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Torts - Other - From: 1960 To: 1969

This page lists 47 cases, and was prepared on 02 April 2018.

 
Phrantzes v Argenti [1960] 2 QB 19; [1960] 1 All ER 778
1960
CA
Lord Parker CJ
Torts - Other, International
The court was asked to enforce payment of a dowry which was owed under Greek law. Held: English law does not guarantee a remedy for every foreign cause of action. Lord Parker CJ said that to be available in support of a foreign cause of action, the remedies afforded by English law "must harmonise with the right according to its nature and extent as fixed by the foreign law."
What the High Court had said about the obligatio theory might be confined to foreign torts.
1 Citers



 
 Berry v British Transport Commission; QBD 1961 - [1961] 1 QB 149
 
Berry v British Transport Commission (1962) 1 QB 306; [1961] 3 All ER 65; [1961] 3 WLR 450; 105 Sol Jo 587
1961
CA
Devlin LJ
Torts - Other, Costs, Damages
The plaintiff had been prosecuted by the defendant for pulling the emergency cord on a train without proper cause. After acquittal and payment of part of her costs, she sued for malicious prosecution, saying the damages were the part of her defence costs not awarded. The defendant replied that this was not claimable loss. Held: The award of costs included no element of compensation, and that therefore her claim stood.
Devlin said: "the rule of the law of damages that if costs were awarded in hostile civil litigation nothing beyond the taxed amount could be recovered by the successful party from the unsuccessful party rested on the presumption that the award of costs (as between party and party) gave compensation for the cost of litigation so far as the law allowed, and the reason for the rule was that the law could not permit the question of the amount of costs to be litigated a second time between the same parties in new proceedings; it was however a fiction that costs taxed between party and party were the same as costs reasonably incurred and the law should recognise that an assessment of damage and a taxation of party and party costs were two different things. The rule should not be extended to criminal cases, because the principles governing the award of costs in civil and criminal cases were not the same; for in criminal cases a successful defendant had no prima facie entitlement to an award of costs, as the prosecution was brought in the public interest, and an award of costs need not be directed to quantifying the damage and indemnifying the accused according to a conventional measure."
A charge of a statutory offence punishable only by fine would not support an action for malicious prosecution unless the charge was such as to injure the "fair fame" (that is, was necessarily and naturally defamatory) of the person charged.
Railways Act 1868
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Abbott v Refuge Assurance Co [1962] 1 QB 432; [1961] 3 All ER 1074
1961
CA
Upjohn LJ, Ormerod LJ
Torts - Other
The plaintiff appealed against rejection of his private prosecution for malicious prosecution. Held: On the evidence the defendant had had reasonable and probable grounds to believe that there was sufficient evidence to convict and therefore had reasonable and probable cause for the prosecution.
Upjohn LJ said: "The following propositions are now clearly settled: The reasonable man would take the following steps: (1) he or his advisers would take reasonable steps to inform himself of the true state of the case . . ; (2) he or his advisers would finally consider the matter upon admissible evidence only . . ; (3) in all but the plainest cases, he would lay the facts fully and fairly before counsel of standing and experience in the relevant branch of the law and receive the advice that a prosecution is justified . . In addition, of course, the defendant must bona fide accept and act on the advice and, though that is part of a subjective test, it cannot be wholly removed from consideration at this stage.
If the plaintiff can prove that the defendants have failed to take any of these steps, then that will be evidence from which the judge may infer absence of reasonable and probable cause (at pp 454-5)."
Ormerod LJ said that once there was a prosecution to make possible a civil action, then the proposed plaintiff could not be actuated by malice, to render himself liable to an action in damages for malicious prosecution: "It may well be that the definition of malice in an action of this kind is wide enough to cover an ‘improper or indirect motive’, but I cannot accept that an indirect motive includes doing something which the law has said must be done before civil proceedings may be instituted.”
1 Citers


 
Commercial Banking Co of Sydney Ltd v Mann [1961] AC 1; [1960] 3 All ER 482
1961
PC
Viscount Simonds, Lord Reid, Lord Radcliffe, Lord Tucker and Lord Morris of Borth-y-Gest
Commonwealth, Company, Banking, Torts - Other
The respondent Mann practiced as a solicitor in partnership with Richardson. They kept a "trust account" in the partnership name with the Australian and New Zealand Bank in Sydney ("ANZ"). Under the partnership agreement, all assets belonged to Mann, but cheques might be drawn on the partnership bank account by either. Mann gave the necessary authority to ANZ. Richardson used that authority to draw cheques, inserting on each after the printed word "Pay", the words "Bank cheque favour H. Ward" or "Bank cheque H. Ward;". He also filed application forms for bank cheques in favour of H. Ward to a like amount, purporting to sign them on behalf of the firm. He took the documents to ANZ, which in each case debited the firm's account and issued a bank draft of an equal amount in the form "Pay H. Ward or bearer." He took the cheques to the appellant bank, and cashed them over the counter. The bank paid the cheques. He was fraudulent throughout; Ward was not a client of the partnership, nor had any client authorised the payment to him of any money held in the trust account. Mann sued the appellant bank for conversion of the bank cheques, or alternatively to recover the sums received by it from ANZ bank as money had and received to his use. He succeeded before the trial judge, whose decision was affirmed by the Court of Appeal of New South Wales. Held: The bank's appeal succeeded. Mann never obtained any title to the cheques, and he could not obtain title by ratifying the conduct of Richardson in obtaining the cheques from ANZ bank, without at the same time ratifying the dealings in the cheques by Ward and the appellant bank. Mann's claim for damages for conversion failed, and that his alternative claim for money had and received also failed. Where a partner in a firm wrongfully draws a cheque on the partnership account, the proceeds of the cheque are legally his.
Viscount Simonds said: "It is important to distinguish between what was Richardson's authority in relation on the one hand to the A.N.Z. bank and on the other to Mann. No question arises in these proceedings between Mann and the A.N.Z. bank. It is clear that Mann could not as between himself and the bank question Richardson's authority to draw cheques on the trust account. The position as between Mann and Richardson was different. Richardson had no authority, express or implied, from Mann either to draw cheques on the trust account or to obtain bank cheques in exchange for them except for the proper purposes of the partnership. If he exceeded those purposes, his act was unauthorised and open to challenge by Mann. It is in these circumstances that the question must be asked whether, as the judge held, the bank cheques were throughout the property of Mann. It is irrelevant to this question what was the relation between Richardson and Ward and whether the latter gave any consideration for the bank cheques that he received and at what stage Mann learned of the fraud that had been practised upon him. The proposition upon which the respondent founds his claim is simple enough: Richardson was his partner and in that capacity was able to draw upon the trust account and so to obtain from the bank its promissory notes: therefore the notes were the property of the partnership and belonged to Mann, and Richardson could not give a better title to a third party than he himself had."
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 Glinski v McIver; HL 1962 - [1962] AC 726; [1962] 1 All ER 696
 
