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Damages - From: 1985 To: 1989

This page lists 89 cases, and was prepared on 27 May 2018.

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

1 Citers


 
Meah v McCreamer (No 1) [1985] 1 All ER 367
1985
QBD
Woolf J
Negligence, Damages
The claimant had suffered serious brain damage as a result of the defendant's negligence, resulting in a personality change which caused him to commit offences for which he was imprisoned. He sought damages for that imprisonment. Held: Woolf J said: "this case is unusual because it is not suggested that he has suffered any financial loss as a result of going into prison. He is a person who might have worked from time to time, but the money he has saved as a result of being boarded in prison has apparently been regarded as outweighing his loss. So I approach this case on the basis that there is no continuing financial loss as result of his being in prison . ." and "If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions, and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute."
1 Citers


 
Hughes v McKeown [1985] 1 WLR 963
1985


Damages
It was not appropriate to make any reduction in the damages multiplier for future loss of earnings to reflect the possibility that the pursuer might marry and have children.
1 Citers


 
Auty v National Coal Board [1985] 1 WLR 784
1985
CA
Oliver LJ
Damages
A widow received a widow’s pension under a Coal Board scheme on the death of her husband, which had been caused by the defendants’ negligence. Held: She did not have to give credit for this pension when the value of her dependency on her husband for the rest of his anticipated lifetime (from his earnings until his retirement, and thereafter from his pension until his death) was being calculated. It was maintained that she was entitled to claim, as an additional head of damage, the loss of the widow’s pension she would normally have expected to receive under the scheme at the end of his life following her husband’s death at a mature age. This was said to result from the operation of Section 4. Held: The court rejected this submission. The plaintiff first had to establish a loss, and since she was receiving her widow’s pension immediately she could not claim for the loss of the opportunity to receive something she already had. Oliver LJ: "There are thus two stages in the inquiry. First there must be ascertained what “injury ... to the dependants” has resulted from the death. Secondly, there must be assessed the damages which are to be awarded for that injury. No doubt in ascertaining the extent of the injury suffered (for instance, the loss of dependency or of the estate duty advantage with which Davies v Whiteways Cyder Co Ltd [1973] QB 262 was concerned) you do not take into account any countervailing advantage which may have resulted to the dependant from the death in the form of pension or insurance benefit. In other words, it is no doubt right to observe the provisions of section 4(1) at both stages of the inquiry. But it is still necessary to establish that the dependant has in fact suffered an injury (ie lost something) as a result of the death. Here what is claimed as the injury is the loss of the very thing (ie a widow’s pension) that the widow in fact has gained as a result of the fulfilment of the conditions of the scheme earlier rather than later, and whilst section 4 precludes setting the benefit of the pension against damage suffered under some other head, there is nothing in that section which requires one to assume, in ascertaining whether there has been any injury at all, that that which has happened in fact has not happened. The fallacy of the plaintiffs’ reasoning is, in my judgment, that it premises a loss which has not occurred and which cannot be substantiated either in fact or in law."
Fatal Accidents Act 1976 4
1 Cites

1 Citers


 
Alghussein Establishment v Eton College [1988] 1 WLR 587
1985
HL
Lord Jauncey of Tullichettle
Contract, Damages
A literal construction of the relevant provision of a lease would have led to an absurd result that a contractor who failed to complete a development without fault could not call for a lease, whereas a contractor who wilfully defaulted could do so. Held: The implication of a term into a contract is a matter of law. A party may be prevented from enforcing a contractual provision where he is in breach of another contractual provision designed to avoid the situation sought to be achieved coming about, or to cast onto him responsibility for the matter in question.
Lord Jauncey of Tullichettle said: "Although the authorities to which I have already referred involved cases of avoidments a clear theme running through them is that no man can take advantage of his own wrong. There was nothing in any of them to suggest the foregoing proposition was limited to cases where the parties in breach were seeking to avoid the contract and I can see no reason for so limiting it. A party who seeks to obtain a benefit under a continuing contract is just as much taking advantage of his own wrong as a party who relies on his breach to avoid a contract and thereby escape his obligations".
1 Citers


 
Bliss v South East Thames Regional Health Authority [1985] IRLR 308; [1987] ICR 700
1985
CA
Dillon LJ
Damages, Employment
General damages cannot be awarded for frustration, mental distress or injured feelings arising from an employer’s breach of the implied term of confidence and trust. Dillon LJ said that damages for mental distress in contract are limited to certain classes of case including "where the contract which has been broken was itself a contract to provide peace of mind or freedom from distress."
Dillon LJ set out the position on constructive dismissal: "It follows that I agree with the judge that the authority was in breach of contract in requiring the plaintiff to submit himself to medical examination and in suspending him when he refused to do so. I have no doubt that the breach was a continuing breach, so long as the suspension lasted.
Was it then a repudiatory breach, which would entitle the plaintiff to treat the contract as at an end and claim damages on that footing?
It is common ground on the pleadings that it was an implied term of the plaintiff's contract that the authority would not without reasonable cause conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee. There is ample authority in employment cases to warrant the implication of such a term. The authority was in breach of that term, and the question is whether that breach was fundamental, or repudiatory, or not."
. . and: "There must be some breaches at least of such an implied term which are fundamental and repudiatory and go to the root of the contract, and if ever there was a breach of such a term going to the root of the contract, it was this. It would be difficult in this particular area of employment law to think of anything more calculated or likely to destroy the relationship of confidence and trust which ought to exist between employer and employee than, without reasonable cause, to require a consultant surgeon to undergo a medical, which was correctly understood to mean a psychiatric examination, and to suspend him from the hospital on his refusing to do so."
1 Citers


 
Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012
1985
CA
Waller LJ
Damages
Evidence was given to the effect that the chance of a baby being born with a congenital abnormality was between one in 200 and one in 400.
1 Citers



 
 Westwood v Secretary of State for Employment; HL 1985 - [1985] AC 20; [1984] 1 All ER 874
 
Wrotham Park Settled Estates v Maclean Homes (North London) Unreported, February 1985
1 Feb 1985
ChD
Mervin Davies J
Land, Damages

1 Citers


 
Riches v News Group Newspapers Ltd [1986] QB 256; [1985] EWCA Civ 20; [1985] 3 WLR 432; [1985] 2 All ER 845
20 Feb 1985
CA
Stephenson LJ, Parker LJ, Park J
Defamation, Damages
The defendant published serious defamatory allegations against several plaintiff police officers. The defendant newspaper appealed against an award of £250,000 exemplary damages for their defamation of the respondent police officers. Held: Damages for defamation might be increased where a newspaper advertised the story complained of. Nevertheless, a retrial was ordered. The jury should be asked to make one award of exemplary damages which should then be divided between the plaintiffs. The award of exemplary damages was proper because there was evidence that the defendant had calculated the risk of damages against the benefit of increased sales.
1 Cites

1 Citers

[ Bailii ]

 
 Rhesa Shipping Co SA v Edmonds (The Popi M); HL 16-May-1985 - [1985] 2 All ER 712; [1985] 1 WLR 948; [1985] 2 Lloyds Rep 1; [1985] UKHL 15
 
Candlewood Navigation Corporation Limited v Mitsui OSK Lines Limited and Matsuoka Steamship Co Limited [1986] 1 AC 1; [1985] UKPC 21; [1985] 3 WLR 381; [1985] 2 Lloyd's Rep 303; [1985] 2 All ER 935
1 Jul 1985
PC
Fraser of Tullybelton, Roskill, Brandon of Oakbrook, Templeman, Griffiths LL
Damages, Commonwealth
(New South Wales) Two ships had collided, after, without negligence, an anchor on one ship failed. The Supreme Court had found the crew negligent after failing to react appropriately to the loss of the anchor. The company now appealed against the damages awarded against it. Held: The Board approved the reasoning of Jacob J in Caltex.
Lord Fraser approved the statement of principle constituting the limit or control mechanism to be imposed upon the liability of a wrongdoer towards those who have suffered economic loss on consequence of negligence.
1 Cites

1 Citers

[ Bailii ]
 
Muirhead v Industrial Tank Specialities Ltd [1985] EWCA Civ 16; [1986] 1 QB 507; [1985] 3 All ER 705
31 Jul 1985
CA
O'Connor LJ, Robert Goff LJ, Nourse LJ
Damages
The plaintiff reared lobsters in tanks into which seawater was pumped for the purpose of oxygenation. The whole purpose of the pumps was to preserve the health of the lobsters. Due to the negligence of the third defendant, the pumps cut out and the lobsters died from lack of oxygen. Held. The death of the lobsters was physical damage and was recoverable.
1 Citers

