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Damages - From: 1970 To: 1979

This page lists 117 cases, and was prepared on 27 May 2018.

 
General Electric Co v General Electric Co Limited; GE TM; Re GE Trade Mark [1970] RPC 339
1970
CA

Damages, Intellectual Property

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Mallett v McMonagle [1970] AC 166
1970
HL
Lord Diplock, Lord Reid
Damages
The House discussed the role of the court in assessing future losses. Lord Diplock: "The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions for determining what was. In determining what did happen in the past the court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or what would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that the particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."
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 Harbutt's Plasticine Ltd v Wayne Tank and Pump Co Ltd; CA 1970 - [1970] 1 QB 447; [1970] 1 All ER 225; [1970] 2 WLR 198; [1970] 1 Lloyds Rep 15

 
 West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation; HL 1970 - [1970] AC 874; [1969] 3 All ER 172

 
 Dixons (Scholar Green) Ltd v JL Cooper Ltd; CA 1970 - [1970] RTR 222
 
SCM (United Kingdom) Ltd v W J Whittall and Son Ltd [1971] 1 QB 337; [1970] 3 All ER 245; [1970] 3 WLR 694
1970
CA
Lord Denning
Damages, Utilities
The defendants' workmen damaged an electric cable belonging to the electricity board, cutting off several factories, including the plaintiff's. The defendant sought to have the claim struck out. Held: The part of the claim arising from physical damage was not struck out, but that for economic loss was. Economic loss ought not to be put on one pair of shoulders, but spread among all the sufferers.
Lord Denning said: "I must not be taken, however, as saying that economic loss is always too remote. There are some exceptional cases when it is the immediate consequence of the negligence and is recoverable accordingly. Such is the case when a banker negligently gives a good reference on which a man extends credit, and loses the money. The plaintiff suffers economic loss only, but it is the immediate - almost, I might say, the intended - consequence of the negligent reference and is recoverable accordingly: see Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465. Another is when the defendant by his negligence damages a lorry which is carrying the plaintiff's goods. The goods themselves are not damaged, but the lorry is so badly damaged that the goods have to be unloaded and carried forward in some other vehicle. The goods owner suffers economic loss only, namely, the cost of unloading and carriage, but he can recover it from the defendant because it is immediate and not too remote. It is analogous to physical damage: because the goods themselves had to be unloaded. Such was the illustration given by Lord Roche in Morrison Steamship Co. Ltd. v. Greystoke Castle (Cargo Owners) [1947] A.C. 265. Likewise, when the cargo owners have to pay a general average contribution. It is not too remote and is recoverable.
Seeing these exceptional cases you may well ask: How are we to say when economic loss is too remote or not? Where is the line to be drawn? Lawyers are continually asking that question. But the judges are never defeated by it. We may not be able to draw the line with precision, but we can always say on which side of it any particular case falls."
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Hinz v Berry [1970] 2 QB 40
1970
CA
Lord Denning, Sir Gordon Wilmer, Lord Pearson
Personal Injury, Damages
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 overcompensate her by failing to make a deduction for the sorrow and grief which was otherwise not compensable. Held: A plaintiff who suffered from extreme grief, including a case where the condition of the sufferer was debilitating, but which fell short of a recognised psychiatric illness was not able to recover damages. Personal injury at law connotes serious trauma or illness.
Lord Denning said: "The law at one time said that there could not be damages for nervous shock; but for these last twenty-five years, it has been settled that damages can be given for nervous shock caused by the sight of an accident, at any rate to a close relative." and "In English law no damages are awarded for grief and sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are however recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant." Also he said: "It happened on April 19, 1964. It was bluebell time in Kent"
Sir Gordon Wilmer discussed setting damages for this kind of injury: "It is practically impossible to find any signposts on the road; there is no tariff or pattern of awards in this class of case; and this makes it difficult for any one judge to criticize another’s estimate of what the damages ought to be."
Lord Pearson said: "The first factor was her own inevitable grief and sorrow at losing her husband, a good husband who was also a good father to her family. That would have caused much sorrow and mourning in any event. Secondly, there was her anxiety about the welfare of her children who were injured in the accident. Thirdly, there was the financial stress resulting from the removal of this very hard-working breadwinner who took extra work in addition to his normal work. She may well have been in considerable financial difficulties. The fourth factor was the need for adjusting herself to a new life, which may well have been quite unusually severe in this case. Now, all those four factors are not compensatible, that is to say that they are not proper subjects to be taken into account in assessing damages according to English law." and "It should not be for the whole of the mental anguish and suffering which she has been enduring during the last five or six years. It should be only for that additional element which has been contributed by the shock of witnessing the accident, and which would not have occurred if she had not suffered that shock. It is a difficult distinction to draw, but I think the judge has laid a proper foundation and has found a right ground of decision, namely, that where there is an extra element which has been added by the shock of witnessing the accident, that is a proper subject of compensation. On his findings in this case that that element in itself was the sole cause of the added morbidity, the recognisable psychiatric element in her present condition, that is a proper ground for a substantial sum of money to be awarded."
1 Citers


 
Taylor v O'Connor [1970] 1 All ER 365; [1971] AC 115; 114 Sol Jo 132; [1970] TR37; [1970] 2 WLR 472
1970
HL
Lord Morris of Borth-y-Gest, Lord Guest, Viscount Dilhorne, and Lord Pearson,
Personal Injury, Damages
The appellant driver had caused a car accident in 1965, in which the respondent's husband died. The respondent sought damages under the Fatal Accidents Acts for herself then aged 52 and for her 18 year old daughter. The husband died aged 53 and a partner in a successful firm of architects. His life expectancy on death was 18 years, and of the respondent 21 years. After tax, his income was pounds 7,500 per year up to retirement. Under the partnership deed he would have to leave some part of his income in the partnership as working capital and at the time of the death this amounted to pounds 10,000 and during the rest of his working life as a partner he would have left pounds 1,500 per year in the firm. When assessing damages the trial judge, holding that he might have continued as a full partner beyond the normal retirement age, or may have continued as a consultant, ruled that the husband would have continued to enjoy a net spendable income of pounds 6,000 per annum for the remainder of his life. The dependency of the respondent and the daughter were estimated at pounds 4,000 profit. Pounds 250 was to be deducted in respect of the accelerated benefit from the savings of pounds 10,000; tithe dependency for the purposes of the award of Damages was reckoned at pounds 3,750 per annum. The judge increased the proposed multiplier to allow for inflation. To the resulting song of pounds 45,000, the judge added pounds 9,000 as the present value of pounds 18,000, being the product of pounds 1,500 left in the firm for each of the 12 years. The Court of Appeal had refused to disturb the trial award. The driver now appealed against quantum. Held: There were no grounds for interfering with the amount of Damages awarded by the trial judge.
Lord Morris of Borth-y-Gest, Lord Guest, Viscount Dilhorne, and Lord Pearson said that prospective inflation is not a valid reason for increasing a multiplier.
Lord Reid and lord Dilhorne said that in assessing the effect of the incidence of tax on and awarded damages, any private income of the recipient should be ignored. HL
1 Citers


 
Jefford v Gee [1970] 2 QB 130; [1970] EWCA Civ 8; [1970] 1 All ER 1202; [1970] 1 Lloyd's Rep 107; [1970] 2 WLR 702
4 Mar 1970
CA
Lord Denning MR
Damages, Scotland, Personal Injury
The courts of Scotland followed the civil law in the award of interest on damages. The court gave examples of the way in which they apply the ex mora rule when calculating the interest payable in a judgment. If money was wrongfully withheld, then the courts had power to award interest during the period of delay between the time the money was legally and ascertainably due and the time when the court ordered that it should be paid.
The court established the principles for awarding interest on damages awards in personal injuries cases: "Therefore if I could see my way to do so, I should certainly be disposed to give the appellants, or anybody in a similar position, interest upon the amount withheld from the time of action brought at all events." and "It should only be awarded to a plaintiff for being kept out of money which ought to have been paid to him" and "We applied this principle very recently in Harbutt's 'Plasticine' Ltd . . . where we all agreed in saying: 'the basis of an award of interest is that the defendant has kept the plaintiff out of his money; and the defendant has had the use of it himself. So he ought to compensate the plaintiff accordingly'." The court used published short term interest rates. The half rate approach was used because interest was not large enough to warrant minute attention to detail. The half rate was a reasonable approximation. In relation to benefits, the plaintiff (whilst he received no interest on the moiety for which he gave credit against damages) did not have to give credit in the interest calculation in respect of his windfall receipt of the other moiety of benefits paid.
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[ Bailii ]

 
 Maredelanto Compania Naviera SA v BergbauHandel GmbH (The Mihalis Angelos); CA 1-Jul-1970 - [1971] 1 QB 164; [1970] EWCA Civ 4; [1970] 3 WLR 601; [1970] 2 Lloyd's Rep 43; [1970] 3 All ER 125
 
Blair v Osborne and Tomkins and Another [1971] 1 QB 78; [1971] 2 WLR 503; [1971] 1 All ER 468
12 Nov 1970
CA
Lord Denning M.R., Widgery and Megaw L.JJ
Intellectual Property, Construction, Damages, Contract
Two neighbours engaged an architect to draw up plans for a building at the rear of their houses. He charged them the full RIBA rate for the plans. They did not ask the architect to build the house or supervise the project but handed the plans to a builder, who made minor amendments, then submitted them as his own design. The architect sued for infringement of the copyright in the plans. He appealed an award of only nominal damages. Held: The nominal award was correct. The contract included an implied term that the land owners would be free to use the plans to build the house, including necessary licences. The attribution was wrongful, but was not the source of damage.
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[ lip ]
 