Moorgate Mercantile Co v Finch and Read [1962] 1 QB 701 CA
1962
CA

Torts - Other
The hirer of a car on hire purchase lent the car to the second defendant who used it to smuggle watches. He was caught and the car was forfeited by Customs. The court held that the second defendant had converted the car because what he had done would in all probability have resulted in the owners being deprived of it. He was to be taken to have intended the likely consequences of his conduct.

 
Houghland v R R Low (Luxury Coaches) Ltd [1962] CLY 157; [1962] 2 All ER 159; [1962] 1 QB 694
1962
CA
Ormerod LJ, Bankes LJ
Negligence, Torts - Other
A passenger's bag had been placed in one coach that had broken down was intended to be transferred to a second coach. When the second coach arrived at the passenger's destination the bag was not in the hold. Held: The duty of care of a bailee is the standard one. It is for the person in possession of the goods to prove any loss or damage to goods in their possession is not caused by their own actions or fault.
Where the defendant's possession of the goods was unintentional and there was no lack of care, detinue will not lie.
Ormerod LJ said "once the failure of the bailee to hand over the articles in question has been proved, there is a prima facie case, and the plaintiff is entitled to recover unless the defendant can establish a defence to the satisfaction of the court"
Bankes LJ said: "I think that the law still is that, if a bailee is sued in detinue only, it is a good answer for him to say that the goods were stolen without any default on his part, as the general bailment laid in the declaration pledges the plaintiff to the proof of nothing except that the goods were in the defendant's hands and were wrongfully detained . ."
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 Marrinan v Vibart; CA 1962 - [1963] 1 QB 234

 
 Irving v National Provincial Bank; CA 1962 - [1962] 2 QB 73

 
 Palaniappa Chettiar v Arunasalam Chettiar; PC 31-Jan-1962 - [1962] UKPC 1a
 
Fontin v Katapodis [1962] 108 CLR 177; [1963] ALR 582; 36 ALJR 283; [1962] HCA 63
10 Dec 1962

Sir Owen Dixon CJ, McTiernan, Owen JJ
Commonwealth, Torts - Other
(High Court of Australia) The plaintiff struck the defendant with a weapon, a wooden T-square. It broke on his shoulder. The defendant then picked up a sharp piece of glass with which he was working and threw it at the plaintiff, causing him severe injury. The Judge had reduced the damages from £2,850 to £2,000 by reason of the provocation. Held: Provocation could be used to wipe out the element of exemplary or aggravated damages but could not be used to reduce the actual figure of pecuniary compensation. So they increased the damages to the full £2,850.
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[ Austlii ]
 
Marrinan v Vibert [1963] 1 QB 234
1963
QBD
Salmon J
Torts - Other, Defamation
The plaintiff brought an action claiming damages for conspiracy against two police officers alleging they had conspired together to make false statements defamatory of him as a barrister. Held: The claim was struck out. Even a conspiracy to make false statements in court will be protected, not for the sake of the witnesses, but "for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled and possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation".
The gist of the tort of conspiracy was not the conspiratorial agreement alone, but that agreement plus the overt act of causing damage and the evidence given was an act done in pursuance of the agreement.
Salmon J said: "It is true that in nearly all the reported cases in which the principles to which I have alluded were laid down, the form of action was for damages for libel or slander, but in my judgment these principles in no way depend upon the form of action. In Hargreaves v Bretherton [1959] 1 Q.B. 45, an unsuccessful attempt was made to evade the immunity to which I have referred by suing for damages for perjury. Counsel for the plaintiff attempted to distinguish that case on the ground that an action for damages for perjury is unknown to the law, whereas an action for damages for conspiracy is of respectable lineage. As far as it goes, the distinction is a sound one. It does not, however, affect the point that Hargreaves v Bretherton demonstrates that the immunity to which I have referred is not only an immunity to be sued for damages in libel or slander. The immunity, in my judgment, is an immunity from any form of civil action."
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Marrinan v Vibart [1963] 1 QB 234
1963
QBD
Salmon J
Torts - Other, Defamation
The plaintiff sought to sue police officers who had prepared a report for the Director of Public Prosecutions and appeared as witnesses against him at his criminal trial. Held: The claim failed. Salmon J considered the principle of the privilege given to those making witness statements to the police: "It has been well settled law for generations - certainly since Lord Mansfield’s time - that witnesses enjoy absolute immunity from actions brought against them in respect of any evidence they may give in a court of justice. This immunity exists for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled or possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation. "
1 Citers