[ Bailii ]
 
Francis v Bostock Unreported, November 8 1985
8 Nov 1985

Russell J
Personal Injury, Damages
The court considered the question of whether the court should award the additional costs of receiving investment advice to deal with an award of damages: "The award I make is compensatory. The whole object of the exercise upon which I have embarked by the progress of multipliers and multiplicands is to achieve a figure which compensates the plaintiff one and for all. The calculation of that figure, so far as future economic loss is concerned, seeks to achieve such a sum as will enable the plaintiff to recover her annual economic loss for the rest of her life, whilst in the process dissipating the fund. The result is what should be achieved by the award itself. Having acknowledged that the proposition however, the Court is not concerned with the disposal of the award once it is made. The plaintiff may spend it as she wishes. The defendant, in my judgment, should not be called upon to find further monies to assist the plaintiff in the proper administration of an award which, in itself, affords adequate compensation. Furthermore in my view the employment of financial advisers and the like is a consequence of my award and not a consequence of negligence of the defendant. The claim fails on the ground of remoteness."
1 Citers


 
Empresso Cubana v Octainer [1986] 1 Lloyd's Rep 273
1986


Damages

1 Citers



 
 W v Meah; 1986 - [1986] 1 All ER 935
 
Paterson Zochonis and Co v Merfarken Packaging Ltd [1986] 3 All ER 522
1986
CA
Goff LJ
Intellectual Property, Damages
The normal measure of damages for copyright infringement is the amount by which the copyright is depreciated, by the infringement, as a chose in action.
1 Cites

1 Citers


 
AMEV-UDC Finance Ltd v Austin [1986] 162 CLR 1770; (1986) 162 CLR 170; [1986] HCA 63
1986

Gibbs CJ(1), Mason(2), Wilson(2), Deane(3) and Dawson(4) JJ.
Contract, Damages, Equity
High Court of Australia - Contract - Damages - Penalty - Agreement for hire of chattel - Failure to pay instalments of hire - Termination by owner pursuant to contractual power - Damages - Instalments due but unpaid - Damages for loss of contract.
The court discussed the doctrine against penalties in contracts: "But equity and the common law have long maintained a supervisory jurisdiction, not to rewrite contracts imprudently made, but to relieve against provisions which are so unconscionable or oppressive that their nature is penal rather than compensatory. The test to be applied in drawing that distinction is one of degree and will depend on a number of circumstances, including (1) the degree of disproportion between the stipulated sum and the loss likely to be suffered by the plaintiff, a factor relevant to the oppressiveness of the term to the defendant, and (2) the nature of the relationship between the contracting parties, a factor relevant to the unconscionability of the plaintiff's conduct in seeking to enforce the term. The courts should not, however, be too ready to find the requisite degree of disproportion lest they impinge on the parties' freedom to settle for themselves the rights and liabilities following a breach of contract. The doctrine of penalties answers, in situations of the present kind, an important aspect of the criticism often levelled against unqualified freedom of contract, namely the possible inequality of bargaining power. In this way the courts strike a balance between the competing interests of freedom of contract and protection of weak contracting parties: see generally Atiya, The rise and Fall of Freedom of Contract (1979), especially Chapter 22."
"the equitable jurisdiction to relieve against penalties withered on the vine".
1 Citers

[ Austlii ]
 
The Trade Fortitude [1986] 2 Lloyd's Rep 209
1986

Dillon LJ
Transport, Arbitration, Damages
The purpose of section 19A was to make explicit powers to award interest which had previously rested on implication.
Arbitration Act 1950 19A
1 Citers


 
Minscombe Properties Ltd v Sir Alfred McAlpine and Sons Ltd (1986) 2 Const LJ 303
1986
CA
O'Connor LJ
Construction, Damages
O'Connor LJ applied the test of reasonableness in determining whether the cost of reinstatement of land to its contracted for condition should be recoverable as damages.
1 Citers


 
Housecroft v Burnett [1986] 1 All E R 332
1986
CA
O’Connor LJ
Personal Injury, Damages
The appeal court should not interfere with an award under for pain, suffering and loss of amenity, unless it is manifestly too high or too low or it can be shown that the judge has erred in principle in relation to some element that goes to make up the award. The award of the cost of care is to provide for the reasonable and proper care of the plaintiff or claimant, and the court must consider whether it is sufficient to enable the plaintiff, among other things, to make reasonable recompense to the relative. So, in cases where the relative has given up gainful employment to look after the plaintiff, it is natural that the plaintiff would not wish the relative to lose out and the court would award sufficient to enable the plaintiff to achieve that result. The ceiling would be the commercial rate. The mother was providing care. The court recognises that part of the reasonable and proper cost of providing for the plaintiff’s needs is to enable her to make a present, or series of presents, to her mother.
1 Citers


 
Thake v Maurice [1986] 2 WLR 337; [1986] QB 644; [1986] 1 All ER 497
1986
CA
Nourse LJ
Damages, Professional Negligence
A vasectomy was performed. The husband was told that contraception precautions were not necessary but a child was born. The claim was brought in contract and in tort. The first instance court found no reason why public policy prevented the recovery of expenses arising from the birth of a healthy child, and awarded damages in respect of the expenses of the birth and the mother's loss of wages but refused damages for the pain and distress of labour holding that these were off set by the joy occasioned by the birth. It also awarded damages in an agreed sum for the child's upkeep to its seventeenth birthday. Held: Damages should be awarded for pain and suffering "per the majority" in tort rather than contract. The joy of having the child could be set off against the time, trouble and care in the upbringing of the child but not against prenatal pain and distress. For the latter, damages should be awarded.
Nourse LJ said: "Valuable too are the observations of Lord Denning MR in Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners [1975] 1 WLR 1095 . . Lord Denning thought, and I respectfully agree with him, that a professional man is not usually regarded as warranting that he will achieve the desired result. Indeed, it seems that that would not fit well with the universal warranty of reasonable care and skill, which tends to affirm the inexactness of the science which is professed. I do not intend to go beyond the case of a doctor. Of all sciences medicine is one of the least exact. In my view a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms. The defendant did not do that in the present case."
1 Cites

1 Citers



 
 SH Muffett Ltd v Head; EAT 1986 - [1986] IRLR 488; [1987] ICR 1
 
Carr-Saunders v Dick McNeill Associates [1986] 2 All ER 888; [1986] 1 WLR 922
1986

Millett J
Land, Damages
The claim was for interference with the plaintiff's right to light. Held: There is a need to approach infringements of easements of light with flexibility. The plaintiff's subjective views as to the loss of light were not to the point. When deciding upon an appropriate award in relation to the notional 'reasonable sum' or 'fair figure' for the defendant to pay, regard was to be had to the bargaining position of the parties in order to arrive at a price which would have been likely to have been negotiated as the reasonable price of a licence for the action taken by the defendant which constituted the invasion of the claimant's rights. As between claims in contract or in tort, there is no reason for any difference of approach when awarding damages in respect of wrongful interference by a defendant with the use and enjoyment of the claimant's land. The court having been shown daylight contour plans by both parties' expert witnesses: "the conventional fifty-fifty rule by which a room may be regarded as adequately lit for all ordinary purposes if 50% or more of its area receives not less than one lumen of light at table level." When dismissing an argument that recently erected internal walls should be disregarded when determining whether there had been an actionable infringement: "I reject this approach. It applies the fifty-fifty rule rigidly as if it were a rule of law, and not (as it is) as merely a useful guide to be adopted or discarded according to the circumstances. The fifty-fifty rule is not, in my judgment, to be applied without any regard to the shape and size of the room or the disposition of the light within the room to which it is applied."
1 Cites

1 Citers


 
Meah v McCreamer (No 2) [1986] 1 All ER 943
1986

Woolf J
Damages
The court rejected an attempt to recover the damages which the plaintiff had been found liable to pay to two women whom he had subjected to criminal attacks. The damages were too remote. But the claim would also have been rejected on the public policy ground that the plaintiff was not entitled to be indemnified for the damages which he was liable to pay as a result of his criminal attacks.
1 Cites

1 Citers


 
Jones v Stroud District Council [1986] 1 WLR 1141
1986
CA
Neill LJ
Construction, Damages
The plaintiffs were unable to prove that they had paid for repair carried out to their building and rendered necessary by the defendants' negligence. Held: After referring to the general principle that a plaintiff who seeks to recover damages must prove that he has suffered loss: 'but if property belonging to him has been damaged to an extent which is proved and the court is satisfied that the property has been or will be repaired I do not consider that the court is further concerned with the question whether the owner has had to pay for repairs out of his own pocket or whether the funds have come from some other source.'
1 Citers