Malloch v Aberdeen Corporation [1971] 1 WLR 1578; [1971] 2 All ER 1278
1971
HL
Lord Reid, Lord Wilberforce
Employment, Damages
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: "At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract."
Lord Wilberforce said: "As a general principle, I respectfully agree: and I think it important not to weaken a principle which, for reasons of public policy, applies, at least as a starting point, to so wide a range of the public service. The difficulty arises when, as here, there are other incidents of the employment laid down by statute, or regulations, or code of employment, or agreement. The rigour of the principle is often, in modern practice, mitigated for it has come to be perceived that the very possibility of dismissal without reason being given - action which may vitally affect a man's career or his pension - makes it all the more important for him, in suitable circumstances, to be able to state his case and, if denied the right to do so, to be able to have his dismissal declared void. So, while the courts will necessarily respect the right, for good reasons of public policy, to dismiss without assigned reasons, this should not, in my opinion, prevent them from examining the framework and context of the employment to see whether elementary rights are conferred on him expressly or by necessary implication, and how far these extend." and
"The appellant has first to show that his position was such that he had, in principle, a right to make representations before a decision against him was taken. But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain . ."
Lord Reid said: "At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract."
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 Launchbury v Morgans; CA 1971 - [1971] 2 QB 245

 
 Anglia Television v Oliver Reed; CA 1971 - [1972] 1 QB 60; [1971] 3 All ER 690
 
Moore v DER Ltd [1971] 1 WLR 1476
1971


Damages
Where there is no ready second hand market for goods, or where there might be uncertainty as to the reliability of such goods, no credit need be given for the fact that a new and up-to-date replacement has been purchased.
1 Citers


 
H Cousins and Co Ltd v D and C Carriers [1971] 2 QB 233
1971


Damages

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Lloyd v Stanbury [1971] 1 WLR 535; [1971] 2 All ER 267
1971

Brightman J
Damages, Equity
A purchaser who had been let into possession before completion and had spent money on improvements to the property was not entitled to claim for such expenses because they would not usually have been within the contemplation of the parties. As to rectification: "If, therefore, the defence of rectification is to succeed I must be convinced that it was not the intention either of Mr Stanbury or of Mr Lloyd that 1428 [that is a parcel of land] should be included in the contract. It is not sufficient that there should be convincing proof that the written contract did not represent the true intention of the parties. I must also be satisfied that there was a common intention and I emphasise a common intention, of Mr Stanbury and Mr Lloyd that 1428 should be excluded."
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 Edwards v SOGAT; CA 1971 - [1971] Ch 354

 
 Ashcroft v Curtin; CA 1971 - [1971] 1 WLR 1731; [1971] 3 All ER 1208

 
 Wilson v Liverpool Corporation; CA 1971 - [1971] 1 WLR 302
 
Cassell and Co Ltd v Broome and Another [1971] 2 QB 354; [1971] 1 All ER 262
24 Mar 1971
CA
Denning MR, Salmon and Phillimore LJJ
Damages, Defamation

1 Citers



 
 O'Connell v Jackson; CA 7-Jul-1971 - [1971] CLY 3115; [1972] 1 QB 270; [1971] EWCA Civ 5; [1971] 3 All ER 129; [1971] 2 Lloyd's Rep 354; [1971] 3 WLR 463; [1972] RTR 51; [1971] 2 LLR 354
 
Mitchell v Mulholland (No. 2) [1972] 1 QB 65
1972
CA
Widgery LJ
Damages, Personal Injury
The plaintiff was severely injured, and recovered substantial damages. £20,000 for pain and suffering and loss of amenity, and £21,350 for nursing care. The court declined to adjust the award for anticipated inflation: "an award of damages for personal injury should not reflect the possibility of continuing inflation."
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Haggar v de Placido [1972] 1 WLR 716
1972


Personal Injury, Damages
£13,500.00 was awarded for pain and suffering and loss of amenities for a case involving severe disablement.
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London and Overseas Freighters v Timber Shipping Co SA "The London Explorer" [1971] 1 Lloyds Rep 523; [1972] AC 1
1972
HL
Lord Morris, Lord Reid
Contract, Damages
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."
1 Citers


 
Allan v Scott 1972 SC 59
1972


Scotland, Damages
The courts in Scotland can look to English awards of damages for personal injuries.
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 Daish v Wauton; CA 1972 - [1972] 2 QB 262
 
Christopher Hill Ltd v Ashington Piggeries Ltd [1972] AC 441
1972
HL
Lord Diplock, Lord Wilberforce, Viscount Dilhorne, Lord Guest
Contract, Damages
Mink farmers had asked a compounder of animal foods to make up mink food to a supplied formula. Held: There was reliance as to the suitability of the ingredients only.
Lord Diplock said: "Unless the Sale of Goods Act 1893 is to be allowed to fossilise the law and to restrict the freedom of choice of parties to contracts for the sale of goods to make agreements which take account of advances in technology and changes in the way in which business is carried on today, the provisions set out in the various sections and subsections of the code ought not to be construed so narrowly as to force upon parties to contracts for the sale of goods promises and consequences different from what they must reasonably have intended. They should be treated rather as illustrations of the application to simple types of contract of general principles for ascertaining the common intention of the parties as to their mutual promises and their consequences, which ought to be applied by analogy in cases arising out of contracts which do not appear to have been within the immediate contemplation of the draftsman of the Act in 1893." and
"Because of the source of the rules stated in the Sale of Goods Act 1893 the classification adopted is by reference to the promises made in relatively simple types of contracts for the sale of goods which were commonly made in the 19th century and had been the subject of judicial decision before 1893."
Viscount Dilhorne said: "I regard it as almost unarguable that a person who goes into a shop and asks for a food for feeding to animals has not made known the particular purpose for which he is requiring the food and that he has only made known the particular purpose if he specifies the variety or varieties of animals he wants to feed."
Lord Guest distinguished between a dealer in the way of business as opposed to when a seller sold goods in a private capacity.
Lord Wilberforce said: "But, moreover, consideration with the preceding common law shows that what the Act had in mind was something quite simple and rational: to limit the implied conditions of fitness or quality to persons in the way of business, as distinct from private persons." and "I would have no difficulty in holding that a seller deals in goods ‘of that description’ if he accepts orders to supply them in the way of business and this whether or not he has previously accepted orders for goods of that description."
and "Equally I think it is clear (as both courts have found) that there was reliance on the respondents’ skill and judgment. Although the Act [ie section 14(1) of the Sale of Goods Act 1893] makes no reference to partial reliance, it was settled, well before the Cammell Laird case [1934] AC 402 was decided in this House, that there may be cases where the buyer relies on his own skill or judgment for some purposes and on that of the seller for others. This House gave that principle emphatic endorsement."
Sale of Goods Act 1893 14(1)
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Dutton v Bognor Regis Urban District Council [1972] 1 All ER 462; [1972] 2 WLR 299; [1972] 1 QB 373; [1972] CLY 2352
1972
CA
Lord Denning MR
Damages, Negligence
The court considered the liability in negligence of a Council whose inspector had approved a building which later proved defective. Held: The Council had control of the work and with such control came a responsibility to take care in performing all associated tasks.[Lord Denning MR said: "If Mr Tapp's submissions were right, it would mean that if the inspector negligently passes the house as properly built and it collapses and injures a person, the council are liable : but if the owner discovers the defect in time to repair it - and he does repair it - the council are not liable. That is an impossible distinction. They are liable in either case".
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 Cassell and Co Ltd v Broome and Another; HL 23-Feb-1972 - [1972] 2 WLR 645; [1972] AC 1027; [1972] UKHL 3
 
McKendrick v Sinclair [1972] UKHL 9; 1972 SLT 110; 1972 SC (HL) 25
15 Mar 1972
HL

Scotland, Damages, Constitutional
The House considered the nature of an action for assythment - a claim for damages by the family of a victim of a homicide where the perpetrator had not suffered capital punishment. The defendant here argued that it was no longer good law. Held: The common law was not lost through lack of use. The remedy still existed.
[ Bailii ]

 
 Launchbury v Morgans; HL 9-May-1972 - [1973] AC 127; [1972] UKHL 5

 
 Jarvis v Swans Tours Ltd; CA 16-Oct-1972 - [1973] 1 All ER 71; [1972] 3 WLR 954; [1973] QB 233; [1972] EWCA Civ 8
 
Norton Tool Co Ltd v Tewson [1972] IRLR 86 NIRC; [1973] 1 WLR 45; [1972] ICR 501
30 Oct 1972
NIRC
Donaldson P
Employment, Damages
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages. Held: The common law rules and authorities on wrongful dismissal are irrelevant. That cause of action is quite unaffected by the Act which has created an entirely new cause of action, namely, the "Unfair Industrial Practice" of unfair dismissal. The measure of compensation for that statutory wrong is itself the creature of statute and is to be found in the Act of 1971 and nowhere else.
Donaldson P said: “The amount to be awarded is that which is just and equitable in all the circumstances, having regard to the loss sustained by the complainant. “Loss” in the context of section of 116 does not include injury to pride or feelings. In its natural meaning the word is not to be so construed, and that this meaning is intended seems to us to be clear from the elaboration contained in section 116(2). The discretionary element is introduced by the words “having regard to the loss”. This does not mean that the court of tribunal can have regard to other matters, but rather that the amount of the compensation is not precisely and arithmetically related to the approved loss . . The circumstances of the dismissal were relevant only if they were such as to cause or to be likely to cause future loss. Injury to the employee’s pride or feelings is not loss and is irrelevant . . We need only consider whether the manner and circumstances of his dismissal could give rise to any risk of financial loss at a later stage by, for example, making him less acceptable to potential employers or exceptionally liable to selection for dismissal.” It was good industrial relations practice for an employer who dismisses without notice to make a payment in lieu of notice. Where such sums are paid, no credit has to be given by the employee for monies earned by the employee from other employers in the notice period. It was held that damages for unfair dismissal should therefore include full pay for the notice period without reduction for mitigation.
Industrial Relations Act 1971 116(1)
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[ Bailii ]

