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Torts - Other - From: 1980 To: 1984

This page lists 52 cases, and was prepared on 02 April 2018.

 
Stanley Yeung Kai Yung and another v Hong Kong and Shanghai Banking Corporation [1981] AC 787; [1980] 2 All ER 599
1980
PC
Lord Scarman
Torts - Other, Commonwealth, Agency
The shareholder had had his share certificates stolen. The thief lodged forged transfers with stockbrokers, who in good faith sent the share certificates and transfer deeds to the bank for registration and transfer, which was done. The transferee thus came to be registered and he then sold the shares. The innocent shareholder asked for his name to be restored to the register and for related relief. The bank brought third party proceedings against the stockbrokers. The original shareholder succeeded against the bank. As between the bank and the stockbrokers, at first instance and in the Hong Kong Court of Appeal the Judges relied on the Barclay implied indemnity and found the stockbrokers liable to indemnify the bank. The stockbrokers appealed to the Privy Council. Held: The decision in Barclay was upheld.
Lord Scarman dealt with an argument advanced by the stockbrokers that it was truly the transferee rather than the stockbrokers who had requested the bank to act upon the transfer deeds and to issue new certificates and hence, as it was sought to argue, that, rather than the stockbrokers, it was only the transferee who was responsible for indemnifying the bank. As to that argument he said: "It is not the case that, if a principal is liable, his agent cannot be. The true principle of the law is that a person is liable for his engagements (as for his torts) even though he is acting for another, unless he can show that by the law of agency he is to be held to have expressly or impliedly negatived his personal liability. But, upon the view of the letters, which the Courts below accepted and this Board believes to be correct, the brokers cannot avoid personal responsibility for whatever consequences the law attaches to the making of the request and the bank's compliance with it. It was their request – even though made on Mr Wong's [the transferee's] behalf."
As to an indemnity, after quoting Dugdale v Lovering: "This "broad principle", as Lord Davey called it, has been consistently followed, and Mr Leggatt for the brokers disclaimed any intention to invite their Lordships' Board to review it. Their Lordships are satisfied that it is now firmly embedded in the law: see Bank of England –v- Cutler [1908] 2 KB 208; Secretary of State for India –v- Bank of India Ltd [1938] 65 Ind. App. 286 and Welch –v- Bank of England [1955] Ch 508 (per Harman J at pp. 548-549). " and "For these reasons their Lordships find themselves in agreement with the Court of Appeal in holding that there was in the circumstances of this request a promise by the stockbroker to indemnify the bank if, by acting on the request, it caused actionable injury or damage to a third party. The promise was accepted by the bank acting on the request and became a contractual indemnity."
1 Cites

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 Winkworth v Christie, Manson and Woods Ltd; ChD 1980 - [1980] Ch 496
 
Chatterton v Gerson [1981] QB 432; [1980] 3 WLR 1003; [1981] CLY 2648
1980
QBD
Bristow J
Torts - Other, Professional Negligence
The doctor failed to explain possible consequences of an operation on a first operation, and on a subsequent corrective operation. Held: The failure to explain the general nature of an operation negatived the patient's consent. The doctor can be held negligent if the patient demonstrates that he would not have accepted an unexplained risk. The doctor was liable in negligence only if the general nature of the operation was not explained.
1 Citers



 
 McIlkenny v Chief Constable of the West Midlands; CA 1980 - [1980] QB 283; [1980] 2 All ER 227; [1980] 2 WLR 689
 
John Hudson v Oaten Unreported, 19 June 1980
19 Jun 1980
CA
Oliver LJ
Contract, Vicarious Liability, Torts - Other
The plaintiff sought to avoid the 1828 Act (Lord Tenterden's Act). Lakeview, had agreed to buy a substantial quantity of oil from them but was never in a position to do so. The plaintiffs sought their loss from the defendant, Mr. Oaten, and not Lakeview. Held: The mere fact of entering into a contract imports an implied representation of a genuine intention to pay the contract price and, secondly the entry into the contract having been procured by the defendant, he is liable for the representation thus employed. Both propositions are true. The second proposition, while it may be an adequate description of the consequences of procurement, contains in itself no analysis of the grounds upon which the assumed liability rests. Apart from the tort of conspiracy--and there is no question of that in this case--there is no separate tort of procuring as such. A man who procures the commission by another person of a tortious act becomes liable because he then becomes a principal in the commission of the act. It is his tort but once one gets to that it seems to me that the fallacy of Mr. Crawford's argument becomes apparent. The tort alleged here is the implied false representation of Lakeview's intention to pay, and when one seeks to fasten that onto the defendant as a principal it is at once clear that it is not, so far as he is concerned, a representation as to his own intention, for he made none. The representation for which he is assumed to be liable is the representation of Lakeview's intention.
Oliver LJ: "Every promisor impliedly represents that he has at the moment of making the promise the intention of fulfilling the obligations that he has undertaken and if it can be shown that no such intention existed in his mind, at that moment he is guilty of a misrepresentation."
Statute of Frauds (Amendment) Act 1828 6
1 Citers