 
Lithgow And Others v The United Kingdom 9006/80; 9262/81; [1986] 8 EHRR 329; [1986] ECHR 8
8 Jul 1986
ECHR

Human Rights, Damages
Convention jurisprudence permits a proportionate restriction on access to a court, provided the essential rights that are in contest from a Convention point of view are not thereby rendered nugatory. The court considered the economic policies which underlay the nationalisation of shipbuilding companies. The assessment of compensation in a nationalisation case was particularly complex and called for different considerations from those which applied to the compulsory acquisition of land where legislation applicable across the board was required.
1 Citers

[ Bailii ]
 
Patterson v Ministry of Defence Unreported 29 July 1986; [1987] CLY 1194
29 Jul 1986
QBD
Simon Brown J
Personal Injury, Limitation, Damages
The plaintiff had been exposed to asbestos when working for the defendant. X-rays revealed development of pleural plaques, but these would remain asymptomatic. Held: Material damage sufficient to set time running was the same as damage necessary to complete a claimant's cause of action in negligence. The court rejected arguments that this was yet insufficient damage: "I have no doubt whatever that the Plaintiff has suffered material damage. It consists of the symptom – free pleural changes, the risk of pleural thickening deteriorating with the consequences I have indicated, the risk of mesothelioma developing and the understandable worry attendant upon these matters." A provisional award was made: "I therefore have to value in combination (a) the present symptom-free pleural changes; (b) the 5%-odd risk of further diffuse changes developing so as to aggravate the plaintiff's breathlessness, and (c) the anxiety which the plaintiff entirely understandably, and in my judgment reasonably, has hitherto suffered, in particular over the last two years, and to a far more limited degree, the worry he may still experience in the future, even though, as I have sought to emphasize, these future risks are really very small. Doing my best to arrive at a figure which accords reasonably with the scale established by Church and Sykes, both now 2 years old, and with my own views upon the particular facts of the instant case, I assess such damages in the sum of £1,250. There will accordingly be judgment for the plaintiff for damages in that sum assessed on the assumption that the plaintiff will not develop mesothelioma at any future stage."
"[S]ymptom-free pleural changes" could not, of themselves, constitute significant damage for the purpose of founding a cause of action but "In deciding whether material damage has been caused it is appropriate to have regard not merely to actual physical manifestation of injury, but also to whatever risks consequent upon the original injury may exist of future symptoms becoming manifest"
1 Cites

1 Citers



 
 McDonalds v Burger King; 1987 - [1987] FSR 112
 
Maxwell v Pressdram Ltd [1987] 1 WLR 298; [1987] 1 All ER 656
1987
CA
Kerr LJ, Parker LJ
Defamation, Vicarious Liability, Damages, Contempt of Court, Media
The court was asked whether disclosure should be ordered in the context of the statutory privilege which was created by s.10 of the 1981 Act. The publisher defendant had deposed that it would justify the material. At trial, however, the defence of justification was abandoned and the judge said he would make a (strong) comment adverse to the defendant in the course of his charge of the jury, but he held that the witness need not reveal the source of his material. Held: The appeal failed. A plea of negligence is insufficient to found a claim for exemplary damages. Some conscious wrongdoing is necessary.
Parker LJ made the point that "it is not sufficient merely to say that the information which is sought (to be obtained) is information which is relevant to the determination of an issue before the court. Were that so, it would always be possible to obtain an order for disclosure . "
Contempt of Court Act 1981 10
1 Citers



 
 Knibb and another v National Coal Board; CA 1987 - [1987] 1 QB 906
 
Ramwade Ltd v W J Emson and Co Ltd [1987] RTR 72
1987
CA
Parker LJ
Road Traffic, Damages
The plaintiffs had been obliged to hire vehicles to perform the work carried out by their skip lorry which had been damaged beyond repair in a road accident. Their insurance brokers had, contrary to instructions, failed to procure a comprehensive insurance policy, and the claimants could not afford to replace it by buying another skip lorry. Held: The court rejected the plaintiffs' argument that the damage consisting in the hire of the vehicles flowed from the defendants' failure to provide them with a comprehensive insurance policy. One of the reasons which he gave for reaching this conclusion was that it flowed from the impecuniosity of the plaintiffs which rendered them unable to afford a substitute vehicle, adding that "if that is the true cause the hire charges are irrecoverable on the principles laid down in The Liesbosch."
1 Cites

1 Citers


 
County Personnel (Employment Agency) v Pulver (Alan R) and Co [1987] 1 All ER 289
1987
CA

Professional Negligence, Damages
The parties were negotiating for an under-lease. The lease provided for rent to increase along with rent reviews under the head lease. The solicitors failed to ascertain the rent under the head lease, to advise his client to have the property valued, or to explain the unusual clause. The rent was reviewd to an uneconomic rent, and the client sued his solicitor for negligence. He appealed dismissal of his claim. Held: The solicitor was negligent. In exercising reasonable professional judgement he should have alerted his client to the consequences of the unusual clause. As to damages, the court was not restricted to the diminution in value. The plaintiff was entitled also to the costs of surrender and possibly to the cost of a lease whch would be saleable.
1 Citers



 
 Hussain v New Taplow Paper Mills Ltd; CA 1987 - [1987] 1 WLR 336
 
County Personnel (Employment Agency) Ltd v Alan R Pulver and Co (a Firm) [1987] 1 WLR 916; [1987] ANZ Conv R 391; [1987] 1 All ER 289
1987
CA
Bingham LJ, Sir Nicolas Browne-Wilkinson V-C
Damages
The claimant sought damages after his negligent solicitors had saddled him with a ruinous underlease. They had had to buy themselves out of the lease. The court considered the date at which damages were to be calculated. Held: The starting point is to calculate the damages as at th edate of the breach.
Bingham LJ said: "While the general rule undoubtedly is that damages for tort or breach of contract are assessed at the date of the breach, this rule also should not be mechanistically applied in circumstances where assessment at another date may more accurately reflect the overriding compensatory rule." The "diminution in value" rule is almost always appropriate where property is acquired following negligent advice by surveyors; but that that is not an invariable approach and should not be mechanistically applied in cases where it may appear inappropriate. It was wholly inapt on these particular facts.
Sir Nicolas Browne-Wilkinson V-C observed that the diminution in value "rule" was concerned with cases where the client had purchased for a capital sum a property having a capital value: which was not the instant case. In agreement with Bingham LJ, he thought that the sum needed to be paid by the plaintiffs to release themselves from the burdensome lease represented the true measure of damage under that particular head (there were other heads of damage claimed).
1 Cites

1 Citers


 
The Rio Claro [1987] 2 Lloyd's Rep 173
1987

Staughton J
Damages, Contract
For a loss arising from a breach of contract to be recoverable, Staughton J said: "It must be such as the contract breaker should reasonably have contemplated as not unlikely to result. To that direction must be added the point that the precise nature of the loss does not have to be in his contemplation, It is sufficient that he should have contemplated loss of the same type or kind as that which in fact occurred. There is no need to contemplate the precise concatenation of circumstances which brought it about".
1 Citers


 
Imodco Ltd v Wimpey Major Projects Ltd (1987) 40 BLR 1
1987
CA
Glidewell LJ
Construction, Damages
Glidewell LJ stated that the cost of work to put pipes in the position contracted for would be recoverable if there was an intention to carry out the work and if it was reasonable so to do.
1 Citers


 
Shearson Lehman Inc v Maclaine, Watson Ltd [1987] 1 WLR 480
1987
CA
Lloyd, Nichols LJJ
Evidence, Damages
The court considered an application for an interim award of damages. Held: Lloyd LJ said: “Something more than a prima facie case is clearly required; but not proved beyond reasonable doubt. The burden is high. But it is a civil burden on the balance of probabilities, not a criminal burden." The court is not required to be sure in the sense of being satisfied beyond reasonable doubt and being able to exclude every possibility of failure because the order for interim payment may be reversed at trial.
Rules 11 and 12 of Order 29 should be read together to permit the court to make an order for interim payment where it is satisfied that, if the action proceeded to trial, the plaintiff would obtain judgment either for substantial damages under r.11(1)(c) or for substantial sum of money apart from damages within r.12, even though thought not to be certain which