 
 Bellingham v Dhillon; QBD 1973 - [1973] 1 QB 304
 
McCann v Sheppard [1973] 1 WLR 540
1973
CA
Lord Denning MR
Personal Injury, Damages
The injured plaintiff succeeded in his action for damages for personal injury. The defendants appealed the quantum of damage but before the appeal was heard the plaintiff died. The court was now asked to reduce the award because of the death. Held: Damages for pain and suffering and loss of amenities should be limited to an amount appropriate for the length of time that the injured party survived.
The court also considered what cause of action the widow might have. Lord Denning MR said: "It is open to doubt whether the widow here would have any claim under the Fatal Accidents Act. Her husband had sued Mr Sheppard to judgment. Under that Act, the matter must be looked at as at the time of his death. Applying the words of the statute "If death had not ensued", would he himself have been entitled to maintain an action and recover damages for negligence? I do not think so: for the simple reason that he had already recovered judgment and having done that he could not maintain another action for the same cause."
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 Harris v Harris; CA 1973 - [1973] 1 Lloyd's Rep 445
 
George v Pinnock [1973] 1 WLR 118
1973
CA

Damages, Personal Injury
The court awarded £19,000 for general damages for pain and suffering and loss of amenity for severe disablement.
1 Citers


 
Simple Simon Catering Limited v Binstock Miller and Co (1973) 228 EG 527; (1973) 117 SJ 529
1973
CA

Damages
In applying the 'diminution in value' rule for assessing lost opportunity damages, and particularly in claims against solicitors, a more general assessment should be made, taking account of the 'general expectation of loss'.
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 Rugby Joint Water Board v Shaw-Fox; HL 1973 - [1973] AC 202

 
 Morgan v Perry; QBD 1973 - (1973) 229 EG 1737
 
Wellman Alloys Ltd v Russell [1973] ICR 616
1973


Employment, Damages
Only economic losses are recoverable following a dismissal.
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 Evans Marshall and Co Ltd v Bertola SA; CA 1973 - [1973] 1 WLR 349

 
 McGhee v National Coal Board; HL 1973 - [1973] 1 WLR 1; [1973] SC (HL) 37; [1972] 3 All ER 1008; [1972] UKHL 7; [1972] UKHL 11
 
Stepek (J) Ltd v Hough [1973] 8 ITR 516 NIRC
1973
NIRC

Employment, Damages

1 Cites

1 Citers



 
 Cunningham v Harrison; CA 17-May-1973 - [1973] QB 942
 
Donnelly v Joyce [1974] QB 454; [1973] EWCA Civ 2; [1973] 2 Lloyd's Rep 130; [1973] 3 WLR 514; [1973] 3 All ER 475
18 May 1973
CA
Megaw LJ, Davies LJ, Walton LJ
Damages
A six year old injured his leg in a road accident, and needed daily attention. His mother gave up her job to look after him. The claim for damages on behalf of he boy included the mother's loss of earnings. This was objected to on the grounds that the boy had incurred no obligation to repay his mother for her services. Held: the fact that the boy had obtained the necessary care without payment was irrelevant to his claim: "The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff's loss."
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[ Bailii ]

 
 Robinson v Post Office; 1974 - [1974] 1 WLR 1176
 
Jugoslavenska Oceanske Plovidba v Castle Investment Co Inc [1974] QB 292
1974
CA
Lord Denning MR
International, Arbitration, Damages, Litigation Practice
London arbitrators had made an award for unpaid hire in US dollars, being the currency of the hire contract. An issue arose whether an English court could give leave under the Act to enforce the award in the same manner as a judgment to the same effect. Held: English arbitrators had jurisdiction to make their awards in a foreign currency where that currency was the currency of the contract. Such an award could be enforced with the leave of the court by converting the award into sterling at the rate of exchange ruling at the date of the award.
Lord Denning MR said: "In my opinion English arbitrators have authority, jurisdiction and power to make an award for payment of an amount in foreign currency. They can do this – and I would add, should do this – whenever the money of account and the money of payment is in one single foreign currency. They should make their award in that currency because it is the proper currency of the contract. By that I mean that it is the currency with which the payments under the contract have the closest and most real connection. Likewise, whenever the proper currency of a contract is a foreign currency, English arbitrators can and should make their award in that currency, unless the parties have expressly or impliedly agreed otherwise. The proper currency can usually be ascertained without difficulty. But if the transaction is closely connected with two currencies (as in The the Hu [1970] P 106 Japanese salvors of a Panamanian vessel) the arbitrators can and should make their award in whichever of the two currencies seems to them to produce the most appropriate and just result." and (Roskill LJ) "I would only add on this part of the case that this decision does not amount to a general licence to arbitrators and umpires to make awards in any currency they choose heedless of the provisions of the contract with which they are concerned. The currency of account and the currency of payment will in most cases be easily ascertainable just as the proper law of a contract is in most cases easily ascertainable. In a few cases the problem will be difficult as in a few cases the question of proper law is difficult. But even in a difficult case the problem must ultimately be capable of solution and the arbitrators (if they wish) can – as I would think – always decide as a matter of discretion to make an award in sterling unless either the terms of the contract in question or of the arbitration agreement under which their jurisdiction arises or some other reason prevents them from so doing."
Arbitration Act 1950 26
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 Wrotham Park Estate Ltd v Parkside Homes Ltd; ChD 1974 - [1974] 1 WLR 798; [1974] 2 All ER 321
 
Larkham v Lynch [1974] 2 Lloyd's Rep 544
1974

Brabin J
Damages
The plaintiff had sustained serious injuries and sought damages. One item of special damages was a sum for loss of pension between the age of 60, when he would have retired, and the age of 65, which was the limit of his life expectancy as a result of the accident. It was not disputed that no deduction could be made in respect of his incapacity pension receipts before his normal retirement age of 60 because of the decision in Parry v. Cleaver. But it was said that after that date the amounts which he would have received in the aggregate up to the age of 60 could then be brought into account against his claim for the loss of the pension payable to him after that age. There was no dispute that the amounts which he would have received up to the age of 60, when taken together with a lump sum which he had received in commutation of part of his pension when he was awarded the incapacity pension, were sufficient to wipe out entirely his claim for pension loss. Held: The court rejected the defendants' argument, which did not pay true attention to what a pension is, namely that it is the deferred payment for current work. But the main reason was that, had the amounts alleged to be deductible been in fact deductible, then the similar process would have been applied in Parry v. Cleaver. It was almost beyond comprehension that, if in Parry v. Cleaver there had been a sum of money to be regarded as having remained on ice until the age when the plaintiff would have retired from the police, it would not have been deducted from his claim for loss of pension after that date.
1 Cites

1 Citers


 
Myers v Milton Keynes Development Corporation [1974] 1 WLR 696
1974
CA
Lord Denning MR
Land, Damages
Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the "scheme" meant that the valuer should disregard the scheme altogether or permitted him to have regard to it when identifying the "proposals of the acquiring authority" in accordance with which the valuer had to assume planning permission would be granted. A valuer assessing land for compulsory purchase was at risk of having to 'conjure up a land of make-believe' and 'let his imagination take flight to the clouds' "What is to be assumed about the Walton Manor Estate itself? Here again one thing is clear. You are not to assume that it would have been developed in accordance with the proposals of the development corporation. You are to disregard any increase by reason of the estate itself being developed in accordance with their proposals. . . But you are to assume that after 10 years planning permission would be available for development as a residential area."
and “It comes to this. In valuing the estate, you are to disregard the effect of the scheme, but you are to assume the availability of planning permission. This is best explained by taking an imaginary instance: A scheme is proposed for building a motorway across Dartmoor with a service station every five miles. Suppose that land is taken on which a service station is to be built as soon as possible. In assessing compensation, you are to disregard any increase due to the proposed motorway, or service stations. But if the landowner had already been granted actual permission for that piece of land for commercial purposes (for example, as a café), you are to have regard to it: see section 14 (2). Even if he had no such permission already, you are to assume that he would have been granted planning permission for a service station; see section 15 (1). And you are to value that land with that permission in the setting in which it would have been if there had been no scheme. If it would have been a good site for a service station, there would be a great increase in value. If it would have been in an inaccessible spot on the wild moor, there would be little, if any, increase in value because there would be no demand for it. A further complication arises when the proposals are not put into effect for 10 years. Planning permissions are not in practice granted so far ahead. They are only granted for immediate development. In the illustration you are therefore to assume that, after 10 years, planning permission would be granted for development of a service station – in a setting where there had been no scheme.”
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1 Citers


 
Vaughan v Weighpack Ltd [1974] ICR 261
1974
NIRC
Sir Hugh Griffiths
Employment, Damages
(National Industrial Relations Court) In a claim for compensation for unfair dismissal, the employee should be treated as having suffered a loss in so far as he received less than he would have received in accordance with good industrial practice. However, the court applied the principle as it had been applied in earlier cases to hold that the employee who had been entitled to 3 months notice was entitled to recover earnings for that period, without deduction of post dismissal earnings, as 'an irreducible minimum' compensatory award. The court would not award damages for non-economic loss after wrongful termination of employment. The loss of wages during the notice period was "the irreducible minimum" to which an employee was entitled.
1 Cites

