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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Negligence - From: 1990 To: 1990

This page lists 10 cases, and was prepared on 02 April 2018.

 
Clough v Bussan [1990] 1 All ER 431
1990

Kennedy J
Negligence, Police
The defendant, after a car crash, joined in the police as third party defendants, saying that they had contributed to a car accident by failing to do anything about traffic lights which they knew were out of order. Held: The action against the police failed. Although the police had received information, they had not in any sense taken control of the relevant hazard. There was no sufficient relationship between the police and the claimant to give rise to a common law duty of care.
1 Citers


 
Dominion Mosaics Limited v Trafalgar Trucking Co Limited [1990] 2 All ER 246
1990
CA
Taylor LJ, Stocker LJ
Damages, Negligence
The claimant’s building was destroyed by fire as a result of the defendant’s negligence. It was impracticable to rebuild and so, to keep its business going the claimant bought a 36 year lease of another building with 20% more floor space. In the fire the claimant had lost some carpet-holding machines which it had bought, almost new, for a bargain £13,500, but which would cost £65,000 to replace. It did not replace the machines, but claimed £65,000. Held: It was entitled to succeed on both claims. Should the replacement cost be more than the market value, that cost is still recoverable if it is reasonable to replace. It is not relevant that the replacement cost should exceed the amount for which the purchaser acquired the goods
Taylor LJ: As to the cost of the lease: "Although the ground area was somewhat greater at Waterden Road than their original premises, I consider that it falls within the sort of betterment for which no reduction should be made. It is not as case, as this court instanced in the Harbutt’s Plasticine case, of a rebuilding deliberately incorporating enlargement, improvement or added facilities."
As to the machines, the CA increased the damages from £13,500 to £65,000: “Counsel’s arguments both before the judge and before us were based solely on the alternative awards of £13,500 or £65,000. No intermediate was canvassed. It was not suggested by the appellants, either in evidence or by submission, that there was any second-hand source of paternoster machines. The respondent’s evidence was that no such source existed to his knowledge. Where this is the case and the only way the owner of destroyed chattels can replace them is by buying new ones, the measure of damages is the cost of doing that, unless the result would be absurd . . Had it been argued that in fairness to the appellants some discount from the £65,000 should have been allowed to reflect the depreciation of the machines in their few months of service, the point would have merited consideration. But no such submission was made nor was there any evidence on which to base an assessment of an appropriate discount. In these circumstances I consider that, of the two alternatives contended for, £65,000 was the proper sum.”
Stocker LJ: “The cases cited seem to me clearly to point the distinction between a situation in which the proper and reasonable compensation for the plaintiff is diminution of the value of the building destroyed as damages on the one hand or reinstatement on the other, a distinction which, in most cases, will depend on whether or not the building destroyed is a profit-making asset. Since in almost any other case if the plaintiff recovers as damages the diminution in value he will have been restored to his original position, reinstatement, or its equivalent, is only appropriate where such is the only reasonable method of compensating a plaintiff for future loss of profits derived from the asset destroyed.”
1 Citers