 
Evans v London Hospital Medical College and Others [1981] 1 WLR 184; [1981] 1 All ER 715
1981

Drake J
Negligence, Torts - Other
The defendants employed by the first defendant carried out a post mortem on the plaintiff's infant son. They found concentrations of morphine and told the police. The plaintiff was charged with the murder of her son. After further investigation no evidence was offered and she was acquitted. She claimed damages for negligence against the defendants in allowing the organs removed from her son's body to become contaminated with morphine and in failing to appreciate that the high concentration of morphine revealed by analysis was unlikely to have existed while he was still alive. Held: Immunity from suit was available to potential witnesses in criminal proceedings at a time when such proceedings were merely in contemplation but had not yet commenced, and covers all conduct that can fairly be said to be part of the investigatory process.
Drake J said: "If this object is to be achieved I think it essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered. In a large number of criminal cases the police have collected statements from witnesses before anyone is charged with an offence; indeed sometimes before it is known whether or not any criminal offence has been committed . . If immunity did not extend to such statements it would mean that the immunity attached to the giving of evidence in court or the formal statements made in preparation for the court hearing could easily be outflanked and rendered of little use. For the same reason I think that the immunity must extend also to the acts of the witness in collecting or considering material on which he may later be called to give evidence. If it does not so extend then a convicted person could, for example, sue the police officers for the allegedly negligent manner in which they had investigated the crime, by complaining that they had wrongly assessed the evidential value of certain matters or had failed to interview possible witnesses whose evidence was thought by the accused to be favourable to him."
1 Citers



 
 Swales v Cox; CA 1981 - [1981] QB 849; [1981] 1 All ER 1115; [1981] 2 WLR 814

 
 Eastern Marine Services (and Supplies) Ltd v Dickson Motors Ltd; 1981 - 1981 SC 355
 
Williams v Home Office (No 2) [1981] 1 All ER 1151
1981

Tudor-Evans J
Litigation Practice, Torts - Other
Tudor-Evans J said: "In my judgment, the sentence of the court and the provisions of section 12(1) always afford a defence to an action of false imprisonment. The sentence justifies the fact of imprisonment and the subsection justifies the confinement of a prisoner in any prison. How then can it be unjustifiable and unlawful to confine him there? I accept the submission . . that the sentence of the court and the provisions of section 12(1) provide a defence to this action, subject to the arguments based on the Bill of Rights and natural justice . . The next question is whether the lawfulness of the detention can be affected by the conditions of the detention. I do not think so. The question of the conditions of imprisonment is a matter for the Secretary of State. The check or safeguard against unacceptable conditions . . lies in the prisoner's rights under the rules to complain to the governor or the Secretary of State."
1 Cites

1 Citers


 
Lindley v Rutter [1981] QB 128
1981
CA
Donaldson LJ
Police, Torts - Other
The defendant had been taken into police custody upon arrest for disorderly behaviour. Police officers, acting in accordance with what they believed to be standing orders to search every female prisoner, in the face of a refusal by the defendant to be searched, searched her and in so doing removed her brassiere. Held: Persons detained in police custody must not be searched unless there is a "very good reason" for doing so
1 Citers



 
 Trendtex Trading Corporation v Credit Suisse; HL 1981 - [1982] AC 679; [1981] 3 WLR 766; [1981] 3 All ER 520

 
 ICI v Berk; 1981 - [1981] FSR 1

 
 Morris v Beardmore; HL 1981 - [1981] AC 446; [1980] 2 All ER 753; [1980] RTR 321; (1980) 71 Cr App R 256; [1980] 3 WLR 283; (1980) 144 JP 331

 
 Lonrho Ltd v Shell Petroleum Co Ltd (No 2); CA 6-Mar-1981 - 51/1981; [1981] Com LR 74; Times, 07 March 1981

 
 Lonrho Ltd v Shell Petroleum Co Ltd (No 2); HL 1-Apr-1981 - [1982] AC 173; [1981] 3 WLR 33; [1981] 2 All R 456

 
 Universe Tankships Inc of Monrovia v International Transport Workers Federation; HL 1-Apr-1981 - [1983] 1 AC 366; [1981] UKHL 9; [1982] 2 WLR 803; [1982] 2 All ER 67; [1982] 1 Lloyds Rep 537; [1982] IRLR 200; [1982] ICR 262