 
Holden v Chief Constable of Lancashire [1987] QB 380
1987
CA
Purchas LJ
Damages, Torts - Other
The claimant sought damages after false imprisonment by the defendant for 20 minutes. The Judge had withdrawn from the jury the possibility of awarding exemplary damages on the basis that there was no suggestion of oppressive behaviour on the part of the police. Held: The judge had been wrong to withdraw that claim. The Court considered whether in every case falling within a Rookes v Barnard category there should be an award of exemplary damages. It concluded that this was not the law and that what the Court had to do in each case was to consider all the circumstances and to decide whether such an award would serve any useful purpose. It was not enough that the action was simply unconstitutional; there had to be an improper use of "constitutional or executive power".
Purchas LJ said: "If full effect is to be given to the word ‘or’ in the category ‘oppressive, arbitrary or unconstitutional action’ by government servants, wrongful arrest falls within the category without any of the added qualifications suggested by the judge, in which case the question whether or not to award exemplary damages should have been left to the jury with appropriate directions as to what special features of the case they might in their discretion take into account in deciding whether or not to award such damages, and, if so, how much."
1 Citers


 
BP Petroleum Developments Ltd v Ryder [1987] 2 EGLR 233
1987


Land, Damages
Compensation was made on the basis of an increase in value from £40 per annum per acre to £45 for the rights over the additional land sought by the special purchaser, the increase being made "for him to be certain that he will acquire the rights he seeks".
1 Citers


 
The Oinoussian Friendship [1987] 1 Lloyd's Rep 258
1987


Transport, Damages
A claim was made for physical damage to a vessel. Held: Where the owners take advantage of the fact that repairs are being done by having owners' work done at the same time, and (1) the owners' work does not extend the cost of or period of repairs, and (2) the owners' work was not immediately necessary so that the vessel would have been out of commission irrespective of the wrongful damage, in which case the owner cannot recover at all save insofar as the wrongful damage repairs add to the period of detention, there is no principle of law that requires apportionment by way of owners' contribution to the outlay.
1 Citers



 
 Transworld Oil Ltd v North Bay Shipping Corpn (The Rio Claro); 1987 - [1987] Lloyd's Rep 173
 
The "Nukila" [1987] 2 Lloyd's Rep 146
1987
CA
Hobhouse LJ
Contract, Damages
Hobhouse LJ said: "Turning to the authorities it must at the outset be recognised that, whether or not they are strictly binding on us, they must, insofar as they represent the existing authoritative statements of the law only be departed from if they are clearly wrong. This principle has been stated on a number of occasions in the field of commercial law where it is recognised that the parties enter into contracts on the basis of the law as it has been stated in the applicable authorities. For a Court, in deciding a dispute under a commercial contract, later to depart from those authorities risks a failure to give effect to a contractual intention of those parties as evidenced by their contract entered into on a certain understanding of the law. "
1 Cites

1 Citers



 
 Indian Oil Corporation v Greenstone Shipping SA; QBD 23-Apr-1987 - [1988] 1 QB 345; Times, 23 April 1987
 
Kay's Tutor v Ayrshire and Arran Health Board [1987] UKHL 17; [1987] 2 All ER 417; 1987 SC (HL) 145; 1987 SLT 577
14 May 1987
HL

Scotland, Personal Injury, Damages

[ Bailii ]

 
 Polkey v A E Dayton Services Limited; HL 19-Nov-1987 - [1988] ICR 142; [1987] 3 WLR 1153; [1988] AC 344; [1987] IRLR 503; [1987] UKHL 8; [1987] 3 All ER 974
 
Benarr v Kettering Health Authority [1988] 138 NLJ 179
1988


Damages

1 Citers



 
 Pamplin v Express Newspapers Ltd (2); CA 1988 - [1988] 1 WLR 116; [1988] 1 All ER 282
 
D W Moore and Co Ltd v Ferrier [1988] 1 WLR 267; [1988] 1 All ER 400
1988
CA
Neill LJ, Bingham LJ
Professional Negligence, Damages, Limitation
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied that the action was out of time. Held: The purpose of the covenant was to protect the plaintiff's goodwill. That goodwill was damaged as soon as the agreements were executed, since the company lost its protection immediately. The action was out of time and failed. the cause of action against the solicitors accrued when the contract was entered into: "[S]o long as there was any risk that one of the first plaintiff's two directors might leave . . to establish a competing business, there must necessarily have been a depressive effect on the value of the first plaintiff's business." Whether any action later arose went as to quantification of the damage, and did not go as to the existence of the cause of action: "it is a question of fact in each case whether actual damage has been suffered."
Bingham LJ said: "On the plaintiffs' case, which for the purposes of this issue may be assumed to be wholly correct, the covenants against competition were intended, and said by the defendants, to be effective but were in truth wholly ineffective. It seems to me clear beyond argument that from the moment of executing each agreement the plaintiffs suffered damage because instead of receiving a potentially valuable chose in action they received one that was valueless."
1 Cites

1 Citers



 
 Hussain v New Taplow Paper Mills Ltd; HL 1988 - [1988] AC 514
 
Mining Supplies (Longwall) Limited v Baker [1988] ICR 676
1988
EAT
Wood P
Employment, Damages
The unfairness of the Claimant's dismissal lay in the employer's failure to consult with him over his impending redundancy before dismissing him. Had they done so, the result would have been the same but dismissal would have been deferred for a short time. Held: If a proper procedure would have taken some time to go through and the result would have been the same, it would be just and equitable to award compensation during the period of employment up to the date of the putative dismissal. The loss during the notional consultation period was recoverable as a Head of Loss within the compensatory award.
1 Citers


 
Tennant Radiant Heat Ltd v Warrington Development Corporation [1988] 1 EGLR 41; [1988] 11 EG 71
1988

Dillon LJ, Croom-Johnson LJ, Caulfield J
Landlord and Tenant, Nuisance, Damages
A property comprised a large building let on fully repairing leases of 22 units. The many rain outlets were allowed to become blocked, and water accumulated above one unit before that part of the roof collapsed. The landlord appealed a finding that since the roof was not comprised in any of the leases, there was an implied duty on it to repair the roof. Held: There was no necessary implication of business efficacy to allow the implication of the term. The tenant was himself in breach for having failed to clear the outlet above his own property. The landlord was liable in nuisance for failing to clear the other rainwater outlets. The 1945 Act did not apply since the tenant's failure was not tortious. Nevertheless, the tenant was liable as to 10%. "More importantly, however, for present purposes, the archaic and draconian rule of the common law which the 1945 Act was passed to override also has no application to the present case, since that rule had no relevance to a claim in, or in my judgment to a breach of, contract which was not also itself tortious. . . The problem which this court faces, on claim and counterclaim alike, is in my judgment a problem of causation of damage. On the claim, the question is how far the damage to its goods which the lessee has suffered was caused by the corporation's negligence notwithstanding the lessee's own breach of covenant. On the counterclaim, the question is how far the damage to the corporation's building which the corporation has suffered was caused by the lessee's breach of covenant, notwithstanding the corporation's own negligence. The effect is that on each question, apportionment is permissible. This is the same result as the 1945 Act would produce, but it is not reached through the Act, because the obstacle which the 1945 Act was passed to override is not there on either claim or counterclaim in the present case." Croome-Johnson: "If the 1945 Act has no application, what is the position on the two claims? The evidence clearly indicates that the damage to the plaintiff's premises was attributable to two concurrent causes, both operating contemporaneously. One was the defendant's negligence and the other was the plaintiff's breach of covenant . . . If the collapse had been caused by the combined negligence of the defendant and some third party, the plaintiff would have been entitled to recover all its damages from the defendant, leaving it to get contribution from its fellow tortfeasor . . . But that does not apply when the other cause comes from the plaintiff himself . . . A tenant who is in breach of his repairing covenant must pay for all the costs of repair or of the damage to the reversion. But the position is different if the covenantee is the selfsame landlord who has caused nine-tenths of the damage to the roof. . . . It is not possible, therefore, to allow both the claim and counterclaim in full and to set off the two awards of damages. Where one is dealing with two contemporaneous causes, each springing from the breach of a legal duty but operating in unequal proportions, the solution should be to assess the recoverable damages for both on the basis of causation."
Law Reform (Contributory Negligence) Act 1945
1 Cites