 
Kruber v Grzesiak [1963] VR 621
1963

Adams J
Commonwealth, Limitation, Torts - Other
The plaintiff had issued a writ claiming damages for personal injuries caused by negligent driving more than three years after the accident, and now wanted to amend the writ by adding a claim for trespass to the person based on the same facts. The court asked whether the applicable limitation Act covered an allegation of unintentional trespass to the person. Held: Adams J said: "I would see no sufficient reason for excluding an action for trespass to the person] from the description of an action for damages for breach of duty, especially when it is provided that the duty may be one existing independently of any contract or any provision made by or under a statute. After all, do not all torts arise from breach of duty - the tort of trespass to the person arising from the breach of a general duty not to inflict direct and immediate injury to the person of another either intentionally or negligently in the absence of lawful excuse? The substance of the matter appears to be that section 5(6) is intended to provide a special limitation period of three years for actions in which damages for personal injuries are claimed. No doubt, as was pointed out in argument, this intention might have been achieved by the use of other and perhaps simpler and more direct language, but that does not seem to be a sufficient reason for not giving to the language chosen its full meaning."
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Marrinan v Vibert [1963] 1 QB 528
2 Jan 1963
CA
Sellers LJ
Torts - Other, Defamation
A tortious conspiracy was alleged in the conduct of a civil action. The plaintiff appealed against rejection of his claim. Held: The appeal failed as an attempt to circumvent the immunity of a wirness in defamation by framing a claim in conspiracy. Sellers LJ considered whether a complaint was privileged: "Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence given before the court and in the preparation of the evidence which is to be so given."
Sellers LJ said: "It has been sought in this case to draw a difference between the action of libel and slander, the action of defamation, and that which is set up in this case, one of conspiracy. I can see no difference in the principles of the matter at all. Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given."
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Marrinan v Vibart [1963] 1 QB 582
2 Jan 1963
CA

Torts - Other
Decision upheld (dicta approved)
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Westward Hardy [1964] CLY 994
1964

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


 
McCaig v Langan 1964 SLT 121
1964


Torts - Other
A car passenger suffered serious injuries in an accident while the car was being driven by a friend. He brought an action of damages against the driver of the car who admitted that the accident was caused by his fault. The defender averred that when the pursuer entered the car he knew that the defender's ability to drive had been so affected by drink as to endanger his passengers' safety and he also knew that the car was so overcrowded as to render the safe steering and control of the car difficult. The defender further averred that the pursuer knew that because of both the drunkenness of the driver and the overcrowding of the car he ran a risk of grave injury by allowing himself to be driven in the said car, and by entering the car he voluntarily accepted the said risk. In these circumstances, the defender pleaded inter alia that the pursuer had voluntarily accepted the risk of sustaining such injuries as he did sustain. It was held by Lord Kilbrandon that these averments were relevant.
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Letang v Cooper [1965] 1 QB 232; [1964] EWCA Civ 5; [1964] 2 Lloyd's Rep 339; [1964] 2 All ER 929; [1964] 3 WLR 573
15 Jun 1964
CA
Diplock LJ, Lord Denning MR, Danckwerts LJ
Torts - Other, Limitation
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period. Held: Trespass is strictly speaking not a cause of action but a form of action. It was the form anciently used for a variety of different kinds of claim which had as their common element the fact that the damage was caused directly rather than indirectly; if the damage was indirect, the appropriate form of action was the action on the case. A negligent trespass to the person could only be pursued in negligence and not in trespass. A cause of action was defined: "a cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person." (Diplock LJ)
Lord Denning MR said that the cause of action of trespass to the person was limited to intended acts, and that when the act was not intended the plaintiff's cause of action lay in negligence. He referred to the Tucker report which parliament had not adopted: "In this very case, Parliament did not reduce the period to two years. It made it three years. It did not make any exception of 'trespass to the person' or the rest. It used words of general import; and it is those words we have to construe, without reference to the words of the Committee." "Breach of duty" in the section meant any breach of duty: "Our whole law of tort today proceeds on the footing that there is a duty owed by every man not to injure his neighbour in a way forbidden by law. Negligence is a breach of such a duty. So is nuisance. So is trespass to the person. So is false imprisonment, malicious prosecution or defamation of character."
Diplock LJ said that the cause of action in trespass included both intended and unintended acts. The expression "breach of duty" in section 2 of the 1939 Act, as amended, included both intended and unintended trespass. "A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person."
Personal Injuries (Emergency Provisions) Act 19392
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[ Hamlyn ] - [ Bailii ]
 
Minister of Housing and Local Government v Hartnell [1965] AC 1134
1965
HL
Lord Wilberforce, Lord Reid
Torts - Other, Planning
The law ordinarily entitles a person whose land is taken for a highway to compensation unless the statutory intention to resume without compensation is expressed in clear and unambiguous terms. Lord Wilberforce described a use treated as established under planning law as: ‘analogous to a right established by prescription'.
Where a statutory procedure exists for taking away rights with compensation, the court will resist the argument that some other procedure is available for doing the same thing without compensation.
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Dallinson v Caffery [1965] 1 QB 348
1965