 
 Albert v Lavin; HL 3-Dec-1981 - [1982] AC 546; [1981] 3 WLR 955; [1981] 3 All ER 878; [1981] UKHL 6

 
 RCA v Pollard; ChD 1982 - [1982] 2 All ER 468
 
Z Ltd v A-Z and AA-LL [1982] 1 All ER 556; [1982] 2 WLR 288; [1982] 1 QB 558
1982
CA
Lord Denning MR, Kerr LJ, Eveleigh LJ
Company, Torts - Other, Banking
The plaintiffs, an oversea company with an office in London had been defrauded here. They sought and obtained Mareva injunctions against defendants and against six clearing banks. The banks sought clarification of their duties. Held: The injunctions were properly granted. An innocent third party such as a bank had a duty to do what it could to comply with a court order, and such an order served on a bank may have the effect of revoking the client's mandate, allowing the bank to refuse to pay on cheques. The necessary mental ingredients for the tort of deceit have a close relationship to the mental ingredients for misfeasance.
Lord Denning MR said: "Even though the order has not then been drawn up - even though it has not then been served on the defendant - it has immediate effect on every asset of the defendant covered by the injunction. Every person who has knowledge of it must do what he reasonably can to preserve the asset. He must not assist in any way in the disposal of it. Otherwise he is guilty of a contempt of court." and
"As soon as the bank is given notice of the Mareva injunction, it must freeze the defendant's bank account. It must not allow any drawings to be made on it, neither by cheques drawn before the injunction nor by those drawn after it. The reason is because, if it allowed any such drawings, it would be obstructing the course of justice - as prescribed by the court which granted the injunction - and it would be guilty of a contempt of court." and
"Carelessness or even recklessness on the part of banks ought not in my opinion to make them liable for contempt unless it can be shown that there was indifference to such a degree that was contumacious . . it seems to me to be undesirable that those who are not immediate parties should be in danger of being held in contempt of court unless they can be shown to have been contumacious."
Eveleigh LJ described the consequences of acts or omissions in breach of an injunction: "(1) The person against whom the order is made will be liable for contempt of court if he acts in breach of the order after having notice of it. (2) A third party will also be liable if he knowingly assists in the breach, that is to say if knowing the terms of the injunction he wilfully assists the person to whom it was directed to disobey it. This will be so whether or not the person enjoined has had notice of the injunction.
The first proposition is clear enough. As to the second, however, it was submitted that until the defendant had notice of the injunction nothing done by the bank could amount to contempt of court. Also two opposing views were canvassed (I use this expression as the arguments were not strictly contentious) as to the extent to which mens rea was a necessary ingredient in determining the bank's responsibility to the court.
I will give my reasons for the second proposition and take first the question of prior notice to the defendant. It was argued that the liability of a third party arose because he was treated as aiding and abetting the defendant (i.e. he was an accessory) and as the defendant could himself not be in breach unless he had notice it followed that there was no offence to which the third party could be an accessory. In my opinion this argument misunderstands the true nature of the liability of the third party. He is liable for contempt of court committed by himself. It is true that his conduct may very often be seen as possessing a dual character of contempt of court by himself and aiding and abetting the contempt by another, but the conduct will always amount to contempt of court by himself. It will be conduct which knowingly interferes with the administration of justice causing the order of the court to be thwarted." and
As to the argument that a third party was culpable as an accessory: "In my opinion this argument misunderstands the true nature of the liability of the third party. He is liable for contempt of court committed by himself. It is true that his conduct may very often be seen as possessing a dual character of contempt of court by himself and aiding and abetting the contempt by another, but the conduct will always amount to contempt of court by himself. It will be conduct which knowingly interferes with the administration of justice by causing the order of the court to be thwarted."
Kerr LJ “However, once the bank has been served, it will no doubt consider it prudent to take steps to withdraw such facilities from the defendant in so far as it is in its power to do so.”
1 Citers


 
Parker v BA Board (1982) QB 1004
1982

Donaldson LJ
Torts - Other
The rights and obligations of a finder were considered. The court explained the balancing exercise required of the law when deciding to whom property should be returned and how the balance should be struck: "The rule as stated by Pratt CJ must be right as a general proposition, for otherwise lost property would be subject to a free-for-all in which the physically weakest would go to the wall . ."
1 Cites

1 Citers



 
 RCA Corporation v Pollard; CA 1982 - [1982] 3 All ER 771; [1983] 1 Ch 135
 
Dunlop v Woollahra Municipal Council [1982] AC 158
1982
PC

Torts - Other
A plaintiff can allege misfeasance in public office against a body such as a local authority or a government ministry. The tort was well establshed.
1 Citers