1 Citers



 
 Attorney-General v Guardian Newspapers Ltd; QBD 1988 - [1988] 2 WLR 805
 
Rickless v United Artists Corporation [1988] QB 40
1988
ChD
Hobhouse J
Damages, Intellectual Property, Media
The Act created a private right to performers. Although it might appear to provide criminal sanctions only, performers had the right to give or withhold consent to the use of their performances and to enforce that right by action in the civil courts. This statutory right was not purely personal, but survived the death of the performer and vested in his or her personal representatives, so that in the absence of consent of a performer or his or her personal representatives, there was an actionable breach. A feature film (Trail of the Pink Panther – "Trail") starring the late Peter Sellers had been made by use of cutting floor clips from previous films made with his consent. In two films, The Pink Panther Strikes Again and Revenge of the Pink Panther his consent extended to the use in this way of the cutting floor clips, and ordered the producer companies to account for percentages of the gross receipts of Trail as sums derived from Strikes and Revenge. In the case of three films where there had been no consent, damages were awarded for breach, or inducing breach, of contract in the sum of $1,000,000.
Dramatic and Musical Performers Protection Act 1958 1
1 Citers


 
Alexander v Home Office [1988] ICR 685; [1988] IRLR 190
1988
CA
May LJ
Damages, Discrimination
Prisoners are a section of the public for the purposes of the 1976 Act. The Court increased an award for injury to feelings awarded for race discrimination by prison officers from £50 to £500. The court considered the appropriate level of damages to be awarded in race discrimination cases: "damages for this relatively new tort of unlawful racial discrimination are at large, that is to say they are not limited to the pecuniary loss that can be specifically proved". Such awards should not be minimal. It was open to a tribunal to include in appropriate cases "an element of aggravated damages where, for example, the defendants may have behaved in a high handed, malicious, insulting or oppressive manner in committing the act of discrimination." Aggravated damages are intended to deal with cases where the injury was inflicted by conduct which was "high-handed, malicious, insulting or oppressive".
Race Relations Act 1976
1 Citers


 
Spittle v Bunney [1988] 1 WLR 847; [1988] 3 All ER 1031; [1988] EWCA Civ 16; [1988] 1 WLR 847
1988
CA
Croom-Johnston LJ
Personal Injury, Damages
The plaintiff made a claim in damages for the loss of her mother's services. Held: In assessing a FAA claim on behalf of a child a judge, directing himself as he would a jury, was, in valuing the mothers services to take into account the change in nature of a mother's services as the child grew older and that while the yardstick of a nanny's wage could be used in respect of the early years of a child's life it became less appropriate as the child got older: "The judge adopted the "nanny" formula. Figures were provided of the wage which a commercially hired nanny could have expected to receive "net in-hand" each week. By "net in-hand" was meant the sum actually receivable by the nanny after she had paid her tax and NI contributions. -- The judge did not accede to a submission made on behalf of the plaintiffs that the "net in-hand" figure was too low and the cost of the nanny should in effect be doubled by charging her gross wages and NI contribution and something for her food. In this he must have been right, because there never was going to be a nanny and such items of expenditure will never have been incurred by anybody at all."
Fatal Accidents Act 1846 2 - Law Reform (Miscellaneous Previsions) Act 1934
1 Cites

1 Citers

[ Bailii ]
 
Metal Box Co Ltd v Curreys [1988] 1 WLR 175
1988


Damages

1 Citers



 
 Isleworth Studios v Rickard; EAT 1988 - [1988] ICR 432
 
Brown v Superior Court (1988) 751 P 2d 470
1988


International, Damages
(Supreme Court of California) The court considered the 'market share doctrine' for apportioning liability between tortfeasors: "In creating the market share doctrine, this court attempted to fashion a remedy for persons injured by a drug taken by their mothers a generation ago, making identification of the manufacturer impossible in many cases. We realised that in order to provide relief for an injured DES daughter faced with this dilemma, we would have to allow recovery of damages against some defendants which may not have manufactured the drug that caused the damage.…Each defendant would be held liable for the proportion of the judgment represented by its market share, and its overall liability for injuries caused by DES would approximate the injuries caused by the DES it manufactured. A DES manufacturer found liable under this approach would not be held responsible for injuries caused by another producer of the drug. The opinion acknowledged that only an approximation of a manufacturer's liability could be achieved by this procedure, but underlying our holding was a recognition that such a result was preferable to denying recover altogether to plaintiffs injured by DES.
It is apparent that the imposition of joint liability on defendants in a market share action would be inconsistent with this rationale. Any defendant could be held responsible for the entire judgment even though its market share may have been comparatively insignificant. Liability would in the first instance be measured not by the likelihood of responsibility for the plaintiff's injuries but by the financial ability of a defendant to undertake payment of the entire judgment or a large portion of it."
1 Citers


 
Forsikringsaktieselskapt Vesta v Butcher [1988] CLY 413; [1989] AC 852; [1989] UKHL 5; (1988) 2 All ER 43; [1989] 1 Lloyds Rep 331; [1989] Fin LR 223; [1989] 2 WLR 290
1988
HL
Lord Bridge of Harwich, Lord Templeman, Lord Griffiths, Lord Ackner, Lord Lowry
Damages, Insurance, Contract
A contract of insurance and a facultative reinsurance, under which part of the original risk was reinsured, contained warranties in identical terms. Held: The warranty in the reinsurance policy, which was governed by English law, should be construed so that it had the same effect as the warranty in the insurance which was governed by Norwegian law which required the breach to be causative of the loss.
A defendant to an allegation of breach of contract was entitled to a defence of contributory negligence if his position as a contract breaker was, by reason of the agreement between the parties, the same as his position as a common law tortfeasor. The definition of fault in the 1945 Act comprises two limbs. The first, referable to the defendant's conduct, comprises various acts or omissions which give rise to a liability in tort. The second limb, is referable to the plaintiff's conduct, and deals with acts or omissions which would, but for the Act, have given rise to the defence of contributory negligence.
Law Reform (Contributory Negligence) Act 1945 4
1 Citers

[ Bailii ]

 
 C Chiodi v De Marney; CA 1988 - [1988] 21 HLR 6
 
Lips Maritime Corp. v President of India [1988] AC 395
1988
PC
Lord Brandon of Oakbrook
Damages
Lord Brandon of Oakbrook: "There is no such thing as a cause of action in damages for late payment of damages. The only remedy which the law affords for delay in paying damages is the discretionary award of interest pursuant to statute."
1 Citers


 
Dews v National Coal Board [1988] AC 1
1988
HL
Lord Griffiths
Damages
The plaintiff miner sought damages for an injury suffered at work. Held: An employee who had been injured at work could not recover unpaid pension contributions, which had no effect on his pension entitlement, as part of his loss of pay while absent from work as a result of his injury. A tortfeasor cannot obtain a reduction in damages otherwise payable to a claimant in respect of earnings on the basis that the injury has prevented the claimant from spending some of those earnings in the way that ordinarily he would have done. "Where a plaintiff is injured and as a result is paid no wages his immediate real loss is that part of his net earnings that were available for current expenditure. In respect of this part of his earnings the object of which is to provide income available for current expenditure the tortfeasor is, subject to sums necessarily spent to earn the income, entitled to no credit for expenditure saved as a result of the injury; the principle that it is no concern of the tortfeasor how the plaintiff chooses to spend his income applies." As to deducting travelling expenses from the lost wages, "Where ever a man lives he is likely to incur some travelling expenses to work which will be saved during his period of incapacity, and they are strictly expenses necessarily incurred for the purpose of earning his living. It would, however, be intolerable in every personal injury action to have an inquiry into travelling expenses to determine that part necessarily attributable to earning the wage and that part attributable to a chosen life-style. I know of no case in which travelling expenses to work have been deducted from a weekly wage, and although the point does not fall for decision, I do not encourage any insurer or employer to seek to do so. I can, however, envisage a case where travelling expenses loom as so large an element in the damage that further consideration of the question would be justified as, for example, in the case of a wealthy man who commuted daily by helicopter from the Channel Islands to London. I have only touched on the question of travelling expenses to show that in the field of damages for personal injury, principles must sometimes yield to common sense." Parry v. Cleaver established the circumstances in which a disability pension is to be disregarded in calculating damages: "It is to be observed that whereas the disability pension is not to be taken into account until the date of his normal retirement from the police it is thereafter to be taken into account in that it is subsumed in the general retirement pension."
1 Cites

1 Citers



 
 Attorney-General v Guardian Newspapers Ltd; CA 2-Jan-1988 - [1988] 2 WLR 805
 
Powney v Coxage Times, 08 March 1988
8 Mar 1988
QBD
Schiemann J
Damages, Litigation Practice, Personal Injury
The court heard a dispute as to whether, when the Motor Insurers' Bureau had been joined as a defendant to an action, it was possible to obtain an interim payment under the unamended form of the rules. Held: It was not possible for such an interim payment to be made in those circumstances.
1 Citers