Torts - Other
When considering an allegation of false imprisonment, the element of detention or imprisonment is a pure issue of fact for the jury and the element of justification is one in which the judge has a role to play.
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 Emerald Construction Co v Lowthian; CA 1965 - [1966] 1 WLR 691; [1966] 1 All ER 1013; [1965] AC 269

 
 J T Stratford and Son Ltd v Lindley; HL 1965 - [1965] AC 269; [1966] 1 All ER 1013; [1966] 1 WLR 691
 
Barclays Bank v Cole [1967] 2 WLR 166; [1967] 2 QB 738; [1966] 3 All ER 948
1966
CA
Lord Denning MR, Diplock LJ, Russell LJ
Torts - Other
There was a bank robbery and the robber had paid in part of the stolen proceeds into another branch of the same bank and the bank sued the robber to recover the stolen monies after the robber had been convicted of robbery and the robber had claimed that the bank’s claim was one based on an allegation of fraud. Held: The robber's claim was rejected. A claimant alleging robbery did not make a "charge of fraud" because robbery did not "involve a false representation".
Lord Denning said: "Fraud in ordinary speech means the using of false representations to obtain an unjust advantage: see the definition in the Shorter Oxford English Dictionary. Likewise in law "fraud is proved when it is shown that a false representation has been made knowingly or without belief in its truth, or recklessly, careless whether it be true or false".
Diplock LJ said: " Robbery is not included in the ordinary meaning of the word 'fraud' – as the Oxford English Dictionary confirms . . For at least 100 years (see Bullen & Leake's, Precedents of Pleadings, 3rd ed. (1868)), 'fraud' in civil actions at common law, whether as a cause of action or as a defence, has meant an intentional misrepresentation (or, in some cases, concealment) of fact made by one party with the intention of inducing another party to act upon it, which does induce the other party to act upon it to his detriment . . In civil actions it [i.e., fraud] has long had a precise limited meaning as a term of art, and I see no reason for ascribing any wider meaning to it . ."
Russell LJ said: "On the construction of the section I agree that this is not an action in which 'a charge of fraud against . . (the defendant) . . is in issue'. I agree with the Judge that fraud is used here in its ordinary and primary sense of deceit, and not as referring generally to dishonesty."
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Re Holmden's Settlement Trusts [1966] Ch 151
1966
CA
Lord Denning MR
Torts - Other
Lord Denning MR said: "I must, however, consider the statement of Lord Upjohn on the footing that it is one of two reasons which he gave for his decision. It is said that both reasons are binding on all courts in the land, including the House of Lords itself. The proposition is said to rest on Jacobs v London County Council: see also Behrens v Bertram Mills Circus Ltd. But I do not think those cases warrant so wide a proposition. It seems to me that if the House of Lords give two reasons for their decision, and the House afterwards finds that one of the reasons was right and the other wrong, then they are entitled to accept the right reason and reject the wrong. The decision is not authority "for nothing." It is authority for the right reason but not the wrong. I can see no justification whatever for saying they are bound by the wrong reason. Surely the House is not bound to perpetuate error. Nor is this court. I would repeat the wise words of Sir Frederick Pollock, which I quoted in Close v Steel Company of Wales.
"Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision."
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 Morgan v Fry; QBD 1967 - [1967] 2 All ER 386
 
Mason v Levy Autoparts of England Ltd [1967] 2 QB 530
1967

McKenna J
Nuisance, Torts - Other
McKenna J said that there were not three separate routes to liability at law for the escape of fire from premises to a neighbour's property, but one. A householder was liable for the escape of his fire (ignis suus): no additional danger was needed to be proved. The liability was based on a custom of the realm and on no other principle. If the case was brought otherwise than on the custom of the realm (i.e. by action on the case) then negligence had to be proved. McKenna J said: "There were not three heads of liability at common law but only one. A person from whose land a fire escaped was held liable to his neighbour unless he could prove that it had started or spread by the act of a stranger or of God. Filliter's case had given a special meaning to the words "accidental fire" used in the statute, holding that they did not include fires due to negligence, but covered only cases of "a fire produced by mere chance, or incapable of being traced to any cause." But it does not follow, because that meaning may be given to "accidental," that the statute does not cover cases of the Rylands v Fletcher kind where the occupier is held liable for the escape though no fault is proved against him. In such cases the fire may be "produced by mere chance" or may be "incapable of being traced to any cause." Bankes LJ was making a distinction unknown to the common law, between "the mere escape of fire" (which was his first head) and its escape under Rylands v Fletcher conditions (which was his third), and was imputing an intention to the legislature of exempting from liability in the former case and not in the latter."
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 Kenlin v Gardner; CA 1967 - [1967] 2 QB 510

 
 Lane v Holloway; CA 30-Jun-1967 - [1967] 3 All ER 129; [1968] 1 QB 379

 
 McGowan v Chief Constable of Kingston Upon Hull; 21-Oct-1967 - Times, 21 October 1967
 
