assign or sublet without the landlord’s consent, not to be unreasonably withheld or . .
Cited – British Bakeries (Midlands) Ltd v Michael Testler ChD 1986
Peter Gibson J discussed the refusal of a landlord’s consent to an assignment: ‘In my judgment, where, as here, a refusal of consent to an assignment is based on a number of reasons, the fact that one of those reasons is bad will not normally render . .
Cited – Mount Eden Ltd v Folia Ltd and Prohibition London Ltd ChD 2003
. .
Cited – Go West Ltd v Spigarolo and Another CA 31-Jan-2003
The tenant applied for a licence to assign the lease under section 1. The landlord refused consent, but the parties continued to negotiate. The tenant argued that the landlord’s continuation of negotiations showed the earlier counter-notice to have . .
Cited – 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 – 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 – 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 – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
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 – 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 by:
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
ramzan_brooksideCA2011
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 . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.193902

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.
Held: The head of damages was proper and recoverable.
Neuberger J
Gazette 29-Jan-2004, [2004] 1 WLR 924, [2004] 1 All ER 657
Bailii
England and Wales
Citing:
Distinguished – F v Wirral Metropolitan Borough Council CA 1991
The local authority took children into care, reassuring the parents that they would be returned. They were not.
Held: There was no valid claim for damages for the distress arising from the loss of the company of a child. There was no cause of . .
Cited – Verderame v Commercial Union Assurance Co Plc CA 2-Apr-1992
The insurance brokers, acting to arrange insurance for a small private limited company did not owe a duty in tort to the directors of that company personally. Where an action was brought in a tort and in breach of contract, damages could not be . .
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. . .
Applied – 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 . .
Applied – 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 – Regina v Brentford Justices Ex parte Wong QBD 1981
The defendant had been involved in a traffic accident. Very shortly before the expiry of the six month time limit, the prosecutor issued a careless driving summons apparently in order to preserve the possibility of a prosecution without yet having . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.193438

Gale v Scannella: QBD 7 May 2021

Proceedings to determine quantum of compensation in a defamation action which has been settled under the Offer of Amends procedure (sections 2 and 3 of the Defamation Act 1996).
Mrs Justice Collins Rice
[2021] EWHC 1225 (QB)
Bailii
England and Wales

Updated: 24 June 2021; Ref: scu.663334

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.
Atkin, Banks LJJ
[1928] 1 KB 269
England and Wales
Cited by:
Preferred – 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 . .

These lists may be incomplete.
Updated: 22 June 2021; Ref: scu.182107

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 scheme which it enabled.
Held: The Pointe Gourde case remained applicable. The rule is that ‘compensation for a compulsory purchase acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition’ Carnwath LJ: ‘The right to compensation for compulsory acquisition is a basic property right. It is unfortunate that ascertaining the rules upon which compensation is to be assessed can involve such a tortuous journey, through obscure statutes and apparently conflicting case law, as has been necessary in this case. There can be few stronger candidates on the statute book for urgent reform, or simple repeal, than section 6 of and Schedule 1 to the 1961 Act.’
Lord Justice Laws, Carnwath LJ
Gazette 12-Sep-2002, [2002] EWCA Civ 924, [2003] 4 All ER 384, [2002] JPL 1481, [2002] RVR 298
Bailii
Land Compensation Act 1961 6
England and Wales
Citing:
Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Cited – 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 . .
Appeal From – 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:
Appeal from – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .

These lists may be incomplete.
Updated: 21 June 2021; Ref: scu.174169

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 Campbell’s Act gives a new cause of action clearly . . because the action is given in substance not to the person representing in point of estate the deceased man, who would naturally represent him as to all his own rights of action which could survive him, but to his wife and children, no doubt suing in point of form in the name of the executor.’
He explained the maxim of construction ‘generalia specialibus non derogant’, saying: ‘Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed altered or derogated from merely by force of such general words, without any indication of a particular intention to so.’ ‘
Lord Blackburn said: ‘a totally new action is given against the person who would have been responsible to the deceased if the deceased had lived . . an action which . . is new in its species, new in its quality, new in its principle, in every way new . .’
Earl of Selbourne LC, Lord Blackburn
(1884) 10 AC 59
Fatal Accidents Act 1846
England and Wales
Cited by:
Cited – 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 – 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 . .

These lists may be incomplete.
Updated: 20 June 2021; Ref: scu.523693

Steele v Robert George and Co Ltd: HL 1942

Where it is claimed on behalf of a defendant that a claimant has failed to mitigate his damages by refusing recommended surgery, the onus rests upon the defendant to show that the claimant’s refusal has been unreasonable in the circumstances. The rule about a worker’s unreasonable refusal of treatment was described by Lord Wright as a piece of judicial legislation,
Lord Wright
[1942] AC 497, [1942] 1 All ER 447
England and Wales
Cited by:
Cited – Richardson v Redpath Brown and Co Ltd HL 1944
Viscount Simon LC discussed the role and status of medical assessors, saying: ‘But to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged . .

These lists may be incomplete.
Updated: 20 June 2021; Ref: scu.543884

Khan v Meadows: CA 15 Feb 2019

Appeal from the judgment of Yip J who determined that the costs related to the autism of Adejuwon, the respondent’s son, following his birth may be properly recovered by her and assessed damages in the agreed sum of pounds 9,000,000. Adejuwon suffers from both haemophilia and autism. The appellant admits that but for her negligence Adejuwon would not have been born because his mother would have discovered during her pregnancy that he was afflicted by haemophilia and so would have undergone a termination of the pregnancy. It is accepted by the appellant that the respondent is entitled to recover the additional costs associated with the condition of haemophilia. The issue at trial and on appeal is whether, as a matter of law, the appellant’s liability is limited to additional losses associated with Adejuwon’s haemophilia or whether she is liable for the additional losses associated with both his haemophilia and autism. Yip J granted permission to appeal.
[2019] EWCA Civ 152, [2019] PIQR Q3, [2019] 4 WLR 26, [2019] 2 All ER 607, (2019) 167 BMLR 62
Bailii
England and Wales
Citing:
Appeal from – Meadows v Khan QBD 23-Nov-2017
Claim for the additional costs of raising the claimant’s son, Adejuwon, who suffers from both haemophilia and autism. It is admitted that, but for the defendant’s negligence, Adejuwon would not have been born because his mother would have discovered . .

Cited by:
At CA – 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 . .

These lists may be incomplete.
Updated: 19 June 2021; Ref: scu.633441

British Motor Trade Association v Gilbert: 1951

The Association had attempted to control the price of cars in the context of statutory support. It was after the Second World war and new cars were in short supply. Buyers of new cars had to contract not to sell the car bought for two years without first offering it for sale to the plaintiff at a price reflecting the depreciated price as new. The defendant was accused of breaching this term.
Held: The contract term was valid. The real value of the car was in fact 100 pounds less than had been paid for it to the defendant. Nevertheless the court awarded pounds 836 in damages. The plaintiff had suffered no direct financial loss but the award of damages for breach of contract would effectively strip the wrongdoer of the profit he had made from his wrongful venture into the black market for new cars. It was appropriate to go to what was described as a surreptitious market that was fed by persons who had broken their covenants.
Dankwerts J
[1951] 2 All ER 641
England and Wales
Cited by:
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
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 – Mouat v Betts Motors Ltd PC 20-Oct-1958
When setting a level of damages, a price on a surreptitious market should be used, if that gave the correct measure of the loss. . .
Cited – Islam, Regina v HL 10-Jun-2009
The defendant appealed against a confiscation order saying that it should not have been set at values which reflected the black market value of the drugs he had imported.
Held: The appeal failed. The court could take account of the illegal . .

These lists may be incomplete.
Updated: 16 June 2021; Ref: scu.180895

Cook v MSHK Ltd (Formerly Ministry Of Sound Holdings Ltd) and Another: CA 9 Jul 2009

Smith, Wilson, Rimer LJJ
[2009] EWCA Civ 624, [2009] IRLR 838
Bailii
England and Wales
Citing:
Cited – G D Searle and Co Ltd v Celltech Ltd CA 1982
The court was asked as to an employee’s covenant now said to be in restraint of trade.
Held: In disputes between employers and ex-employees courts will usually seek to protect the rights of employees to advance their chosen trade and . .

These lists may be incomplete.
Updated: 14 June 2021; Ref: scu.347468

Purrunsing v A’Court and Co (A Firm) and Another: ChD 14 Apr 2016

The claimant had paid money for a property, but the seller was a fraudster and no money or title was recovered. The claimant sued both his conveyancers and the solicitors who had acted for the fraudster, in each case innocently. The defendants each sought relief under section 61 of the 1925 Act.
Held: The claim succeeded. The reasonableness test which was to be applied to a legal professional who parted with completion moneys without obtaining completion, was of necessity a high hurdle. Section 61 was to be applied in a manner which was consistent with the high expectation of a trustee discharging fiduciary obligations under the rules of equity.
The second defendant conveyancers had failed to discharge the burden of proving that it acted reasonably applying the test established by the case law referred to above and thus was not entitled to rely on s.61 of the Trustee Act 1925. Similarly, the first defendant solicitors had failed to discharge the burden resting on them to establish that they acted reasonably in the circumstances and thus they were not entitled to the benefit of s.61 of the Trustee Act 1925. The two firms were to bear the loss equally.
Pelling QC HHJ
[2016] EWHC 789 (Ch), [2016] WLR(D) 193, [2016] 4 WLR 81, [2016] WTLR 1027, [2016] 2 P and CR DG14, [2016] PNLR 26, [2016] Lloyd’s Rep FC 310
Bailii, WLRD
Trustee Act 1925 61, Money Laundering Regulations 2007, Civil Liability (Contribution) Act 1978 1
England and Wales
Citing:
Cited – Lloyds TSB Bank Plc v Markandan and Uddin (A Firm) CA 9-Feb-2012
The defendant solicitors appealed against judgment. They and the lenders had been subject to a mortgage fraud. Fraudsters had set up a false branch office of a firm of solicitors, and secured payment of a mortgage advance. . .
Cited – Santander UK Plc v RA Legal Solicitors CA 24-Feb-2014
. .
Cited – Davisons Solicitors (A Firm) v Nationwide Building Society CA 12-Dec-2012
. .
Cited – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

Cited by:
Main Judgment – Purrunsing v A’Court and Co (A Firm) and Another ChD 1-Jul-2016
Post judgment hearing of the remaining costs issues . .
Cited – P and P Property Ltd v Owen White and Catlin Llp and Another ChD 30-Sep-2016
Solicitors’ liability for client’s fraud
The claimant had purchased a property, but having discovered the sale to be fraudulent, he now claimed against the solicitors and estate agents acting in the sale.
Held: The claim failed. Neither the solicitor nor the estate agent could be . .