 
 Hotson v East Berkshire Health Authority; HL 2-Jul-1988 - [1987] AC 750; [1988] UKHL 1; [1987] 2 All ER 909
 
DH Edmonds Ltd v East Sussex Police Authority Times, 15 July 1988
6 Jul 1988
CA
Kerr, Balcombe LJJ, Sir Roualeyn Cumming-Bruce
Police, Damages
The plaintiffs Brighton jewellers sought compensation from the police authority for a raid on their premises by three or four men. Kenneth Jones J at first instance held that the incident did not involve a tumultuous assembly and accordingly the claim against the defendant police authority failed. On appeal it was conceded on behalf of the plaintiffs that the 1886 Act imposed an additional requirement that the assembly be tumultuous. It was submitted however that it would suffice if the assembly in question caused bystanders to behave tumultuously in the sense of making a lot of noise, and that Lyell J had been wrong in Dwyer when stating that "tumultuous" connoted an assembly of some considerable size. Held: Kerr LJ rejected the first contention, regarding it as self-evident that whatever conduct or effect is involved in the adverb "tumultuously" must relate to the persons who are assembled together, both "riotously" and "tumultuously". On the second point, Kerr LJ said that as a matter of first impression the connotation of "multitude" or "crowd" or "mob", or of a large number of people, had been introduced into the meaning of "tumultuous" and "tumult". He continued: "Moreover, these aspects were considered with great care, and after a full citation of all the authorities, by Mr Justice Lyell in the most recent of the cases to which we were referred, JW Dwyer Limited –v- Metropolitan Police District Receiver [1967] 2 QB 970, [1967] 3 WLR 731. Mr Justice Kenneth Jones followed that case and I would do exactly the same, because it is an admirable judgment on this very section" and
"I would accept the analysis of the phrase "riotously and tumultuously" assembled together" of Mr Justice Lyell in Dwyer's case. Looked at in that way, there is no error in concluding that "tumultuously adds something more than mere noise to the minimum assembly of three people required to constitute a riot.
The other point which Mr Poulton took was that Mr Justice Lyell's suggestion that what matters is whether or not the police should have been alerted was satisfied in the present case, since there was a great deal of noise. He said that this should have attracted the attention of the police. I do not accept that. It is certainly not the kind of picture which Mr Justice Lyell had in mind when he gave his impression of a "riotous and tumultuous assembly". After all, this was not a case of a crowd which had assembled and which should have attracted the attention of the police by its very presence. On the contrary. These robbers drew up in a van quietly and then stormed out, no doubt making a good deal of noise, but in the minimum time possible. And they then vanished as quickly as they could. The whole nature of the raid was one of furtiveness at the beginning, and then surprise and speed of departure thereafter. In my view that is far from a "riotous and tumultuous assembly".
Balcombe J added: "I would also like to express my complete agreement with the judgment of Mr Justice Lyell in Dwyer's case."
Riot (Damages) Act 1886 2
1 Cites

1 Citers


 
Hayes and Another v Dodd [1988] EWCA Civ 8; [1990] 2 All ER 815
7 Jul 1988
CA
Purchas LJ, Staughton LJ, Waller LJ
Damages, Negligence
The court considered what damages might be paid for inconvenience and distress.
1 Citers

[ Bailii ]
 
Fitzgerald v Lane [1989] AC 328; [1988] UKHL 5; [1988] 2 All ER 961
14 Jul 1988
HL
Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton
Negligence, Damages
The plaintiff crossed road at a pelican crossing. The lights were against him but one car had stopped. As he passed that car he was struck by another in the second lane and again by a car coming the other way. The judge had held the three equally responsible. The defendants appealed the calculation of damages. Held: Apportionment of liability in a case of contributory negligence between plaintiff and defendants must be kept separate from apportionment of contribution between the defendants inter se. The judge should first have set the plaintiff's level of contribution, and then as a different stage apportioned the liability thus found between the defendants.
Civil Liability (Contribution) Act 1978
1 Cites

1 Citers

[ Bailii ]
 
Coward v Comex Houlder Diving Limited [1988] EWCA Civ 18
18 Jul 1988
CA
Ralph Gibson, Butler-Sloss LJJ, Sir edward Eveleigh
Personal Injury, Damages

[ Bailii ]
 
Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41; (1988) 80 ALR 362; (1988) 62 ALJR 447; (1988) 7 MVR 289
18 Aug 1988

Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey, Gaudron JJ
Commonwealth, Damages, Constitutional
Austlii (High Court of Australia) - Private International Law - Tort - Negligence - Act committed in Territory - Personal injury - Territory statute imposing limit on amount of damages - Action in State court - No limit on amount of damages under State law - Choice of law - Whether law of place of tortious act or of forum - The Constitution (63 and 64 Vict. c. 12), ss. 118, 122 - Motor Accidents (Compensation) Act 1979 (N.T.), ss. 4,5 - State and Territorial Laws and Records Recognition Act 1901 (Cth), s. 18.
Federal Jurisdiction - Conflict of laws - Full faith and credit - Whether State court required to give full faith and credit to Territory statute - Whether law of Territory a law of the Commonwealth - Inconsistency - The Constitution (63 and 64 Vict. c. 12), ss. 109, 118 - State and Territorial Laws and Recognition Act 1901 (Cth), s. 18.
Federal Jurisdiction - Action in State court against Commonwealth - Submission to jurisdiction - Whether federal jurisdiction - Whether State choice of law rules apply - The Constitution (63 and 64 Vict. c. 12), ss. 75(iii), 78 - Judiciary Act 1903 (Cth), ss. 39(2), 56, 64, 79.
1 Citers

[ Austlii ]

 
 Hodgson v Trapp; HL 10-Nov-1988 - [1989] AC 807; [1988] UKHL 9

 
 Roberts v Johnstone; CA 1989 - [1989] 1 QB 878
 
Esso Petroleum Co Ltd v Hall Russell and Co Ltd (The Esso Bernicia) [1989] 1 AC 643; [1989] AC 643; [1989] 1 All ER 37; [1989] 1 Lloyds Rep 8; [1989] 1 All ER 37; [1989] 1 Lloyds Rep 8
1989
HL
Lord Jauncey, Lord Goff of Chieveley
Damages, Insurance
Lord Goff of Chieveley said: "In normal cases, as for example under contracts of insurance, the insurer will on payment request the assured to sign a letter of subrogation, authorising the insurer to proceed in the name of the assured against any wrongdoer who has caused the relevant damage to the assured. If the assured refuses to give any such authority, in theory the insurer can bring proceedings to compel him to do so. But nowadays the insurer can short-circuit this cumbrous process by bringing an action against both the assured and the third party in which (1) he claims an order that the assured shall authorise him to proceed against the third party in the name of the assured and (2) he seeks to proceed (so authorised) against the third party. But it must not be thought that, because this convenient method of proceeding now exists, the insurer can without more proceed in his own name against the third party. He has no right to do so, so long as the right of action he is seeking to enforce is the right of action of the assured. Only if that right of action is assigned to him by the assured can he proceed directly against the third party in his own name."
The vessel Esso Bernicia was involved in an accident while berthing at Sullom Voe terminal under the control of tugs. The failure of a piece of equipment on board one of the tugs caused the vessel to come into contact with the jetty as a result of which both the vessel and the jetty sustained damage and the foreshore in the area of the terminal was contaminated by fuel oil. Esso paid compensation to the owners of the jetty and to crofters whose sheep had been injured by the pollution of the foreshore and sought to recover from the builders of the tug, Hall, Russell & Co., on the grounds that they had been negligent in its design and construction. Esso contended that it was entitled to be subrogated to the claims of the jetty owners and the crofters against Hall Russell in tort and could pursue those claims in its own name. Held: Esso it could pursue the claims of the jetty owners and the crofters only in their names. Esso's payment did not discharge Hall Russell's liability, and for the same reason Esso could not make a claim in restitution because Hall Russell had not been enriched at its expense. An indemnifier who is subrogated to the rights of someone whom he has indemnified can only pursue those rights in the name of that person.
1 Citers