1 Citers


 
Davies v Taylor [1974] AC 207
1974
HL
Lord Reid, Lord Cross of Chelsea
Personal Injury, Damages
The plaintiff's husband was killed in a road accident caused by the defendant's negligence. They were childless. She had deserted him five weeks before his death and thereafter, he learned about her adultery with a fellow employee. He tried to effect reconciliation with her but she refused. Shortly before his death, he had instructed his solicitor to institute divorce proceedings. The plaintiff claimed as widow and administratrix of the husband's estate. Held: Her claim for dependency failed because the court of first instance found that she had not proved that reconciliation with her husband was more probable than not. While the plaintiff could arguably make a claim for loss of chance, she had not shown any significant chance or probability of reconciliation with her husband before his death. To obtain anything under a head of substantial losses of future chance, the plaintiff must establish that that chance: "was substantial. If it was, it must be evaluated. If it was a mere possibility, it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than 'substantial', on the one hand, or 'speculative' on the other. It must be left to the good sense of the tribunal to decide on broad lines, without regard to legal niceties, but on a consideration of all the facts in proper perspective."
Lord Reid said: "When the question is whether a certain thing is or is not true - whether a certain event did or did not happen - then the court must decide one way or the other. There is no question of chance or probability. Either it did or it did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is proved that it did in fact happen.
But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent; sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent. and a probability of 49 per cent . . If the balance of probability were the proper test what is to happen in the two cases which I have supposed of a 60 per cent. and a 40 per cent. probability. The 40 per cent. case will get nothing but what about the 60 per cent. case. Is it to get a full award on the basis that it has been proved that the wife would have returned to her husband? That would be the logical result. I can see no ground at all for saying that the 40 per cent. case fails altogether but the 60 per cent. case gets 100 per cent. But it would be almost absurd to say that the 40 per cent. case gets nothing while the 60 per cent. case award is scaled down to that proportion of what the award would have been if the spouses had been living together. That would be applying two different rules to the two cases. So I reject the balance of probability test in this case."
Lord Cross of Chelsea said that "The word 'likely' which occurs in the last two of the three passages from the judgment which I have quoted above, may be used in different senses. Sometimes it may be used to mean 'more likely than not' at other times to mean 'quite likely' or 'not improbably' though less likely than not."
Fatal Accidents Act 1959
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1 Citers


 
Hilti (Great Britain) Ltd v Windridge [1974] ICR 352; [1974] IRLR 53
1974
EAT
Lord Justice Griffiths
Employment, Damages
EAT The employer appealed against the tribunal's decision to make an award to compensate the respondent for the loss of entitlement to an extended statutory notice period. Held: The award was upheld. Lord Justice Griffiths said: "This is a very speculative matter and as we say it is a novel one. But it appears to us to be a principle permissible as a head of damage although we would not expect it to attract other than a very small award in the average case."
1 Cites

1 Citers


 
Davies v Taylor (No 2) [1974] AC 225
2 Jan 1974
HL
Viscount Dilhorne
Damages, Legal Aid, Costs
The plaintiff argued that no costs had been incurred by the successful defendant, as he was insured, and the insurance company was bound to pay his costs. Held: "In this case the solicitors, no doubt first instructed by the insurance company, were the solicitors on the record as the solicitors for the respondent. They acted for him and, in the absence of proof of an agreement between him and them or between them and the insurance company that he would not pay their costs, they could look to him for payment for the work done and his liability would not be excluded by the fact that the insurance company had itself agreed to pay their costs. In my opinion the costs incurred were incurred by the respondent in the sense in which those words are used in the Legal Aid Act 1964."
Legal Aid Act 1964 1(1)
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1 Citers


 
Jackson v Horizon Holidays Ltd [1975] 1 WLR 1468; [1974] EWCA Civ 12; [1975] 3 All ER 92
5 Feb 1974
CA
James LJ, Denning MR LJ
Contract, Damages
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 damages by a person not party to the contract.
Denning MR LJ said: "In Jarvis . . it was held by this Court that damages for the loss of a holiday may include not only the difference in value between what was promised and what was obtained but also damages for mental distress, inconvenience, upset, disappointment and frustration caused by the loss of the holiday . . People look forward to a holiday. They expect the promises to be fulfilled. When it fails, they are greatly disappointed and upset. It is difficult to assess in terms of money; but it is the task of the judges to do the best they can. I see no reason to interfere with the total award of £1100."
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[ Bailii ]
 
Neumeister v Austria 1936/63; [1974] ECHR 1; [1974] ECHR 1; (1979) 1 EHRR 136; 1936/63
7 May 1974
ECHR
Pallierii P
Human Rights, Prisons, Damages
The applicant complained, inter alia, of the length of time he had spent in detention while on remand from 24 February to 12 May 1961, that is, two months and sixteen days, and from 12 July 1962 to 16 September 1964, that is two years, two months and four days. The Court had found that there had been a breach of Article 5(3) in that his detention had been continued for longer than a reasonable time. He was later convicted and sentenced by the Court in Austria, and the time spent on remand had been deducted in full from the time to be served. The court now considered the damages whoch might be awarded. Held: "Some losses must have followed from the excessive prolongation of the detention in question but it proves very difficult to isolate and unravel them from those which Neumeister and the Scherzinger company would have had to bear in any event. The Court does not find it necessary on this point to embark on additional proceedings. In effect, the time the applicant had spent in detention on remand was reckoned as part of his sentence and, more especially, he was granted remission of the remainder of his sentence". However, in spite of the measures already taken in favour of the applicant in Austria, the damage resulting from the breach of Article 5 (3) "in itself" in addition calls for some element of monetary compensation of which it is for the Court to assess the amount in the light of all the circumstances of the case. Here, the finding of a violation was sufficient to afford just satisfaction. The circumstances of the case included (i) that the detention on remand was justified, and (ii) that the period on remand had been deducted in full from the sentence.
European Convention on Human Rights
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[ Bailii ] - [ Bailii ]
 
Smith v Manchester City Council (1974) 17 KIR 1; [1974] EWCA Civ 6
10 Jun 1974
CA
Edmund Davies, Stamp, Scarman LJJ
Damages, Personal Injury
The plaintiff, a part time domestic cleaner slipped and injured herself (a frozen shoulder) when working for the defendant. It was accepted that the cause of the slip was the defendant's negligence. At the time of the claim she was still employed by the defendant, but she asked for an award of damages for a possible future loss of earning as a result of being disadvantaged in the employment market. . Held: The court awarded damages for the potential loss to the plaintiff from the plaintiff's reduced earning capacity, equivalent to the loss of her competitive position in the labour market. Such an award was intended to compensate a plaintiff who is in employment, for a handicap in getting a new job if he lost the current one and for the longer than normal periods out of work between jobs because of his disability.
The damages award of £300 for this element was increased to £1,000.
Scarman LJ said: "Loss of future earnings or future earning capacity is usually compounded of two elements. The first is when a victim of an accident finds that he or she can, as a result of the accident, no longer earn his or her pre-accident rate of earnings. In such a case there is an existing reduction in earning capacity which can be calculated as an annual sum. It is then perfectly possible to form a view as to the working life of the plaintiff and, taking the usual contingencies into account, to apply to that annual sum of loss of earnings a figure which is considered to be the appropriate number of years' purchase in order to reach a capital figure. Fortunately in this case there is no such loss sustained by the plaintiff because, notwithstanding her accident, she has continued with her employment at the same rate of pay and, as long as she is employed by the Manchester Corporation, is likely, if not certain, to continue at the rate of pay appropriate to her pre-accident grade of employment. That element of loss, therefore, does not arise in this case.
The second element in this type of loss is the weakening of the plaintiff's competitive position in the open labour market: that is to say, should the plaintiff lose her current employment, what are her chances of obtaining comparable employment in the open labour market? The evidence here is plain:- that, in the event (which one hopes will never materialise) of her losing her employment with the Manchester Corporation, she, with a stiff shoulder and a disabled right arm, is going to have to compete in the domestic labour market with women who are physically fully able. This represents a serious weakening of her competitive position in the one market into which she can go to obtain employment. It is for that reason that it is quite wrong to describe this weakness as a "possible" loss of earning capacity: it is an existing loss: she is already weakened to Rat extent, though fortunately she is protected for the time being against suffering any financial damage because she does not, at Present, have to go into the labour market.
It is clearly inappropriate, when assessing this element of loss to attempt to calculate any annual sum or to apply to any annual sum so many years' purchase. The court has to look at the weakness so to speak "in the round", take note of the various contingencies, and do its best to reach an assessment which will do -justice to the plaintiff. "
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Hay v Hughes [1975] QB 790; [1974] EWCA Civ 9
17 Oct 1974
CA
Edmund-Davies L, Stephenson, Buckley, Ormrod LJJ
Damages
A couple had died in a road accident. The court considered the award of damages for dependency.
Law Reform (Miscellaneous Provisions) Act 1934 - Fatal Accidents Act 1846 - Fatal Accidents Act 1959
1 Cites

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[ Bailii ]

 
 Bracewell v Appleby; ChD 1975 - [1975] Ch 408

 
 General Tire v Firestone Tyre and Rubber Company Limited; HL 1975 - [1976] RPC 197; [1975] 1 WLR 819; [1975] 2 All ER 173; [1975] FSR 273
 
Strutt v Whitnell [1975] 1 WLR 870
1975
CA
Cairns LJ
Damages, Contract
The house sale contract provided for vacant possession on completion, notwithstanding that it was in fact occupied by a protected tenant who in the event declined to leave. The vendor offered to accept a reconveyance of the house, but that offer was refused by the purchaser who brought an action for breach of contract. The vendor contended that the purchaser had failed to mitigate by refusing his offer to accept a reconveyance. Held: The argument failed. Where the purchaser's only remedy was to recover damages for breach of contract he was not bound to take steps that would deprive him of his right to retain the property and recover damages for the breach of contract. It cannot be right that a refusal to accept a defendant's offer: "even if such refusal were wholly capricious, was something that deprived the plaintiff of his right to substantial damages altogether."
Cairns LJ said that the offer of buy-back was indistinguishable from an offer to pay damages of £1,900. The plaintiff was not bound to choose between his two remedies: "if [the defendant's] contentions were right it would logically follow that if the offer . . had been not 'We will take the house back' but 'We will pay you £1,900 damages' and the plaintiff had then, for some reason, refused that offer and had brought an action for damages it could be said that he ought to have accepted the offer and thereby mitigated his damage and therefore he was entitled to nothing at all. That cannot be. Clearly what would happen in those circumstances would be that the defendants, if they were wise, would make a payment into court of the £1,900 and the plaintiff would suffer in respect of costs. But it could not possibly be suggested that the refusal to accept the offer, even if such refusal were wholly capricious was something that deprived the plaintiff of his right to substantial damages altogether."
1 Citers



 
 Miliangos v George Frank (Textiles) Ltd; HL 1975 - [1976] AC 443; [1975] 1 WLR 758
 