Chic Fashions (West Wales) Ltd v Jones [1968] QB 299; [1967] EWCA Civ 4; (1968) 132 JP 175; [1968] 1 All ER 229; [1968] 2 WLR 201
12 Dec 1967
CA
Lord Denning MR, Salmon LJ
Police, Torts - Other
Lord Denning MR said that a constable equipped with a search warrant: "may seize not only the goods which he reasonably to be covered by the warrant, but also any other goods which he believes on reasonable grounds to have been stolen and to be material evidence on a charge of stealing or receiving against the person in possession of them or anyone associated with him."
Salmon LJ: "If the preservation of law and order requires that a policeman shall have the power to arrest a man whom he believes on reasonable grounds to be a thief or a receiver, it is difficult to understand why the policeman should not have the power to seize goods on that man's premises which the policeman believes on reasonable grounds that he has stolen or received"
Police officers had entered the plaintiff's shop premises armed with a search warrant authorising them to search for goods stolen from A. They found none of A's goods there, but did find and seize goods which they believed on reasonable grounds to have been stolen from B, C and D. They had no warrant to seize these goods, and there was no previous decided case which indicated that they were entitled to do so. The plaintiff said they had acted unlawfully. Held. Diplock LJ said: "unless forced to do so by recent binding authority, I decline to accept that a police officer who is unquestionably justified at common law in arresting a person whom he has reasonable grounds to believe is guilty of receiving stolen goods, is not likewise justified in the less draconian act of seizing what he, on reasonable grounds, believes to be the stolen goods in that person's possession."
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[ Bailii ]
 
Holmden's Settlement Trusts, Re Holmden's Settlement, Re [1968] AC 685; [1967] UKHL 7
13 Dec 1967
HL
Lord Reid, Lord Guest, Lord Wilberforce
Trusts, Torts - Other
Under the 1968 Act, the court is not in the position of a statutory settlor. Lord Reid described the provisions of the 1958 Act: "Under the Variation of Trusts Act the court does not itself amend or vary the trusts of the original settlement. The beneficiaries are not bound by variations because the court has made the variation. Each beneficiary is bound because he has consented to the variation. If he was not of full age when the arrangement was made he is bound because the court was authorised by the Act to approve of it on his behalf and did so by making an order. If he was of full age and did not in fact consent he is not affected by the order of the court and he is not bound. So the arrangement must be regarded as an arrangement made by the beneficiaries themselves. The court merely acted on behalf of or as representing those beneficiaries who were not in a position to give their own consent and approval.
So we have an alteration of the settlement which was not made by the settlor or by the court as being empowered to make it, but which was made by the beneficiaries quite independently of the settlor or of any power, express or implied given or deemed to have been given by him."
Lord Guest: "Section 1 of the Act enabled the court to give approval to an arrangement on behalf of such persons as were unable by incapacity or otherwise to give their approval. The court thus supplied the capacity which the incapax lacked."
Lord Wilberforce: "If all the beneficiaries under the settlement had been sui juris, they could, in my opinion, have joined together with the trustees and declared different trusts which would supersede those originally contained in the settlement. Those new trusts would operate proprio vigore, by virtue of a self-contained instrument - namely, the deed of arrangement or variation. The original settlement would have lost any force or relevance. The effect of an order made under the Variation of Trusts Act, 1958, is to make good by act of the court any want of capacity to enter into a binding arrangement of any beneficiary not capable of binding himself and of any beneficiary unborn: the nature and effect of any arrangement so sanctioned is the same as that I have described."
Variation of Trusts Act 1958 1
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[ Bailii ]
 
Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762
1968
CA
Lord Denning MR, Russell LJ
Torts - Other
The Federation of Retail Newsagents decided to boycott the Daily Mirror for a week to persuade its publishers to pay higher margins, and advised them accordingly. The publishers sought an injunction saying the Federation was procuring a breach of the wholesalers' running contracts with the publishers to take a given number of copies each day. The defendant said that it was a case of indirect inducement because the Federation "did not exert directly any pressure or inducement on the wholesalers: but at most they only did it indirectly by recommending the retailers to give stop orders." Held: Lord Denning said that it did not matter whether one procured a breach of contract "by direct approach to the one who breaks his contract or by indirect influence through others".
1 Citers


 
Morgan v Fry [1968] All ER 3 452
1968
CA

Employment, Torts - Other

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 Burnside and Another v Emerson and Others; CA 1968 - [1968] 1 WLR 1490; [1968] 1 All ER 74
 
Marfani and Co Ltd v Midland Bank Ltd [1968] 1 WLR 956; [1968] 2 All ER 573
1968
CA
Diplock LJ
Banking, Torts - Other
A rogue opened a new bank account under a false name with the help of an incorrect reference from a valued customer. Held: When an account is fraudulently opened with the bank in the name of another person by someone pretending to be that person, the person opening the account is the customer.
The court explained the tort of conversion, with special reference to bills of exchange. Liability is strict for misappropriation of goods.
Diplock LJ: "It is, however, in my view, clear that the intention of the subsection and its statutory predecessors is to substitute for the absolute duty owed at common law by a banker to the true owner of a cheque not to take any steps in the ordinary course of business leading up to an including the receipt of payment of the cheque, and the crediting of the amount of the cheque to the account of his customer, in usurpation of the true owner's title thereto a qualified duty to take reasonable care to refrain from taking any such step which he foresees is, or ought reasonably to have foreseen was, likely to cause loss or damage to the true owner.
The only respect in which this substituted statutory duty differs from a common law cause of action in negligence is that, since it takes the form of a qualified immunity from a strict liability at common law, the onus of showing that he did take such reasonable care lies upon the defendant banker. Granted good faith in the banker (the other condition of the immunity), the usual matter with respect to which the banker must take reasonable care is to satisfy himself that his own customer's title to the cheque delivered to him for collection is not defective, i.e., that no other person is the true owner of it. Where the customer is in possession of the cheque at the time of delivery for collection and appears upon the face of it to be the "holder", i.e., the payee or indorsee or the bearer, the banker is, in my view, entitled to assume that the customer is the owner of the cheque unless there are facts which are, or ought to be, known to him which would cause a reasonable banker to suspect that the customer was not the true owner.
What facts ought to be known to the banker, i.e., what inquiries he should make, and what facts are sufficient to cause him reasonably to suspect that the customer is not the true owner, must depend upon current banking practice, and change as that practice changes. Cases decided 30 years ago, when the use by the general public of banking facilities was much less widespread, may not be a reliable guide to what the duty of a careful banker in relation to inquiries, and as to facts which should give rise to suspicion, is today.
What the court has to do is to look at all the circumstances at the time of the acts complained of and to ask itself: were those circumstances such as would cause a reasonable banker possessed of such information about his customer as a reasonable banker would possess, to suspect that his customer was not the true owner of the cheque?
In all actions of the kind with which we are here concerned, the banker's customer has in fact turned out to be a fraudulent rogue, and attention is naturally concentrated upon the duty of care which was owed by the banker to the person who has in fact turned out to be the true owner of the cheque. We are always able to be wise after the event, but the banker's duty fell to be performed before it, and the duty which he owed to the true owner ought not to be considered in isolation. At the relevant time, the true owner was entitled to take into consideration the interests of his customer, who, be it remembered, would in all probability turn out to be honest, as most men are, and his own business interests, and to weigh those against the risk of loss or damage to the true owner of the cheque in the unlikely event that he should turn out not to be the customer himself."

