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Damages - From: 1960 To: 1969

This page lists 90 cases, and was prepared on 27 May 2018.

 
Judd v Board of Governors, Hammersmith, West London and St. Mark's Hospitals [1960] 1 WLR 32; [1960] 1 All ER 607
1960

Finnemore J
Damages
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 period.
1 Cites

1 Citers


 
Watson v Ramsay (1960) 78 WN (NSW) 64
1960

Brereton J
Commonwealth, Damages
(New South Wales) The right to have a pension or the chance of having a pension from his employer is part of what a servant earns by his labour. The distinction is not valid.
1 Citers


 
Gage v King [1961] 1 QB 188; [1960] 3 All ER 62
1960

Diplock J
Personal Injury, Damages
The issue was as to the recoverability, in personal injury proceedings, of the wife's medical expenses which had been paid for by the husband out of the joint account. After referring to the findings which a court may be driven to make in relation to a joint account as between husband and wife where the marriage has ended by death or divorce: "But what is to happen to the balance in the joint account when the marriage breaks up is a very different question from that of the mutual rights of the parties in relation to the account while the marriage is still subsisting. As I have said, I do not think that such an arrangement between husband and wife is meant to be attended with legal consequences as between the two spouses while the marriage is still subsisting. Mrs Gage's right to draw upon the joint account was subject to no legal limitation . .
1 Citers


 
National Insurance Co of New Zealand Ltd The v Espagne [1961] ALR 627; (1961) 105 CLR 569
1961


Commonwealth, Damages
The court considered the relevance of a pension awarded to an injured person.
1 Citers


 
Graham v Baker (1961) 106 CLR 340
1961


Damages
The court considered whether a pension received by a plaintiff should affect the damages to be awarded.
1 Citers



 
 Berry v British Transport Commission; QBD 1961 - [1961] 1 QB 149
 
Dingle v Associated Newspapers [1961] 2 QB 162
1961
CA
Devlin LJ
Defamation, Damages
A defamation of the claimant had been published and then repeated by others. Held: The court discussed the logical impossibility of apportioning damage between different tortfeasors: "Where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it. As between the plaintiff and the defendant it is immaterial that there are others whose acts also have been a cause of the injury and it does not matter whether those others have or have not a good defence. These factors would be relevant in a claim between tortfeasors for contribution, but the plaintiff is not concerned with that; he can obtain judgment for total compensation from anyone whose act has been a cause of his injury. If there are more than one of such persons, it is immaterial to the plaintiff whether they are joint tortfeasors or not. If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month's wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law."
1 Citers


 
Bearmans Ltd v Metropolitan Police District Receiver [1961] 1 WLR 634; [1961] 1 All ER 384
1961
CA
Sellers LJ, Devlin LJ
Police, Damages, Evidence
Sellers LJ said: "The second plaintiffs had paid some £5,000 for that theft; and for their respective losses these plaintiffs sought to recover damages under the Riot (Damages) Act, 1886"
The court considered that a liberal approach was appropriate for the admissibility of hearsay evidence in civil proceedings.
Riot (Damages) Act 1886
1 Citers



 
 Stokes v Cambridge Corporation; LT 1961 - (1961) 13 P & CR 77; (1961) 180 EG 839
 
Oliver v Ashman [1961] 3 WLR 669; [1961] 3 All ER 323; [1962] 2 QB 210
1961
CA

Damages, Personal Injury
The rule that loss of earnings, in the years lost to an injured plaintiff whose life expectancy had been shortened, were not recoverable, was still good law.
1 Citers



 
 Macrae v Reed and Mallik Ltd; SCS 1961 - 1961 SC 68
 
Berry v British Transport Commission (1962) 1 QB 306; [1961] 3 All ER 65; [1961] 3 WLR 450; 105 Sol Jo 587
1961
CA
Devlin LJ
Torts - Other, Costs, Damages
The plaintiff had been prosecuted by the defendant for pulling the emergency cord on a train without proper cause. After acquittal and payment of part of her costs, she sued for malicious prosecution, saying the damages were the part of her defence costs not awarded. The defendant replied that this was not claimable loss. Held: The award of costs included no element of compensation, and that therefore her claim stood.
Devlin said: "the rule of the law of damages that if costs were awarded in hostile civil litigation nothing beyond the taxed amount could be recovered by the successful party from the unsuccessful party rested on the presumption that the award of costs (as between party and party) gave compensation for the cost of litigation so far as the law allowed, and the reason for the rule was that the law could not permit the question of the amount of costs to be litigated a second time between the same parties in new proceedings; it was however a fiction that costs taxed between party and party were the same as costs reasonably incurred and the law should recognise that an assessment of damage and a taxation of party and party costs were two different things. The rule should not be extended to criminal cases, because the principles governing the award of costs in civil and criminal cases were not the same; for in criminal cases a successful defendant had no prima facie entitlement to an award of costs, as the prosecution was brought in the public interest, and an award of costs need not be directed to quantifying the damage and indemnifying the accused according to a conventional measure."
A charge of a statutory offence punishable only by fine would not support an action for malicious prosecution unless the charge was such as to injure the "fair fame" (that is, was necessarily and naturally defamatory) of the person charged.
Railways Act 1868
1 Cites

1 Citers


 
Paff v Speed (1961) 105 CLR 549
6 Apr 1961

Windeyer
Damages
(High Court of Australia) "The first consideration is what is the nature of the loss or damage which the plaintiff says he has suffered."
1 Citers

[ Austlii ]
 
Performance Cars Ltd v Abraham [1961] EWCA Civ 3; [1961] 3 All ER 413; [1961] 3 WLR 749; [1962] 1 QB 33
28 Jul 1961
CA
Lord Evershed MR, Harman LJ, Donovan LJ
Damages, Road Traffic
The plaintff sought damages after a collision, but the car had already been damaged in a previous accident, the repair of which would cover the second accident. Lord Evershed MR said: "In my judgment in the present case the defendant should be taken to have injured a motor-car that was already in certain respects (that is in respect of the need for respraying) injured; with the result that to the extent of that need or injury the damage claimed did not flow from the defendant's wrongdoing. It may no doubt be unfortunate for the plaintiffs that the collisions took place in the order in which they did."
Donovan LJ said: "The question as I see it is this: what extra burden in the matter of respraying was put upon the plaintiff company by the second collision? To my mind the answer must be: None, for the earlier collision had already imposed the burden of respraying upon them."
1 Citers

[ Bailii ]
 
Wise v Kaye [1961] EWCA Civ 2; [1962] 1 QB 638; [1962] 1 All ER 257; [1962] 2 WLR 96
1 Dec 1961
CA
Sellers LJ, Upjohn LJ, Diplock LJ
Personal Injury, Damages

1 Citers

[ Bailii ]
 
Smith v Leech Brain and Co Ltd [1962] 2 QB 405
1962
CA
Lord Parker LCJ
Negligence, Damages
The reasoning in The Wagon Mound did not affect the rule that a tortfeasor takes his victim as he finds him.
Lord Parker CJ said: "The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and that [the victim] would die. The question is whether these employers could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim."
1 Cites

1 Citers


 
Overstone Ltd v Shipway [1962] 1 WLR 117
1962


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



 
 Browning v War Office; CA 1962 - [1963] 1 QB 750; [1962] 3 All ER 1089
 
Cooper v Firth Brown Ltd [1963] 1 WLR 418
1963


Damages
When calculating losses of earnings, the court must allow for National Insurance contributions which would have had to have been paid by the plaintiff.
1 Citers


 
Derbyshire v Warren [1963] 1 WLR 1067
1963

Pearson LJ
Damages
The plaintiff cannot recover from the defendant by way of damages any sum greater than what is reasonably necessary for the purpose of making good his loss.
1 Citers