 
Bentley v Brudzinski (1982) CLR 825; [1982] 75 Cr App R 217
1982
QBD

Police, Torts - Other
A police officer arrived at a situation. Answering a signal from a colleague, he placed his hand on the shoulder of a man in order to attract his attention. The man the hit the officer and was charged with assaulting the officer in the execution of his duty. He was acquitted. Held: The acquittal was upheld. The officer who was assaulted was acting as agent of a colleague and, unknown to the officer assaulted, that first officer was acting outside the scope of his duty.
1 Cites

1 Citers



 
 Rotocrop International Ltd v Gembourne Ltd; 1982 - [1982] FSR 241

 
 Regina v Chief Constable of Devon and Cornwall ex parte CEGB; CA 1982 - [1982] QB 458
 
Parker v British Airways Board [1982] QB 1004; [1982] 2 WLR 503; [1982] 1 All ER 834
1982
CA
Donaldson LJ
Transport, Torts - Other
The a finder of a gold bracelet in an airport lounge acquired rights of possession over the bracelet as against the airport authority who occupied the lounge but who did not intend to exert control over objects found in the lounge.
Donaldson LJ set out the rights and obligations of a finder: "1. The finder of a chattel acquires no rights over it unless (a) it has been abandoned or lost and (b) he takes it into his care and control.
2. The finder of a chattel acquires very limited rights over it if he takes it into his care and control with dishonest intent or in the course of trespassing.
3. Subject to the foregoing and to point 4 below, a finder of a 330 chattel, whilst not acquiring any absolute property or ownership in the chattel, acquires a right to keep it against all but the true owner or those in a position to claim through the true owner or one who can assert a prior right to keep the chattel which was subsisting at the time when the finder took the chattel into his care and control.
4. Unless otherwise agreed, any servant or agent who finds a chattel in the course of his employment or agency and not wholly incidental or collaterally there to and he takes it into his care and control does so on behalf of his employer or principal who acquires a finder's rights to the exclusion of those of the actual finder.
5. A person having a finder's rights has an obligation to take such measures as in all the circumstances are reasonable to acquaint the true owner of the finding and present whereabouts of the chattel and to care for it meanwhile."
1 Citers



 
 Midland Bank Trust Co Ltd v Green (No 3); CA 1982 - [1982] 1 Ch 529; [1981] 3 All ER 744; [1982] 2 WLR 1
 
Reynolds v Commissioner of Police for the Metropolis [1982] EWCA Civ 7; [1982] Crim LR 600
18 May 1982
CA
Waller, O'Connor LJJ, Sir George Baker
Police, Torts - Other, Damages
The plaintiff had been awarded £12,000 damages for false imprisonment by the Commissiner's officers. Officers had suspected the existence of a repeat arsonist operating an insurance fraud. The plaintiff's husband owned one of the properties. That was the sole ground for her arrest. The judge had found no ground for reasonable suspicion of her. Held: The grounds were not capable of amounting to a proper suspicion. The damages award was higher than might be awarded by others but was within the proper range.
1 Citers

[ Bailii ]
 
AVX v EGM Solders Ltd Unreported 1 July 1982; Times, 07 July 1982
1 Jul 1982
QBD
Staughton J
Torts - Other
The defendants had agreed to the return of defective spheres of solder which they had manufactured for the plaintiffs. By mistake, as well as returning the defective solder in one box, the plaintiffs returned twenty-one boxes of capacitors which were as the judge said "finished goods which could not, by any stretch of imagination, be said to look remotely like solder spheres". The defendants set about scrapping the capacitors in the mistaken belief that they were their own property and mixed them with the rejected solder spheres so that it became uneconomic to retrieve them. Held: The defendants were liable as unconscious bailees whose duty before dealing with the goods was to "use what is in all the circumstances of the case a sufficient standard of care to ascertain that they truly" were their own goods.
Torts (Interference with Goods) Act 1977
1 Citers