 
 Hungerfords v Walker; 1989 - (1989) 171 CLR 125

 
 Batchelor v Kent County Council; CA 1989 - [1992] 1 EGLR 217; (1990) 59 P&CR 357
 
Ozanne and Others v Hertfordshire County Council [1989] 2 EGLR 18; [1991] 1 WLR 105
1989
HL
Lord Mackay
Land, Damages
Land was acquired for a new highway. The developer had persuaded or agreed with the public authority that it would exercise its statutory powers to acquire land possessed of ransom value. Held: What the scheme was which underlined a proposed compulsory acquisition was a matter of fact for the tribunal or court. The statutory powers must relate to the use of the acquired land and must be powers enabling the use of the land for a statutory purpose and to be necessary for that purpose. This excludes planning permission or other general consents. They do not include agreements to do works on land owned by a statutory authority.
Lord Mackay of Clashfern: "The special suitability or adaptability of the land for any purpose is directed to be left out of account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers. This is expressed in the passive voice but the context shows that the application referred to is by a person using the land and, therefore, the statutory powers in question must be powers enabling a person entitled to use the land to apply it to the purpose in question and since the purpose in question is one to which the land could be applied only in pursuance of the statutory powers the statutory powers must be necessary to enable such person to use the land for that purpose. I do not see how statutory powers not related to the use of the land acquired could form a basis for the application of this part of the rule.
Therefore, I consider that statutory powers conferred upon the Secretary of State to order the stopping up of a highway on land which is not part of the land being acquired could not form the basis of the application of this part of the rule to the land acquired. Since the only statutory powers here relied upon by the council are the statutory powers of the Secretary of State to stop up parts of Thorley Lane, I consider that the council's argument must fail."
and "… in the present case the land acquired could have been used for a highway without the exercise of any statutory power and certainly was not dependent upon the Secretary of State exercising any statutory power to stop up any part of Thorley Lane." and
He then drew a distinction between a general statutory consent (eg planning permission), which does not fall within the rule, and a particular statutory power (113C):-
"This I think goes to emphasise the distinction referred to by counsel for the claimants when he pointed out that, if the present case were covered by the rule, it was very difficult to see why the rule should not also cover a purpose to which a piece of land could be put only after obtaining some particular statutory consent such as planning permission, consent under the Building Acts, or the like. It is clear from the modern statutory provisions governing compensation for the compulsory acquisition of land and the question of what types of development would receive planning consent is highly relevant to the determination of compensation for compulsory acquisition and any construction of the provision founded upon which resulted in any enhancement of the value of a piece of land resulting from its use for a purpose which required planning permission being disregarded would be absurd." He approved the conclusion that "the first limb of the provisions of rule (3) cannot apply in that special suitability or adaptability of the land can be realised other than by the use of statutory powers."
Highways Act 1959 214
1 Citers


 
Hymowitz v Eli Lilly and Co (1989) 539 NE 2d 1069
1989

Wachtler CJ
International, Damages
(Court of Appeals of New York) The court considered the market share doctrine for apportioning responsibility between tortfeasors: "We hold that the liability of DES producers is several only, and should not be inflated when all the participants in the market are not before the court in a particular case. We understand that, as a practical matter, this will prevent some plaintiffs from recovering 100% of their damages. However, we eschewed exculpation to prevent the fortuitous avoidance of liability, and thus, equitably, we decline to unleash the same forces to increase a defendant's liability beyond its fair share of responsibility."
1 Citers



 
 Hurditch v Sheffield Health Authority; CA 1989 - [1989] QB 562; [1989] 2 WLR 827
 
Madden v Quirk [1989] 1 WLR 702
1989
QBD
Simon Brown J
Negligence, Damages
The plaintiff had been riding as a passenger in the open part of a pick up truck which crashed. Held: The passenger contributed significantly (85%) to his own injuries by choosing an unsafe mode of travel.
Civil Liability (Contributions) Act 1978 2(1)
1 Citers



 
 Watkins v Olafson; 1989 - [1989] 2 SCR 750
 
Holmes v Bangladesh Biman Corporation [1989] AC 1112; [1989] 1 All ER 852; [1989] 2 WLR 481
1989
HL
Lord Bridge, Lord Griffiths
Transport, Damages, Jurisdiction
Mr Holmes was killed when the defendant's aircraft in which he was a passenger crashed on a domestic flight in Bangladesh. As a domestic flight, it was not international carriage. The proper law of the contract was undoubtedly Bangladeshi law. Under Bangladeshi law the plaintiff's damages would have been limited to £913. But Mr Holmes's widow sued in the United Kingdom, relying on the 1967 Order and its application to "all carriage of persons . . performed by aircraft for reward." She argued these words included foreign domestic flights. Held: The airline's appeal succeeded. Lord Bridge asked what modes of transport were regulated by the Hague Rules and said: "In authorising the application of such rules, based on or adapted from the Hague Rules, to non-Convention carriage by air, what categories of such carriage may Parliament have reasonably had in contemplation as the proper subject matter of United Kingdom legislation?"
Lord Griffiths said: "I can see no reason why our Parliament should wish to legislate to provide for domestic air law in Bangladesh any more than it would wish to legislate on road traffic or railway safety in Bangladesh and I do not believe that it intended it to do so."
1 Citers


 
Stoke-on-Trent City Council v W and J Wass Ltd [1988] 3 All ER 394; [1988] 1 WLR 1406
1989
CA
Nourse LJ, Nicholls LJ
Land, Damages
The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council sought damages and an injunction. It was awarded an injunction and damages in the amount of the licence fees it would have been able to charge. Held: The award of damages was incorrect. Rules relating to damages for breach of restrictive covenant were not applicable to such a situation. The damages awarded should have been nominal at most.
Nourse LJ said: "The general rule is that a successful plaintiff in an action in tort recovers damages equivalent to the loss which he has suffered, no more and no less. If he has suffered no loss, the most he can recover are nominal damages. A second general rule is that where the plaintiff has suffered loss to his property or some proprietary right, he recovers damages equivalent to the diminution in value of the property or right. The authorities establish that both these rules are subject to exceptions. These must be closely examined, in order to see whether a further exception ought to be made in this case." and as to torts of trespass etc
"But it is only in the last-mentioned case [i.e. Wrotham Park] and in the trespass cases that damages have been awarded in accordance with either principle without proof of loss to the plaintiff. In all the other cases, the plaintiff having established his loss, the real question has not been whether substantial damages should be awarded at all, but whether they should be assessed in accordance with the user principle or by reference to the diminution in value of the property or right. In other words, those other cases are exceptions to the second, but not to the first, of the general rules stated above."
He finished by saying: "It is possible that the English law of tort, more especially of the so-called 'proprietary torts', will in due course make a more deliberate move towards recovery based not on loss suffered by the plaintiff but on the unjust enrichment of the defendant: see Goff and Jones The Law of Restitution(3rd edn, 1986) pp 612–614. But I do not think that that process can begin in this case and I doubt whether it can begin at all at this level of decision."
Nicholls LJ said: "If, on the one hand, the unauthorised, other-day market has caused and is causing no loss, either of stallage or of tolls or under any of the other heads of loss which may affect the owner of a market right, there is no cause of action. There is, in that event, no question of applying the user principle. If, on the other hand, the owner of the market right does sustain loss under one or more of those heads, damages must surely be commensurate with the quantum of the loss so sustained. The damages will correspond, so far as the court can fairly assess them, to the amount of the loss flowing to the owner of the market right from the respects in which he has in fact been damnified in his enjoyment of that right by the holding of the unauthorised, other-day market. Again, there would be no place for awarding, by application of the user principle, damages in a sum greater than the amount of that loss." and
"It is an established principle concerning the assessment of damages that a person who has wrongfully used another's property without causing the latter any pecuniary loss may still be liable to that other for more than nominal damages. In general, he is liable to pay, as damages, a reasonable sum for the wrongful use he has made of the other's property. The law has reached this conclusion by giving to the concept of loss or damage in such a case a wider meaning than merely financial loss calculated by comparing the property owner's financial position after the wrongdoing with what it would have been had the wrongdoing never occurred. Furthermore, in such a case it is no answer for the wrongdoer to show that the property owner would probably not have used the property himself had the wrongdoer not done so.
1 Cites

1 Citers


 
Arthur Guinness Son and Co (GB) Ltd v Green [1989] IRLR 288; [1989] ICR 241
1989
EAT
Garland J
Employment, Damages
The employee claimed unfair dismissal. On the tribunal indicating support, the employers asked for the period after which he could fairly have been dismissed so that that could calculate how much might be due. The tribunal indicated orally six months, but later gave judgment for a longer period. Held. The tribunal had exceeded its jurisdiction in seeking to correct its oral judgment in this way. Evidence had been called upon which the decision was based that the cut-off point was six months after the date of dismissal; and there had been submissions from both sides; so neither party was taken by surprise, and the decision was reached after evidence called, and asked after submissions.
Industrial Tribunals (Rules of Procedure) regulations 1985 (SI 1985 No 16) Sch 1 9
1 Citers