 
Penarth Dock Engineering Co Ltd v Pounds [1963] 1 LlR 359
1963


Damages
The court considered the level of damages to be awarded for misuse of property (failing to remove a floating dock) which the owner would not have used. The sum was the reasonable cost of hire.
1 Citers


 
Pennard Dock Engineering Co Ltd v Pounds [1963] 1 LI 359
1963


Land, Damages

1 Citers


 
Curwen v James [1963] 1 WLR 748
1963
CA

Personal Injury, Damages
An appeal court had a discretion to hear relevant evidence of events after the date of judgment, in this case a change in circumstances of the victim's widow, when considering a claim for damages for personal injury, where that evidence would clearly have impacted on the award.
1 Citers


 
Parsons v BNM Laboratories Ltd [1963] 2 All ER 658; [1964] 1 QB 95; [1963] 2 WLR 1273
1963
CA
Sellers LJ, Harman LJ, Pearson LJ
Damages, Employment
Unemployment benefit was deductible from damages for wrongful dismissal. The benefit was not "purely personal", the employer had made a contribution, and the plaintif had a duty to mitigate his loss (Sellers LJ). The benefit was not "truly analogous" to insurance moneys" (Harman LJ). It was not too remote a consequence of the wrongdoing and was payable as a matter of general right rather than by virtue of a private insurance policy (Pearson LJ).
1 Citers


 
Smith v Canadian Pacific Railway Company (1963) 41 DLR (2d) 249
1963


Commonwealth, Damages
(Canada - Saskatchan) A police officer had retired through injury and sought damages. The defendant sought to deduct his pension. Held: His police pension was to be apportioned so that the portion attributable to his own contributions were to be ignored entirely, whereas the portion attributable to his employers' contributions was to be taken into account.
1 Citers



 
 Shepherd v H West and Son Ltd; HL 27-May-1963 - [1963] UKHL 3; [1963] 2 All ER 625; [1963] 2 WLR 1359; [1964] AC 326

 
 Darbishire v Warran; CA 30-Jul-1963 - [1963] 1WLR 1067; [1963] EWCA Civ 2; [1963] 2 Lloyd's Rep 187; [1963] 3 All ER 310
 
Foxley v Olton [1964] 3 All ER 248; [1965] 2 QB 306; [1964] 3 WLR 1155
1964


Damages
Unemployment benefits received by a plaintiff must be set off against a claim for damages.
1 Citers


 
Malvon v Flummer [1964] 1 QB 349
1964

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


 
Westward Hardy [1964] CLY 994
1964

Havers J
Torts - Other, Damages
The defendant injured the plaintiff with a scythe in circumstances where the defendant erroneously believed that she was on his land. Held: the defendant’s conduct was wholly unjustifiable and malicious and awarded £550 for damages including aggravated damages.
1 Citers


 
Pevec v Brown [1964] 108 SJ 219
1964

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


 
Elstob v Robinson [1964] 1 WLR 726; [1964] 1 All ER 848
1964

Elwes J
Damages
The defendant sought to have taken into account when calculating the plaintiff's damages a service pension he received.
1 Cites

1 Citers


 
Eldridge v Videtta (1964) 108 Sol Jo 137
1964

Veale J
Damages
The court declined to take into account to reduce the damages, benefits received under the national assistance scheme.
1 Citers


 
Carroll v Hooper [1964] 1 WLR 345; [1964] 1 All ER 845
1964

Veale J
Damages
The defendant asked the court to deduct from the plaintiff's damages the service pension he received. Held: It should be disregarded as discretionary.
1 Citers


 
Edwards v Minister of Transport [1964] 2 QB 134
1964


Land, Damages
The landowner claimed for injurious affection of the remainder of his land after part was acquired by compulsory purchase. Held: The claim for injurious affection was confined to the effects of works and uses on the land taken.
Land Clauses Consolidation Act 1845 63
1 Citers



 
 Dingle v Associated Newspapers; HL 1964 - [1964] AC 371; [1972] UKHL 2
 
Davy v Leeds Corporation [1964] 3 All ER 390; [1964] 1 WLR 1218
1964
CA
Harman LJ
Land, Damages
Harman LJ described the section as 'monstrous legislative morass' and 'a Slough of Despond'.
Land Compensation Act 1961 6
1 Citers



 
 Rookes v Barnard (No 1); HL 21-Jan-1964 - [1964] AC 1129; [1964] UKHL 1

 
 Capital Investments Ltd v Wednesfield Urban District Council; ChD 12-Feb-1964 - [1965] Ch 774; (1964) 108 SJ 377; [1964] 2 WLR 932; [1964] 1 All ER 655; (1964) 128 JP 287; 62 LGR 566; 15 P & CR 435
 
Havery v Sharman Unreported, 28 February 1964
28 Feb 1964


Damages

1 Citers


 
McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86
1965
CA
Pearson, Willmer and Diplock LJJ
Damages, Defamation
References to damages awards in personal injury actions were legitimate in directing a defamation jury on quantum.
1 Cites

1 Citers



 
 Davy v Leeds Corporation; HL 1965 - [1965] 1 WLR 445
 
Manson v Associated Newspapers Ltd [1965] 1 WLR 1038
1965

Widgery J
Damages

1 Cites

1 Citers


 
East Ham Corporation v Bernard Sunley and Sons Ltd [1966] 1 AC 406; [1965] 3 All ER 619
1965
HL
Lord Upjohn, Lord Guest, Lord Cohen and Lord Pearson
Damages, Construction
In cases in which the plaintiff is seeking damages for the defective performance of a building contract, which is a contract for labour and materials, the normal measure of his damages is the cost of carrying out remedial work, or re-instatement. Reasonableness is a part of the primary assessment of damages as well as of mitigation of damage.
Lord Cohen said: "the learned editors of Hudson’s Building and Engineering Contracts, 8th ed. (1959) say at p.319 that there are in fact three possible bases of assessing damages, namely, (a) the cost of reinstatement; (b) the difference in cost to the builder of the actual work done and work specified; or (c) the diminution in value of the work due to the breach of contract. They go on: 'There is no doubt that wherever it is reasonable for the employer to insist upon reinstatement the courts will treat the cost of reinstatement as the measure of damage.' In the present case it could not be disputed that it was reasonable for the appellants to insist upon reinstatement and in these circumstances it necessarily follows that on the question of damage the trial judge arrived at the right conclusion.”
Lord Upjohn stated that in a case of defective building work reinstatement was the normal measure of damages.
1 Citers



 
 Broadway Approvals Ltd v Odhams Press Ltd (No 2); CA 1965 - [1965] 1 WLR 805
 
Jones v Gleeson (1965) 39 ALJR 258; [1966] ALR 235
1965


Commonwealth, Damages, Personal Injury
(Australia) When a policeman who had retired retired through injury sought damages for that injury, the pension he received as a result of his retirement was to be ignored entirely: "In recent years, however, the relevance or otherwise to the issue of damages of the fact that an injured person is entitled to a pension has been considered by this Court on several occasions (see Paff v. Speed; The National Insurance Co. of New Zealand, Ltd. v. Espagne, and Graham v. Baker n) and a very different view has been taken from that which is expressed in the majority judgments in Browning's case."
1 Cites

1 Citers


 
Ward v James [1966] 1 QB 273
1966
CA
Lord Denning MR
Personal Injury, Damages
The court rejected the suggestion that greater uniformity in awards of general damages in personal injury actions could be achieved by telling juries of awards in other cases, but instead abolished juries in such cases. Sums awarded are "basically a conventional figure derived from experience and from awards in comparable cases".