 
Brazil v Chief Constable of Surrey [1983] 3 All E R 537; [1983] 1 WLR 1155
1983
QBD
Robert Goff LJ, McNeill J
Police, Crime, Human Rights, Torts - Other
The appellant had been convicted of assaulting a female police officer in the course of her duty when attempting to search her at a police station under section 23(2). She said that the police officers had not been acting in the execution of their duty because a search imposed a restraint on a person's freedom and also an interference with the right to privacy under Article 8(1) of the ECHR. Held: A police constable was not normally entitled to carry out such a search without first telling the victim of the search why it was necessary in the particular case. The reason for a police officer exercising a search is to allow the person to be searched to object that the reason is inadequate: Counsel: "If persons do not know why they are being searched, they have no basis on which to form a view whether or not that search is justified in the circumstances." Robert Goff LJ: "I can see no difficulty in general terms in the officer explaining to the person no doubt in the simplest and most ordinary language, why the search is proposed. In my judgment, generally speaking, that ought to be done. Consistent with the speech of Viscount Simon in Christie v Leachinsky [1947] AC 573, there may well be circumstances where the giving of such reasons would not be necessary. To give an example, the circumstances may be such that it is perfectly obvious why a search is necessary. If so, it would be otiose for the officer concerned to give an explanation." and "In general terms, the citizens of this country should not have their freedom interfered with unless it would be lawful to do so, and, in my judgment, an explanation should generally be given to persons why a personal search is to be carried out."
Misuse of Drugs Act 1971 23(2)
1 Cites



 
 Hillesden v Ryjack; 1983 - [1983] 1 WLR 959

 
 Chubb Cash Ltd v John Crilley and Son (a firm); 1983 - [1983] 2 All ER 294

 
 Mercur Island Shipping Corporation v Laughton; 1983 - [1983] 2 AC 571

 
 Merkur Island Corp v Laughton; HL 1983 - [1983] 2 AC 570
 
Resolute Maritime Inc v Nippon Kaiji Kyokai [1983] 1 WLR 857
1983


Contract, Agency, Torts - Other
On its proper construction the section is concerned only with the liability of that other party to the contract and not with the liability of an agent.
Misrepresentation Act 1967 2(1)
1 Citers


 
Collier v Anglian Water Authority Times, 26 March 1983
26 Mar 1983
CA

Torts - Other, Personal Injury
The plaintiff was injured when she tripped over a paving stone on the sea defence wall promenade at Mablethorpe, for which the defendants were responsible. Held: The defendants were responsible for the area under the Act as occupiers, and accordingly owed the plaintiff a common law duty of care as a visitor and were liable in damages.
Occupiers Liability Act 1957