The Dione [1975] I LLR 117
1975

Lord Denning
Contract, Damages
Charterers should have redelivered the vessel by a certain date but failed to do so. Held: They were held liable in damages for the difference between the market and charterparty rate for the overrun period. Lord Denning said that where the charterer had an obligation to redeliver by a stated date: "If he does not do so - and the market rate has gone up – he will be bound to pay the extra. That is to say he will be bound to pay the charter rate up to the end of the stated period and the market rate thereafter, see Watson v Merryweather".
1 Citers


 
Mottram Consultants Ltd v Bernard Sunley and Sons Ltd [1975] 2 Lloyd's Rep 197
1975
HL
Lord Cross of Chelsea, Lord Hodgson and Lord Wilberforce
Contract, Damages
Stone panels which had been fixed to the external walls of a school fell off, owing to defective fixing by the contractor. Held: The contractor was liable for the cost of reinstating the stone panels, calculated at the date when the defect was discovered.
The parties disputed the interpretation of a building contract. The issue was whether or not it was the common intention of the parties to deny the right to the defendant to set-off against the amount claimed in a certificate. The certificates were issued by an architect. The House considered whether there existed a general rule for construing a contract, "namely, that one should approach each case without any 'parti pris' in favour or against the existence of a right of set off, though one must bear in mind the principle established in Mondel v Steel." Held: Even if there was a magic formula, meaning that the words 'set-off' or equivalent had to be used in express terms, then the failure to use it does not necessarily mean that that was not what the parties intended in the particular case. Lord Cross referred to the fact that the contract showed clearly that the proprietor was not entitled to withhold payment because of some allegation that there was an error made, and: "It was for the architect to put that right if need be in a monthly certificate. I think therefore that the Master was right to give Sunley judgment for the full sum claimed. . "
Lord Cross of Chelsea said: "When the parties use a printed form and delete parts of it one can, in my opinion pay regard to what has been deleted as part of the surrounding circumstances in the light of which one must construe what they have chosen to leave in. The fact that they deleted (iii) shows that these parties directed their minds (inter alia) to the question of deductions under the principle of Mondel v Steel [(1841) 8 M. and W. 858] and decided that no such deductions should be allowed."
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 Re Kershaw's Application; LT 1975 - (1975) 31 P& CR 187

 
 Bone v Seale; CA 1975 - [1975] 1 WLR 797

 
 Froom v Butcher; CA 21-Jul-1975 - [1976] QB 286; [1975] EWCA Civ 6; [1975] 3 All ER 520
 
Cox v Philips Industries Ltd Times, 21 October 1975
15 Oct 1975

Lawson J
Damages
Damages for distress, vexation and frustration, including consequent ill-health, could be recovered for breach of a contract of employment if it could be said to have been in the contemplation of the parties that the breach would cause such distress etc.
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 Dick v Falkirk Burgh; HL 26-Nov-1975 - [1975] UKHL 6; 1976 SLT 21; 1976 SC (HL) 1
 
Customglass Boats Limited v Salthouse Brothers Limited [1976] RPC 589
1976

Mahon J
Commonwealth, Damages
(New Zealand) The court examined the question of whether market resarch was admissible as expert evidence as to damages. Held: "So far as I can see, public opinion or survey evidence is not now in practice treated as hearsay in trade mark or patent cases in the United Kingdom notwithstanding that the party adducing such evidence relies not only upon the affidavits of persons responding to a questionnaire but also upon answers not sworn to but available for inspection by the other side in terms of the direction given in A. Baily & Co. v. Clark, Son & Morland. The latter class of answers, unsanctified by judicial oath, are resorted to by the other side in order to verify the assertion that the sworn answers in fact represent a proportion of a total number tending to the same evidentiary conclusion, and subject to that right of inspection the total number of answers is accepted, in the absence of objection as to their factual existence in due form, as comprising a legitimate assembly of class opinion or impression in respect of the trade name or mark under consideration. In such a case, as in the case of conventional evidence by retailers as to the oral terms of buying orders or inquiries by customers, the Courts plainly accept evidence which is technically overshadowed by a general hearsay objection. The unsworn persons responding to a questionnaire and the anonymous customers who order or inquire about goods are all people making statements out of Court to a witness called in the proceedings, and although the basis of admissibility does not appear to be overtly founded upon anything except established practice and procedure under the trade mark and patent legislation, I can for myself see no objection to the classification of such evidence either as proving a public state of mind on a specific question, which is an acknowledged exception to the hearsay rule, or as proving an external fact, namely, that a designated opinion is held by the public or a class of the public, this not being a matter of hearsay at all."
As to the weight to be attached to survey evidence: "There are obvious difficulties in the acceptance of testimony which purports to convey to the appropriate legal tribunal a number of individual assertions or opinions uttered in relation to the subject matter of the inquiry by persons not called as witnesses and, therefore, not subject to cross-examination, but the considerations which I have mentioned lead me to the conclusion that the result of a market research survey is admissible in this class of case to prove a fact in issue, whether it be reputation or likelihood of confusion or deception, even though the persons responding to the form of questions are not called as witnesses. The weight of such evidence, which was the basis of Mr. Gault's objection in this case as opposed to technical admissibility, will depend upon the circumstances. There must be a formulation of questions cast in such a way as to preclude a weighted or conditioned response, there must be clear proof that the answers were faithfully and accurately recorded, and there must be evidence that the answers were drawn from a true cross-section of that class of the public or trade whose impression or opinion is relevant to the matter in issue. A properly drawn market research questionnaire, carefully framed so as to elicit opinions or beliefs held by persons adequately informed, can only reveal in my opinion the existence or otherwise in a defined proportion of the persons interviewed of the relevant opinion or belief, and I do not think it can be right in cases involving trade mark infringement or passing off where evidence of reputation is relevant, and especially in a passing off action where affidavit evidence is not receivable to compel a party to produce in the Courtroom an interminable parade of witnesses to depose individually as to their knowledge and understanding of the trade association involved in a particular trade mark or design, so long as there are followed the cautionary procedures recommended in the article in the New York University Law Review above cited. The evidence obtained by research surrey is in my view legitimate proof of the fact the opinions obtained had in fact existed, whether rightly held or not and on that view of the matter it is my opinion that such evidence is not hearsay at all and that, even if it did fall within the technical concept of hearsay or representing a collation of individual statements made out of Court then the evidence would still be admissible by way of exception to the hearsay rule because it exhibits the existence of a state of mind shared in common by a designated class of persons. In the present case the method and procedure of taking this research survey has already been described and I am satisfied that those methods and procedure were not only adequate but exemplary, and that the results thus obtained are admissible in evidence as proving the reputation of the name in question in relation to the manufacturer and the designer and the place of origin as held by persons properly informed on the general subject matter of the relevant enquiry."
1 Cites

1 Citers


 
Blackwell v GEC Elliott Processes [1976] IRLR 144
1976


Employment, Damages

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 GKN Centrax Gears Ltd v Matbro Ltd; CA 1976 - [1976] 2 Lloyd's Rep 555

 
 SJC Construction v Sutton London Borough Council; CA 1976 - [1974] 28 P & CR 200; (1975) 234 EG 363; [1976] RVR 219

 
 Occidental Worldwide Investment Corporation v Skibs A/S Avanti (The Siboen and Sibotre); 1976 - [1976] 1 Lloyds Rep 293

 
 Allan J Panozza and Co Pty Ltd v Allied Interstate (Qld) Pty Ltd; 1976 - [1976] 2 NSWLR 192
 
Moeliker v Reyrolle and Co Ltd [1977] 1 WLR 132; [1976] ICR 253
1976
CA
Browne LJ, Stephenson LJ
Personal Injury, Damages
The court considered the principles for the award of damages for future loss of earning capacity. Held: The court distinguished between an award for loss of earnings and compensation for loss of earning capacity. The latter head of damage arose where a plaintiff was at the time of trial in employment but there was a risk that he might lose that employment at some time in the future and by then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job. That was a different head of damage from an actual loss of future earnings which could be proved at the time of the trial.
Browne LJ said: "I do not think one can say more by way of principle than this. The consideration of this head of damages should be made in two stages. 1. Is there a ´substantial' or ´real' risk that a plaintiff will lose his present job at some time before the estimated end of his working life? 2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materialises, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff's chances of getting a job at all, or an equally well paid job.
It is impossible to suggest any formula for solving the extremely difficult problems involved in stage 2 of the assessment. A judge must look at all the factors which are relevant in a particular case and do the best he can." and "If the Court comes to the conclusion that there is no substantial or real risk of the plaintiff losing his present job in the rest of his working life, no damages will be recoverable under this head."
As to Smith v Manchester: "[it] laid down no new principle of law... [but was] merely an example of an award of damages under a head which has long been recognised - a plaintiff's loss of earning capacity where as a result of his injury his chances in the future of getting in the labour market work (or work as well paid as before the accident) have been diminished by his industry. This court made an award under this head in Ashcroft v Curtin [l971] 1 WLR 1731 three years before Smith's case. This head of damage generally only arises where a plaintiff is at the time of the trial in employment, but there is a risk that he may lose this employment at some time in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or equally well paid job. It is a different head of damages from an actual loss of future earnings which can already be proved at the time of the trial."
Stephenson LJ sought words to define the correct approach to be followed stated: "I avoid "speculation" because this head of damage can really be nothing else".
1 Cites

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 Heywood v Wellers; CA 1976 - [1976] QB 446; [1976] 2 WLR 101; [1976] 1 All ER 300; [1976] 2 Lloyd's Rep 88; (1976) 120 SJ 9; Times, 15 November 1975; [1975] EWCA Civ 11

 
 Bird and Bird v Wakefield Metropolitan Borough Council; 1976 - (1976) 33 P&CR 478

 
 Heywood v Wellers; CA 1976 - [1976] QB 446; [1976] 2 WLR 101; [1976] 1 All ER 300; [1976] 2 Lloyd's Rep 88; (1976) 120 SJ 9; Times, 15 November 1975; [1975] EWCA Civ 11