 
Fisher v CHT Ltd (No 2) [1966] 2 QB 475
1966

Lord Denning MR
Damages, Insolvency
Where more than one defendant is liable in damages, the court will make allowance for the insolvency of one when ordering a contribution from the others.
1 Citers


 
Camrose v Basingstoke Corporation [1966] 1 WLR 1100
1966
CA
Lord Denning, Davies LJ, Russell LJ
Land, Damages
Basingstoke was to be expanded to receive overspill population from London and the corporation contracted to purchase about 550 acres from a landowner on terms that the price would be assessed as though the land had been compulsorily acquired under the 1952 Act. About 383 of the 550 acres were, in the town development plan, designated for residential development. The question was whether the increase in the value of the intended residential land brought about by the town development scheme should be reflected in the compensation. The relevant Act for assessment of compensation purposes was 1961 Act. The first question was whether the case fell within one of the new statutory disregards. Held: On a literal reading of the statutory provisions, any increase in value of the relevant land attributable to the development, or the prospect of development, of the rest of the land in the town development plan was to be excluded, but any increase in value of the relevant land due to its own inclusion in the town development plan was not excluded. This conclusion as "contrary to commonsense". And "The explanation of section 6(1) is, I think, this: The legislature was aware of the general principle that, in assessing compensation for compulsory acquisition of a defined parcel of land, you do not take into account an increase in value of that parcel of land if the increase is entirely due to the scheme involving the acquisition. . . . It is left untouched by section 6(1). But there might be some doubt as to its scope. So the legislature passed section 6(1) and the First Schedule in order to make it clear that you were not to take into account any increase due to the development of the other land, namely, land other than the claimed parcel. I think that the decision in the Pointe Gourde case covers one aspect: and section 6(1) covers the other: with the result that the tribunal is to ignore any increase in value due to the Town Development Act, both on the relevant land and on the other land."
Land Compensation Act 1961 5 6
1 Cites

1 Citers


 
Samuel Montagu Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306; [1966] 1 All ER 814; [1966] 2 WLR 854
1966
CA
Lord Denning
Transport, Damages
The plaintiff contended that the "unless" clause in the air waybill did not comply with Article 8 (q) of Unamended Warsaw Convention, so that the Article 22 limitation on its right to receive the full value of four lost boxes of gold was inapplicable. Held: Lord Denning disposed of the contention: "I do not think we should give a strict interpretation to article 8(q) in the Convention. We should not give it so rigid an interpretation as to hamper the conduct of business. I do not interpret the article as meaning that the waybill must contain the statement verbatim. It is sufficient if it contains a statement to the like effect. Moreover, the carriage cannot be subject to all the rules relating to liability established by the Convention: for some relate to goods, others to passengers, others to luggage. It follows that (q) is satisfied if the statement says that the carriage is subject to the rules so far as the same are applicable to the carriage. If that is sufficient, it must also be sufficient to say that the carriage is subject to the rules except in so far as the same are not applicable to the carriage. The next step is plain. If that is sufficient, it must also be sufficient to say that the carriage is subject to the rules except so far as it is not international carriage. Hence it is sufficient to say "unless such carriage is not international carriage as defined by the Convention". It is just another way of saying that the carriage is subject to the rules so far as the same are applicable. Another way of looking at the statement is to read it in conjunction with the carriage stated on the face of the document, which was London to Zurich. Everyone concerned with the waybill knew that carriage from London to Zurich was international carriage. To those persons (and no one else matters) the words "unless such carriage is not international carriage as defined by the Convention" were mere surplusage. They added nothing. They were inapplicable to the circumstances of this carriage and could be ignored."
1 Citers


 
Beswick v Beswick [1966] Ch 538
1966
CA
Lord Justice Denning
Contract, Damages
The court was asked as to breach of an agreement to pay a man’s widow an annuity for life. Held: A plaintiff is entitled to no more than nominal damages in respect of the defendant's breach of a contract where the plaintiff himself has suffered no loss.
Lord Justice Denning said: "Old Peter Beswick was a coal merchant in Eccles, Lancashire. He had no business premises. All he had was a lorry, scales, and weights. He used to take the lorry to the yard of the National Coal Board, where he bagged coal and took it round to his customers in the neighbourhood. His nephew, John Joseph Beswick, helped him in his business. In March 1962, old Peter Beswick and his wife were both over 70. He had had his leg amputated and was not in good health. The nephew was anxious to get hold of the business before the old man died. So they went to a solicitor, Mr. Ashcroft, who drew up an agreement for them."
1 Citers



 
 Building and Civil Engineering Holidays Scheme Management Ltd v Post Office; CA 1966 - [1966] 1 QB 247
 
Cook v Swinfen [1966] 1 WLR 635
1966


Professional Negligence, Damages

1 Citers


 
Skelton v Collins (1966) 115 CLR 94; [1966] HCA 14
7 Mar 1966

Kitto, Taylor, Menzies, Windeyer and Owen JJ
Commonwealth, Damages, Constitutional
(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.
1 Citers

[ Austlii ]
 
Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40
2 Jun 1966

McTiernan, Taylor, Menzies, Windeyer and Owen JJ
Commonwealth, Damages, Defamation
(High Court of Australia) "It seems to us that, in a case where there is no qualified privilege to report or repeat the defamatory statements of others, the whole cohesion of the law of defamation would be destroyed, if it were permissible merely to plead and prove that the defamatory statement was made by another; that this fact was stated in the matter complained of and that the defamatory imputation was not adopted or affirmed. The law as to qualified protection of the reports of certain designated matters would be largely if not wholly redundant." and 'It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways—as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.' (Windeyer J)
1 Cites

1 Citers

[ Austlii ]
 
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185; [1966] HCA 37
2 Jun 1966


Commonwealth, Defamation, Damages
(High Court of Australia)
1 Cites

1 Citers

[ Austlii ]
 
Lavarack v Woods of Colchester Ltd [1966] 3 All ER 683; [1967] 1 QB 278; 1 KIR 312; [1966] 3 WLR 706; [1966] EWCA Civ 4
19 Jul 1966
CA
Lord Denning MR, Diplock LJ, Russell LJ
Employment, Contract, Damages
The plaintiff had been wrongly dismissed. He came to be employed by Martindale at a lower salary, and bought shares in Martindale and Ventilation which increased in value. Held: The new salary and the increase in the value of the Martindale shares were brought to account, but not the increase in the value of the Ventilation shares, on the ground that that benefit was not a direct result of the dismissal but was an "entirely collateral benefit".
When looking at the damages to be awarded on a breach of contract by an employer, "the first task is to estimate . . what the Plaintiff would have gained . . if the defendant had fulfilled his legal obligation and had done no more."
The employment relationship does not give rise to any promise that an employee will receive any salary increases or even be considered for salary increases.
Diplock LJ qualified the principle that where the defendant in breach has the option of performing a contract in alternative ways, damages for breach by him must be assessed on the assumption that he will perform in the way most beneficial to himself and not in that most beneficial to the plaintiff, by stating that one "must not assume that [the defendant] will cut off his nose to spite his face and to control events so as to reduce his legal obligations to the plaintiff by incurring greater loss in other respects".
1 Citers

[ Bailii ]

 
 Harlow and Jones v Panex (International) Ltd; ChD 1967 - [1967] 2 Lloyd's Rep 509

 
 J W Dwyer Ltd v Metropolitan Police District Receiver; 1967 - [1967] 2 QB 970

 
 Chadwick v British Railways Board; 1967 - [1967] 1 WLR 912; [1967] 2 All ER 945

 
 Lavarack v Woods of Colchester Ltd; CA 1967 - [1967] 1 QB 278; [1966] EWCA Civ 4; [1966] 3 All ER 683; [1966] 1 KIR 312; [1966] 3 WLR 706