As to the practice of bankers: "The only evidence of the practice of bankers was given by the manager and the securities clerk of the branch in question of the defendant bank. No evidence that the general practice of other bankers differed from that adopted by the defendant bank was called by the plaintiff company, although they knew well in advance of the trial, as a result of searching interrogatories, exactly what steps the defendant bank had taken, and what inquiries they had made. It seems a reasonable inference that what the defendants did in the present case was in accordance with current banking practice. Nield J accepted that it was, and Mr Lloyd has not sought to argue the contrary. What he contends is that this court is entitled to examine that practice and to form its own opinion as to whether it does comply with the standard of care which a prudent banker should adopt. That is quite right, but I venture to think that this court should be hesitant before condemning as negligent a practice generally adopted by those engaged in banking business."
Cheques Act 1957 4
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Kingzett v British Railways Board (1968) 112 SJ 625
1968


Torts - Other

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 Jones v Dumbrell; 21-Feb-1968 - [1981] VR 199; 5 ACLR 417; [1981] VicRp 21
 
Torquay Hotel v Cousins [1969] 2 Ch 106; [1968] EWCA Civ 2; [1969] 2 WLR 289; [1969] 1 All ER 522
17 Dec 1968
CA
Lord Denning MR, Russell LJ, Winn LJ
Torts - Other
The plaintiff contracted to buy oil for his hotel from Esso. Members of the defendant trades union blocked the deliveries of oil by Esso to the Hotel because of a trade dispute they had with the management of the hotel. The hotel sued for an injunction and damages on the ground, amongst others, that the actions of the members of the Union constituted unlawful interference with the performance of the contract between the hotel and Esso. Held: The court summarised the three elements of the tort of procuring a breach of contract: "First, there must be interference in the execution of the contract. The interference is not confined to the procurement of a breach of contract. It extends to a case where a third person prevents or hinders one party from performing his contract, even though it be not a breach. Second, the interference must be deliberate. The person must know of the contract or, at any rate, turn a blind eye to it and intend to interfere with it. . Third, the interference must be direct. Indirect interference will not do." The court extended the tort to include deliberate direct interference in the execution of a contract by preventing or hindering one party from performing the contract even though that would not have been an actionable breach because, as in this case there was an exemption clause.
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[ Bailii ]
 
Barton v Armstrong [1969] 2 NSWR 451
1969

Taylor J
Torts - Other
(Supreme Court of New South Wales) The claimant sought damages alleging assault by the making of telephone calls. Held: Threats made over the telephone were capable of amounting to an assault. Taylor J: "Mr. Staff's first and second propositions can, I think, be best dealt with together. They are the ones upon which he most strongly relied. There are, undoubtedly, many authorities which show that mere words do not constitute an assault, however insulting or even menacing they may be, and that the intention to do violence must be expressed in acts . .
Whatever the reason may be, it is clear from the many authorities cited on this subject that mere words themselves are not sufficient to constitute an assault and that the threatening act must put the victim in immediate fear or apprehension of violence. For these reasons Mr. Staff contended that all threats over the telephone could not in law be capable of constituting an assault.
I am not persuaded that threats uttered over the telephone are to be properly categorized as mere words. I think it is a matter of the circumstances. To telephone a person in the early hours of the morning, not once but on many occasions, and to threaten him, not in a conversational tone but in an atmosphere of drama and suspense, is a matter that a jury could say was well calculated to not only instil fear into his mind but to constitute threatening acts, as distinct from mere words. If, when threats in this manner are conveyed over the telephone, the recipient has been led to believe that he is being followed, kept under surveillance by persons hired to do him physical harm to the extent of killing him, then why is this not something to put him in fear or apprehension of immediate violence? In the age in which we live threats may be made and communicated by persons remote from the person threatened. Physical violence and death can be produced by acts done at a distance by people who are out of sight and by agents hired for that purpose. I do not think that these, if they result in apprehension of physical violence in the mind of a reasonable person, are outside the protection afforded by civil and criminal law as to assault. How immediate does the fear of physical violence have to be? In my opinion the answer is it depends on the circumstances. Some threats are not capable of arousing apprehension of violence in the mind of a reasonable person unless there is an immediate prospect of the threat being carried out.
Others, I believe, can create the apprehension even if it is made clear that violence may occur in the future, at times unspecified and uncertain. Being able to immediately carry out the threat is but one way of creating the fear of apprehension, but not the only way. There are other ways, more subtle and perhaps more effective.
Threats which put a reasonable person in fear of physical violence have always been abhorrent to the law as an interference with personal freedom and integrity, and the right of a person to be free from the fear of insult. If the threat produces the fear of apprehension of physical violence then I am of opinion that the law is breached, although the victim does not know when that physical violence may be effected."
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Eddis v Chichester Constable [1969] 1 WLR 385
1969