 
M. Michaels (Furriers) Limited v Askew and Others Times, 25 June 1983; [1983] C.A. Bound Transcript 278
25 Jun 1983
CA
Rose LJ, Dunn LJ, Purchase LJ
Torts - Other
The court heard an appeal against injunctions granted in an animal rights protest context against named Defendants on their own behalf and on behalf of other members of an unincorporated association. Held: Appeal denied. Care had to be taken against abuse, but that where a number of unidentified persons were causing injury and damage by unlawful acts and there was an arguable case that they belonged to a single organisation, the rule enabled the court to do justice in the particular case: "Every case must be determined as one of degree by reference to the particular circumstances." An injunction can be ordered against unknown members of loosely formed unincorporated association. Dunn. LJ "Care must be taken to ensure that Ord. 15 v 12 is not abused. But when a number of unidentified person are causing injury and damage by unlawful acts of one kind or another, and there is an arguable case that they belong to a single organisation or class which encourages action of the type complained of, and their actions can be limited to that organisation, then the rule enables the Court to do justice in the particular case. The narrow construction of the rule advanced b y Mr. Warner would in my view deprive the Courts in a situation like this of a useful remedy." Purchase LJ: "Convenient administration of justice, in my judgement demands that the Courts should be able to afford effective protection to the victims of illegal or threatened illegal action by members of associations whose declared aims are in line with a calculated to promote such illegal action."
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Titchener v British Railways Board 1984 SC (HL) 34; [1983] UKHL 10; [1983] 3 All ER 770; [1983] 1 WLR 1427; 1984 SLT 192; SC (HL) 34
24 Nov 1983
HL
Lord Hailsham of St. Marylebone, Lord Chancellor, Lord Fraser of Tullybelton
Torts - Other, Negligence
A 15 year old was hit by a train as she crossed a railway line. She said the defender had not maintained a fence separating the street from the railway. The defenders knew that people went through the gaps walked across. She had crossed several times, knowing the danger and had looked out, but not on this occasion. It was not believed that she would have been stopped by an ordinary post and wire fence. The Lord Ordinary, Lord Ross, assoilzied saying "A person who takes a chance necessarily consents to take what comes." The pursuer reclaimed and an Extra Division adhered to the Lord Ordinary's interlocutor. The pursuer appealed. Held: (1) The occupier owed a duty to show such care as in all the circumstances was reasonable to see that the person entering on them would not suffer injury; a railway operator owed a duty to maintain a fence beside the line according to the circumstances, including the age and intelligence of the person entering on to the line and the nature of the locus. (2) The respondents owed no duty to the apellant to maintain the fence in a better condition than it was on the grounds that she was aware of the danger, that on-coming trains could be seen for a quarter of a mile and that she had not averred any complaint as to the way in which the train had been operated. (3) Even if the respondents had failed in their duty to maintain the fence the appellant had failed to prove as a matter of probability that the accident would have been prevented had the fence been maintained. (4) That the Lord Ordinary was also correct in holding that the respondents had established a defence under section 2(3) of the 1960 Act which merely stated the principle of volenti non fit iniuria in that the appellant was well aware of and accepted the risk of crossing the line while trains were being operated properly.
Lord Hailsham of St. Marylebone, Lord Chancellor: "To my mind the crucial fact in this appeal was that no averment was or could have been made against the respondent Board that the train which struck the appellant was being driven otherwise than in a perfectly proper manner. If such an averment had been made and proved the respondent Board would have been liable . . . the pursuer's claim, which was based solely on the condition of the fence, was doomed to failure, if only because, on her own admissions, she had voluntarily accepted the risk whatever it was which she incurred by crossing the line, provided only that it was a 'risk of danger from the running of the railway in the ordinary and accustomed way'.
On this analysis of the facts it is possible to formulate the result either by saying that, at the critical moment, that is when the appellant crossed the line, the respondent Board owed no duty to the appellant, or that the duty they owed to the appellant had been discharged by the time she crossed the boundary fence, or that the accident was not caused by any breach of duty on the part of the respondent Board, or alternatively that, having assumed the risk involved, the respondent Board was covered by the doctrine volenti non fit iniuria."
Lord Fraser of Tullybelton: "The duty under section 2(1) was considered by your Lordships' house in McGlone v British Railways Board 1966 S.C. (H.L.) 1 where Lord Guest said at p.15 'The duty is not to ensure the entrant's safety but only to show reasonable care. What is reasonable care must depend "on all circumstances of the case"'. One of the circumstances is the age and intelligence of the entrant. That appears from the provision in section 2(1) that the duty is to show 'such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury' (emphasis added). The question in each case relates to the particular person who has entered upon the premises. The submission of counsel for the respondents was that they did more than enough to discharge their obligations to this appellant because the fences along the north and south sides of the line, notwithstanding that they had gaps, gave her warning that if she went on she would be entering upon railway premises. She was well aware, as she admitted, of the danger of walking across or along the line, and she said that when doing so she normally kept a lookout for trains. By giving her that warning, the respondents were, said Mr Morison [senior counsel for the respondents], doing more than they were obliged to do, because this appellant already knew that the railway was there, and therefore needed no warning. Counsel accepted that the logical conclusion of this argument was that, as the appellant had no need of a warning, the respondents could have left their premises near the bridge completely unfenced without being in breach of any duty towards her. A fortiori they had no duty to do more than they did. "
and "I must emphasise that the question in this appeal is not whether the respondents, and other operators of railways if any there be, have as a general rule a duty to the public to maintain fences beside their lines in good condition or at all. The existence and extent of a duty to fence will depend on the circumstances of the case including the age and intelligence of the particular person entering upon the premises; the duty will tend to be higher in a question with a very young or a very old person than in the question with a normally active and intelligent adult or adolescent. The nature of the locus and the obviousness or otherwise of the railway may also be relevant. In the circumstances of this case, and in a question with this appellant, I have reached the opinion that the Lord Ordinary was well entitled to hold, as he did, that the respondents owed no duty to her to do more than they in fact did to maintain the fence along the line. I reached that view primarily because the appellant admitted that she was fully aware that the line existed, that there was danger in walking across it or along it, that she ought to have kept a lookout for trains, and that she had done so when crossing the line on previous occasions." and "There was therefore no special danger peculiar to the locus of the accident, and no criticism was made by the appellant of the way in which the particular train was being operated. [...] Taking all these circumstances together I consider that the respondents did not owe the appellant a duty to maintain the fence in better condition that it was. If it were necessary to do so I would hold that they owed her no duty to provide any fence at all."
The Lord Ordinary had correctly decided that, even if the respondents were at fault in failing to maintain the fence and to repair the gaps in it, the appellant had failed to prove, as a matter of probability, that if the respondents had performed their duty in those respects, the accident would have been prevented. He then said: "Secondly, the Lord Ordinary held that the respondents had established a defence under section 2(3) of the 1960 Act by proving that the appellant had willingly accepted the risks of walking across the line. As Lord Reid said in McGlone, supra, subsection (3) merely puts in words the principle volenti non fit iniuria. That principle is perhaps less often relied upon in industrial accident cases at the present time than formerly, but so far as cases under the 1960 Act are concerned, the principle is expressly stated in section 2(3) and there is no room for an argument that it is out of date or discredited. If the Lord Ordinary was entitled to sustain this defence, the result would be that, whether the respondents would otherwise have been in breach of their duty to the appellant or not, the appellant had exempted them from any obligation towards her. [....] On this matter I am of opinion, in agreement with Lord Hunter, that the Lord Ordinary was well-founded in sustaining this defence. The reasons for doing so are in the main the same as the reasons for holding that the respondents were not in breach of their duty. The appellant admitted that she was fully aware that this was a line along which trains ran, and that it would be dangerous to cross the line because of the presence of trains. She said in cross-examination 'it was just a chance I took', and the Lord Ordinary evidently accepted that she understood what she was saying. She was in a different position from the boy in McGlone, supra, who did not have a proper appreciation of the danger from live wires - see Lord Reid at p.13 and Lord Pearce at p.18. As I said already the appellant did not suggest that the train which injured her had been operated in an improper or unusual way. The importance of that is that the chance which she took was no doubt limited to the danger from a train operated properly, in the 'ordinary and accustomed way' - see Slater v Clay Cross Co Ltd [1956] 2 Q.B. 264, per Denning L.J. at p.271. Had there been evidence to show that the train which injured the appellant was driven negligently, like the train in Slater's case, the risk which materialised would not have been within the risks that the appellant had accepted. But there is nothing of that kind here. In my opinion therefore the defence under section 2(3) is established."
Occupiers' Liability (Scotland) Act 1960
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1 Citers