These lists may be incomplete.
Updated: 11 June 2021; Ref: scu.562028

Duffen v Fra Bo Spa: CA 30 Apr 1998

The plaintiff had been appointed as an exclusive sales agent for the defendant for a minimum period of four years. The defendants terminated it eighteen months early claiming fraudulent misrepresentation.
Held: The clause setting the damages claim was a penalty clause and was unenforceable. The termination of the agency gave rise to a claim additional to the statutory claim. A commercial agent whose contract had been terminated within the regulations was entitled to augment the common law damages due to him with the sums due to him by virtue of the Commercial Agents Regulations. The right approach was to look at net earnings which might have made during the remainder of the period for which his agency would have run had it not been terminated prematurely, but without taking into account common law concepts such as avoided loss and mitigation. An award based on gross earnings would give the agent an undeserved windfall. The judge awarded compensation for loss of future earnings, ignoring the ordinary rules of mitigation.
Otton LJ
Times 15-Jun-1998, [1998] EWCA Civ 748, [2000] EuLR 167, [1999] ECC 58
Bailii
Commercial Agents (Council Directive) Regulations 1993 No 3053
England and Wales
Citing:
Applied – 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 – Philips (Hong Kong) Ltd v The Attorney General of Hong Kong PC 9-Feb-1993
After referring to two Australian cases on penalty clauses in contracts: ‘These statements assist by making it clear that the court should not adopt an approach to provisions as to liquidated damages which could, as indicated earlier, defeat their . .
Cited – Export Credits Guarantee Department v Universal Oil Products HL 1983
A contract provided for the payment of a stated sum by one party to the contract (A) to the other party (B) in the event of the non-performance by A of one of more contractual obligations owed by A not to B himself but to C, who was not a party to . .

Cited by:
Cited – Lonsdale v Howard and Hallam Ltd CA 8-Feb-2006
The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear . .

These lists may be incomplete.
Updated: 11 June 2021; Ref: scu.144226

Aitchison v Gordon Durham and Company Limited: CA 30 Jun 1995

A joint venture agreement to develop land had been broken. The parties disputed the date at which damages were to be assessed.
Held: The court took account of what actually happened later to decide what the claimant’s profit would have been.
Unreported, 30 June 1995, [1995] EWCA Civ 58
Bailii
England and Wales
Cited by:
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.252487

Scales v Motor Insurers’ Bureau: QBD 2 Jul 2020

‘This is a quantum hearing in a personal injury case, in which I have to apply principles of Spanish law in order to assess the damages that are payable to the Claimant ‘
Mr Justice Cavanagh
[2020] EWHC 1747 (QB)
Bailii
England and Wales
Cited by:
Main Judgment – Scales v Motor Insurers’ Bureau (Costs) QBD 2-Jul-2020
. .

These lists may be incomplete.
Updated: 07 June 2021; Ref: scu.652415

Adams, Regina (on The Application of) v Secretary of State for Justice: CA 27 Nov 2009

The claimant sought compensation for his imprisonment after the overturning of his conviction, on the basis that evidence had emerged which undermined the conviction.
Held: Such a claim could not succeed where the reason for the non-use of the evidence was the incompetence or otherwise of the defence lawyers. Existing law had not decided just what constituted new evidence as regards who any evidence was unknown to. A failure by a defence team to recognise the significance of a particular item of evidence was not an example to fall with Lord Bingham’s categories in Mullen of something going seriously wrong, unless that failure was so bad as to be egregious.
Lord Justice Waller, Lord Justice Dyson and Lord Justice Lloyd
[2009] EWCA Civ 1291, Times 07-Dec-2009, [2010] QB 460, [2010] 3 WLR 63, [2010] 1 Cr App R 25
Bailii
England and Wales
Citing:
Appeal from – Regina (Adams) v Secretary of State for Justice Admn 2009
. .
See Also – Regina v Adams CACD 12-Jan-2007
The defendant appealed against his conviction in 1993 for murder. . .
Cited – Mullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .

Cited by:
Appeal From – Adams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.381578

Jebsen v East and West India Dock Co: CCP 1874

delay caused by a charterer in discharging cargo caused the shipowner to lose passengers whom he had contracted to carry but he was able to take the same passengers in another of his vessels.
Held: The shipowners’ damages were not to be reduced on that account.
(1874) LR 10 CP 300
England and Wales
Cited by:
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 – Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .

These lists may be incomplete.
Updated: 23 February 2021; Ref: scu.642150

Moule v Garrett: CA 1872

An original tenant sought an indemnity from an assignee for a later claim by the landlord.
Held: The principles of recoupment are that where a plaintiff has been compelled by law to pay, or, being compellable by law, has paid, money which the defendant was ultimately liable to pay, so that the latter obtains the benefit of the payment by the discharge of his liability; under such circumstances the defendant is held indebted to the plaintiff in the amount.
Cockburn CJ
(1872) LR 7 Exch 101
Cited by:

  • Cited – NIRU Battery Manufacturing Company and Another v Milestone Trading Ltd and others ComC 8-May-2003
    There was a contract for the sale of lead ingots. The sale was supported by letters of credit but inaccurate certificates were issued to release payment. The parties sought now to amend the contributions in the light of the Royal Brompton Hospital . .
    [2003] EWHC 1032 (Comm)
  • Cited – Scottish and Newcastle Plc v Raguz CA 6-Mar-2007
    The claimant was the original tenant under two 99 year underleases granted in 1967, and assigned them to the defendant who then himself assigned them. The eventual assignee had become insolvent. The landlord recovered the rents from the claimant who . .
    [2007] EWCA Civ 150, [2007] 2 All ER 871

These lists may be incomplete.
Updated: 04 December 2020; Ref: scu.181986

Whitwham v Westminster Brymbo Coal and Coke Co: CA 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 trespass to land by tipping.
Lindley LJ observed ‘that if one man runs trucks on rails over another man’s land it does not do any harm whatever, and there is no pecuniary damage’, but that the law was now settled. He stated the principle: ‘if one person has without leave of another been using that other’s land for his own purposes, he ought to pay for such user.’
References: [1896] 2 Ch 538
Judges: Rigby, Lindley LJ
Jurisdiction: England and Wales
This case cites:

  • Approved – Jegon v Vivian 1871
    Unauthorised mining of land – measure of damages.
    Held: Although the value of his land may not have been diminished by the trespass, the plaintiff recovered damages equivalent to what he would have received if he had been paid for a wayleave. . .
    ((1871) LR 6 Ch App 742)

This case is cited by:

  • 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 . .
    (, [2003] EWCA Civ 323, Times 19-Apr-03, Gazette 05-Jun-03, [2003] 1 All ER (Comm) 830)
  • 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 . .
    (, [2004] EWCA Civ 570, [2004] 2 EGLR 95, [2004] 26 EG 194, [2005] RVR 181)
  • 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 . .
    ([1974] 1 WLR 798, [1974] 2 All ER 321)
  • 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 . .
    (, [2010] UKSC 35, , , , , [2010] WLR (D) 204, [2010] NPC 88, [2010] 3 WLR 654, [2011] AC 380, [2010] 31 EG 63, [2010] 3 All ER 975)
  • Cited – Jones and Another v Ruth and Another CA 12-Jul-2011
    jones_ruthCA11
    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 . .
    (, [2011] EWCA Civ 804, [2012] 1 All ER 490, [2012] 1 WLR 1495, [2011] CILL 3085)
  • Cited – Ramzan v Brookwide Ltd CA 19-Aug-2011
    ramzan_brooksideCA2011
    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 . .
    (, [2011] EWCA Civ 985)

These lists may be incomplete.
Last Update: 26 November 2020; Ref: scu.180879

Maxwell v Pressdram Ltd: CA 1987

The court was asked whether disclosure should be ordered in the context of the statutory privilege which was created by s.10 of the 1981 Act. The publisher defendant had deposed that it would justify the material. At trial, however, the defence of justification was abandoned and the judge said he would make a (strong) comment adverse to the defendant in the course of his charge of the jury, but he held that the witness need not reveal the source of his material.
Held: The appeal failed. A plea of negligence is insufficient to found a claim for exemplary damages. Some conscious wrongdoing is necessary.
Parker LJ made the point that ‘it is not sufficient merely to say that the information which is sought (to be obtained) is information which is relevant to the determination of an issue before the court. Were that so, it would always be possible to obtain an order for disclosure . ‘
References: [1987] 1 WLR 298, [1987] 1 All ER 656
Judges: Kerr LJ, Parker LJ
Statutes: Contempt of Court Act 1981 10
Jurisdiction: England and Wales
This case is cited by:

  • 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 . .
    (Times 29-Oct-99, Gazette 25-Nov-99, Gazette 17-Nov-99, , , [2001] 2 AC 127, [1999] UKHL 45, [1999] 4 All ER 609, [1999] 3 WLR 1010, [2000] EMLR 1, [2000] HRLR 134, 7 BHRC 289)
  • 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 . .
    (, [2008] EWHC 1777 (QB), [2008] EMLR 20)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194515

Arkwright v Newbold: CA 1881

Cotton LJ discussed the tort of deceit and said: ‘In my opinion, it would not be right in an action of deceit to give a plaintiff relief on the ground that a particular statement, according to the construction put on it by the court, is false, when the plaintiff does not venture to swear that he understood the statement in the sense which the court puts on it.’
References: (1881) 17 ChD 301
Judges: Cotton LJ
Jurisdiction: England and Wales
This case is 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 . .
    (Gazette 13-Dec-96, Times 22-Nov-96, , , [1996] UKHL 3, [1997] AC 254, [1996] 4 All ER 769, [1996] 3 WLR 1051)
  • Cited – Walsh v Staines and others ChD 26-Jul-2007
    The defendants applied to strike out a claim based on an allegation of a fraudulent deceit and conspiracy in earlier proceedings between the parties. It was said that the defendant solicitors had represented that their client had funds to support an . .
    (, [2007] EWHC 1814 (Ch))
  • Cited – Hayward v Zurich Insurance Company Plc CA 31-Mar-2015
    The claimant sought damages alleging his back had been injured at work. The insurers accepted liability but said that the claimant had exaggerated the extent of his injury. The claim was settled, but later a neighbour of the claimants said that the . .
    (, [2015] EWCA Civ 327)
  • Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
    The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
    ([2016] 3 WLR 637, , [2016] UKSC 48, , [2016] 4 All ER 628, [2016] 2 All ER (Comm) 755, [2016] WLR(D) 423, [2017] AC 142, , UKSC 2015/0099, , , , , )

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.191185

The Iron and Steel Fencing and Buildings Co: 1891

The particular use of the goods in question on which the pursuers’ claim for loss was based was a use which was not within the contemplation of the parties to the contract at the time it was made, and therefore the proper level of damages was that depending on the ordinary use of the goods.
References: [1891] 19 R 199
Jurisdiction: Scotland
This case is cited by:

  • 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 . .
    (, Times 13-Feb-02, , [2002] UKHL 4, [2002] 1 LLR 553, [2002] Lloyds Rep IR 261, [2002] 1 All ER (Comm) 321, 2002 SLT 278, [2002] CLC 741, 2002 SC (HL) 117, [2002] BLR 139, 2002 SCLR 346, 2002 GWD 6-178)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.191166

Wallington v Townsend: 1939

Where a vendor of land failed to complete for reasons other than a defect in title and the purchaser was unable to prove a loss of profits he was entitled by way of damages, in addition to the return of the deposit, to interest in respect of the loss of use of the deposit and to the costs of approving and executing the contract, investigating title, preparing the conveyance and of searches.
Morton J said: ‘The case is a good illustration of the fact that actions in which the subject-matter is comparatively trifling often give rise to the most difficult questions of fact and of law’.
References: [1939] Ch 588, [1939] 2 All ER 255
Judges: Morton J
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC ([2010] WLR (D) 230, [2010] EWHC 2026 (Comm), Bailii, WLRD)
    The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
  • Cited – Hopgood v Brown CA ([1955] 1 WLR 213, [1955] 1 All ER 550, (1055) 99 Sol Jo 168, Bailii, [1955] EWCA Civ 7)
    Two adjoining plots were conveyed to the same purchaser. Buildings were constructed, and the adjusted boundary required an obtuse angle. The plots were sold on separately but with the original straight boundaries. The plans on the conveyances had no . .