 
 Garnac Grain Co Inc v HMF Faure and Fairclough; PC 1967 - [1967] 2 All ER 353; [1968] AC 1130; [1967] 3 WLR 143
 
McKillen v Barclay Curle and Co Ltd 1967 SLT 41
1967

Lord President Clyde
Negligence, Damages, Scotland
The Lord Ordinary had awarded the pursuer damages for tuberculosis, on the basis that in the accident he had fractured a rib and this had reactivated his pre-existing tuberculosis. Held: The pursuer had failed to prove the causal connexion between the fractured rib and the tuberculosis, since there was no corroboration of the evidence of the pursuer's expert witness. They accordingly allowed the reclaiming motion. In Scots law a wrongdoer takes his victim as he finds him. Foreseeability had no relevance to the determination of the measure of damage, once liability had been established.
1 Cites

1 Citers


 
The Miraflores and The Abadesa [1967] 1 AC 826
1967
PC
Lord Pearce, Lord Morris of Borth-y-Gest
Damages
Two ships had collided. A third itself ran aground trying to avoid them, and its ownes sought damages. Held: The unit approach to apportionment of damages was wrong.
Lord Morris said of section 1 of the 1911 Act: "The section calls for inquiry as to fault, and inquiry as to damage or loss, and inquiry as to causation. As applied to the claim made by the George Livanos it becomes necessary to decide whether the damage or loss to the George Livanos (or her cargo or freight) was caused by the fault of two or more vessels. The decision of the learned judge being that such loss or damage was caused by the fault of all three vessels, that is, the fault of herself, the fault of the Miraflores and the fault of the Abadesa, it followed that the liability to make good the damage or loss had to be 'in proportion to the degree in which each vessel was at fault,’ which I think means the degree in which the fault of each vessel caused the loss or damage. Consequently three inquiries were involved. To what extent as a matter of causation did the fault of the Abadesa bring about the grounding of the George Livanos? To what extent as a matter of causation did the fault of the Miraflores bring about the grounding of the George Livanos? To what extent as a matter of causation did the fault of the George Livanos bring about her grounding? The liability to make good the damage or loss caused by the grounding would be in the proportions shown by the answers to those questions.
In performing the task directed by section 1, I think that it may lead to confusion if it is sought to link the faults of two separate vessels into one 'unit.' I think that it is preferable to follow the wording of the section without introducing the complication of 'units.' As applicable in the present case, once it was established that there was fault in each one of the three vessels and also that the damage or loss of the George Livanos was caused to some extent by the fault of each one of the three vessels, then it became necessary to apportion the liability for the damage or loss by deciding separately in reference to each one of the three vessels what was the degree in which the fault of each one caused the damage or loss to the George Livanos. The process necessarily involved comparisons and it required an assessment of the inter-relation of the respective faults of the three vessels as contributing causes of the damage or loss. If the faults of two vessels out of three are being grouped together there may be risk of making it difficult to make separate comparisons and assessments as between the three."
Lord Pearce stated that it was essential to compare the fault of each with the fault of the other two; the emphasis is upon fault but not solely with the causation of damage: "It is axiomatic that a person who embarks on a deliberate act of negligence should, in general, bear a greater degree of fault than one who fails to cope adequately with the resulting crisis which is thus thrust upon him. This generality is subject, of course, to the particulars facts. And it may be that the initial act was so slight or easily avoidable and the subsequent failure to take avoiding action so gross that the blame for the accident falls more largely or even (if the interval and opportunity for avoidance are sufficiently great) wholly upon the person who failed to avoid the consequences of another's negligence. Between the extremes in which a man is either wholly excused of a foolish act done in the agony of the moment as the result of another's negligence or is wholly to blame because he had plenty of opportunity to avoid it, lies a wide area where his proportion of fault in failing to react properly to a crisis thrust upon him by another must be assessed as a question of degree. But the driver who deliberately goes round a corner on the wrong side should, as a rule, find himself more harshly judged than the negligent driver who fails to react promptly enough to the unexpected problem thereby created. For all humans can refrain from deliberately breaking well-known safety rules; but 'tis not in mortals to command the perfect reaction to a crisis; and many fall short at times of that degree which reasonable care demands."
Lord Pearce considered how to apportion damages between several different defendants and said: 'To get a fair apportionment it is necessary to weigh the fault of each negligent party against that of each of the others. It is, or may be, quite misleading to substitute for a measurement of the individual fault of each contributor to the accident a measurement of the fault of one against the joint fault of the rest.'
As to the 1945 Act he said: 'Its intention was to allow a plaintiff, though negligent, to recover damages reduced to such an extent as the court thinks just and equitable, having regard to his share in the responsibility for the damage (section 1(1)). But that share can only be estimated by weighing his fault against that of the defendant or, if there are two defendants, against that of each defendant. It is true that apportionment as between the defendants comes theoretically at a later stage (under the Law Reform (Married Women and Tortfeasors) Act 1935). But as a matter of practice the whole matter is decided at one time and the court weighs up the fault of each in assessing liability as between plaintiff and defendants themselves. And I see nothing in the Act of 1945 to show that it intends the court to treat the joint defendants as a unit whose joint blameworthiness could only, one presumes, be the aggregate blameworthiness of its differing components.’
Maritime Conventions Act 1911 1 - Law Reform (Contributory Negligence) Act 1945 1
1 Cites

1 Citers


 
Fielding v Variety Incorporated [1967] 2 QB 841
1967
CA
Lord Denning M.R. and Harman and Salmon LJJ
Defamation, Damages

1 Cites

1 Citers


 
Jolliffe v Exeter Corporation [1967] 1 WLR 993
1967
CA
Lord Denning, Davies LJ, Russell LJ
Land, Damages, Planning
Mr Joliffe owned a garage on a busy road. Adjoining land was involved in a widening scheme, the result of which was to leave his garage at the end of a cul de sac, though no land was taken from him. Held: Section 10 gave him no right to compensation. Where the execution of the works is facilitated by a stopping-up order made by a different compensating authority, under a different statutory scheme not incorporating the 1965 Act, the stopping up does not give rise to a claim under section 10.
Davies LJ noted that the stopping up of the street was done by the Minister under the Town and Country Planning Act, which made no provision for compensation.
Russell LJ said that: "the execution of the works authorised, that is to say, the construction of the highway" had no injurious effect on the plaintiff's property and "The damage was already done. Coombe Street, before a pick or spade had been laid on the works, had been turned into a cul-de-sac so far as the plaintiff was concerned."
Lord Denning said od a stopping up order that it: "authorised the stopping up of various streets in Exeter, including this part of Coombe Street. But it is important to observe that the Act of 1947 contains no provision for compensation. In this respect the Act is like the old Highways Act, 1835. The legislature provided for local inquiries and confirmation by quarter sessions, but no provisions for compensation. Under that Act the stopping up might ruin a man's trade, but he could recover no compensation. So here, the stopping up of Coombe Street may damage Mr Joliffe's trade in that street, but he can recover no compensation on that account."
1 Citers


 
Coulls v Bagot's Executor and Trustee Co Ltd (1967) 119 CLR 460
21 Mar 1967

Barwick C.J.(1), McTiernan(2), Taylor(3), Windeyer(4) and Owen(3) JJ
Commonwealth, Contract, Damages
(High Court of Australia) The court considered an action for damages by a party to a contract to enforce an obligation intended to benefit another. Held: Windeyer J: " I can see no reason why in such cases the damages which A would suffer upon B's breach of his contract to pay C $500 would be merely nominal: I think that in accordance with the ordinary rules for the assessment of damages for breach of contract they could be substantial. They would not necessarily be $500; they could I think be less or more."
1 Cites

1 Citers

[ Austlii ]

 
 Parry v Cleaver; CA 9-May-1967 - [1967] 3 WLR 739; [1967] 2 All ER 116; [1968] 1 QB 195; 2 KIR 844
 