Goff J
Torts - Other
The court considered an allegation of a concealed fraud. Held: Goff J referred to the rule "that no person however innocent would be allowed to keep what he had received under a title derived through the fraud of another."
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 Alderson v Booth; QBD 1969 - [1969] 2 QB 216
 
Mafo v Adams [1970] 1 QB 548; [1969] 3 All ER 1404
1969
CA
Sachs, Widgery LJJ, Plowman J
Torts - Other, Damages
The plaintiff tenant was tricked out of the occupancy of the flat he was living in by a blatant fraud perpetrated by the defendant landlord. He sued for damages for fraud, and was awarded compensation for the inconvenience and discomfort. In a case of deceit and other causes of action, the principles enunciated in Rookes v. Barnard were accepted as applicable where the evidence justified it. In respect of deceit, exemplary damages may sometimes be appropriate, though it is not the function of civil courts to punish.
Damages for physical inconvenience caused by a deceit were in principle recoverable. Widgery LJ also such damages as recoverable as a species of aggravated damages: "And I would add that . . where there are aggravating circumstances which aggravate the suffering and injury to the plaintiff, then in compensating him for the wrong which has been done, the damages must be similarly increased. Here one has a plaintiff deprived not only of his valuable protected tenancy, but subjected to considerable inconvenience and unpleasantness. He was, as the evidence relates, induced by this trick of the defendant to set off with his pregnant wife in a van with his furniture and travel from Richmond to Norbury arriving at 7 o'clock on a February evening, and there, thanks to the activities of the defendant, he and his wife were kept out in the cold for two hours whilst they sought to obtain admission. In the end they were forced to go back and take refuge with friends who put them up. I have not the least doubt myself that £100 is not an excessive figure to compensate the plaintiff, and accordingly I endorse without hesitation the figure which the county court judge has assessed for general compensatory damages."
"The position with regard to exemplary damages is perhaps a little more difficult. I think Mr. Grant was entirely right in accepting that Lord Devlin's dicta as to exemplary damages apply to the tort of deceit. As I understand Lord Devlin's speech, the circumstances in which exemplary damages may be obtained have been drastically reduced, but the range of offences in respect of which they may be granted has been increased, and I see no reason since Rookes v. Barnard [1962] A. C. 1129 why, when considering a claim for exemplary damages, one should regard the nature of the tort as excluding the claim. If the circumstances are those prescribed by Lord Devlin, it seems to me that the fact that the tort was one which did not formerly attract exemplary damages is a matter of no consequence. On the other hand, I am firmly of opinion that, since it is now clear that exemplary damages are punitive only and all cases of aggravation which result in additional injury to the plaintiff are to be dealt with by aggravated damages, then it follows that the circumstances in which exemplary damages are awarded should be exceptional indeed. It is not the function of civil courts to punish. In the past, in my judgment, much confusion has been caused because judges awarding compensation to plaintiffs for ruffled feelings have sometimes said they were awarding exemplary damages. It is clear now that that kind of case does not come under the exemplary heading at all, and in my judgement the number of cases hereafter where exemplary damages are properly to be awarded will in fact be very few. First of all it must be shown that the case comes within the categories prescribed by Lord Devlin and secondly it must be shown that it is one of those special cases in which the punishment of the offender is justified; and it is, I think, implicit in what Lord Devlin says [1964] A.C. 1129, 1227 that exemplary damages are in the main awarded in cases where the defendant realises that he is breaking the law, realises that damages may be awarded against him, but nevertheless makes what has been described as a cynical calculation of profit and loss, and says he will flout the powers of the court because on a purely cash basis he can show profit. In my judgment that is the type of man who is referred to by Lord Devlin as being one against whom an award of exemplary damages is proper to be made."
Sachs LJ held that the loss flowing from the fraud which could be taken into account included the loss of the protected tenancy under the Rent Acts. He also found in the favour of the Plaintiff that he was entitled to compensation for the physical inconvenience suffered.
On the question of exemplary damages, Sachs LJ found this more difficult: "Next one comes to a considerably more difficult question: whether this is a case in which exemplary damages are recoverable, and whether, if so, the sum of £100 was a correct assessment.
. . The first issue which sprang to mind when this appeal was opened was whether in actions for deceit exemplary damages could ever be awarded. There is in the books no case of exemplary damages ever having been awarded for this cause of action, and but for Rookes v. Barnard [1964] A.C. 1129, I doubt if it would have been argued that they could be recovered today. Moreover when the case of Doyle v. Olby (Ironmongers) Ltd. [1969] 2 QB. 158 came to be decided recently, it may be assumed from the fact that no member of the court mentioned this aspect of the measure of damages, that it did not ever, then come to mine, despite the cynical nature of the conduct of the defendants in that case, that exemplary damages could be awarded for this cause of action. When, however, Mr. Grant opened the present case he was minded to concede that in actions for deceit such damages could now be awarded, and, after considering the matter carefully, he in fact did make this concession. He did so, basing himself on that sentence in Lord Devlin's speech in Rookes v. Barnard [1964] A.C. 1129, 1227, which states: "Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay." That passage he interpreted as applying to all actions for tort. So far as this case is concerned, there is thus inter partes agreement on that matter. In the upshot, however, it has in any event become unnecessary to decide the point, having regard to the view held by my brethren and myself, that upon the findings of the judge such a claim cannot be supported on the particular facts of the case."