These lists may be incomplete.
Last Update: 26 August 2020; Ref: scu.421539

Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others Appealsz: CA 24 Feb 1995

References: Times 24-Feb-1995, Gazette 22-Mar-1995, Times 21-Feb-1995, [1995] QB 375, [1995] 2 All ER 769
Coram: Sir Thomas Bingham MR
Ratio: 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 on sale the plaintiffs obtained substantially less than the sums they had advanced. The relevant question was whether the plaintiffs could include in their damages the difference in the value of the properties between the time of entering into the mortgages and the sale of the properties.
Held: Damages payable to a secured lender for a negligent valuation included losses attributable to general market. Discussing liability where two causes contributed to the damages: ‘the event which the plaintiff alleges to be causative need not be the only or even the main cause of the result complained of: it is enough if it is an effective cause’
Sir Thomas Bingham MR described the valuer’s task: ‘In the absence of special instructions, it is no part of V’s duty to advise L on future movements in property prices, whether nationally or locally. The belief among buyers and sellers that prices are likely to move upwards or downwards may have an effect on current prices, and to that extent such belief may be reflected by V in his valuation. But his concern is with current value only. He is not asked to predict what will happen in the future. His valuation is not sought to protect L against future decline in property prices. In no sense is he a guarantor of L’s investment decision.’
He spoke also as to the measurement of damages: ‘where a mortgage lender would not, but for the negligent valuation, have entered into the transaction with the borrower he could recover the net loss he had sustained as a result of having done so; that a fall in the market was foreseeable, and since, in such a case, the lender would not have entered into the transaction but for the valuer’s negligence and could not escape from it unless and until the borrower defaulted, that negligence was the effective cause of his loss, and a fall in the market was not to be treated as a new intervening cause breaking the link between the valuer’s negligence and the damage sustained; accordingly on the assumed facts the mortgagees were entitled to recover damages in respect of the loss they had sustained which was attributable to market fall.’
. . And: ‘In a no-transaction purchase case, it seems clear on English authority that effect will be given to the restitutionary principle by awarding the buyer all that he has paid out less what (acting reasonably to cut his losses including selling the property) he has recovered. In no case before [the present case] has any head of foreseeable damage been excluded from the calculation.’
. . And: ‘In no-transaction mortgage lending cases it has been the practice since Baxter v Gapp [1939] 2 AER 752 to award the lender the net loss sustained as a result of entering into the transaction, which may be expressed as the difference between what the lender advanced and what the lender would have advanced if properly advised (which is always nil). Thus related expenses of sale and realisation less sums recovered. … Should a rise in the market have contributed to [a full recovery] then, as in the successful transaction case, that contribution will not be ignored so as to treat the lender as sustaining a financial loss which in fact he has not sustained. If in such a case a fall in the property market between the date of the transaction and the date of realisation contributes to the lender’s overall loss sustained as a result of entering into the transaction, it would seem to us, on a straight forward application of the restitutionary principle, that the lender should be entitled to recover that element of his loss against the negligent party.’
. . And :’Where a buyer is claiming damages for negligence in a successful transaction case the diminution in value rule ordinarily provides an adequate measure of the buyers loss. As the cases show, to award, for example, the full cost of repairs will usually lead to over-compensation. This assessment will ordinarily be made as at the date of breach, for there is no other appropriate date. The same rule will usually be applied where the buyer decides to keep the property with knowledge of its defective condition or over-valuation even if, with that knowledge, he would not have bought in the first place. In such a case no account is taken of later fluctuations in the market, for he remains the owner of the property as a result of his own independent decision and not of the negligence of the valuer or surveyor.’
This case cites:

(This list may be incomplete)
This case is cited by:

  • Appeal from – South Australia Asset Management Corporation v York Montague Ltd etc HL (Gazette 04-Sep-96, Times 24-Jun-96, [1997] AC 191, [1996] PNLR 455, [1996] 27 EG 125, [1996] 3 WLR 87, Bailii, [1996] UKHL 10, [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)
    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 – Paterson and Another v Humberside County Council QBD (Times 19-Apr-95, [1995] CLY 3661, [1996] Const LJ 64)
    A local authority was liable for nuisance for damage (cracks to house) caused by tree roots once it could be shown that it knew of the soil condition, by virtue of the council’s own warnings to residents of the danger in the area meant that the . .
  • Cited – Helmsley Acceptances Ltd v Hampton CA (Bailii, [2010] EWCA Civ 356)
    The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
    Held: The . .
  • Cited – Downs and Another v Chappell and Another CA (Bailii, [1996] EWCA Civ 1358, [1996] 3 All ER 344, [1996] CLC 1492, [1997] 1 WLR 426)
    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: . .

(This list may be incomplete)

Last Update: 31 July 2018
Ref: 78174

Rickless v United Artists Corporation: CA 1988

References: [1988] QB 40, [1987] 1 All ER 679, [1987] 2 WLR 945
Coram: Hobhouse J, Sir Nicolas Browne-Wilkinson V-C, Bingham LJ
Ratio: The Act created a private right to performers. Although it might appear to provide criminal sanctions only, performers had the right to give or withhold consent to the use of their performances and to enforce that right by action in the civil courts. This statutory right was not purely personal, but survived the death of the performer and vested in his or her personal representatives, so that in the absence of consent of a performer or his or her personal representatives, there was an actionable breach. A feature film (Trail of the Pink Panther – ‘Trail’) starring the late Peter Sellers had been made by use of cutting floor clips from previous films made with his consent. In two films, The Pink Panther Strikes Again and Revenge of the Pink Panther his consent extended to the use in this way of the cutting floor clips, and ordered the producer companies to account for percentages of the gross receipts of Trail as sums derived from Strikes and Revenge. In the case of three films where there had been no consent, damages were awarded for breach, or inducing breach, of contract in the sum of $1,000,000.
Sir Nicolas Browne-Wilkinson V-C observed that, while not decisive, it was generally easier to spell out civil liability where Parliament had expressly stated that an act was unlawful rather than merely classifying it as a criminal offence.
Statutes: Dramatic and Musical Performers Protection Act 1958 1
This case is cited by:

  • Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA (Bailii, [2003] EWCA Civ 323, Times 19-Apr-03, Gazette 05-Jun-03, [2003] 1 All ER (Comm) 830)
    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 . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 13-Jul-18
Ref: 180883

Caltex Oil (Australia) Pty Ltd v Dredge Willemstad”: 9 Dec 1976″

References: [1976] HCA 65, (1976) 136 CLR 529
Links: Austlii
Coram: Gibbs, Stephen, Mason, Jacobs and Murphy JJ.
Ratio: 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 by person as a result – Pipeline carrying oil to plaintiff’s depot – Damaged by defendant’s negligence – Supply interrupted – Pipeline and depot owned by different persons – Expense incurred by plaintiff in arranging alternative means of delivery – Whether recoverable – Remoteness of loss or damage.
Shipping and Navigation – Action in rem – Action against ship – Negligence – Master not sued as defendant – Appearance entered by master – No proprietary interest in ship – Whether master liable to judgment.
A pipeline was damaged and the owner of the terminal (who was not the owner of the pipeline) incurred expense in transporting refined oil to the terminal while the pipeline was out of use.
Held: The plaintiff was entitled to recover that expense from the dredger which had damaged the pipeline. Jacobs J said that the duty of care owed to the owner of the pipeline was also owed to ‘a person whose property was in such physical propinquity to the place where the acts of omissions of the dredge . . had their physical effect that a physical effect on the property of that person was foreseeable as the result of such acts or omissions’.
This case is cited by:

(This list may be incomplete)
Jurisdiction: Australia

Last Update: 13-Jul-18
Ref: 331084

McLoughlin v OBrian: HL 6 May 1982

References: [1983] 1 AC 410, [1982] 2 All ER 298, [1982] UKHL 3, [1982] 2 WLR 982
Links: Bailii
Coram: Lord Wilberforce, Lord Bridge, Lord Scarman
Ratio: 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.’
This case cites:

  • Cited – Hambrook v Stokes Brothers CA ([1925] 1 KB 141)
    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] 2 QB 40)
    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 ([1943] AC 92, [1943] SC (HL) 78, 1943 SLT 105, Bailii, [1942] UKHL 5)
    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 . .

(This list may be incomplete)
This case is cited by:

  • Applied – Alcock and Others v Chief Constable of South Yorkshire Police QBD (lip, [1991] 2 WLR 814, [1991] CLY 2671)
    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 (Gazette 22-Jan-92, lip, [1991] 3 WLR 1057, Times 29-Nov-91, [1992] 1 AC 310, Bailii, [1991] UKHL 5)
    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 (Times 27-Mar-03, Bailii, [2003] ScotCS 55, ScotC)
    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 ([2003] Lloyds Rep Med 285, Bailii, [2003] EWCA Civ 697)
    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 (Times 30-Apr-98, Gazette 20-May-98, Bailii, [1998] EWCA Civ 591)
    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 ((1984) 55 CLR 549, [1984] 54 ALR 417, [1985] CLY 2326, Austlii, [1984] HCA 52)
    (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 ([2004] EWCA Civ 405, Bailii)
    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 (Bailii, [2005] UKHL 23, House of Lords, [2005] 2 AC 373, Times 22-Apr-05, [2005] 2 WLR 993)
    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 (Bailii, [2005] EWCA Crim 1415, Times 22-Jun-05, [2006] Crim LR 148, (2006) 89 BMLR 169, [2006] 1 All ER 988, [2005] 2 Cr App R 34, [2005] 1 WLR 3642)
    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 & Insulating Co Ltd and Another CA (Bailii, [2006] EWCA Civ 27, [2006] ICR 1458, Times 31-Jan-06)
    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 (Bailii, [2006] EWCA Civ 312, Times 05-Apr-06)
    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 (Bailii, [1993] EWCA Crim 1)
    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 (Bailii, [2007] UKHL 39, Times 24-Oct-07, [2007] ICR 1745, [2007] 4 All ER 104, [2008] LS Law Medical 1, [2007] 3 WLR 877, (2008) 99 BMLR 139, [2008] 1 AC 281, [2008] PIQR P6)
    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 (Bailii, [2008] EWCA Civ 1205, Times)
    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 (Bailii, [2013] EWCA Civ 194, [2013] 3 WLR 989, [2013] Med LR 100, [2013] PIQR P15, [2013] WLR(D) 119, [2014] Ch 150, [2014] 1 QB 150, WLRD)
    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 ([2015] 2 WLR 137, Bailii, [2015] UKSC 32, [2016] AC 219, [2015] EMLR 20, [2015] HRLR 11, [2015] WLR(D) 227, [2015] 4 All ER 1, WLRD, Bailii Summary, UKSC 2014/0251, SC, SC Summary, SC Video Summary)
    The mother sought to prevent a father from publishing a book about his life. It was to contain passages she said may cause psychological harm to their 12 year old son. Mother and son lived in the USA and the family court here had no jurisdiction to . .
  • Cited – OPO v MLA and Another CA (Bailii, [2014] EWCA Civ 1277, [2014] WLR(D) 422, WLRD)
    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 (Bailii, [2015] EWCA Civ 588, [2015] WLR(D) 263, WLRD)
    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 (Bailii, [2016] EWHC 2208 (QB))
    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 . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 24-Nov-16
Ref: 180105

Malik and Another v Bank of Credit and Commerce International Sa; Chd 23 Feb 1994

References: Ind Summary 21-Mar-1994, Times 23-Feb-1994
Ratio: A stigma arising from an association with a notorious employer gave rise to no cause of action.
This case is cited by:

(This list may be incomplete)