 
 Copeland Borough Council v Secretary of State for the Environment; 1976 - (1976) 31 P&CR 403

 
 Chanthall Investments Ltd v F G Minter Ltd; OHCS 22-Jan-1976 - 1976 SC 73
 
Esso Petroleum Company Ltd v Mardon [1976] QB 801; [1976] EWCA Civ 4; [1976] 2 All ER 5
6 Feb 1976
CA
Lord Denning MR, Ormrod, Shaw LJJ
Torts - Other, Damages, Negligence, Contract
Statements had been made by employees of Esso in the course of pre-contractual negotiations with Mr Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the station. Mr Mardon was persuaded by the statements to enter into the tenancy; but he suffered serious loss when the actual throughput proved to be much lower than had been predicted. Mr Marden did his best but he lost his capital and incurred a large bank overdraft as a result of his trading losses. Held: Mr. Mardon was entitled to recover damages from Esso, on the basis of either breach of warranty or (on this point affirming the decision of the judge below) negligent misrepresentation. A contractor is not free to carry on with a disastrous contract and then seek to recover any losses on the basis of fraud. A special relationship, giving rise to a duty of care, may arise between the parties negotiating a contract if information is given in connection with the contract.
Lord Denning MR held: "A professional man may give advice under a contract for reward; or without a contract, in pursuance of a voluntary assumption of responsibility, gratuitously without reward. In either case he is under one and the same duty to use reasonable care: see Cassidy v. Ministry of Health [1951] 2 K.B. 343, 359-360. In the one case it is by reason of a term implied by law. In the other, it is by reason of a duty imposed by law. For a breach of that duty he is liable in damages: and those damages should be, and are, the same, whether he is sued in contract or in tort." and: "He is only to be compensated for having been induced to enter into a contract which turned out to be disastrous for him. Whether it be called breach of warranty or negligent misrepresentation, its effect was not to warrant the throughput but only to induce him to enter the contract. So the damages in either case are to be measured by the loss he suffered. Just as in Doyle v Olby he can say: 'I would not have entered into this contract at all but for your representation. Owing to it, I have lost all the capital I put into it. I also incurred a large overdraft. I have spent four years of my life in wasted endeavour without reward: and it will take sometime to re-establish myself.' For all such loss he is entitled to recover damages."
Ormrod and Shaw LJJ agreed that Mr. Mardon was entitled to recover damages either for breach of warranty or for negligent misrepresentation.
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[ Bailii ]
 
James Buchanan and Company Ltd v Babco Forwarding and Shipping (UK) Ltd [1976] EWCA Civ 9; [1977] QB 208
2 Dec 1976
CA
Lord Denning MR, Roskill LJ, Lawton LJ
Damages, Litigation Practice
A trailer full of whisky had been stolen. Four fifths of its retail value was excise duty. Because it was to have been exported, duty had not been paid. On the theft the owners had had to pay the duty. The owners sued the carriers for the loss, but the court had to decide the value of the cargo. Held: At common law the carriers would have to pay the full losses, but the 1965 Act imported the European Convention.
Lord Denning discussed the correct approach to interpretation of an international convention.
Carriage of Goods by Road Act 1965
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[ Bailii ]
 
Caltex Oil (Australia) Pty Ltd v Dredge "Willemstad" [1976] HCA 65; (1976) 136 CLR 529
9 Dec 1976

Gibbs, Stephen, Mason, Jacobs and Murphy JJ.
Commonwealth, Damages, Negligence, Transport
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".
1 Citers

[ Austlii ]
 
The Johnny [1977] 2 LLR 1
1977


Transport, Damages
Where a charterer had overrun his time, and faced a claim for damages, under the provisions of the amended Baltime form, the market rate should be assessed by reference to the market rate for 11-13 month charters (the period of the charterparty) as at the date of the commencement of the overrun period and then applied to that period alone. Lord Denning said that in the case of an illegitimate last voyage, the measure of recovery, whether as damages or upon a quantum meruit, was as follows: "In either case the amount would be assessed at the market rate then ruling for a time charter trip for a voyage at that time. That is for a time charter for the period of time occupied by such a voyage based on spot rates for the voyage charter but adjusted to a time charter basis. That would be obviously fair and just. The charterer by sending her on that last illegitimate voyage would have received the high market rate then prevailing and should pay damages based on that rate for that voyage".
1 Citers



 
 Helming Schiffahrts GMBH v Malta Drydocks Corporation; 1977 - [1977] 2 Lloyds Rep 5
 
C R Taylor (Wholesale) Ltd v Hepworths Ltd [1977] 1 WLR 659; [1977] 2 All ER 784
1977

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


 
Tito v Waddell (No 2); Tito v Attorney General [1977] Ch 106; [1977] 3 All ER 129; [1977] 3 WLR 972
1977
ChD
Megarry VC
Land, Equity, Constitutional, Damages
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 trustee has not sold to himself, in substance he has. Again one must regard the realities. If the question is asked: "Will a sale of trust property by the trustee to his wife be set aside?", nobody can answer it without being told more; for the question is asked in a conceptual form, and manifestly there are wives and wives. In one case the trustee may have sold privately to his wife with whom he was living in perfect amity; in another the property may have been knocked down at auction to the trustee's wife from whom he has been living separate and in enmity for a dozen years."
The issue arose, in relation to "the 1931 transaction", as to whether the acts of which the claimants complained were done on behalf of the Government of the Gilbert and Ellice Islands Colony (in which case no claim lay against the Crown, because excluded by the 1947 Act) or the Government of the United Kingdom (in which case, if a claim lay, it was not excluded). The court accepted that the colonial government was a subordinate government, all important decisions being referred to London, and the Crown, on the advice of the United Kingdom Government, having important powers that could be used to override acts of the colonial government. But the Vice-Chancellor concluded: "In my judgment the government of the United Kingdom was not the government of the Gilbert and Ellice Islands Colony at any material time. It had important advisory and supervisory functions, as well as paramount powers. It also contributed much to the governing of the colony, in general and to the 1931 transaction in particular, eg in settling the form of the 1931 lease; but it was not the government."
As to damages: "Per contra, if the plaintiff has suffered little or no monetary loss in the reduction of value of his land, and he has no intention of applying any damages towards carrying out the work contracted for, or its equivalent, I cannot see why he should recover the cost of doing work which will never be done. It would be a mere pretence to say that this cost was a loss and so should be recoverable as damages."
Crown Proceedings Act 1947 40(2)(b)
1 Cites

1 Citers



 
 Arta Shipping Co Ltd v Thai Europe Tapioca Service Ltd (The Johnny); 1977 - [1977] 2 Lloyd's Rep 1
 
Radford v De Froberville [1977] 1 WLR 1262
2 Jan 1977

Oliver J
Damages, Construction
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?"
1 Cites

1 Citers


 
G and K Ladenbau (UK) Ltd v Crawley and De Reya [1978] 1 WLR 266; [1977] 2 All ER 118
25 Apr 1977
QBD
Mocatta J
Land, Professional Negligence, Damages
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when purchasers from their clients later undertook a commons search. In fact the registration was erroneous, but the question took some time to resolve. Held: In the light of the defendants' knowledge about the plantiff intending to develop the land, any loss of profits was an appropriate head of damages including the cost of making good the error. Registration of common rights was conclusive evidence of the matters registered. Evidence was admitted from four solicitors as to best conveyancing practice as to whether commons searches were necessary. If the land is open land, a search of the commons registers should normally be undertaken to check that land is not subject to undisclosed rights of common. The fact that the land was vacant, and that it had previously been in the ownership of a lord of the manor should have alerted the defendants. However, a solicitor should not search in every case, but exercise a discretion.
Commons Registration Act 1965 10
1 Cites

[ lip ]
 
Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144; [1977] UKHL 3; [1977] 2 All ER 385; [1977] 2 WLR 951; [1977] QB 411
28 Apr 1977
HL
Lord Wilberforce, Lord Edmund-Davies, Lord Keith of Kinkel
Land, Damages
The section in the 1881 Act does not apply to a quasi-easement because "When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs of ownership, or at least of occupation, the condition for the existence of rights, etc., does not exist." and "He cannot grant or agree to grant land and at the same time deny to his grantee what is at the time of the grant obviously necessary for its reasonable enjoyment."
Lord Edmund-Davies said as to Wheeldon v Burrows: "The basis of such propositions is, as Lord Parker of Waddington stressed in Pwllbach Colliery Co Ltd v Woodman [1915] A.C. 624, 646, that "The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property…" But there is no common intention between an acquiring authority and the party whose property is compulsorily taken from him, and the very basis of implied grants of easements is accordingly absent."
Lord Keith of Kinkel said that both the rule in Wheeldon v Burrows and the provisions of section 62 of the 1925 Act had "no place in compulsory purchase".
Lord Wilberforce rejected the submission that the rule in Wheeldon v Burrows could apply in a case where the conveyance was made pursuant to a compulsory purchase order: "To apply this to a case where a public authority is taking from an owner his land without his will is to stand the rule on its head: it means substituting for the intention of a reasonable voluntary grantor the unilateral, opposed, intention of the acquirer"
and "section 62 does not fit this case. The reason is that when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc., does not exist
Conveyancing Act 1881 6 - Law of Property Act 1925 62
1 Cites

1 Citers

[ Bailii ]
 