 
 SIB International SRL v Metallgesellschaft Corporation ("The Noel Bay"); CA 1989 - [1989] 1 Lloyd's Rep 361

 
 Metal und Rohstoff AG v Donaldson Lufkin and Jenrette Inc; CA 27-Jan-1989 - [1990] 1 QB 391
 
Lac Minerals v International Corina Resources Ltd (1989) 61 DLR (4th) 14 Can SC (Canada); [1989] 2 SCR 574; [1990] FSR 441; 69 OR (2d) 287; 1989 CanLII 34 (SCC)
11 Aug 1989

McIntyre, Lamer, Wilson, La Forest and Sopinka JJ
Commonwealth, Intellectual Property, Damages, Equity
Supreme Court of Canada on appeal from the court of appeal for ontario - Commercial law -- Confidentiality -- Mining companies discussing possible joint venture -- Confidential exploration results disclosed during discussions -- High potential property adjacent to lands of exploration company -- Mining company in receipt of information purchasing property for own use -- Whether or not company in breach of duty respecting confidences -- Whether or not breach of fiduciary duty -- If so, the appropriate remedy.
Industrial and intellectual property -- Trade secrets -- Confidentiality -- Mining companies discussing possible joint venture -- Confidential exploration results disclosed during discussions -- High potential property adjacent to lands of exploration company -- Mining company in receipt of information purchasing property for own use -- Whether or not company in breach of duty respecting confidences -- If so, the appropriate remedy.
Trusts and trustees -- Fiduciary duty -- Trade secrets -- Confidentiality -- Mining companies discussing possible joint venture -- Confidential exploration results disclosed during discussions -- High potential property adjacent to lands of exploration company -- Mining company in receipt of information purchasing property for own use -- Whether or not breach of fiduciary duty -- If so, the appropriate remedy.
Remedies -- Unjust enrichment -- Restitution -- Constructive trust -- Nature of constructive trust -- When constructive trust available.
[ Canlii ]
 
Bezicheri v Italy 11400/85; (1990) 12 EHRR 210; [1989] ECHR 19
25 Oct 1989
ECHR

Human Rights, Prisons, Damages
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Pecuniary damage - claim rejected; Non-pecuniary damage - finding of violation sufficient; Costs and expenses - claim rejected
1 Citers

[ Worldlii ] - [ Bailii ]
 
Lord Aldington v Tolstoy, Watts Unreported, 30 November 1989
30 Nov 1989
QBD
Justice Michael Davies
Defamation, Damages
The plaintiff sought damages after the article published by the defendants falsely accused him of complicity in war crimes. Held: As to damages the jury awarded one and a half million pounds after being directed inter alia: "Let us now, members of the jury . . deal with the aspect of damages . . If the plaintiff wins, you have got to consider damages. Some would say that the only direction on damages necessary in this particular case was to say: [the applicant] says that if damages are to be payable he agrees they should be enormous. Mr Rampton [defence counsel], I do not think, in his final speech could quite bring himself to utter that word, but he said they will be very generous - and I could stop there. But that is not the way, you see, because the parties do not dictate (even if they are making concessions) how you should approach damages. You do it in accordance with the law, and that is what I am now going to tell you. You have to accept my directions about it, and you will apply them of course as you think fit." and
"the means of the parties - the plaintiff or the defendant - is immaterial . . Neither, as I think I said earlier but I say it now, is the question whether Lord Aldington or [the applicant], or for that matter Mr Watts, have been or will be financially supported by any well wishers as to damages relevant at all. Nor is it relevant the undoubted fact that legal aid is not available in libel cases to a plaintiff or a defendant. All irrelevant, and if it is to be changed it is up to Parliament to do something about it . . what you are seeking to do, what a jury has to do, is to fix a sum which will compensate the plaintiff - to make amends in financial terms for the wrong done to him, because wrong has been done if you have got to the stage of awarding damages. It is not your duty or your right to punish a defendant . . What [Lord Aldington] does claim, of course, is for 'general damages', as lawyers call it, a sum of money to compensate him. First of all, you have to take into account the effect in this case, as in every case where there is libel, on the position, standing and reputation of the successful plaintiff . . If they [the allegations made in the pamphlet] were untrue and not fair comment, where it is suggested that they were comment, he is entitled to be compensated for that, so that that will register your view of that. Then you have got to consider . . the injury to his feelings. I told you that he cannot, of course, claim on behalf of his wife or any member of his family, although the affect on them may have had an affect on him which is a reaction, which you are entitled to take into account.
It is not just his feelings when he read this . . It is his feelings during the time whilst awaiting the trial . . and the publicity . . you have to consider . . what lawyers call 'vindication' . . You may think - it is a matter for you - that in this particular case vindication - showing that he was right - is the main reason for Lord Aldington bringing this action - that is what he says anyway - to restore his character and standing . . 'An award, an enormous award', to use [the applicant's] words - 'a very generous award' to use Mr Rampton's words, will enable him to say that put the record straight.
Members of the jury, of course, you must not, as a result of what I have just said, just bump and bump the damages up. You must, at all times, as they say, keep your feet on the ground.
. . You have to take into account the extent and nature of the publication.
. . whilst you must leave aside any thought of punishing the defendants if you find for the plaintiff, juries are always entitled, as I have hinted already, to take into account any conduct of the defendant which has aggravated the damages - that is to say, made the damage more serious and the award higher - or mitigated them - made the damage done less serious and the award smaller.
Now, two general remarks which I make in every case: nobody asks you how you arrive at your verdict, and you do not have to give reasons like a Judge does, so it is exceedingly important that you look at the matter judicially, and that means that you should not be outrageously or unreasonably high, or outrageously or unreasonably low.
The second matter I say to every jury is: please, I beg you, if you come to damages, do not pay the slightest attention to any other case or the result of any other case you may have read about or heard about. The facts and the legal considerations are like[ly] to have been completely different. There is no league of damages in defamation cases. There is no first division, there is no fourth division, there is no Vauxhall conference, if any of you are interested in football.
So, members of the jury, please forget other cases. Use your own common sense about it. How do you translate what I have said into money terms? By our rules and procedure, members of the jury, counsel can use, and a judge can use, words like 'very substantial' or 'very small', but we do not either of us, counsel or judges, mention figures. Some people again, who have not really considered the matter very carefully, wonder about that, and they say juries should be given guidance, and I say to you what I say to every jury in these cases, it would not be a great deal of help for you, because inevitably, it is human nature and it would be their duty - counsel for the plaintiff would be at the top end of the scale and perhaps in some cases, I do not suggest this one, off the clock, and counsel for the defendant would be at the bottom end of the scale in the basement. Now, that would not be much good to anybody. As for the Judge, well the jury might think - you may have an exactly opposite view - a jury might think: 'Well, on the whole, whatever other people say about this particular Judge in this case, we think he tried to be fair, why doesn't he suggest a figure to us?'
Supposing a Judge, myself in this case, were to suggest a figure to you, or a bracket between so and so and so and so, there would be two possibilities: one is that you would ignore what I said and either go higher than my figure or bracket, or much lower, in which case of course the losing party that did not like it would be off to the Court of Appeal saying: 'Look, the Judge suggested a figure and the jury went above it or below it.'
Supposing you accepted my suggestion, and gave a figure that I recommended, or close to it. Well, all I can say is that you would have been wasting your valuable time in considering the matter of damages because you would just have been acting as a rubber stamp for me, or the Judge, whoever it was. So we do not have that over-bidding or under-bidding, as the Court of Appeal has called it, by counsel, and we do not have Judges trying to lay down to juries what they should award, and I do not hesitate to say, whatever other people say, I hope and pray, for the sake of our law and our court, we never get the day when Judges dictate to juries so that they become rubber stamps.
I am, however, allowed - indeed encouraged - by the Court of Appeal just to say a little bit more. I say it not perhaps in the words of the Court of Appeal, but in my own way, which may be too homely for some, but I say to you that you must remember what money is. You do not deal in Mickey Mouse money just reeling off noughts because they sound good, I know you will not. You have got to consider money in real terms. Sometimes it is said 'Well, how much would a house cost of a certain kind', and if you are giving a plaintiff as compensation so much money how many houses is he going to buy? I do not mean to suggest that Lord Aldington or any other plaintiff would take his damages and go and buy a house or a row of houses, but that relates it to the sort of thing, if you will allow me to say, you and I do know something about, because most of us have a pretty good idea how much houses are worth. So remember that."
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