 
 Attorney-General of Canada v Connolly; 1990 - (1990) 64 DLR (4th) 84
 
Re Charnley Davies Ltd (No 2) [1990] BCLC 760
1990
ChD
Millett J
Negligence, Company, Insolvency
An administrator owed a duty to the company over which he was appointed to take reasonable care to obtain the best price that the circumstances, as he reasonably perceived them to be, permitted, including a duty to take reasonable care in choosing the time at which to sell the property. A mortgagee is bound to have regard to the interests of the mortgagor, but he is entitled to give priority to his own interests, and may insist on an immediate sale whether or not that is calculated to realise the best price. An administrator, by contrast, like a liquidator, has no interest of his own to which he may give priority, and must take reasonable care in choosing the time at which to sell the property.
Millett J said: "An allegation that the acts complained of are unlawful or infringe the petitioner's legal rights is not a necessary averment in a s.27 petition. In my judgment it is not a sufficient averment either. The petitioner must allege and prove that they are evidence or instances of the management of the company's affairs by the administrator in a manner which is unfairly prejudicial to the petitioner's interests. Unlawful conduct may be relied on for this purpose, and its unlawfulness may have a significant probative value, but it is not the essential factor on which the petitioner's cause of action depends.
Counsel for the petitioners asked: 'If misconduct in the management of the company's affairs does not without more constitute unfairly prejudicial management, what extra ingredient is required?' In my judgment the distinction between misconduct and unfairly prejudicial management does not lie in the particular acts or omissions of which complaint is made, but in the nature of the complaint and the remedy necessary to meet it. It is a matter of perspective. The metaphor is not a supermarket trolley but a hologram. If the whole gist of the complaint lies in the unlawfulness of the acts or omissions complained of, so that it may be adequately redressed by the remedy provided by law for the wrong, the complaint is one of misconduct simpliciter. There is no need to assume the burden of alleging and proving that the acts or omissions complained of evidence or constitute unfairly prejudicial management of the company's affairs. It is otherwise if the unlawfulness of the acts or omissions complained of is not the whole gist of the complaint, so that it would not be adequately redressed by the remedy provided by law for the wrong. In such a case it is necessary to assume that burden, but it is no longer necessary to establish that the acts or omissions in question were unlawful, and a much wider remedy may be sought.
A good illustration of the distinction is provided by Re a company (No 005287 of 1985) [1986] BCLC 68. In that case the petitioners, who were minority shareholders, alleged that the respondent, who was the majority shareholder, had disposed of the company's assets in breach of his fiduciary duty to the company and in a manner which was unfairly prejudicial to the interests of the petitioner. Hoffmann J refused to strike out the petition, holding that the fact that the petitioners could have brought a derivative action did not prevent them seeking relief under s 459.
Again, I respectfully agree. The very same facts may well found either a derivative action or a s 459 petition. But that should not disguise the fact that the nature of the complaint and the appropriate relief is different in the two cases. Had the petitioners' true complaint been of the unlawfulness of the respondent's conduct, so that it would be met by an order for restitution, then a derivative action would have been appropriate and a s 459 petition would not. But that was not the true nature of the petitioners' complaint. They did not rely on the unlawfulness of the respondent's conduct to found their cause of action; and they would not have been content with an order that the respondent make restitution to the company. They relied on the respondent's unlawful conduct as evidence of the manner in which he had conducted the company's affairs for his own benefit and in disregard of their interests as minority shareholders; and they wanted to be bought out. They wanted relief from mismanagement, not a remedy for misconduct.
When the petitioners launched the present proceedings, they wrongly believed that Mr Richmond was managing the affairs of the company in a manner which disregarded their interests and those of the creditors generally. That was a perfectly proper complaint to bring under s 27. Long before the case came to trial, however, it had become a simple action for professional negligence and nothing more. That, if established, would amount to misconduct; but it would neither constitute nor evidence unfairly prejudicial management. In my judgment it would be a misuse of language to describe an administrator who has managed the company's affairs fairly and impartially and with a proper regard for the interests of all the creditors (and members where necessary), conscientiously endeavouring to do his best for them, but who has through oversight or inadvertence fallen below the standards of a reasonably competent insolvency practitioner in the carrying out of some particular transaction, as having managed the affairs of the company in a manner which is unfairly prejudicial to the creditors."
Companies Act 1985 459
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Alexandrou v Oxford (Chief Constable of the Merseyside Police) [1993] 4 All ER 328; [1990] EWCA Civ 19; (1991) 3 Admin LR 675
16 Feb 1990
CA
Glidewell LJ, Slade LJ
Police, Negligence
A shop was burgled. The shop-owner blamed the police for their negligent investigation. Held: The police were not liable in negligence.
1 Citers

[ Bailii ]
 
Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 3 All ER 25; [1990] 1 WLR 1195; [1990] EWCA Civ 13
25 May 1990
CA
Stocker, Bingham, Farquharson LJJ
Contract, Negligence
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the council staff did not open the bid until after the time, and wrongly marked it 'late'. It was not considered, and the contract was awarded elsewhere. On learning of the mistake, the council sought to renew the bidding process, but the company awarded the contract claimed it had a binding contract. Held: "where, as here, tenders are solicited from selected parties all of them known to the invitor, and where a local authority's invitation prescribes a clear, orderly and familiar procedure (draft contract conditions available for inspection and plainly not open to negotiation, a prescribed common form of tender, the supply of envelopes designed to preserve the absolute anonymity of tenderers and clearly to identify the tender in question, and an absolute deadline) the invitee is in my judgment protected at least to this extent: if he submits a conforming tender before the deadline he is entitled, not as a matter of mere expectation but of contractual right, to be sure that his tender will after the deadline be opened and considered in conjunction with all other conforming tenders or at least that his tender will be considered if others are."
1 Cites

[ Bailii ]

 
 Murphy v Brentwood District Council; HL 26-Jul-1990 - [1991] 1 AC 398; Times, 27 July 1990; [1990] 2 All ER 908; [1991] UKHL 2
 