Last Update: 01-Sep-16
Ref: 83351

Taunoa v Attorney General for New Zealand; 31 Aug 2007

References: [2007] NZSC 70, [2008] 1 NZLR 429, [2007] 5 LRC 680
Links: Nzlii
Coram: Elias CJ, Blanchard J, Tipping J, McGrath J
Ratio: Supreme Court of New Zealand – The claimants sought damages after their treatment in prison. They challenged the legality of a behaviour modification regime which five prisoners had been subjected to. The regime had been operated at Auckland Prison by the Department of Corrections over the period 1998-2004, to deal with extremely disruptive prisoners. There was a distinctly punitive element to the regime. The point of the regime was to change the prisoners’ behaviour. The regime involved a highly controlled environment and severe restrictions on association and maximum security conditions, which could become progressively less restrictive depending on a prisoner’s behaviour.
Held: (majority) Sections 9 and 23(5) establish a hierarchy of proscribed conduct:
(a) Blanchard J considered that there are ‘degrees of reprehensibility’ evident in sections 9 and 23(5). He considered that section 9 is concerned with conduct on the part of the state and its officials which is to be utterly condemned as outrageous and unacceptable in any circumstances; section 23(5) is confined in its application to persons deprived of their liberty. It proscribes conduct which is unacceptable in our society, but is of a lesser order, not rising to a level deserving to be called outrageous.
(b) Tipping J considered that s 9 can be seen as prohibiting inhumane treatment, whereas s 23(5) requires prisoners to be treated with humanity. He warned that there is a danger of these concepts being conflated in a way which reduces the degree of seriousness required for a section 9 breach. He considered that s 9 is reserved for truly egregious cases which call for a level of denunciation of the same order as that appropriate to torture.
(c) McGrath J considered that s 9 affirms the rights of all not to be tortured or subjected to cruel, degrading or disproportionately severe treatment or punishment, while s 23(5) focuses on the rights of those deprived of their liberty to be treated with respect for human dignity. He considered that there is a hierarchy between the two sections, and that they are separate, though complementary, affirmations of rights. That hierarchal relationship reflects the graduated standards of the two provisions in the relative gravity of breaches of the rights they respectively affirm. There is a high threshold to be met before the Court can find that there has been a breach of the prohibition in s 9. (d) Henry J agreed with Tipping J.
Tipping J noted that conduct breaching s 9 will usually involve intention to harm or at least consciously reckless indifference as to the causing of harm, as well as significant physical or mental suffering. It seems that s 9 could extend to: (a) torture involving the deliberate infliction of severe physical or mental suffering for a prescribed purpose, such as the obtaining of information; (b) cruel treatment which inflicts suffering, or results in severe or substantial suffering or distress. Views differed on whether or not this needs to be deliberate.
Elias CJ (dissenting) said that ss 9 and 23(5) are not simply different points of seriousness on a continuum, but that they involve distinct, though overlapping rights. She considered that s 9 is concerned with the prevention of treatment properly characterised as inhuman, amounting to a denial of humanity; s 23(5) is directed to an additional, but complementary requirement that prisoners be treated humanely. She considered that denial of humanity could occur through deprivation of basic human needs, including personal dignity and physical and mental integrity. In contrast, inhumane treatment was treatment that was not fitting for human beings, ‘even those behaving badly in prison.’
Statutes: New Zealand Bill of Rights Act 1990 9 23(5)
This case is cited by:

  • Cited – Takitota v The Attorney General and Others PC (Bailii, [2009] UKPC 11, 26 BHRC 578)
    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 . .

(This list may be incomplete)

Last Update: 29-Aug-16
Ref: 471045

Woodstock Shipping Co v Kyma Compania Naviera SA (‘The Wave’): 1981

References: [1981] 1 Lloyd’s Rep 521
Coram: Mustill J
Ratio:There was a time charter for 24 months, 3 months more or less at charterers’ option. The owners repudiated the charter and the charterers accepted their repudiation on 2 August 1979.
Held: Assessing the charterers’ loss, and allowing for their ability to obtain a substitute fixture in the available market shortly after the date of the accepted repudiation the court compared the charterparty rate with the market rate in the early days of September 1979, declining to speculate whether market rates in September 1981 would induce the charterers to exercise their three month option one way or the other.
This case cites:

  • Applied – Maredelanto Compania Naviera SA v BergbauHandel GmbH (The Mihalis Angelos) CA ([1971] 1 QB 164, Bailii, [1970] EWCA Civ 4, [1970] 3 WLR 601, [1970] 2 Lloyd’s Rep 43, [1970] 3 All ER 125)
    The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .

(This list may be incomplete)
This case is cited by:

  • Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL (Bailii, [2007] UKHL 12, Times 30-Mar-07, [2007] 2 Lloyds Rep 164, [2007] Bus LR 997, [2007] 3 All ER 1, [2007] 2 AC 353, [2007] 1 CLC 352, [2007] 2 WLR 691, [2007] 2 All ER (Comm) 97)
    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 . .

(This list may be incomplete)

Last Update: 19-Jul-16
Ref: 252490

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

References: (1981) 145 CLR 625, [1981] HCA 3
Links: Austlii
Coram: Barwick CJ, Gibbs, Stephen, Mason, Murphy, Aickin, Wilson JJ
Ratio: Austlii High Court of Australia – Damages – Calculation – Failure by insurance broker to arrange workers’ compensation insurance – Employer liable to make periodic payments of compensation to injured employee – Payments adjusted by reference to average weekly wage – Assessment of damages – Rate of discount for present payment – Significance of monetary inflation – Workers’ Compensation Act, 1926(N.S.W.),s. 9A.
Workers’ Compensation – Domestic assistance to injured worker – Whether ‘nursing’ – Workers’ Compensation Act, 1914 (N.S.W.),s. 10 (1), (2).

Last Update: 05-Jul-16
Ref: 566287

Burke v LFOT Pty Ltd; 18 Apr 2002

References: 187 ALR 612, [2002] HCA 17
Links: Austlii
Coram: Gaudron ACJ, McHugh, Kirby, Hayne, Callinan JJ
Ratio:(High Court of Australia) Trade and commerce – Damages – Equitable contribution – Liability to pay damages under ss 75B, 82, 87 of Trade Practices Act 1974 (Cth) for breach of s 52 of the Act – Whether solicitor who gave negligent advice should contribute to the loss suffered by his client as a consequence of another’s misrepresentation which loss could have been avoided by careful advice by the solicitor – Whether equitable maxims prevent requirement of contribution.
Equity – Equitable contribution – Scope of – Requirement of co-ordinate liability – Whether solicitor who gave negligent advice should contribute to loss suffered by client as a consequence of another’s representation where the loss could have been avoided by careful advice by the solicitor.
Contribution – Equitable contribution – Scope of and availability – Co-ordinate liability – Requirements of – Whether compatible with the obligations imposed by Trade Practices Act 1974 (Cth) for breach of s 52 of the Act.
Words and phrases – ‘co-ordinate liability’, ‘natural justice’.
This case is cited by:

(This list may be incomplete)

Last Update: 01-Jul-16
Ref: 566220

President of India v La Pintada Compagnia Navigacia SA (‘La Pintada’): HL 1985

References: [1985] AC 104
Coram: Lord Brandon, Lord Bridge
The house decided against altering the rule in Page -v- Newman. ‘The common law does not award general damages for delay in payment of a debt beyond the date when it is contractually due’ The power given to the court under s 35A is discretionary. It does not have the character of a substantive right. (Brandon) A judge ‘ . . already has a statutory remedy. What is more, the new cause of action [argued for] . . would constitute a remedy as of right for a creditor whereas the statutory remedy would remain discretionary only. There would accordingly exist . . two parallel remedies, one as of right and the other discretionary. It is, in my view, plainly to be inferred, from the form of the relevant provisions of the Acts of 1934 and 1982 that Parliament has consistently regarded the award of interest on debts as a remedy to which creditors should not be entitled as of right, but only as a matter of discretion. That being the manifest policy of the legislature, I do not consider that your Lordships should create . . a rival system of remedies, which because they would be remedies as of right, would be inconsistent with that manifest policy.’
This case cites:

  • Cited – Page -v- Newman ((1829) 9 B&C 378)
    Under common law ‘the long-established rule that interest is not due on money secured by a written instrument, unless it appears on the face of the instrument that interest was intended to be paid, or unless it be implied from the usage of trade, as . .
  • Cited – Chandris -v- Isbrandtsen-Moller Co Inc CA ([1951] KB 240, (1950) 84 Ll LR 347)
    The court considered whether an arbitrator could award interest in circumstances where section 3 of the 1934 Act expressly conferred such a power on ‘the court’ in proceedings tried in a ‘court of record’.
    Held: Although section 3(1) of the . .

(This list may be incomplete)
This case is cited by:

  • Cited – Mohammed Aslam -v- South Bedfordshire District Council CA (Times 18-Jan-01, Gazette 11-Jan-01, Bailii, [2000] EWCA Civ 355)
    The claimant appealed an award of the Lands Tribunal of compensation for an order discontinuing his use as a slaughterhouse of premises of which he held a long lease. The tribunal had applied a discount for wastage on sheep carcasses of 25%, but had . .
  • Cited – Sempra Metals Ltd -v- Inland Revenue Commissioners and Another HL (Bailii, [2007] UKHL 34, [2007] 3 WLR 354, Times 25-Jul-07, [2008] 1 AC 561, [2008] Eu LR 1, [2007] 4 All ER 657, [2007] STC 1559, [2007] BTC 509, [2008] Bus LR 49, [2007] All ER (D) 294, 151 Sol Jo 985)
    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 – Boake Allen Ltd and others -v- HM Revenue & Customs CA (Bailii, [2006] EWCA Civ 25, Times 10-Feb-06, [2006] STC 606, [2006] BTC 266, 8 ITL Rep 819, [2006] STI 32, [2006] Eu LR 755)
    The claimant companies had paid corporation tax under rules which had later been found to be discriminatory. They now sought repayment by virtue of double taxation agreements with the countries in which the parent companies were based.
    Held: . .