Beswick v Beswick [1968] AC 58; [1967] 3 WLR 932; [1967] 2 All ER 1197 HL(E); [1967] UKHL 2
29 Jun 1967
HL
Lord Reid, Lord Hodson, Lord Guest, Lord Pearce, Lord Upjohn
Damages, Contract
The deceased had assigned his coal merchant business to the respondent against a promise to pay £5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating Act, the 1925 Act should not be read to change the common law. Held: The House ordered specific performance of the contract on behalf of the estate though it was to make payments of money to a third party, recognising that the innocent party to the breach of contract had a legitimate interest in having the contract performed even though he himself would suffer no financial loss from its breach.
Lord Guest: "as this is a consolidating Act, if the words are capable of more than one construction, then the Court will give effect to that construction which does not change the law. "
Law of Property Act 1925 56(1)
1 Cites

1 Citers

[ Bailii ]

 
 Czarnikow (C ) Ltd v Koufos; The Heron II; HL 17-Oct-1967 - [1967] 3 All ER 686; [1969] 1 AC 350; [1967] 3 WLR 1491; [1967] UKHL 4
 
Zarraga v Newcastle upon Tyne Corporation [1968] 19 P&CR 609
1968


Land, Damages
'in assessing the business profits, no deduction should be made in respect of "wages" of the claimant's wife, notwithstanding a figure in respect thereof had been allowed for income tax purposes, since the wife could not fairly be classed as a "paid employee"'.
1 Citers


 
Kaye v Basingstoke Corporation (1968) 20 P & CR 417
1968
LT
Sir Michael Rowe QC
Land, Damages
The Tribunal discussed compensation on compulsory purchase, and how the extent of the underlying scheme was to be identified: 'Before the 1939 war it is broadly, perhaps entirely, true to say that the application of the common law rule was comparatively simple in so far as discovering what "the scheme underlying the acquisition" was. There was usually an Act, public but more often private, or an Order which defined the scheme and the area wherein it was to operate. But in the post-war years a new conception of planning led to a series of measures which gave to local authorities, of one kind or another, planning powers of a much less detailed although more far-reaching character.'
1 Citers


 
Brown v Thompson [1968] 1 WLR 1003
1968
CA
Winn LJ
Negligence, Damages
A car driver drove into the back of a stationary lorry but was nevertheless held only 20% responsible. Held: A court of appeal should only exceptionally interfere with a judge's apportinment of responsibility for an accident.
Winn LJ said: "When it is necessary for a court to ascribe liability in proportions to more than one person, it is well established that regard must be had not only to causative potency of the acts or omissions of each of the parties, but to their relative blameworthiness.", and after quoting from the Miraflores, he continued: "It is worthy of note, I think, that that being a case where three ships had been involved in a collision, Lord Pearce said that what was essential was to compare the fault of each with the fault of the other two; the emphasis is upon fault not solely with the causation of damage."
Law Reform (Contributory Negligence) Act 1945 1(1)
1 Cites

1 Citers


 
Boys v Chaplin [1968] 2 QB 1; [1967] EWCA Civ 3; [1968] 1 All ER 283; [1968] 2 WLR 328
1968
CA
Lord Denning MR, Lord Upjohn
Jurisdiction, Damages
The plaintiff had been injured in a road accident in Malta. By the law of Malta, non-economic damage (pain and suffering, loss of amenity) was not actionable. Only financial loss was compensatable. The plaintiff brought proceedings in England. The court was asked whether the rule excluding liability for non-economic damage was part of the substantive law of Malta or concerned only the remedies which a Maltese court could provide.
1 Citers

[ Bailii ]
 
Jason v Batten (1930) Ltd [1969] 1 Lloyds Rep 281
1969

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


 
Perestrello E Companhia Limitada v United Paint Co Ltd [1969] 1 WLR 570
1969
CA
Lord Donovan
Litigation Practice, Damages
The plaintiff alleged the wrongful repudiation by the defendant of a contract between them. The court considered the requirements as to what had to be pleaded in a claim for damages. Held: Where a plaintiff claims that he has suffered damage, ie injury, of a kind which is not necessary and immediate consequence of the wrongful act, it is his duty to plead full particulars to show the nature and extend of the damages, ie the amount which he claims to be recoverable, irrespective of whether they are general or special damages, so fairly to inform the defendant of the case he has to meet and to assist him in computing a payment into Court, and the mere statement or prayer that he claims damages will not support a claim for such damages.
Lord Donovan said: "There is plenty of authority for the proposition that a plaintiff need not plead general damage; but since the expressions "special damage" and "special damages" are used in such a wide variety of meanings, it is safer to approach this question by considering what a plaintiff is required to plead rather than what he is not.
The Rules of the Supreme Court are of no direct assistance. Ord 18, r.7, requires that every pleading shall contain a summary of the material facts and by Rule 12 "every pleading must contain the necessary particulars of any claim . ." By rule 15 "a statement of claim must state specifically the relief or remedy claimed. It follows that the necessity of pleading "damage" (meaning injury) or "damages" (meaning the amount claimed to be recoverable), if it arises at all, does so as an example of the general requirement of any statement of claim that it shall "put the defendants on their guard and tell them what they have to meet when the case comes on for trial. (per Cotton LJ in Philipps v Philipps (1878) QBD 127, 139).
Accordingly, if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claim will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court.
The limits of this requirement are not dictated by any preconceived notions of what is general or special damage but by the circumstances of the particular case. 'The question to be decided does not depend on words, but is one of substance' (per Bowen LJ in Ratcliffe v Evans [1892] 2 QB 524 at p 529).
The same principle gives rise to a plaintiff's undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is 'special' in the sense that fairness to the defendant requires that it be pleaded.
The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.
. . if the claim is one which cannot with justice be sprung on the defendants at the trial it requires to be pleaded so that the nature of that claim is disclosed. As Lord Dunedin said in Susquehanna [1926] AC 655 at p 661 'if the damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question.'
What amounts to a sufficient averment for this purpose will depend on the facts of the particular case, but a mere statement that the plaintiffs claim 'damages' is not sufficient to let in evidence of a particular kind of loss which is not a necessary consequence of the wrongful act and of which the defendants are entitled to fair warning."
1 Citers


 
Birmingham Corporation v West Midlands Baptist (Trust) Association Inc [1970] AC 874; [1969] 3 All ER 172
1969
HL
Lord Reid, Lord Morris of Borth-Y-Gest, Lord Upjohn, Lord Wilberforce, Lord Donovan
Damages, Land
There had been a substantial delay of many years after the order for compulsory purchase was made, with a substantial increase in value after the service of the notice to treat. Held: The physical condition of the reference land and its surroundings is to taken as at the valuation date.
Lord Morris of Borth-Y-Gest said: "The word 'compensation' would be a mockery if what was paid was something that did not compensate." and
"Apart from severance and injurious affection there is only one subject for compensation – the value of the Land (see Inland Revenue Comrs v. Glasgow & South Western Ry. Co (1887) 12 App. Cas. 315). But it was convenient and it became customary to value separately the market value of the land and the other elements comprised in its value to the owner and then to add these together to obtain the total value to the owner. And it further became customary to add 10 per cent. in respect of the expropriation being compulsory. Rule (1) abolished this addition of 10 per cent."
Lord Reid said: "These provisions do show that Parliament (or the draftsman) must have thought that the law was that compensation was assessable on the basis of value as at the date of notice to treat. But the mere fact that an enactment shows that Parliament must have thought that the law was one thing does not preclude the courts from deciding that the law was in fact something different. This has been stated in a number of cases including Inland Revenue Commissioners v Dowdall, O’Mahoney & Co Ltd [1952] AC 401. No doubt the position would be different if the provisions of the enactment were such that they would only be workable if the law was as Parliament supposed it to be. But, in my view, all that can be said here is that these enactments would have a narrower scope if the law was found to be that compensation must be assessed at a date later than that of the notice to treat." and
"No stage can be singled out as the date of expropriation in every case. Sometimes possession is taken before compensation is assessed. Then it would seem logical to fix the market value of the land as at that date and to take actual consequential losses as they occurred then or thereafter, provided that the dispossessed owner had acted reasonably. But if compensation is assessed before possession is taken, taking the date of possession can I think be justified because then either party can sue for specific performance and the promoters obtain a right to the land, as if there had been a contract of sale at that date."
Acquisition of Land (Assessment of Compensation) Act 1919
1 Cites