Alcock and Others v Chief Constable of South Yorkshire Police [1991] 2 WLR 814; [1991] CLY 2671
31 Jul 1990
QBD
Mr Justice Hidden
Damages, Personal Injury, Negligence, Police
Overcrowding at a football match lead to the deaths of 95 people. The defendant's employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for personal injuries by way of nervous shock, having seen the match on television, and knowing that their relatives were in the crowd. Held: It was reasonably foreseeable that close family members of the deceased who saw the events on television would suffer nervous shock, as also would those themselves involved as rescuers. Others who were not physically present, or who were not close family members should not recover.
1 Cites

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[ lip ]
 
Morris v Murray [1990] 3 All ER 801; Times, 18 September 1990; [1991] 2 QB 6; [1990] EWCA Civ 10
3 Aug 1990
CA
Fox, Stocker LJJ, Sir George Walker
Negligence, Personal Injury
The plaintiff agreed to be flown by the defendant in his light aircraft though he knew the defendant was inebriated. The plaintiff drove the car which took them to the airfield and he helped to start and refuel the aircraft, which was piloted by the friend. Shortly after take-off the aircraft crashed, killing the pilot and severely injuring the plaintiff. At first instance the court found the defendant failed in his claim of non fit injuria, but the plaintiff succeeded in negligence. Held: The defendant's appeal was allowed. The defence of volenti non fit injuria applied, and the claim failed. The plaintiff willingly embarked upon the flight, knowing that the pilot was drunk; that the danger in embarking upon the flight was both obvious and great and the plaintiff was not so drunk as to be incapable of appreciating the nature and extent of the risk involved, and, therefore, he was to be taken to have fully accepted the risk of serious injury and implicitly discharged the pilot from liability for negligence in relation to the flying of the aircraft; and that, accordingly, the maxim volenti non fit iniuria applied as a defence to the plaintiff's claim.

Fox LJ said: "If the plaintiff had himself been sober on the afternoon of the flight it seems to me that, by agreeing to be flown by Mr Murray, he must be taken to have accepted fully the risk of serious injury. The danger was both obvious and great . . None of [the facts] suggests that his facilities were so muddled that he was incapable of appreciating obvious risks . . I think he knew what he was doing and was capable of appreciating the risks. . . I think that in embarking upon the flight the plaintiff had implicitly waived his rights in the event of injury consequent on Mr Murray's failure to fly with reasonable care."
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[ Bailii ]
 
Doe v Metropolitan Toronto (Municipality) Commissioners of Police 74 OR (2d) 225; 72 DLR (4th) 580; 5 CCLT (2d) 77; [1990] OJ No 1584 (QL); 10 WCB (2d) 577; 1 CRR (2d) 211; 50 CPC (2d) 92; 40 OAC 161; 22 ACWS (3d) 869
30 Aug 1990

O'Leary, Saunders and Moldaver JJ
Police, Negligence
Ontario - High Court of Justice, Divisional Court - Negligence -- Duty of care -- Police not warning potential victim of serial rapist due to stereotypical belief that her hysterical response to warning would scare off rapist and make apprehension more difficult.
Constitutional law -- Charter of Rights -- Right to life, liberty and security -- Police not warning potential victim of serial rapist due to stereotypical belief that her hysterical response to warning would scare off rapist and make apprehension more difficult -- Charter rights violated -- Canadian Charter of Rights and Freedoms, s. 7.
Constitutional law -- Charter of Rights -- Equality rights -- Police not warning potential victim of serial rapist due to stereotypical belief that her hysterical response to warning would scare off rapist and make apprehension more difficult -- Charter rights violated -- Canadian Charter of Rights and Freedoms, s. 15(1).
On August 24, 1986, the plaintiff was raped by a serial rapist who subsequently pleaded guilty to a number of sexual assaults including the attack on the plaintiff. All of the attacks occurred within a one-year period in the same vicinity and involved single white women living in second or third floor apartments to which the rapist gained entry through a balcony door. In this action, the plaintiff sued the Chief of Police at the time of the assault, the investigating officers in charge of the case and the Board of Commissioners of Police for damages. The plaintiff alleged a cause of action in tort and a cause of action for violating her rights to security of the person and her right to equal protection under ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms. The defendants moved to have the action dismissed as not disclosing a cause of action. The motion was dismissed. Leave having been granted, the defendants appealed.
Held, the appeal should be dismissed and the plaintiff's action allowed to proceed.
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[ Canlii ]
 
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