[ Bailii ]

 
 Collins v Wilcock; QBD 1984 - [1984] 3 All ER 374; [1984] 1 WLR 1172; (1984) 79 Cr App R 229; [1984] Crim LR 481; (1984) 148 JP 692
 
UBAF Ltd v European American Banking Corporation [1984] QB 713; [1984] 1 WLR 508; [1984] CLY 1579
1984
CA
Ackner LJ
Banking, Company, Limitation, Torts - Other
The defendant invited the plaintiff to take part in a syndicated loan. The defendant's assistant secretary signed a letter to the plaintiff making representations, now claimed to be fraudulent. The defendant succeeded at first instance arguing that the signature was not that of the bank, and that even if it was, the action would be statute barred. Held: The court refused to strike out the claim. A company itself made a representation, if it produced a document which was signed by an authorised officer or agent acting within the scope of his actual authority. This applied to bind the defendant bank. The nature of a syndicated loan was a fiduciary arrangement, and the obligations on a lead bank were continuing for limitation purposes, time did not run, and the obligation was not time barred. The issue would be settled at trial when it was established when the defendant could be said to have come to know of the alleged deceit.
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 McKee v Chief Constable for Northern Ireland; HL 1984 - [1985] 1 All ER 1; [1984] NI 169; [1984] 1 WLR 1358
 
Rahemtulla v Vanfed Credit Union [1984] 3 WWR 296
1984

McLachlin J
Commonwealth, Torts - Other
(British Columbia Supreme Court) The plaintiff had been harassed at work, falsely accused of theft in threatening circumstances and summarily dismissed without proper cause in a humiliating fashion. The defendant submitted that to be liable for wilful infliction of nervous shock its conduct must be outrageous. Held: McLachlin J said: "This submission appears to be founded on the distinction drawn in American cases between mere insult, which is not actionable, and 'extreme and outrageous conduct' which is: Linden: Canadian Tort Law (3rd ed) (1982), p 48. While this distinction appears not to have been expressly adopted in the Canadian and Commonwealth cases, the conduct considered in the leading authorities such as Wilkinson v Downton, and Janvier v Sweeney, was in fact flagrant and extreme. Moreover, it is difficult to accept that the courts should protect persons from every practical joke or unkind comment . . assuming" that only flagrant and extreme conduct inflicting mental suffering was actionable, the defendant's conduct could be so described. She identified the two further ingredients of the tort as being: that the conduct was "plainly calculated to produce some effect of the kind which was produced" (quoting from Wright J's judgment in Wilkinson v Downton), and that the conduct produced provable illness. She found that the conduct was "plainly calculated" to cause profound distress because it was clearly foreseeable.
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Archer v Brown [1985] QB 401; [1984] 2 All ER 267
1984

Peter Pain J
Contract, Damages, Torts - Other
The defendant sold shares in his company to the plaintiff. He had however already sold them elsewhere. The plaintiff sought both rescission and damages. The defendant argued that he could not be entitled to both. Held: The misrepresentation had been fraudulent and both rescission and damages might be available. In this case the loss, the cost of borrowing flowed directly from the fraud perpetrated by the defendant. Aggravated but not exemplary damages might also be awarded. Peter Pain J said: "But what seems to put the claim under this head out of court is the fact that exemplary damages are meant to punish and the defendant has been punished. Even if he wins his appeal he will have spent a considerable time in gaol. It is not surprising that there is no authority as to whether this provides a defence, since there is no direct authority as to whether exemplary damages can be given in deceit. I rest my decision on the basic principle that a man should not be punished twice for the same offence. Since he has undoubtedly been punished, I should not enrich the plaintiff by punishing the defendant again."
Prevention of Fraud (Investments) Act 1958
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 Holgate-Mohammed v Duke; HL 1984 - [1984] AC 437; [1984] 1 AC 437; [1984] 2 WLR 660; [1984] 1 All ER 1054; [1984] 2 WLR 660
 