1 Citers


 
Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 699
1969
CA
Salmon, Sachs, Winn LJJ
Contract, Damages
Where the award of damages at law may be inadequate, the court may order an account to be taken to determine precisely what is owing by one party to the other.
Salmon LJ doubted whether an unaccepted repudiation could bring an end to a contract of employment in law "although no doubt in practice it does". In law, he thought that the position was (i) that the contract continued in being, (ii) that it would not, however, be specifically enforced because the employee had not worked and had not therefore earned his remuneration; (iii) that the employee's only remedy was to sue for his lost wages as damages for the employer's breach in preventing him from earning them (presumably from time to time as they would have fallen due); and (iv) that the only thing that prevented the employee from sitting idle for the rest of the contractual term and collecting damages equal to his lost wages was the condition that he should have taken reasonable steps to mitigate his loss by finding alternative employment.
He descibed the docrine of frustration, saying: “This was a doctrine evolved by the Courts to meet the case in which a contract became impossible through some supervening event, not reasonably foreseeable when the contract was made and for which neither contracting party was in any way responsible”.
Sachs LJ agreed, observing that "In such cases it is the range of remedies that is limited, not the right to elect."
Winn LJ said: "Where A and B are parties to an executory contract, if A intimates by word or conduct that he no longer intends, or is unable, to perform it, or to perform it in a particular manner, he is, in effect, making an offer to B to treat the contract as dissolved or varied so far as it relates to the future. If B elects to treat the contract as thereby repudiated, he is deemed, according to the language of many decided cases, to ‘accept the repudiation’ and is thereupon entitled (a) to sue for damages in respect of any earlier breach committed by A and for damages in respect of the repudiation, (b) to refrain from himself performing the contract any further."
1 Citers


 
Boys v Chaplin [1971] AC 356; [1969] 3 WLR 322; [1969] 2 All ER 1085
1969
HL
Hodson, Wilberforce, Pearson LL
Damages, Jurisdiction
The plaintiff sued in England for a traffic accident which had happened in Malta. The law of Malta would have denied certain elements of damages which would be available in this jurisdiction. Held: Liability in respect of the road accident in which only English parties were involved was governed by English law. The House was asked whether the rule which excluded liability for non-economic damages was substantive law or concerned only the remedies available. (Majority) The rule was part of the substantive law of tort liability. This was a 'general' rule which would 'normally' apply to foreign torts. The rule should be interpreted flexibly, 'so as to leave some latitude in cases where it would be against public policy to admit or to exclude claims'. So far as damages are concerned it is a question for the substantive law whether a head of damage is recoverable, but quantification of the actual head is procedural. The House also considered the double-actionability rule.
Lord Hodson said: "I am now, however, persuaded that questions such as whether loss of earning capacity or pain and suffering are admissible heads of damage must be questions of substantive law. The law relating to damages is partly procedural and partly substantive, the actual quantification under the relevant heads being procedural only."
Lord Wilberforce said: "The broad principle should surely be that a person should not be permitted to claim in England in respect of a matter for which civil liability does not exist, or is excluded, under the law of the place where the wrong was committed. This non-existence of exclusion may be for a variety of reasons and it would be unwise to attempt a generalisation relevant to the variety of possible wrongs. But in relation to claims for personal injuries one may say that provisions of the lex delicti, denying, or limiting, or qualifying recovery of damages because of some relationship of the defendant to the plaintiff, or in respect of some interest of the plaintiff (such as loss of consortium) or some head of damage (such as pain and suffering) should be given effect to."
Lord Pearson said: "If the difference between the English law and the Maltese law could be regarded only as a difference of procedural (or adjectival or non-substantive) law, there would be an easy solution of the problem in this appeal. On that basis the nature and extent of the remedy would be matters of procedural law regulated by the lex fori, which is English, and the proper remedy for the plaintiff in this case according to English law would be that he should recover damages for all the relevant consequences of the accident, including pain and suffering as well as pecuniary expense and loss…But I am not convinced that the difference between the English law and the Maltese law can reasonably be regarded as only a difference of procedural law. There is a radical difference in the cause of action, the right of action, the jus actionis. A claim to be reimbursed or indemnified or compensated for actual economic loss is substantially different in character from a claim for damages for all the relevant consequences of the accident to the plaintiff, including pain and suffering. If an accident caused no economic loss, but only pain and suffering, there would be a cause of action according to English law, but not according to Maltese law. Surely that must be a matter of substantive law."
Lord Guest (dissenting): "It would not be correct, in my view, to talk of compensation for pain and suffering as a head of damage apart from patrimonial loss. It is merely an element in the quantification of the total compensation"
Lord Donovan (dissenting) said that once the claim was actionable in an English court, "it was right that it should award its own remedies".
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1 Citers


 
Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006
1969

Eveleigh J
Damages, Personal Injury
The plaintiff suffered injury from the admitted negligence of the defendant. After attending the hospital she felt shaken and the movement of her head was constricted by a collar which had been fitted to her neck. In consequence she was unable to use her bi-focal spectacles with her usual skill and she fell while descending stairs, sustaining further injury. Held: Eveleigh J gave an account of the meaning of forseeability in the law, saying: "In the present case I am concerned with the extent of harm suffered by the plaintiff as a result of actionable injury. In my view the injury and damage suffered because of the second fall are attributable to the original negligence of the defendant so as to attract compensation. If necessary I think the plaintiff's case can also be put against the defendant in another way. If it can be said that it is foreseeable that one injury may affect a person's ability to cope with the vicissitudes of life and thereby be a cause of another injury and if foreseeability is required, that is to say, if foreseeability is the right word in this context, foreseeability of the general nature will, in my view, suffice."
. . And "It has long been recognised that injury sustained in one accident may be the cause of subsequent injury. The injury sustained by accident victims on the operating table is an example of that situation. So too are cases of suicide resulting from a mental condition produced by an accident. Pigney v Pointers Transport Services, Ltd (2) [1967] 2 All E.R. 807; [1957] 2 W.L.R. 1121. It is always a question of course for the court in each case to determine whether or not on the facts of that case the accident did cause the second injury or death as the case might be; see Hogan v Bentinck West Hartley Collieries (Owners), Ltd. [1949] 1 All E.R. 588."
1 Cites

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 Murphy v Stone-Wallwork (Charlton) Ltd; HL 1969 - [1969] 1 WLR 1023

 
 Australian Consolidated Press Ltd v Uren; PC 1969 - [1969] 1 AC 590

 
 Christopher Hill Ltd v Ashington Piggeries Ltd; CA 1969 - [1969] 3 All ER 1496
 
M'Kew v Holland and Hannen and Cubitts (Scotland) Ltd [1969] 3 All ER 1621; 1969 SC 14
1969