Bowlay Logging Limited v Domtar Limited [1978] 4 WWR 105
1978

Berger J
Commonwealth, Damages, Contract
(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 expenditure. Held: Only nominal damages could be awarded. A plaintiff was not entitled to damages on a basis which would leave him better off than he would have been in had the contract been performed. The plaintiff would have made a loss on the contract as a whole. Noting that the issue had not been raised in either Cullinane Anglia Television said: "The law of contract compensates a plaintiff for damages resulting from the defendant's breach; it does not compensate a plaintiff for damages resulting from his making a bad bargain. Where it can be seen that the plaintiff would have incurred a loss on the contract as a whole, the expenses he has incurred are losses flowing from entering into the contract, not losses flowing from the Defendant's breach. In these circumstances, the true consequence of the defendant's breach is that the plaintiff is released from his obligation to complete the contract- or, in other words, he is saved from incurring further losses.
If the law of contract were to move from compensating for the consequences of breach to compensating for the consequences of entering into contracts, the law would run contrary to the normal expectations of the world of commerce. The burden of risk would be shifted from the plaintiff to the defendant. The defendant would become the insurer of the plaintiff's enterprise."
1 Cites

1 Citers


 
Appleby v Ireland [1978] RVR 156
1978


Land, Damages
"the multiplier that has come to be regarded as fair and reasonable as between a dispossessed trader and an acquiring authority is 3YP of ascertained net profit, assuming the business to have been trading at a steady level of profitability and from its own freehold premises".
1 Citers


 
H Parsons (Livestock) Limited v Uttley Ingham and C. Limited [1978] QB 791; [1977] EWCA Civ 13
1978
CA
Lord Denning MR, Orr, Scarman LJJ
Damages, Contract
The defendants had installed a pig nut hopper for the plaintiffs, but failed to provide adequate ventilation, causing the nuts to go sour, and the pigs to be poisoned. Held: Remoteness of damage is a question of law. The death of the pigs would have been within the contemplation of the parties when they made their contract, and damages were not too remote and were payable. "The court's task, therefore, is to decide what loss to the plaintiffs it is reasonable to suppose would have been in the contemplation of the parties as a serious possibility had they had in mind the breach when they made their contract."
1 Citers

[ Bailii ]
 
Drane v Evangelou [1978] 1 WLR 455
1978
CA
Lord Denning MR, Goff LJ
Damages
The court said of a claim that an award of £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 evidence, towards such sum as he thinks proper . ."
1 Cites

1 Citers



 
 Laing Homes Ltd v Eastleigh Borough Council; LT 1978 - (1978) 250 EG
 
Mahesan v Malaysia Government Officers Co-operative Housing Society [1979] AC 374; [1978] 2 All ER 405
1978
PC

Torts - Other, Agency, Damages
The appellant, the director and employee of a housing society was bribed by a real estate agent, one Manickam, and the appellant then caused the society to buy land at an overvalue. The agent was sued for money had and received (for the amount of the bribe paid in breach of the agent’s fiduciary duty) as well as in tort (for the loss suffered by the society for the overvalued land because of the agent’s fraud). Held: The profit made by an intermediate purchaser, due to the fraud of the agent, was awarded as compensation on the basis that the principal had lost the opportunity to purchase at the lower price. Bribery and corruption are torts. A defrauded principal has alternative remedies against both the briber and the agent for money had and received where he can recover the amount of the bribe, or for damages for fraud where he can recover the amount of any actual loss sustained by entering into the transaction in respect of which the bribe was given. The plaintiffs need not elect between these alternatives before the time has come for judgment to be entered in their favour in one or other of those causes of action.
1 Citers



 
 Croudace Construction Limited v Cawoods; CA 1978 - [1978] 2 Lloyds Rep 55
 
Andrews v Grand and Toy Alberta Ltd [1978] 2 SCR 229
1978

Dickson J
Commonwealth, Damages
(Supreme Court of Canada) The injured plaintiff sought damages for future loss of earnings and for the cost of future care. Held: Dickson J said: "It is clear that a plaintiff cannot recover for the expense of providing for basic necessities as part of the cost of future care while still recovering fully for prospective loss of earnings. Without the accident, expenses for such items as food, clothing and accommodation would have been paid for out of earnings. They are not an additional type of expense occasioned by the accident.
When calculating the damage award, however, there are two possible methods of proceeding. One method is to give the injured party an award for future care which makes no deduction in respect of the basic necessities for which he would have had to pay in any event. A deduction must then be made for the cost of such basic necessities when computing the award for loss of prospective earnings: ie the award is on the basis of net earnings and not gross earnings. The alternative method is the reverse: ie to deduct the cost of basic necessities when computing the award for future care and then to compute the earnings award on the basis of gross earnings.
The trial judge took the first approach, reducing loss of future earnings by 53 per cent. The Appellate Division took the second. In my opinion, the approach of the trial judge is to be preferred. This is in accordance with the principle which I believe should underlie the whole consideration of damages for personal injuries: that proper future care is the paramount goal of such damages. To determine accurately the needs and costs in respect of future care, basic living expenses should be included.
The costs of necessaries when in an infirm state may well be different from those when in a state of health. Thus, while the types of expenses would have been incurred in any event, the level of expenses for the victim may be seen as attributable to the accident. In my opinion, the projected cost of necessities should, therefore, be included in calculating the cost of future care, and a percentage attributable to the necessities of a person in a normal state should be reduced from the award for future earnings."
1 Citers


 
Swordheath Properties Ltd v Floyd [1978] 1 WLR 550; [1978] 1 All ER 721
1978


Land, Damages
The rules relatng to the grant of immediate possession to a landowner as against squatters applied in the County Court just as much as in the High Court. The amount of damages payable by a trespasser on land is ordinarily the letting value of the premises.
1 Cites

1 Citers


 
Maharaj v Attorney General of Trinidad and Tobago (No 2) [1979] AC 385; [1978] UKPC 3; [1978] 2 All ER 670; [1978] Crim LR 355
27 Feb 1978
PC
Diplock, Hailsham of St Marylebone, Salmon, Keith of Kinkell LL
Commonwealth, Contempt of Court, Damages
(Trinidad and Tobago) The appellant barrister has been convicted of contempt. The Board had previously found the conviction improper because the basis of the complaint had not been made clear to him. The appellant now sought damages for his imprisonment. Held: The Board referred to the risks of erroneous judicial decisions: "The fundamental human right is not to a legal system that is infallible but to one that is fair". There was no right of appeal to the Court of Appeal from an order of a judge of the High Court finding a person guilty of contempt of court and ordering him to be punished for it.
1 Cites

1 Citers

[ Bailii ]

 
 Cookson v Knowles; HL 24-May-1978 - [1979] AC 556; [1978] UKHL 3; [1978] 2 WLR 978; [1978] 2 All ER 604
 
Pickett v British Rail Engineering [1980] AC 136; [1978] UKHL 4
2 Nov 1978
HL
Lord Wilberforce, Lord Salmon, and Lord Edmund-Davies
Damages, Personal Injury
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 appealed. Held: The House assumed that, because the claimant had brought a successful claim for his personal injury, a claim by his dependants under the Fatal Accidents Act was precluded, although Lord Salmon emphasised that he expressed no concluded opinion about the correctness of that assumption. Damages could be recovered for loss of earnings in the claimant's lost years. Only in this way could provision be made for the loss to be suffered by the dependants. Referring to Skelton: "The judgments, further, bring out an important ingredient, which I would accept, namely that the amount to be recovered in respect of the earnings in the "lost" years should be that amount after deduction of an estimated sum to represent the victim's probable living expenses during those years.
There is the additional merit of bringing awards under this head into line with what could be recovered under the Fatal Accidents Acts."
Fatal Accidents Act 1976 1(1)
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1 Citers

[ Bailii ]

 
 Nichols Advanced Vehicle Systems Inc v Rees; 1979 - [1979] RPC 127
 
The Despina R, The Folias [1979] AC 685
1979
HL
Lord Wilberforce
Damages
The House dealt with the issue of the proper currency for the award of damages. There had been a collision at sea. In The Folias, damages in contract were claimed by charterers of a ship against the owners to be recouped compensation that they had paid to cargo receivers in respect of cargo which had arrived damaged. In The Despina R the damage was the cost of repair of a ship which had been paid in various currencies. Held: The appeal failed. Since United States Dollars was the currency in which the claimant conducted its business, and that with which it acquired the currency of expenditure in repairing the ship, judgment should be in United States Dollars. In the Folias the House held that since the charterers were a French company that was conducting its business in Francs with which it had acquired Brazilian Cruzeiros to compensate the cargo receivers, Francs best expressed the charterers’ loss and judgment should be in that currency. Lord Wilberforce asked if plaintiffs could recover damages other than in Sterling. He discussed the alternatives: "The first is to take the currency in which the expense or loss was immediately sustained. This I shall call "the expenditure currency." The second is to take the currency in which the loss was effectively felt or borne by the plaintiff having regard to the currency in which he generally operates or with which he has the closest connection. This I shall call "the plaintiffs currency". "I return to consider the alternatives. . . this question can be solved by applying the normal principles which govern the assessment of damages in cases of tort (I shall deal with contract cases in the second appeal) these are the principles of restitutio in integrum and that of the reasonable foreseeability of the damage sustained. It appears to me that a plaintiff who normally conducts his business through a particular currency, and who, when other currencies are immediately involved, uses his own currency to obtain those currencies, can reasonably say that the loss he sustains is to be measured not by the immediate currencies in which the loss first emerges but by the amount of his own currency, which in the normal course of operation, he uses to obtain those currencies. This is the currency in which his loss is felt, and is the currency which it is reasonably foreseeable he will have to spend." and "The plaintiff has to prove his loss: if he wishes to present his claim in his own currency, the burden is on him to show to the satisfaction of the tribunal that his operations are conducted in that currency and that in fact it was his currency that was used in a normal manner to meet the expenditure for which he claims or that his loss can only be appropriately measured in that currency (this would apply in the total loss of a vessel which cannot be dealt with by the "expenditure" method). The same answer can be given to the objection that some companies, particularly large multi national companies, maintain accounts and operate in several currencies. Here again it is for the plaintiff to satisfy the court or arbitrators that the use of the particular currency was in the course of normal operation of that company and was reasonably foreseeable . . I wish to make it clear that I would not approve of a hard and fast rule that in all cases where a plaintiff suffers a loss or damage in a foreign currency the right currency to take for the purpose of his claim is "the plaintiffs currency". I should refer to the definition I have used of this expression and emphasise that it does not suggest the use of a personal currency attached, like nationality, to a plaintiff, but a currency which he is able to show is that in which he normally conducts trading operations. Use of this currency for assessment of damage may and probably will be appropriate in cases of international commerce. But even in that field and still more outside it, cases may arise in which a plaintiff will not be able to show that in the normal course of events he would use, and be expected to use, the currency, or one of several currencies, in which he normally conducts his operations (the burden being on him to show this) and consequently the conclusion will be that the loss is felt in the currency in which it immediately arose." As to The Folias, in respect of a contract case the test was the same as in a tort case namely "restitutio in integrum, regard being had to what was in the reasonable contemplation of the parties." He adopted the test of Lord Denning in the Court of Appeal that "the plaintiff should be compensated for the expense or loss in the currency which most truly expresses his loss." He continued:- "If then the contract fails to provide a decisive interpretation, the damage should be calculated in the currency in which the loss was felt by the plaintiff or "most truly expresses his loss". This is not limited to that in which it first and immediately arose. In ascertaining which this currency is, the court must ask what is the currency payment of which will as nearly as possible compensate the plaintiff in accordance with the principle of restitution, and whether the parties must be taken reasonably to have had this in contemplation."
1 Citers