He was however very cautious about the application of exemplary damages to inter alia, cases of deceit: "I state the position carefully in this way, because had that concession not been made, it would have been necessary to have considerably further argument on the point and to consider that argument with care. I would, indeed, need to be persuaded, despite the generality of the phrase already quoted, that this speech which sought so drastically to limit the circumstances in which exemplary damages can be awarded, was by reason of that phrase or otherwise either intended to, or on its proper construction did, enlarge considerably the number of causes of action in which claims to such damages can be maintained. In this behalf I have in mind actions for trover and detinue as well as deceit as instances in which such awards have not previously been made: in particular as regards actions for deceit it would open the door to a flood of claims under that novel head, and that, moreover, despite the fact that in most cases that Theft Act, 1968, provides for the punishment of those who obtain property by fraud."
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Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158; [1969] EWCA Civ 2; [1969] 2 All ER 119; [1969] 2 WLR 673
31 Jan 1969
CA
Lord Denning MR, Winn LJ
Torts - Other, Damages
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger's business for £4,500 plus stock at a valuation of £5,000. Shortly after the purchase, he discovered the fraud and started the action. But despite this he had to remain in occupation: "he had burned his boats and had to carry on with the business as best he could." After three years, he managed to sell the business for £3,700, but in the meantime he had incurred business debts. Held: He should recover these losses. The plaintiff in an action for deceit is not entitled to be compensated in accordance with the contractual measure of damage, ie the benefit of the bargain measure. He is not entitled to be protected in respect of his positive interest in the bargain. The plaintiff in an action for deceit is, however, entitled to be compensated in respect of his negative interest. The aim is to put the plaintiff into the position he would have been in if no false representation had been made. The measure of damages where a contract has been induced by fraudulent misrepresentation is reparation for all the actual damage directly flowing from entering into the transaction. In assessing such damages it is not an inflexible rule that the plaintiff must bring into account the value as at the transaction date of the asset acquired: although the point is not adverted to in the judgments, the basis on which the damages were computed shows that there can be circumstances in which it is proper to require a defendant only to bring into account the actual proceeds of the asset provided that he has acted reasonably in retaining it. Damages for deceit are not limited to those which were reasonably foreseeable. The damages recoverable can include consequential loss suffered by reason of having acquired the asset.
Winn LJ said: "It appears to me that in a case where there has been a breach of warranty of authority, and still more clearly where there has been a tortious wrong consisting of a fraudulent inducement, the proper starting-point for any court called upon to consider what damages are recoverable by the defrauded person is to compare his position before the representation was made to him with his position after it, brought about by that representation, always bearing in mind that no element in the consequential position can be regarded as attributable loss and damage if it be too remote a consequence . . The damage that he seeks to recover must have flowed directly from the fraud perpetrated upon him."
Lord Denning MR said: "In contract, the defendant has made a promise and broken it. The object of damages is to put the plaintiff in as good a position, as far as money can do it, as if the promise had been performed. In fraud, the defendant has been guilty of deliberate wrong by inducing the plaintiff to act to his detriment. The object of damages is to compensate the plaintiff for all the loss he has suffered, so far, again, as money can do it. In contract, the damages are limited to what may reasonably be supposed to have been in the contemplation of the parties. In fraud, they are not so limited. The defendant is bound to make reparation for all the actual damages directly flowing from the fraudulent inducement. The person who has been defrauded is entitled to say:
'I would not have entered into this bargain at all but for your representation. Owing to your fraud, I have not only lost all the money I paid you, but, what is more, I have been put to a large amount of extra expense as well and suffered this or that extra damages.'
All such damages can be recovered: and it does not lie in the mouth of the fraudulent person to say that they could not reasonably have been foreseen. For instance, in this very case Mr Doyle has not only lost the money which he paid for the business, which he would never have done if there had been no fraud: he put all that money in and lost it; but also he has been put to expense and loss in trying to run a business which has turned out to be a disaster for him. He is entitled to damages for all his loss, subject, of course to giving credit for any benefit that he has received. There is nothing to be taken off in mitigation: for there is nothing more that he could have done to reduce his loss. He did all that he could reasonably be expected to do."
Misrepresentation Act 1967 2(1)
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[ Bailii ]

 
 Nissan v The Attorney General; HL 11-Feb-1969 - [1970] AC 179; [1969] UKHL 3
 
Hussien v Chong Fook Kam [1970] AC 942; [1969] UKPC 26; [1970] 2 WLR 441; [1969] 3 All ER 1626
7 Oct 1969
PC
Lord Devlin
Police, Torts - Other, Commonwealth
(Malaysia) The Board considered the propriety of an arrest by the police. Lord Devlin said: "An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go."
In order to have a reasonable suspicion the officer need not have evidence amounting to a prima facie case: "Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove". Suspicion arises at or near the starting point of an investigation, of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that is forbidden, it could seriously hamper the police" and "There is another distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take account matters that could not be put in evidence at all."
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[ Bailii ]
 
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