Lord Justice Clerk (Grant)
Scotland, Negligence, Damages

1 Cites

1 Citers


 
Seager v Copydex (No. 2) [1969] 1 WLR 809
1969
CA
Lord Denning MR
Damages

1 Cites

1 Citers


 
Mafo v Adams [1970] 1 QB 548; [1969] 3 All ER 1404
1969
CA
Sachs, Widgery LJJ, Plowman J
Torts - Other, Damages
The plaintiff tenant was tricked out of the occupancy of the flat he was living in by a blatant fraud perpetrated by the defendant landlord. He sued for damages for fraud, and was awarded compensation for the inconvenience and discomfort. In a case of deceit and other causes of action, the principles enunciated in Rookes v. Barnard were accepted as applicable where the evidence justified it. In respect of deceit, exemplary damages may sometimes be appropriate, though it is not the function of civil courts to punish.
Damages for physical inconvenience caused by a deceit were in principle recoverable. Widgery LJ also such damages as recoverable as a species of aggravated damages: "And I would add that . . where there are aggravating circumstances which aggravate the suffering and injury to the plaintiff, then in compensating him for the wrong which has been done, the damages must be similarly increased. Here one has a plaintiff deprived not only of his valuable protected tenancy, but subjected to considerable inconvenience and unpleasantness. He was, as the evidence relates, induced by this trick of the defendant to set off with his pregnant wife in a van with his furniture and travel from Richmond to Norbury arriving at 7 o'clock on a February evening, and there, thanks to the activities of the defendant, he and his wife were kept out in the cold for two hours whilst they sought to obtain admission. In the end they were forced to go back and take refuge with friends who put them up. I have not the least doubt myself that £100 is not an excessive figure to compensate the plaintiff, and accordingly I endorse without hesitation the figure which the county court judge has assessed for general compensatory damages."
"The position with regard to exemplary damages is perhaps a little more difficult. I think Mr. Grant was entirely right in accepting that Lord Devlin's dicta as to exemplary damages apply to the tort of deceit. As I understand Lord Devlin's speech, the circumstances in which exemplary damages may be obtained have been drastically reduced, but the range of offences in respect of which they may be granted has been increased, and I see no reason since Rookes v. Barnard [1962] A. C. 1129 why, when considering a claim for exemplary damages, one should regard the nature of the tort as excluding the claim. If the circumstances are those prescribed by Lord Devlin, it seems to me that the fact that the tort was one which did not formerly attract exemplary damages is a matter of no consequence. On the other hand, I am firmly of opinion that, since it is now clear that exemplary damages are punitive only and all cases of aggravation which result in additional injury to the plaintiff are to be dealt with by aggravated damages, then it follows that the circumstances in which exemplary damages are awarded should be exceptional indeed. It is not the function of civil courts to punish. In the past, in my judgment, much confusion has been caused because judges awarding compensation to plaintiffs for ruffled feelings have sometimes said they were awarding exemplary damages. It is clear now that that kind of case does not come under the exemplary heading at all, and in my judgement the number of cases hereafter where exemplary damages are properly to be awarded will in fact be very few. First of all it must be shown that the case comes within the categories prescribed by Lord Devlin and secondly it must be shown that it is one of those special cases in which the punishment of the offender is justified; and it is, I think, implicit in what Lord Devlin says [1964] A.C. 1129, 1227 that exemplary damages are in the main awarded in cases where the defendant realises that he is breaking the law, realises that damages may be awarded against him, but nevertheless makes what has been described as a cynical calculation of profit and loss, and says he will flout the powers of the court because on a purely cash basis he can show profit. In my judgment that is the type of man who is referred to by Lord Devlin as being one against whom an award of exemplary damages is proper to be made."
Sachs LJ held that the loss flowing from the fraud which could be taken into account included the loss of the protected tenancy under the Rent Acts. He also found in the favour of the Plaintiff that he was entitled to compensation for the physical inconvenience suffered.
On the question of exemplary damages, Sachs LJ found this more difficult: "Next one comes to a considerably more difficult question: whether this is a case in which exemplary damages are recoverable, and whether, if so, the sum of £100 was a correct assessment.
. . The first issue which sprang to mind when this appeal was opened was whether in actions for deceit exemplary damages could ever be awarded. There is in the books no case of exemplary damages ever having been awarded for this cause of action, and but for Rookes v. Barnard [1964] A.C. 1129, I doubt if it would have been argued that they could be recovered today. Moreover when the case of Doyle v. Olby (Ironmongers) Ltd. [1969] 2 QB. 158 came to be decided recently, it may be assumed from the fact that no member of the court mentioned this aspect of the measure of damages, that it did not ever, then come to mine, despite the cynical nature of the conduct of the defendants in that case, that exemplary damages could be awarded for this cause of action. When, however, Mr. Grant opened the present case he was minded to concede that in actions for deceit such damages could now be awarded, and, after considering the matter carefully, he in fact did make this concession. He did so, basing himself on that sentence in Lord Devlin's speech in Rookes v. Barnard [1964] A.C. 1129, 1227, which states: "Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay." That passage he interpreted as applying to all actions for tort. So far as this case is concerned, there is thus inter partes agreement on that matter. In the upshot, however, it has in any event become unnecessary to decide the point, having regard to the view held by my brethren and myself, that upon the findings of the judge such a claim cannot be supported on the particular facts of the case."
He was however very cautious about the application of exemplary damages to inter alia, cases of deceit: "I state the position carefully in this way, because had that concession not been made, it would have been necessary to have considerably further argument on the point and to consider that argument with care. I would, indeed, need to be persuaded, despite the generality of the phrase already quoted, that this speech which sought so drastically to limit the circumstances in which exemplary damages can be awarded, was by reason of that phrase or otherwise either intended to, or on its proper construction did, enlarge considerably the number of causes of action in which claims to such damages can be maintained. In this behalf I have in mind actions for trover and detinue as well as deceit as instances in which such awards have not previously been made: in particular as regards actions for deceit it would open the door to a flood of claims under that novel head, and that, moreover, despite the fact that in most cases that Theft Act, 1968, provides for the punishment of those who obtain property by fraud."
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Australian Consolidated Press Ltd v Uren [1969] 1 AC 590
1969
PC