(This list may be incomplete)
Last Update: 16-Dec-15 Ref: 185178

Lac Minerals v International Corina Resources Ltd; 11 Aug 1989

References: (1989) 61 DLR (4th) 14 Can SC (Canada), [1989] 2 SCR 574, [1990] FSR 441, 69 OR (2d) 287, 1989 CanLII 34 (SCC)
Links: Canlii
Coram: McIntyre, Lamer, Wilson, La Forest and Sopinka JJ
Supreme Court of Canada on appeal from the court of appeal for ontario – Commercial law — Confidentiality — Mining companies discussing possible joint venture — Confidential exploration results disclosed during discussions — High potential property adjacent to lands of exploration company — Mining company in receipt of information purchasing property for own use — Whether or not company in breach of duty respecting confidences — Whether or not breach of fiduciary duty — If so, the appropriate remedy.
Industrial and intellectual property — Trade secrets — Confidentiality — Mining companies discussing possible joint venture — Confidential exploration results disclosed during discussions — High potential property adjacent to lands of exploration company — Mining company in receipt of information purchasing property for own use — Whether or not company in breach of duty respecting confidences — If so, the appropriate remedy.
Trusts and trustees — Fiduciary duty — Trade secrets — Confidentiality — Mining companies discussing possible joint venture — Confidential exploration results disclosed during discussions — High potential property adjacent to lands of exploration company — Mining company in receipt of information purchasing property for own use — Whether or not breach of fiduciary duty — If so, the appropriate remedy.
Remedies — Unjust enrichment — Restitution — Constructive trust — Nature of constructive trust — When constructive trust available.
Last Update: 03-Dec-15 Ref: 556253

Hodgkinson v Simms; 30 Sep 1994

References: [1994] 3 SCR 377, 117 DLR (4th) 161, [1994] 9 WWR 609, 97 BCLR (2d) 1, 16 BLR (2d) 1, 171 NR 245, 22 CCLT (2d) 1, 49 BCAC 1, 57 CPR (3d) 1, 5 ETR (2d) 1, [1994] CarswellBC 438, AZ-94111096, JE 94-1560, [1994] SCJ No 84 (QL), [1994] ACS no 84, 50 ACWS (3d) 469, 80 WAC 1, 95 DTC 5135
Links: Canlii
Coram: La Forest, L’Heureux-Dube, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ
Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by adviser — Ultimate decision as to whether or not to invest that of client — Substantial losses incurred during period of economic downturn — Whether or not fiduciary duty on part of adviser — If so, calculation of damages.
Contracts — Contract for independent services — Breach by failure to disclose — Calculation of damages.
La Forest J, giving the judgment of the majority, drew the distinction between fiduciary relationships and commercial interactions governed by the common law, the former being characterised by one party’s duty to act in the other’s best interests, and often by power on the one hand and dependency on the other, whereas the common law generally respected the pursuit of self-interest. The proper approach to damages for breach of a fiduciary duty was said to be restitutionary. On that basis, the majority of the court concluded that the claimant was entitled to be compensated for the loss sustained on investments which he had made on the advice of a fiduciary who had failed to disclose a conflict of interest, notwithstanding that the loss had resulted from an unforeseen general economic downturn.
This case is cited by:

  • Cited – Cadbury Schweppes -v- FBI Foods ([1999] 1 SCR 142, Canlii, 1999 CanLII 705 (SCC), 85 ACWS (3d) 166, 191 WAC 161, [1999] SCJ No 6 (QL), JE 99-317, AZ-99111005, 83 CPR (3d) 289, 235 NR 30, 117 BCAC 161, 42 BLR (2d) 159, 59 BCLR (3d) 1, 167 DLR (4th) 577)
    Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction . .
  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
  • Approved – Pilmer -v- Duke Group Ltd ((2001) 207 CLR 165, [2001] HCA 31, Austlii)
    High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as . .

(This list may be incomplete)
Last Update: 05-Nov-15 Ref: 554204

Maguire v Makaronis; 25 Jun 1997

References: (1997) 188 CLR 449, [1997] HCA 23, (1997) 144 ALR 729, (1997) 71 ALJR 781
Links: Austlii
Coram: Brennan CJ, Gaudron, McHugh, Gummow, Kirby JJ
High Court of Australia – Equity – Fiduciary duties – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Ascertainment of particular fiduciary duties.
Equity – Equitable remedies – Rescission – Relevance of causal connection between breach of fiduciary duty and execution of mortgage – Scope of equity for rescission – Whether clients required to ‘do equity’ by honouring contractual obligation to pay principal and interest secured by mortgage – Rate of interest payable on principal sum outstanding under mortgage.
Legal practitioners – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Fiduciary duties – Equitable remedies.
‘In Australia, the measure of compensation in respect of losses sustained by reason of breach of duty by a trustee or other fiduciary is determined by equitable principles and . . these do not necessarily reflect the rules for assessment of damages in tort or contract.’
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 05-Nov-15 Ref: 554208

Cadbury Schweppes v FBI Foods; 28 Jan 1999

References: [1999] 1 SCR 142, 1999 CanLII 705 (SCC), 85 ACWS (3d) 166, 191 WAC 161, [1999] SCJ No 6 (QL), JE 99-317, AZ-99111005, 83 CPR (3d) 289, 235 NR 30, 117 BCAC 161, 42 BLR (2d) 159, 59 BCLR (3d) 1, 167 DLR (4th) 577
Links: Canlii
Coram: L’Heureux-Dube, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ
Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction appropriate remedy for breach of confidence in this case – Whether ‘head start’ concept applies — Whether calculation of equitable compensation differs from common law damages.
This case cites:

  • Cited – Hodgkinson -v- Simms ([1994] 3 SCR 377, Canlii, 117 DLR (4th) 161, [1994] 9 WWR 609, 97 BCLR (2d) 1, 16 BLR (2d) 1, 171 NR 245, 22 CCLT (2d) 1, 49 BCAC 1, 57 CPR (3d) 1, 5 ETR (2d) 1, [1994] CarswellBC 438, AZ-94111096, JE 94-1560, [1994] SCJ No 84 (QL), [1994] ACS no 84, 50 ACWS (3d) 469, 80 WAC 1, 95 DTC 5135)
    Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by . .

(This list may be incomplete)
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 03-Nov-15 Ref: 554203

Akai Holdings Ltd v Kasikornbank PCL; 8 Nov 2010

References: [2011] 1 HKC 357
Links: Hklii
Coram: Chief Justice Ma, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and, Lord Neuberger of Abbotsbury NPJ
Court of Final Appeal – Hong Kong – Lord Neuberger of Abbotsbury NPJ said: ‘the notion that equitable compensation is assessed on a somewhat different basis from common law damages is clearly right (albeit that the difference can be overstated)’ and ‘the losses made good are only those which, on a common sense view of causation, were caused by the breach’
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 03-Nov-15 Ref: 554210

Canson Enterprises Ltd v Boughton and Co; 21 Nov 1991

References: [1991] 3 SCR 534, 1991 CanLII 52 (SCC), 85 DLR (4th) 129, [1992] 1 WWR 245, 1 BCLR (2d) 1
Links: Canlii
Coram: Lamer CJ and Wilson, La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ
Canlii Supreme Court of Canada – Canada – Damages — Breach of fiduciary duty — Solicitor preparing conveyance not advising purchasers of secret profit made on a flip — On agreed facts, purchasers fully apprised of situation would not have entered the transaction — Action arising because inability of other professionals found liable in tort for faulty construction of building on subject lands to pay damages — Whether or not damages recoverable.
The claim was brought by developers of land against the lawyers who had acted for them in the purchase of the land. The lawyers acted in breach of their fiduciary duty by failing to disclose their knowledge that a third party was making a secret profit from the purchase. The development proved to be a failure as a result of the negligence of the engineers and contractors involved. The appellants sought to recover the loss incurred on the development from the lawyers, on the basis that they would not have proceeded with the purchase if they had known of the secret profit. Recognising that the loss would not be recoverable in an action founded on breach of contract, negligence or deceit, the appellants instead sought equitable compensation for breach of fiduciary duty, arguing that such compensation was unlimited by principles of causation, remoteness or intervening acts.
La Forest J (majority) distinguished between the breach of a trustee’s obligation to hold the object of the trust, where ‘on breach the concern of equity is that it be restored . . or, if that cannot be done, to afford compensation for what the object would be worth’, and on the other hand ‘a mere breach of duty’, where ‘the concern of equity is to ascertain the loss resulting from the particular breach of duty.’ In the former situation the difference between restoration and damages was abundantly clear, but in the latter situation ‘the difference in practical result between compensation and damages is by no means as clear’. He went on to observe in relation to claims of the latter kind: ‘The truth is that barring different policy considerations underlying one action or the other, I see no reason why the same basic claim, whether framed in terms of a common law action or an equitable remedy, should give rise to different levels of redress.’
McLachlin J dissented as to the way the result was obtained but not as to the result. She rejected the argument that the starting point, when quantifying compensation for breach of fiduciary duty, should be an analogy with tort or contract. In her view, that approach overlooked the unique foundation and goals of equity. In negligence and contract the parties were taken to be independent and equal actors, concerned primarily with their own self-interest. Consequently, the law sought a balance between enforcing obligations by awarding compensation, and preserving optimum freedom for those involved in the relationship. The essence of a fiduciary relationship, by contrast, was that one party pledged herself to act in the best interests of the other. The freedom of the fiduciary was diminished by the nature of the obligation she had undertaken. The fiduciary relationship had trust, not self-interest, at its core.
She concluded: ‘In summary, compensation is an equitable monetary remedy which is available when the equitable remedies of restitution and account are not appropriate. By analogy with restitution, it attempts to restore to the plaintiff what has been lost as a result of the breach, ie, the plaintiff’s loss of opportunity. The plaintiff’s actual loss as a consequence of the breach is to be assessed with the full benefit of hindsight. Foreseeability is not a concern in assessing compensation, but it is essential that the losses made good are only those which, on a common sense view of causation, were caused by the breach.’
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 03-Nov-15 Ref: 553778

Commonwealth of Australia v Amann Aviation Pty Ltd; HCA 12 Dec 1991

References: (1991) 66 ALJR 12, [1991] HCA 54, (1992) 174 CLR 64
Links: Austlii
Coram: Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ
(High Court of Australia) In a claim for damages for breach of contract, wasted expenditure was claimed and there was a complex dispute as to what the consequences of performing the contract would have been.
Held: The law should not, when assessing damages, adopt an all-or-nothing balance of probability approach, and assume certainty where none in truth exists.
This case is cited by:

  • Cited – Gregg -v- Scott HL (Bailii, [2005] UKHL 2, House of Lords, Times 28-Jan-05, [2005] 2 AC 176, [2005] 2 WLR 268)
    The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
  • Cited – Omak Maritime Ltd -v- Mamola Challenger Shipping Co Ltd ComC ([2010] WLR (D) 230, [2010] EWHC 2026 (Comm), Bailii, WLRD)
    The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .

Arab Monetary Fund v Hashim; 11 Oct 1994

References: Times 11-Oct-1994
Coram: Chadwick J
In cases under the 1978 Act the court does not ask whether, under some rule of English private international law to be found independently of that Act, the contribution claim is to be determined by reference to the 1978 Act. Rather, the court asks whether, under the provisions of the 1978 Act itself, the contribution claim ought to succeed. Chadwick J said: ‘If B and C were each persons against whom liability had been or could be established in an action brought against them by A in an English court, applying the appropriate law in accordance with English private international law rules, then the Act conferred on B a right of contribution against C to which the court had to give effect. There was no preliminary question as to proper law the answer to which determined, independently of the Act, whether the Act applied.’
Statutes: Civil Liability Contribution Act 1978
This case is cited by:

  • Cited – Cox -v- Ergo Versicherung Ag CA (Bailii, [2012] EWCA Civ 854)
    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 . .

Rolin And Another v Steward, Public Officer of The East of England Bank; 8 May 1854

References: [1854] EngR 492, (1854) 14 CB 595, (1854) 139 ER 245
Links: Commonlii
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.
This case is cited by:

  • Followed – Wilson -v- United Counties Bank Ltd HL ([1918-19] All ER Rep1035, [1920] LR AC 102, [1920] AC 102)
    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 . .

London and Overseas Freighters v Timber Shipping Co SA ‘The London Explorer’: HL 1972

References: [1971] 1 Lloyds Rep 523, [1972] AC 1
Coram: Lord Morris, Lord Reid
The London Explorer was under a charter where the hire was ‘to continue until the hour of the day of her redelivery’. The charterers redelivered the ship about 3 months late because, although she had set out on a legitimate last voyage, she had been delayed by strikes at her last two discharging ports.
Held: The owners recovered for the additional hire at the charterparty rate even though the market rate during the overrun period was less than the charterparty rate.
Lord Morris: ‘Even though the time set out in a charterparty is not made of the essence so that continued use of the vessel after the stated time will not at once have the result that such continued use will be in breach of contract, it will be necessary that redelivery should be within a reasonable time. It might well be . . that with a clause similar to clause 4 a charterer would be liable to pay hire at the contractual rate to the time of actual redelivery and in addition (if the current rate exceeded the contractual rate) to pay damages in respect of his failure to redeliver within a reasonable time’.
Lord Reid said: ‘There is a controversy as to whether one can ever look at deleted words in an agreement. If the words were first inserted by the draftsman of the agreement and then deleted before signature then I have no doubt that they must not be considered in construing the agreement. They are in the same position as any other preliminary suggestion put forward and rejected before the final agreement was made. But it appears to me that striking out words from a printed form is quite a different matter. The process of adapting a printed form to make it express the parties’ intentions requires two things to be done. Those parts which are not to be part of the agreement are struck out and words are inserted to complete the rest of the form so as to express the agreement. There is no inference that in striking out words the parties had second thoughts: the words struck out were never put there by the parties or any of them or by their draftsman.’
This case is cited by:

  • Cited – Transfield Shipping Inc of Panama -v- Mercator Shipping Inc of Monrovia ComC (Bailii, [2006] EWHC 3030 (Comm), [2007] 1 Lloyd’s Rep 19, [2007] 1 All ER (Comm) 379, [2006] 2 CLC 1069)
    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 . .