Livingstone v Ministry of Defence [1984] NILR 356
1984
CANI
Hutton J
Torts - Other, Northern Ireland, Armed Forces
The plaintiff was injured when a soldier fired a baton round after some soldiers were attacked by rioters. The round had been deliberately fired, but not to strike the plaintiff. The claim was in negligence and assault and battery. The trial judge dismissed the claim in negligence but did not give a ruling on the question of battery. Held: The court allowed the appeal and ordered a new trial, rejecting the argument that there could be no battery because the plaintiff was not the chosen target: "In my judgment when a soldier deliberately fires at one rioter intending to strike him and he misses him and hits another rioter nearby, the soldier has "intentionally" applied force to the rioter who has been struck. Similarly if a soldier fires a rifle bullet at a rioter intending to strike him and the bullet strikes that rioter and passes through his body and wounds another rioter directly behind the first rioter, whom the soldier had not seen, both rioters have been "intentionally" struck by the soldier and, assuming that the force used was not justified, the soldier has committed a battery against both."
1 Citers



 
 Cordoba Shipping Co Ltd v National State Bank, Elizabeth, New Jersey (The Albaforth); CA 1984 - [1984] 2 Lloyd's LR 91

 
 Freeman v Home Office (No 2); 1984 - [1984] 1 QB 524
 
Dimbleby and Sons v National Union of Journalists [1984] 1 WLR 427
1984
HL

Torts - Other, Employment
The Trades Union caused its members to withdraw their labour from the plaintiff, so preventing the plaintiff from performing a contract with a firm of printers. The conduct was aimed, primarily, not at the plaintiff but at the printers, with whom the union was in dispute. Held: The plaintiff's claim for an injunction was upheld.
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Van Camp Chocolates Ltd v Aulesbrooks Ltd [1984] 1 NZLR 354
1984


Commonwealth, Torts - Other
(New Zealand Court of Appeal) The plaintiffs sued for interference with their business by unlawful means, namely breach of confidence. A preliminary point of law was argued as to the nature of the intent to injure the plaintiffs necessary to establish the tort. The court said this: "In principle, as we see it, an attempt to harm a plaintiff's economic interests should not transmute the defendant's conduct into a tort actionable by the plaintiff unless that intent is a cause of his conduct. If the defendant would have used the unlawful means in question without that intent, and if that intent would not have led him to act as he did, the mere existence of the purely collateral and extraneous malicious motive should not make all the difference. The essence of the tort is deliberate interference with the plaintiff's interests by unlawful means. If the reasons which actuate the defendant to use unlawful means are wholly independent of a wish to interfere with the plaintiff's business, such interference being no more than an incidental consequence foreseen by and gratifying to the defendant, we think that to impose liability would be to stretch the tort too far"
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 British Airways Board v Laker Airways Limited; 1984 - [1984] QB 142
 
British Airways Board v Laker Airways Limited [1984] QB 186
2 Jan 1984
CA

Torts - Other
The plaintiffs sought an injunction to restrain the defendant from pursuing an action in the US. That action alleged conspiracy by the plaintiffs to work together to put the defendant out of business on the North Atlantic route by anticompetitive practices outlawed under the Sherman and Clayton Acts. Held: The torts alleged were offences in the US but not here. The plaintiffs' appeal failed.
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Gould v Vaggelas (1984) 157 CLR 215; [1984] HCA 68; (1984) 56 ALR 31; (1984) 58 ALJR 560
6 Nov 1984

Gibbs CJ, Murphy, Wilson, Brennan and Dawson(5) JJ.
Torts - Other
A deceit was alleged.
Wilson J said: "The representation need not be the sole inducement in sustaining the loss. If it plays some part, even if only a minor part, in contributing to the course of action taken a causal connection will exist." and "If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation."
Wilson J referred to a situation in which one party "has made false statements to [others] intending thereby to induce [them] to enter into a contract and those statements are of such a nature as would be likely to provide such inducement", saying that, "common sense would demand the conclusion the false representations played at least some part in inducing the plaintiff to enter into the contract".
1 Citers

[ Austlii ]
 
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