Commonwealth, Damages, Defamation

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Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158; [1969] EWCA Civ 2; [1969] 2 All ER 119; [1969] 2 WLR 673
31 Jan 1969
CA
Lord Denning MR, Winn LJ
Torts - Other, Damages
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger's business for £4,500 plus stock at a valuation of £5,000. Shortly after the purchase, he discovered the fraud and started the action. But despite this he had to remain in occupation: "he had burned his boats and had to carry on with the business as best he could." After three years, he managed to sell the business for £3,700, but in the meantime he had incurred business debts. Held: He should recover these losses. The plaintiff in an action for deceit is not entitled to be compensated in accordance with the contractual measure of damage, ie the benefit of the bargain measure. He is not entitled to be protected in respect of his positive interest in the bargain. The plaintiff in an action for deceit is, however, entitled to be compensated in respect of his negative interest. The aim is to put the plaintiff into the position he would have been in if no false representation had been made. The measure of damages where a contract has been induced by fraudulent misrepresentation is reparation for all the actual damage directly flowing from entering into the transaction. In assessing such damages it is not an inflexible rule that the plaintiff must bring into account the value as at the transaction date of the asset acquired: although the point is not adverted to in the judgments, the basis on which the damages were computed shows that there can be circumstances in which it is proper to require a defendant only to bring into account the actual proceeds of the asset provided that he has acted reasonably in retaining it. Damages for deceit are not limited to those which were reasonably foreseeable. The damages recoverable can include consequential loss suffered by reason of having acquired the asset.
Winn LJ said: "It appears to me that in a case where there has been a breach of warranty of authority, and still more clearly where there has been a tortious wrong consisting of a fraudulent inducement, the proper starting-point for any court called upon to consider what damages are recoverable by the defrauded person is to compare his position before the representation was made to him with his position after it, brought about by that representation, always bearing in mind that no element in the consequential position can be regarded as attributable loss and damage if it be too remote a consequence . . The damage that he seeks to recover must have flowed directly from the fraud perpetrated upon him."
Lord Denning MR said: "In contract, the defendant has made a promise and broken it. The object of damages is to put the plaintiff in as good a position, as far as money can do it, as if the promise had been performed. In fraud, the defendant has been guilty of deliberate wrong by inducing the plaintiff to act to his detriment. The object of damages is to compensate the plaintiff for all the loss he has suffered, so far, again, as money can do it. In contract, the damages are limited to what may reasonably be supposed to have been in the contemplation of the parties. In fraud, they are not so limited. The defendant is bound to make reparation for all the actual damages directly flowing from the fraudulent inducement. The person who has been defrauded is entitled to say:
'I would not have entered into this bargain at all but for your representation. Owing to your fraud, I have not only lost all the money I paid you, but, what is more, I have been put to a large amount of extra expense as well and suffered this or that extra damages.'
All such damages can be recovered: and it does not lie in the mouth of the fraudulent person to say that they could not reasonably have been foreseen. For instance, in this very case Mr Doyle has not only lost the money which he paid for the business, which he would never have done if there had been no fraud: he put all that money in and lost it; but also he has been put to expense and loss in trying to run a business which has turned out to be a disaster for him. He is entitled to damages for all his loss, subject, of course to giving credit for any benefit that he has received. There is nothing to be taken off in mitigation: for there is nothing more that he could have done to reduce his loss. He did all that he could reasonably be expected to do."
Misrepresentation Act 1967 2(1)
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Parry v Cleaver [1970] AC 1; [1969] 2 WLR 821; [1969] 1 All ER 555; [1969] 1 Lloyd's Rep 183; [1969] UKHL 2
5 Feb 1969
HL
Lord Reid, Lord Wilberforce, Lord Moris of Borth-y-Gest and Lord Pearson dissenting
Damages
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 not to be reduced by deducting the full net value of the ill-health pension from the net value of the pension which the petitioner would otherwise have received during the period after his normal retirement date. Such a pension should not be deducted from loss of earnings prior to the normal retirement date, because a wrongdoer should not benefit from the fact that an individual had chosen to provide for his own misfortune or that he was receiving benefits from the public at large or benevolence from friends or relations. Gourley's case had nothing to do with the question whether sums coming to the plaintiff as proceeds of insurance or by reason of benevolence should be deducted. "Two questions can arise. First, what did the plaintiff lose as a result of the accident? What are the sums which he would have received but for the accident but which by reason of the accident he can no longer get? And secondly, what are the sums which he did in fact receive as a result of the accident but which he would not have received if there had been no accident? And then the question arises whether the latter sums must be deducted from the former in assessing the damages."
Lord Reid: "It would be revolting to the ordinary man's sense of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or the public at large, and that the only gainer would be the wrongdoer. We do not have to decide in this case whether these considerations also apply to public benevolence in the shape of various uncovenanted benefits from the welfare state, but it may be thought that Parliament did not intend them to be for the benefit of the wrongdoer." and
"As regards moneys coming to the plaintiff under a contract of insurance, I think that the real and substantial reason for disregarding them is that the plaintiff has bought them and that it would be unjust and unreasonable to hold that the money which he prudently spent on premiums and the benefit from it should ensure to the benefit of the tortfeasor ...why should it make any difference that he insured by arrangement with his employer rather than with an insurance company?' and
'It is generally recognised that pensionable employment is more valuable to a man than the mere amount of his weekly wage. It is more valuable because by reason of the terms of his employment money is being regularly set aside to swell his ultimate pension rights whether on retirement or on disablement. His earnings are greater than his weekly wage. His employer is willing to pay £24 per week to obtain his services and it seems to me that he ought to be regarded as having earned that sum per week. The products of the sums paid into the pension fund are in fact delayed remuneration for his current work. That is why pensions are regarded as earned income.
But the man does not get back in the end the accumulated sums paid into the fund on his behalf. This is a form of insurance. Like every kind of insurance what he gets back depends on how things turn out. He may never be off duty and may die before retiring age leaving no dependants. Then he gets nothing back. Or he may by getting a retirement or disablement pension get much more back than has been paid in on his behalf. I can see no relevant difference between this and any other form of insurance. So, if insurance benefits are not deductible in assessing damages and remoteness is out of the way, why should his pension be deductible? . .
A pension is intrinsically of a different kind from wages. If one confines one's attention to the period immediately after the disablement it is easy to say that but for the accident he would have got £x, now he gets £y, so his loss is £x -£y. But the true solution is that wages are a reward for contemporaneous work but that a pension is the fruit, through insurance, of all the money which was set aside in the past in respect of his past work. They are different in kind".
Lord Wilberforce: "Lastly I see no inconsistency between (i) not bringing the police pension into account against the civilian wages (periods 2 and 3) and (ii) bringing the reduced police pension into account against the greater he would have received if he had not been injured (period 4). These are two quite different pension equations and the difficult legal questions which relate to the earlier period never arise in relation to period 4, where all that is needed is an arithmetical calculation of pension loss. On the two related grounds, each of which would separately justify the conclusion, namely, (a) that the police pension is payable in any event and is not dependent on loss of earning capacity and (b) that the pension is to be regarded as the reward or earning of pre-injury service and therefore not entering into the computation of lost post-injury wages, I would reach the conclusion that it should not be deducted against damages recoverable from a third person for approved loss of earning capacity."
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Chapman v Hearse, Baker v Willoughby [1970] AC 467; [1969] 3 All ER 1528; [1969] UKHL 8
26 Nov 1969
HL
Lord Reid
Negligence, Damages
The plaintiff, a pedestrian had been struck by the defendant's car while crossing the road. The plaintiff had negligently failed to see the defendant's car approaching. The defendant had a clear view of the plaintiff prior to the collision, but was driving at an excessive speed or failing to keep a proper look-out or both. The judge found that the plaintiff was 25% to blame. On appeal, the Court of Appeal increased that apportionment to 50%. The effects of the first tort, which caused injuries to the claimant's left leg, were obliterated by the second: he was shot in the same leg in an armed robbery, and the leg had to be amputated. It was argued that the Defendant could not be regarded as having caused an injury which would have occurred in any event. Held: The argument failed. The House restored the trial judge's assessment of 75/25 in favour of the pedestrian. The plaintiff's disability could be regarded as having two causes and, where the later injuries became a concurrent cause of the disabilities caused by the injury inflicted by the defendant, they could not reduce the amount of the damages which the defendant had to pay for those disabilities. So the defendants had to pay the same sum by way of damages for the plaintiff's stiff leg, even though it had actually been amputated. Lord Reid made comparisons between the respective blameworthiness of a cyclist and motorist.
Lord Reid made general observations about apportionment in cases of this kind: "The Court of Appeal recognised that the trial judge's assessment ought not to be varied unless 'some error in the judge's approach is clearly discernible.' But they appear to have thought it impossible to differentiate when both parties had a clear view of each other for 200 yards prior to impact and neither did anything about it. I am unable to agree. There are two elements in an assessment of liability, causation and blameworthiness. I need not consider whether in such circumstances the causative factors must necessarily be equal, because in my view there is not even a presumption to that effect as regards blameworthiness.
A pedestrian has to look to both sides as well as forwards. He is going at perhaps three miles an hour and at that speed he is rarely a danger to anyone else. The motorist has not got to look sideways though he may have to observe over a wide angle ahead: and if he is going at a considerable speed he must not relax his observation, for the consequences may be disastrous . . In my opinion it is quite possible that the motorist may be very much more to blame than the pedestrian."
Law Reform (Contributory Negligence) Act 1945
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