Tynes v Barr; 28 Mar 1994

References: (1994) 45 WIR 7, [1994] ICHRL 5
Links: Worldlii
(Supreme Court of the Bahamas) The plaintiff had been wrongfully arrested and humiliated publicly at an airport. He claimed exemplary damages. In assessing the exemplary damages in a court should take account of the injury the plaintiff has endured to his dignity and pride, mental suffering and loss of reputation: ‘Exemplary damages should be awarded in view of the arrogant, abusive and outrageous disregard shown by the police for the law, in particular, their delay in producing documents; the manner in which the defence was conducted; and the fact that liability was not conceded until the sixth and ninth days of the trial and even then with no appropriate apology being offered to the plaintiff. The police should be made aware of the need to observe the requirements as to when they may arrest and detain a person without a warrant and the way in which a person so detained must be humanely treated.’
This case is cited by:

  • Cited – Takitota -v- The Attorney General and Others PC (Bailii, [2009] UKPC 11, 26 BHRC 578)
    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 . .

The ‘Pegase’: 1981

References: [1981] I Ll Rep 175
Coram: Goff J
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single principle – though it is recognised that the application of the principle may depend on the degree of relevant knowledge held by the defendant at the time of the contract in the particular case’.
This case cites:

  • Cited – Victoria Laundry (Windsor) Ltd -v- Newman Industries CA ([1949] 2 KB 528)
    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 ([1967] 3 All ER 686, [1969] 1 AC 350, [1967] 3 WLR 1491, Bailii, [1967] UKHL 4)
    The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
  • Cited – Hadley -v- Baxendale Exc (Bailii, [1854] EWHC Exch J70, [1854] EngR 296, Commonlii, (1854) 9 Exch 341, (1854) 156 ER 145)
    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 . .

This case is cited by:

  • Cited – Transfield Shipping Inc of Panama -v- Mercator Shipping Inc of Monrovia ComC (Bailii, [2006] EWHC 3030 (Comm), [2007] 1 Lloyd’s Rep 19, [2007] 1 All ER (Comm) 379, [2006] 2 CLC 1069)
    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 (Bailii, [2008] UKHL 48, Times 10-Jul-08, HL)
    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 . .

Skelton v Collins; 7 Mar 1966

References: (1966) 115 CLR 94, [1966] HCA 14
Links: Austlii
Coram: Kitto, Taylor, Menzies, Windeyer and Owen JJ
(High Court of Australia) Damages – Personal Injuries – Loss of earning capacity – Loss of expectation of life – Loss of amenities during reduced life span – Pain and suffering – Plaintiff rendered permanently unconscious by injuries – Basis of assessment.
Precedent – Decisions of House of Lords – Applicability – High Court – Other Australian courts.
This case is cited by:

  • Followed – Pickett -v- British Rail Engineering HL ([1980] AC 136, Bailii, [1978] UKHL 4)
    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 . .

Payne v Railway Executive; 2 Jan 1951

References: [1951] 1 All ER 1034
Coram: Cohen LJ, Singleton LJ, Birkett LJ
A Royal Navy sailor was disabled by a railway accident and was awarded a disability pension of £2 16s. 3d. per week. At first instance J Sellers had held that Bradburn’s case applied so as to prevent deduction of the value of the pension. If it had been deductible that would have reduced the damages for loss of earnings from £3,000 to £750.
Held: The appeal failed. The accident was not the causa causans of the receipt of the pension. Singleton LJ: ‘If there were no pension rights it is reasonable to assume that the pay would be higher. Why, then, should the pension enure to the benefit of a wrongdoer?’ The Minister had power to withhold or reduce the pension.
This case is cited by:

  • Affirmed on Appeal – Payne -v- Railway Executive ([1952] 1 KB 26)
    Disablement pensions, whether voluntary or not, are to be ignored in the assessment of damages. . .
  • Cited – Parry -v- Cleaver HL ([1970] AC 1, [1969] 2 WLR 821, [1969] 1 All ER 555, [1969] 1 Lloyd’s Rep 183, Bailii, [1969] UKHL 2)
    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 . .
  • Applied – Judd -v- Board of Governors, Hammersmith, West London and St. Mark’s Hospitals ([1960] 1 WLR 32, [1960] 1 All ER 607)
    The plaintiff, a local government officer had made compulsory contributions to his superannuation scheme.
    Held: A contributory pension received early on an injury was to be ignored until the normal retiring age, but deducted for the later . .

British Columbia v Zastowny; 8 Feb 2008

References: [2008] 1 SCR 27, (2008), 290 DLR (4th) 21, [2008] 4 WWR 381, (2008) 76 BCLR (4th) 1
Links: Canlii
Coram: McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii (Supreme Court of Canada) Damages – Past and future wage loss – Periods of incarceration – Plaintiff seeking damages for injuries suffered as consequence of sexual assaults – Whether plaintiff entitled to compensation for wage loss while he was incarcerated – Whether plaintiff can be compensated for time spent in prison after he became eligible for parole – Whether recovery for past wage loss while incarcerated barred by application of ex turpi causa non oritur actio doctrine or novus actus interveniens doctrine – Whether Court of Appeal erred in reducing award for loss of future earnings.
Canlii In 1988, Z was twice sexually assaulted by a prison official while imprisoned for a break and enter committed to support a crack cocaine addiction. After his release from prison, Z became addicted to heroin and a repeat offender. He was in prison for 12 of the next 15 years. In 2003, Z commenced an action seeking damages for the sexual assaults. A psychologist testified that the assaults caused Z to start using heroin and exacerbated his substance abuse and criminality. Z was awarded general and aggravated damages, the cost of future counselling, and compensation for past and future wage losses. The award for past wage losses included compensation for time spent in prison. The Court of Appeal reduced the award for past wage loss in order to compensate Z only for the time spent in prison after eligibility for parole and it reduced Z’s future wage loss by 30 percent to reflect his high risk of recidivism.
Held: The appeal should be allowed and the cross-appeal should be dismissed.
This case is cited by:

  • Cited – Gray -v- Thames Trains and Others HL (Bailii, [2009] UKHL 33, Times, [2009] PIQR P22, (2009) 108 BMLR 205, [2009] 4 All ER 81, [2009] 3 WLR 167)
    The claimant had been severely injured in a rail crash caused by the defendant’s negligence. Under this condition, the claimant had gone on to kill another person, and he had been detained under section 41. He now sought damages for his loss of . .

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

References: [1858] EngR 669, (1858) 3 H & N 211, (1858) 157 ER 448
Links: Commonlii
In an action on the 9 & 10 Vict c. 93, for injury resulting from death, the damages should be calculated in reference to a reasonable expectation of pecuniary benefit, its of right or otherwise, from the continuance of the life. In an action by a father for injury resulting from the death of his son, it appeared that the father was old and infirm, that the son, who was young and earning good wages, assisted his father in some work for which the father was paid 3s 6d. a week. The jury having found that the father had a reasonable expectation of benefit from the continuatice of his son’s life : Held, that the action was maintainable.
This case is cited by:

  • Cited – Hay -v- Hughes CA ([1975] QB 790, Bailii, [1974] EWCA Civ 9)
    A couple had died in a road accident. The court considered the award of damages for dependency. . .

The ‘Nukila’: CA 1987

References: [1987] 2 Lloyd’s Rep 146
Coram: Hobhouse LJ
Hobhouse LJ said: ‘Turning to the authorities it must at the outset be recognised that, whether or not they are strictly binding on us, they must, insofar as they represent the existing authoritative statements of the law only be departed from if they are clearly wrong. This principle has been stated on a number of occasions in the field of commercial law where it is recognised that the parties enter into contracts on the basis of the law as it has been stated in the applicable authorities. For a Court, in deciding a dispute under a commercial contract, later to depart from those authorities risks a failure to give effect to a contractual intention of those parties as evidenced by their contract entered into on a certain understanding of the law. ‘
This case cites:

  • Cited – Atlantic Shipping & Trading Co -v- Louis Dreyfus & Co HL ([1921] 2 AC 250, [1922] 10 Ll Rep 703)
    Lord Dunedin said: ‘My Lords in these commercial cases it is I think of the highest importance that authorities should not be disturbed and if your lordships find that a certain doctrine has been laid down in former cases and presumably acted upon . .

This case is cited by:

  • Cited – Transfield Shipping Inc of Panama -v- Mercator Shipping Inc of Monrovia ComC (Bailii, [2006] EWHC 3030 (Comm), [2007] 1 Lloyd’s Rep 19, [2007] 1 All ER (Comm) 379, [2006] 2 CLC 1069)
    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 . .

Cavanagh v London Transport Executive; 23 Oct 1956

References: Times 23-Oct-1956
Coram: Devlin J
The deceased stepped onto the road just behind a taxi cab which was stationary or just drawing up. He neither saw nor heard an approaching number bus and walked directly into its path. He suffered a fractured skull. There was evidence that his mental processes became grossly abnormal. Some sixteen months after the accident he committed suicide.
Held: The court was satisfied that ‘an irrational state of mind arising from his head injuries was a cause, if not the main cause, of his suicide.’ The judge ‘would, if necessary, hold that the plaintiff (the widow of the deceased) had discharged the burden of causation upon her and that the financial worry did not amount to a novus actus. But if, looked at independently of its origins it would amount to a novus actus, he was satisfied that the deceased’s financial position in January, 1955, could be traced back to the accident.’
This case is cited by:

  • Cited – Corr -v- IBC Vehicles Ltd CA (Bailii, [2006] EWCA Civ 331, Times 21-Apr-06, [2006] ICR 1138, [2007] QB 46, [2006] 2 All ER 929, [2006] 3 WLR 395)
    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 . .

Breavington v Godleman; 18 Aug 1988

References: [1988] HCA 40, (1988) 169 CLR 41, (1988) 80 ALR 362, (1988) 62 ALJR 447, (1988) 7 MVR 289
Links: Austlii
Coram: Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey, Gaudron JJ
Austlii (High Court of Australia) – Private International Law – Tort – Negligence – Act committed in Territory – Personal injury – Territory statute imposing limit on amount of damages – Action in State court – No limit on amount of damages under State law – Choice of law – Whether law of place of tortious act or of forum – The Constitution (63 and 64 Vict. c. 12), ss. 118, 122 – Motor Accidents (Compensation) Act 1979 (N.T.), ss. 4,5 – State and Territorial Laws and Records Recognition Act 1901 (Cth), s. 18.
Federal Jurisdiction – Conflict of laws – Full faith and credit – Whether State court required to give full faith and credit to Territory statute – Whether law of Territory a law of the Commonwealth – Inconsistency – The Constitution (63 and 64 Vict. c. 12), ss. 109, 118 – State and Territorial Laws and Recognition Act 1901 (Cth), s. 18.
Federal Jurisdiction – Action in State court against Commonwealth – Submission to jurisdiction – Whether federal jurisdiction – Whether State choice of law rules apply – The Constitution (63 and 64 Vict. c. 12), ss. 75(iii), 78 – Judiciary Act 1903 (Cth), ss. 39(2), 56, 64, 79.
This case is cited by:

  • Cited – Roerig -v- Valiant Trawlers Ltd CA ([2002] All ER (D) 234, Bailii, [2002] EWCA Civ 21, [2002] 1 WLR 2304)
    The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
  • Cited – Roerig -v- Valiant Trawlers Ltd CA ([2002] All ER (D) 234, Bailii, [2002] EWCA Civ 21, [2002] 1 WLR 2304)
    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 . .