 
Melwood Units Pty Ltd v- Commissioner of Main Roads [1979] AC 426
1979
PC
Lord Russell of Killowen
Land, Commonwealth, Damages
The board considered the compensation payable on the compulsory purchase of land for the purpose of an expressway between Brisbane and Combabah. At the date of compulsory acquisition the project had reached the stage where it was reasonable to assume that a strip of the appellant’s land would be acquired for the expressway. The Land Appeal Court assessed compensation on the basis that the value of the land was to be arrived at by adjusting the price paid by the appellant for it in the light of the proposal. The Full Court of the Supreme Court of Queensland took the view that the question of the status and effect of the expressway proposal raised issues of fact upon the valuation but no question of law. Held. A failure to properly apply the Point Gourde principle did disclose a question of law. The Pointe Gourde principle is part of the "common law deriving as a matter of principle from the nature of compensation for resumption or compulsory acquisition." The principle operates both with respect to the consequential enhancement and adverse effect of a scheme for public works upon resumed land. A resuming authority cannot by its project of resumption destroy the potential for the highest and best use of the land and then resume land severing it from part of the previous holding, on the basis that the destroyed potential never existed. The principle remains applicable where planning permission is refused for development for the highest and best use of the whole of the land, because of the apprehended use of part of the land for a public purpose.
Lord Russell of Killowen said: "Under the principle in Point (sic) Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] A.C. 565 the landowner cannot claim compensation to the extent to which the value of his land is enhanced by the very scheme of which the resumption forms an integral part: that principle in their Lordships' opinion operates also in reverse. A resuming authority cannot by its project of resumption destroy the potential of the [land to be resumed] and then resume and sever on the basis that the destroyed potential had never existed."
1 Citers



 
 BP Exploration Co (Libya) Ltd v Hunt (No 2); 1979 - [1979] 1 WLR 783
 
Sun and Sand Ltd v Fitzjohn [1979] IRLR 154
1979

Arnold J
Employment, Damages
The EAT considered the deduction of sickness benefit from the compensatory award. Arnold J said: "The appellants before us say that that amount of sickness benefit should be deducted from the amount awarded within the compensatory award for the 13 weeks of pay between the date of dismissal and the date of new employment. The matter for consideration seems to us to depend upon whether the amount of the loss sustained by Miss Fitzjohn in consequence of her dismissal was the whole amount of lost pay or was the amount of lost pay less the sickness benefit. If the applicant was entitled to retain the sickness benefit to which she was justly entitled, so long as her employment continued, in addition to receiving her pay, the loss would in our judgment be the net pay lost without any deductions; but if either she was obliged to accept some reduced amount of pay by reference to the sickness benefit she had received or so long as she was being paid under a continuing contract of employment was disentitled from receiving sick benefit at all, then in either of those cases it seems to us that the compensatory award for lost pay should be reduced by the amount of the sickness benefit which she received. It is not contended by the appellants that so long as her contract of employment continued she would have been obliged to accept any deduction from her wages by reference to the amount of sickness benefit she had received or otherwise obliged to account to her employers for the amount of that sickness benefit. They do however submit that the applicant was not in fact entitled to receive sickness benefit so long as her contract of employment continued and that therefore all that she lost, if she had received no more than she was justly entitled to, would have been the net pay and it would follow from that that, since during the period of unemployment she received in fact sickness benefit, then her loss would be the amount of net pay less the amount of sickness benefit. For this proposition the appellants rely on the language of s.14(1)(b) of the Social Security Act 1975; the relevant part of the sub-section reads thus:
'A person shall be entitled to unemployment benefit in respect of any day of unemployment which forms part of a period of interruption of employment and to sickness benefit in respect of any day of incapacity for work which forms part of such a period'
and they point out that 'such a period' plainly means a period of interruption of employment. So they say she is entitled to sickness benefit only during a period of unemployment since this is what 'interruption of employment' means, so that if she had continued to be employed by the appellants she would not, so long as that employment continued, notwithstanding that she was off work for sickness, be entitled to sickness benefit. The answer to that proposition is in our judgment plainly contained in the definition which is to be found in s.17(1)(c) of the Social Security Act 1975, which provides that the expression 'day of interruption of employment' means a day which is a day of unemployment or incapacity for work. It follows from this, in our judgment, that where a person suffers from an incapacity for work such as that from which Miss Fitzjohn suffered during the relevant period it matters not that she has the benefit of a current contract of employment, in relation to her entitlement to sickness benefit.
1 Citers


 
Swordheath Properties Ltd v Tabet [1979] 1 WLR 285; [1979] 1 All ER 240
1979
CA
Megaw LJ
Landlord and Tenant, Damages
The amount of damages payable by a trespasser on land is ordinarily the letting value of the premises. Megaw LJ said: "It appears to me to be clear, both as a matter of principle and of authority, that in a case of this sort the plaintiff, when he has established that the defendant has remained on as a trespasser in residential property, is entitled, without bringing evidence that he could or would have let the property to someone else in the absence of the trespassing defendant, to have as damages for the trespass the value of the property as it would fairly be calculated; and, in the absence of anything special in the particular case it would be the ordinary letting value of the property that would determine the amount of damages. In the present case, therefore, it appears to me that this appeal falls to be allowed and that the plaintiffs ought to have, not merely judgment for possession, but also damages for trespass for whatever would have been the appropriate amount . . as being the proper letting value of the property from July 5, 1976, to the date of the judgment in the West London County Court".
1 Citers


 
Leonidis v Thames Water Authority (1979) 251 EG 669
1979

Parker J
Land, Damages
The court considered the liability of an authority executing works under authority of the Act for damages for disturbance: “if a private individual had done what the defendants did in the present case the claimant would have had a good cause of action ... .”.
Public Health Act 1936
1 Citers


 
Sciuriaga v Powell (1979) 123 Solicitors Journal 406
1979

Watkins J
Contract, Damages
The plaintiff made a claim for the breach of a contract to terminate pregnancy by abortion. Held: The sole reason for the continuation of the pregnancy was the doctor's breach of contract. Damages were awarded for pain and suffering and for actual and prospective loss of earnings and for diminution of marriage prospects but not for the maintenance of the child, which were not requested.
1 Citers


 
Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174; [1979] UKHL 1
21 Jun 1979
HL
Scarman L
Damages, Personal Injury
The plaintiff was catastrophically injured. Her life expectation was not affected, but she would never be able to work at her expected profession as a doctor, and was entitled to recover for loss of earnings. The defendant said that there was in effect a double claim. Held: In order to avoid double recovery there had to be two deductions; first the expenses of earning the income which had been lost and "secondly, the plaintiff's living expenses. This is necessarily a hypothetical figure in the case of a "lost years" claim, since the plaintiff does not survive to earn the money; and since there is no cost of care claim (the plaintiff being assumed to be dead), it falls to be deducted from the loss of earnings award". An award is conventional in the sense that there is no pecuniary guideline which can point the way to a correct assessment.
Law Reform (Personal Injuries) Act 1948 2(4)
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The Attorney General of the State of Saint Christopher and Nevis and Anguilla v John Joseph Reynolds (Appeal No. 8 of 1978); [1980] AC 607; [1979] UKPC 30
25 Jun 1979
PC

Commonwealth, Damages

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Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 WLR 433; [1980] 1 All ER 928; [1979] EWCA Civ 4
21 Dec 1979
CA
Donaldson LJ, Megaw LJ
Damages, Negligence
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 be assessed. Held: It was not apparent why a tortfeasor must take his victim as he finds him in terms of exceptionally high or low earning capacity, but not in terms of pecuniosity or impecuniosity which may be their manifestation. It was commercially prudent for the plaintiff to wait to see if they could recover the costs of repairs. Referring to the Liesbosch: "As I understand Lord Wright's speech, he took the view that, in so far as the plaintiffs had in fact suffered more than the loss assessed on a market basis, the excess flowed directly from their lack of means and not from the tortious act, or alternatively it was too remote in law. In modern terms, I think that he would have said that it was not foreseeable."
Megaw LJ said: 'In any case of doubt, it is desirable that the judge, having decided provisionally as to the amount of damages, should, before finally deciding, consider whether the amount conforms with the requirement of Lord Blackburn's fundamental principle. If it appears not to conform, the judge should examine the question again to see whether the particular case falls within one of the exceptions of which Lord Blackburn gave examples, or whether he is obliged by some binding authority to arrive at a result which is inconsistent with the fundamental principle.'
And: "In this context the Defendants submitted that all owners of property suffered a loss of value when the market fell. They asked the hypothetical question - what would the Plaintiffs have done with their money if they had not bought the shop? If they are compensated for the fall in value of the shop, are they not being compensated for a loss which they would have suffered even if the Defendants had not been at fault, and therefore being over-compensated?"
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