Robinson v Harman; 18 Jan 1848

References: [1848] 1 Exch Rep 850, (1843-60) All ER 383, [1848] EngR 135, (1848) 1 Exch 850, (1848) 154 ER 363
Links: Commonlii
Coram: Baron Parke
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 a party sustains a loss by reason of a breach of contract, he is, so far as money can do it to be placed in the same situation, with regard to damages as if the contract had been performed.’
This case is cited by:

  • Cited – Husain and Zafar -v- Bank of Credit & Commerce International SA CA (Bailii, [2002] EWCA Civ 82, [2002] 3 All ER 750, [2002] ICR 1258, [2002] IRLR 460, [2002] Emp LR 406, A3/2001/9016/CHANF)
    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 – HM Attorney General -v- Blake (Jonathan Cape Ltd third Party intervening) HL (Gazette 17-Aug-00, Times 03-Aug-00, House of Lords, Bailii, [2000] UKHL 45, [2000] 4 All ER 385, [2000] 3 WLR 625, [2001] 1 AC 268)
    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 . .
  • Applied – Surrey County Council and Mole District Council -v- Bredero Homes Ltd ChD ([1992] 3 All ER 302)
    Land was agreed to be sold for development in accordance with an existing planning permission. Instead a later permission was obtained, and more houses were built. The plaintiff had not sought to restrain or prevent the breach, but now sought . .
  • Cited – Alfred Mcalpine Construction Limited -v- Panatown Limited HL (Times 15-Aug-00, House of Lords, Gazette 05-Oct-00, Bailii, [2000] UKHL 43, [2000] 4 All ER 97, [2000] 3 WLR 946, [2001] 1 AC 518)
    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 (Bailii, [2000] EWHC Technology 137, 1997 TCC No 219)
    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 (Bailii, [2005] EWHC 2315 (TCC))
    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 – Golden Strait Corporation -v- Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL (Bailii, [2007] UKHL 12, Times 30-Mar-07, [2007] 2 Lloyds Rep 164, [2007] Bus LR 997, [2007] 3 All ER 1, [2007] 2 AC 353, [2007] 1 CLC 352, [2007] 2 WLR 691, [2007] 2 All ER (Comm) 97)
    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 – Transfield Shipping Inc -v- Mercator Shipping Inc (The Achilleas) HL (Bailii, [2008] UKHL 48, Times 10-Jul-08, HL)
    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 – Ruxley Electronics and Construction Ltd -v- Forsyth HL (Independent 12-Jul-95, Gazette 06-Sep-95, Times 03-Jul-95, [1996] 1 AC 344, [1995] 3 WLR 118, Bailii, [1995] UKHL 8, [1995] CLC 905, [1995] 3 All ER 268)
    The appellant had constructed to build a swimming pool for the respondent, but, after agreeing to alter the sepcification to construct it to a certan depth, in fact built it to the original lower depth, Damages had been awarded to the house owner . .

Farrell v Avon Health Authority; 8 Mar 2001

References: [2001] All ER (D) 17
Coram: Judge Bursell QC
The claimant was father to a new-born child. At the birth he was told that his baby son was dead before seeing his son and understanding that an error had been made. He sought damages asserting that he had suffered nervous shock. The Hospital said that he was not able to recover for psychiatric injury where no possibility of a physical injury was forseeable.
Held: He succeeded. As a primary victim a claim for psychiatric injury was possible even where no physical injury was risked. A real risk of suffering a recognised psychiatric disorder was sufficient.

Radford v De Froberville; 2 Jan 1977

References: [1977] 1 WLR 1262
Coram: Oliver J
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 certain specification on the plot so as to separate it from the plaintiff’s land. The plaintiff obtained judgment against the defendant for damages for breach of contract by reason of her failure to erect the dividing wall, but an issue arose as to the measure of the damages. The defendant having failed to build the dividing wall on the land purchased from the plaintiff, the plaintiff proposed to build a dividing wall on his own land, and claimed the cost of doing so from the defendant; whereas the defendant maintained that the appropriate measure of damages was the consequent diminution in the value of the plaintiff’s property, which was nil.
Held: The court described the distinction made in the Liesbosch between a plaintiff’s capacity to mitigate his loss and his duty to do so: ‘No doubt the measure of damages and the plaintiff’s duty and ability to mitigate are logically distinct concepts (see for instance, the speech of Lord Wright in Liesbosch (Dredger) v SS Edison (Owners) [1933] AC 449, 456-469). But to some extent, at least, they are mirror images . .’ A contracting party should not use the remedy of damages to recover ‘an uncovenanted profit.’ However: ‘If [the plaintiff] contracts for the supply of that which he thinks serves his interests – be they commercial, aesthetic or merely eccentric – then if that which is contracted for is not supplied by the other contracting party I do not see why, in principle, he should not be compensated by being provided with the cost of supplying it through someone else or in a different way, subject to the proviso, of course, that he is seeking compensation for a genuine loss and not merely using a technical breach to secure an uncovenanted profit.’ It was for the plaintiff to judge what performance he required in exchange for the price. The court should honour that choice.
Oliver J said: ‘In the instant case, the plaintiff says in evidence that he wishes to carry out the work on his own land and there are, as it seems to me, three questions that I have to answer. First, am I satisfied on the evidence that the plaintiff has a genuine and serious intention of doing the work? Secondly, is the carrying out of the work on his own land a reasonable thing for the plaintiff to do? Thirdly, does it make any difference that the plaintiff is not personally in occupation of the land but desires to do the work for the benefit of his tenants?’
This case cites:

  • Cited – Liesbosch Dredger (Owners of) -v- Owners of SS Edison, The Liesbosch HL ([1933] AC 449, [1933] All ER Rep 144, [1933] 149 LT 49, Bailii, [1933] UKHL 2)
    The ship Edison fouled the moorings of the Liesbosch resulting in the total loss of the dredger when it sank. It had been engaged on work in the harbour under contract with the harbour board. All the owners’ liquid resources were engaged in the . .
  • Cited – Jackson -v- Horizon Holidays Ltd CA ([1975] 1 WLR 1468, Bailii, [1974] EWCA Civ 12, [1975] 3 All ER 92)
    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 – Tito -v- Waddell (No 2); Tito -v-Attorney General ChD ([1977] Ch 106, [1977] 3 All ER 129, [1977] 3 WLR 972)
    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 . .

This case is cited by:

  • Cited – Lagden -v- O’Connor HL (House of Lords, [2003] UKHL 64, Bailii, Times 05-Dec-03, [2004] 1 AC 1067, [2004] 1 All ER 277, [2003] 3 WLR 1571, [2004] Lloyd’s Rep IR 315, [2004] RTR 24)
    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 . .
  • Approved – Dodd Properties (Kent) Ltd -v- Canterbury City Council CA ([1980] 1 WLR 433, Bailii, [1980] 1 All ER 928, [1979] EWCA Civ 4)
    The defendants had, in the course of building operations, caused nuisance and damage to the plaintiff’s building. The dispute was very lengthy, the costs of repair increased accordingly, and the parties now disputed the date at which damages fell to . .
  • Cited – Alfred Mcalpine Construction Limited -v- Panatown Limited HL (Times 15-Aug-00, House of Lords, Gazette 05-Oct-00, Bailii, [2000] UKHL 43, [2000] 4 All ER 97, [2000] 3 WLR 946, [2001] 1 AC 518)
    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 – Golden Strait Corporation -v- Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL (Bailii, [2007] UKHL 12, Times 30-Mar-07, [2007] 2 Lloyds Rep 164, [2007] Bus LR 997, [2007] 3 All ER 1, [2007] 2 AC 353, [2007] 1 CLC 352, [2007] 2 WLR 691, [2007] 2 All ER (Comm) 97)
    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 – Johnson -v- Agnew HL ([1980] AC 367, [1979] 2 WLR 487, [1979] 1 All ER 883)
    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 – Alcoa Minerals of Jamaica Inc -v- Herbert Broderick PC (Times 22-Mar-00, Bailii, PC, PC, [2002] 1 AC 371, [2000] UKPC 11, (Appeal No 68 of 1998))
    (Jamaica) Damage had been caused to the claimant’s property, but, because of his lack of funds, he was dependent upon the receipt of the damages to carry out the works of repair necessary. By the time the matter came to trial, inflation meant that . .
  • Cited – Ruxley Electronics and Construction Ltd -v- Forsyth HL (Independent 12-Jul-95, Gazette 06-Sep-95, Times 03-Jul-95, [1996] 1 AC 344, [1995] 3 WLR 118, Bailii, [1995] UKHL 8, [1995] CLC 905, [1995] 3 All ER 268)
    The appellant had constructed to build a swimming pool for the respondent, but, after agreeing to alter the sepcification to construct it to a certan depth, in fact built it to the original lower depth, Damages had been awarded to the house owner . .

Crampton v Nugawela; 23 Dec 1996

References: [1997] Aust Torts Reports 81-416, (1996) 41 NSWLR 176, [1996] NSWSC 651
Links: Austlii
Coram: Mahoney ACJ, Handley JA, Giles AJA
(Supreme Court of New South Wales) Defamation – Damages – Aggravated and general damages – Economic loss with respect to professional standing – Principles relevant to assessment of damages for defamation – Relationship to damages for serious personal injury
When considering the likelihood of repetition of a libel once published, the court spoke of ‘the grapevine effect’.
This case is cited by:

  • Cited – Cairns -v- Modi CA ([2012] WLR(D) 302, Bailii, [2012] EWCA Civ 1382, WLRD, Gazette)
    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 . .

Shetland Sea Farms Ltd, Assuranceforeningen Skuld v International Oil Pollution Compensation Fund and others; ScS 28 May 2003

References: [2003] ScotCS 153
Links: Bailii, ScotC
Coram: Lord Hardie
The claimant’s fish farm had been damaged followng the discharge of oil from the Braer. The responders operated a scheme for compensation for losses. The parties disputed the entitlement of the claimants to compensation for losses following their inability to introduce smolt into the farm.

Martel Building Ltd v Canada; 30 Nov 2000

References: 2000 SCC 60, [2000] 2 SCR 860
Links: Canlii
Coram: McLachlin CJ, Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ
Canlii Supreme Court of Canada – Torts – Negligence – Economic loss – Whether Canadian law recognizes duty of care on parties in commercial negotiations – Whether tort of negligence extends to damages for pure economic loss arising out of conduct of pre-contractual negotiations.
Torts – Negligence – Economic loss – Whether tender-calling authority owed duty of care to bidders in drafting tender specifications – Whether sphere of recovery for pure economic loss should be extended to cover circumstances surrounding preparation of tender specifications.
Contracts – Tenders – Obligation to treat all bidders fairly – Whether tender-calling authority breached its implied contractual duty to treat all bidders fairly and equally – If so, whether bidder’s loss caused by contractual breach.
The prospect of causing deprivation by economic loss is implicit in the negotiating environment
This case is cited by:

  • Cited – Cramaso Llp -v- Ogilvie-Grant, Earl of Seafield and Others SC (Bailii, [2014] UKSC 9, 2014 SLT 521, [2014] 2 All ER 270, [2014] WLR(D) 64, [2014] 2 WLR 317, WLRD, UKSC 2012/0025, SC Summary, SC)
    The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .

Robertson Or Macey-Lillie v Lanarkshire Health Board andC: OHCS 26 May 2000

References: Times 28-Jun-2000, [2000] ScotCS 136
Links: Bailii, ScotC
Coram: Lord Philip
Economic circumstances have not changed sufficiently yet to alter the rate of three per cent used when calculating damages in personal injury cases. Though the returns on government stocks had fallen the figure of two per cent was not yet appropriate, and lay within the range of returns contemplated when the original figures had been set.
Statutes: Damages Act 1996

Hogg v Kirby; 15 Mar 1803

References: [1803] EngR 513, (1803) 8 Ves Jun 215, (1803) 32 ER 336 (B)
Links: Commonlii
Coram: Lord Eldon LC
Injunction to restrain publishing a Magazine as a continuation of the Plaintiff’s Magazine in numbers, and as to communications from correspondents, received by the Defendant while publishing for the Plaintiff ; not preventing the publication of an original work of the same nature, and under a similar title. The Plaintiff was proprietor of a work, published in monthly numbers under the title ‘The Wonderful Magazine’.
Held: In assessing damages in a passing off case, the court said, ‘what is the consequence in Law and in Equity? . . a Court of Equity in these cases is not content with an action for damages; for it is nearly impossible to know the extent of the damage; and therefore the remedy here, though not compensating the pecuniary damage except by an account of profits, is the best: the remedy by an injunction and account.’ The reason for the general rule in courts of equity that an injunction would be granted as a matter of course to restrain infringements of property rights was the inadequacy of damages as a remedy.’
This case cites:

  • See Also – Hogg -v- Kirby (Commonlii, [1789] EngR 1227, (1789-1817) 2 Ves Jun Supp 100, (1789) 34 ER 1013 (B))
    . .

This case is cited by:

  • Cited – HM Attorney General -v- Blake (Jonathan Cape Ltd third Party intervening) HL (Gazette 17-Aug-00, Times 03-Aug-00, House of Lords, Bailii, [2000] UKHL 45, [2000] 4 All ER 385, [2000] 3 WLR 625, [2001] 1 AC 268)
    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 – Ludlow Music Inc -v- Williams and others ChD (Bailii, [2000] EWHC 456 (Ch), [2001] EMLR 7, [2001] FSR 19)
    The claimant sought damages for copyright infringement in respect of two works which parodied a song to which they owned the rights.
    Held: The amount copied, being as much as a quarter of the original work, meant that the claim was . .

Cullinane v British ‘Rema’ Manufacturing Co Ltd: CA 1954

References: [1954] 1 QB 292
Coram: Lord Evershed MR, Jenkins LJ
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 it is pleaded was not sustainable, in so far as the plaintiff sought to recover both the whole of his original capital loss and also the whole of the profit which he could have made. I think that that is really a self-evident proposition, because a claim for loss of profits could only be founded upon the footing that the capital expenditure had been incurred.’ and
‘In the present case it is plain that to the knowledge of the defendants this machine was required to perform a particular function, and the warranty given shows what the function was that the machine was designed to perform. There is, therefore, no doubt at all that the plaintiff is entitled to rely on [the second limb of the rule in Hadley v Baxendale], and to claim as damages the business loss which must reasonably be supposed to have been, in the contemplation of both parties at the time when they made the contract, the probable result of the breach. In other words, this plaintiff is not confined to the loss which might be called the natural result of having a machine which turned out to be less that the purchase he has paid for it.’
This case is cited by:

  • Cited – Watford Electronics Ltd -v- Sanderson CFL Ltd CA (Gazette 03-May-01, Bailii, [2001] EWCA Civ 317, [2001] 1 All ER (Comm) 696, [2001] BLR 143, [2002] FSR 19, (2001) 3 TCLR 14, [2001] Masons CLR 57)
    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 – Astea (Uk) Ltd -v- Time Group Ltd TCC (Bailii, [2003] EWHC 725 (TCC), [2003] All ER (D) 212)
    The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
  • Cited – Anglia Television -v- Oliver Reed CA ([1972] 1 QB 60, [1971] 3 All ER 690)
    The television company had agreed with the actor defendant for him to appear in a production. He breached the contract. The company sought both loss of profits and for the expense incurred. The issue before the Court of Appeal was whether such . .
  • Cited – Anglo Group Plc, Winther Brown & Co Ltd -v- Winter Brown & Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd TCC (Bailii, [2000] EWHC Technology 127)
    cs Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses . .
  • Cited – East -v- Maurer CA ([1991] 1 WLR 461, Bailii, [1990] EWCA Civ 6, [1991] 2 All ER 733)
    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 he defendant. They invested to try to make a . .
  • Cited – Parker and Another -v- SJ Berwin & Co and Another QBD (Bailii, [2008] EWHC 3017 (QB))
    The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
  • Cited – Omak Maritime Ltd -v- Mamola Challenger Shipping Co Ltd ComC ([2010] WLR (D) 230, [2010] EWHC 2026 (Comm), Bailii, WLRD)
    The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
  • Cited – Bowlay Logging Limited -v- Domtar Limited ([1978] 4 WWR 105)
    (Canada) The parties contracted for the claimant to cut timber and the defendant to haul it. The plaintiff said that the defendant breached the contract by supplying insufficient trucks to haul the timber away, and claimed as damages his wasted . .

SIB International SRL v Metallgesellschaft Corporation (‘The Noel Bay’): CA 1989

References: [1989] 1 Lloyd’s Rep 361
Coram: Staughton LJ
The Noel Bay was let on a charterparty to carry oil between ports in Europe, with demurrage provisions. The owners treated the charterer’s failure to nominate a port, as a repudiation. The owners found alternative employment for the ship and sought the difference in return as damages and demurrage for 72 hours which they would have earned together with the cost of getting the ship to the new port. They appealed refusal of the award of these additional sums.
Held: The appeal failed. Though they would have earned the demurrage had the contract continued, since it had not been, the proper basis for delay, giving credit for earnings in that period. The cost of getting the ship to the new port (the approach voyage) was part of the cost of the new contract for which the owner had to give credit. Staughton LJ accepted counsel’s submission that the value of the contract which the owners lost ‘must be assessed as at . . the date when repudiation was accepted’ and ‘It is established law that, at any rate if the option has not already been exercised at the date of the breach, the charterer must be assumed to have exercised that option in a way most favourable to himself.’
This case cites:

  • Approved (Megaw LJ) – Maredelanto Compania Naviera SA -v- BergbauHandel GmbH (The Mihalis Angelos) CA ([1971] 1 QB 164, Bailii, [1970] EWCA Civ 4, [1970] 3 WLR 601, [1970] 2 Lloyd’s Rep 43, [1970] 3 All ER 125)
    The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .

This case is cited by:

  • Cited – Golden Strait Corporation -v- Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL (Bailii, [2007] UKHL 12, Times 30-Mar-07, [2007] 2 Lloyds Rep 164, [2007] Bus LR 997, [2007] 3 All ER 1, [2007] 2 AC 353, [2007] 1 CLC 352, [2007] 2 WLR 691, [2007] 2 All ER (Comm) 97)
    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 . .

Hamlin v Great Northern Railway Co; 19 Nov 1856

References: (1856) 1 H & N 408, [1856] EngR 918, (1856) 156 ER 1261
Links: Commonlii
Coram: Pollock CB
A plaintiff can recover whatever damages naturally resulted from the breach of contract, but damages cannot be given ‘for the disappointment of mind occasioned by the breach of contract.’
This case is cited by:

  • Not Followed – Jarvis -v- Swans Tours Ltd CA (lip, [1973] 1 All ER 71, [1972] 3 WLR 954, [1973] QB 233, Bailii, [1972] EWCA Civ 8)
    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, . .

Kemble v Farren; 6 Jul 1829

References: [1829] EngR 590, (1829) 5 Bing 141, (1829) 130 ER 1234
Links: Commonlii
Coram: Tindall CJ
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.’
This case cites:

  • See Also – Kemble -v- Farren CCP (Commonlii, [1829] EngR 519, (1829) 3 Car & P 623, (1829) 172 ER 574 (A))
    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 . .

(This list may be incomplete)
This case is cited by:

  • Cited – Dunlop Pneumatic Tyre Company Ltd -v- New Garage and Motor Company Ltd HL ([1915] AC 67, Bailii, [1914] UKHL 1, (1904) 12 SLT 498, (1904) 7 F (HL) 77)
    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 (Bailii, [2015] EWCA Civ 402)
    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. The judge had found that the appellant was in breach of a . .

(This list may be incomplete)
Last Update: 04-Feb-16 Ref: 322458

Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others Appeals: CA 24 Feb 1995

References: Times 24-Feb-95, Gazette 22-Mar-95, Times 21-Feb-95, [1995] QB 375
Damages payable to a secured lender for a negligent valuation included losses attributable to general market. Discussing liability where two causes contributed to the damages: ‘the event which the plaintiff alleges to be causative need not be the only or even the main cause of the result complained of: it is enough if it is an effective cause’
This case cites:

This case is cited by:

  • Appeal from – South Australia Asset Management Corporation -v- York Montague Ltd etc HL (Gazette 04-Sep-96, Times 24-Jun-96, [1997] AC 191, [1996] PNLR 455, [1996] 27 EG 125, [1996] 3 WLR 87, Bailii, [1996] UKHL 10, [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)
    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 – Paterson and Another -v- Humberside County Council QBD (Times 19-Apr-95, [1995] CLY 3661, [1996] Const LJ 64)
    A local authority was liable for nuisance for damage (cracks to house) caused by tree roots once it could be shown that it knew of the soil condition, by virtue of the council’s own warnings to residents of the danger in the area meant that the . .
  • Cited – Helmsley Acceptances Ltd -v- Hampton CA (Bailii, [2010] EWCA Civ 356)
    The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
    Held: The . .

Foss v Harbottle; 25 Mar 1843

References: [1843] 67 ER 189, [1843] EngR 478, (1843) 2 Hare 461
Links: Commonlii
Coram: Wigram VC, Jenkins LJ
Ratio 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. 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 voise raised against it.
Ratio 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.’
This case is cited by:

  • Cited – Johnson -v- Gore Wood and Co (a Firm) CA (Bailii, [1998] EWCA Civ 1763, [1999] BCC 474)
    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] 1 WLR 843)
    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] Ch 204)
    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 (Bailii, [2005] EWCA Civ 1601, Times 02-Jan-06)
    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 (Bailii, [2008] EWCA Civ 2, [2008] CP Rep 18, [2008] 1 WLR 823)
    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 (Bailii, [2009] EWCA Civ 830)
    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] QB 373, [1975] 1 All ER 849, [1975] 2 WLR 389)
    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 (Bailii, [2009] EWHC 2526 (Ch), [2011] 1 BCLC 498, [2010] BCC 420)
    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] BCLC 355)
    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 (Bailii, [2003] EWHC 1064 (Ch), [2003] 2 BCLC 84, [2003] WTLR 1241)
    The claimant sought to claim against former directors of a company in which it held shares under the rule in Foss v Harbottle. . .

(This list may be incomplete)
Last Update: 09-Mar-16 Ref: 180903