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Torts - Other - From: 1985 To: 1989

This page lists 46 cases, and was prepared on 02 April 2018.

 
Speed Seal Ltd v Paddington [1985] 1 WLR 1327; [1986] 1 All ER 91
1985
CA
Fox LJ
Litigation Practice, Torts - Other
The court was asked whether the defendant should be permitted to add to his pleadings a counterclaim asserting that the action was brought in bad faith for the ulterior motive of damaging the defendants' business, and not for the protection of any legitimate interest of the plaintiffs. Held: It is an abuse of process to use litigation with the ulterior purpose of oppressing or harassing one's opponents. An action for the tort of abuse would lie where it could be shown that proceedings had been instituted in order to effect an object or purpose not within the scope of the process that had been instituted. The court approved a statement from American torts law 'One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.'
1 Cites

1 Citers


 
C Evans and Sons Ltd v Spritebrand Ltd and another [1985] 1 WLR 316
1985
CA
Lord Justice Slade, Lord Justice Atkin
Company, Torts - Other
The court considered when a company director might be personally liable for acts of the company: "in order to make a director, other officer or employee of a company personally liable for the company's tort, it is necessary to show either that he was himself the person who committed, or participated in, the act constituting the tort, or that he directed or procured the tortious act to be done by others; and that inquiries into the matter will or may involve an "elusive question" turning on the particular facts of the case, and whose resolution may in turn involve the making of a policy decision as to the side of the line on which the case ought to fall." and "is it the law of England that a director of a company who has authorised, directed and procured the commission by the company of a tort of the nature specified in section 1(2) of the Copyright Act 1956 can in no circumstances be personally liable to the injured party unless he directed or procured the acts of infringement in the knowledge that they were tortious, or recklessly, not caring whether they were tortious or not?" (Lord Justice Slade)

and "If the directors themselves directed or procured the commission of the act they would be liable in whatever sense they did so, whether expressly or impliedly." but "Nevertheless, judicial dicta of high authority are to be found in English decisions which suggest that a director is liable for those tortious acts of his company which he has ordered or procured to be done." (Lord Justice Atkin)
Copyright Act 1956 1(2)
1 Citers


 
Armagas Ltd v Mundogas SA ('The Ocean Frost') [1985] 1 Lloyd's Rep 1
1985
CA
Goff LJ, Staughton J
Evidence, Torts - Other, Agency
In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
When a court looks at a decision of a judge at first instance, the court stressed the need to look at the objective facts and the overall probabilities.
Goff LJ said: "Speaking from my own experience I have found it essential in cases of fraud when considering the credibility of witnesses always to test their veracity by reference to objective facts proved independently of their testimony, in particular by reference to the documents in the case and also to pay a particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence . . Furthermore it is implicit in the statement of Lord MacMillan in Powell v. Streatham Manor Nursing Home at p. 256 that the probabilities and possibilities of the case may be such as to impel an appellate Court to depart from the opinion of the trial Judge formed upon his assessment of witnesses whom he has seen and heard in the witness box. Speaking from my own experience, I have found it essential in cases of fraud when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents, to the witnesses' motives and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth. I have been driven to the conclusion that the Judge did not pay sufficient regard to these matters in making his findings of fact in the present case."
On the facts as found and "the effect of the judge's conclusion was that, although Mr. Magelssen did not have ostensible authority to enter into the contract, he did have ostensible authority to tell Mr. Jensen and Mr. Dannesboe that he had obtained actual authority to do so. This is, on its face, a most surprising conclusion. It results in an extraordinary distinction between (1) a case where an agent, having no ostensible authority to enter into a relevant contract, wrongly asserts that he is invested with actual authority to do so, in which event the principal is not bound; and (2) a case where an agent, having no ostensible authority, wrongly asserts after negotiations that he has gone back to his principal and obtained actual authority, in which event the principal is bound. As a matter of common sense, this is most unlikely to be the law."
1 Cites

1 Citers


 
Reynolds v Commissioner of Police of the Metropolis [1985] QB 881
1985

Waller LJ, Slade LJ, Purchas LJ
Police, Torts - Other
A search warrant had been obtained under the 1913 Act. The court considered the existence of a tort of obtaining a search warrant maliciously.
Waller LJ discussed the problem facing police officers when a large volume of material were to be examined: "To do a detailed examination in the house would no doubt have required several police officers to be there for some days causing disturbance to the householder, that might require comparisons to be made with other documents already in the possession of the police. This would require either the documents to be taken to the police station or the other documents to be brought to the house. ..... Searching and taking away papers is an invasion of liberty and any such action must be carefully scrutinised. Where it is done in pursuance of a search warrant or on arrest, the police must consider the way in which they perform the search. If there are only a few papers, no doubt they can be carefully scrutinised on the spot without too much disturbance to the household. If there are many papers, it may be in the best interests of the householder for the police to be broadly selective, i.e. rule out documents which are clearly irrelevant, and take others which they reasonably believe to be of evidential value to examine more closely at the police station. It will of course be of the greatest importance to ensure that documents which prove to be of no evidential value should be returned at the earliest opportunity. In my judgement the question in every such case must be whether the police were acting reasonably or not." and
"The police were not entitled to seize every document that they could lay hands on, at all events without the approval of the first plaintiff. On the other hand, they wer entitled to take documents which they reasonably believed to be forged or would be of evidential value in proceedings for fraud. The officers could obviously take a file which would contain such a document without separating out the individual sheet and it would be a matter for the jury whether what they had taken was reasonable."
Slade LJ: "(1) No matter how convenient this course may seem to be, a police officer acting under a search warrant issued under the Forgery Act 1913 is not entitled, without the consent of the owner, indiscriminately to remove from the premises each and every file, book, bundle or document he can lay his hands on, even if only for the purpose of temporary sorting. Before doing so, he must have regard to the nature and contents of the item in question.
(2) However, provided that he acts reasonably in so doing, he is entitled to remove from the premises files, books, bundles or documents which at the time of removal he reasonably believes contain (i) forged material, or (ii) material which might be of evidential value, as showing that the owner is implicated in some other crime.
(3) Any necessary sorting process in relation to all items removed (e.g., those contained in files and bundles) should be carried out with reasonable expedition and those of them which are not found to fall within either of the two relevant categories should then be returned reasonably promptly to the owner."
Purchas LJ: "This is an area in which the balance between the importance of assisting the police in the detection of crime, and preserving the rights of the individual, must be scrupulously observed. Provided that the police have reasonable grounds in relation to any particular document or file of documents, or other property, for thinking that it might be connected with any crime committed by the first plaintiff, then it would be open to the jury to find that the removal of it was a justified and reasonable action to take in order to make a further and more detailed examination elsewhere. But if the jury were not satisfied that the documents involved in the seizure did command the reasonable suspicion of the police, then, in my view, the jury ought to have found in favour of the plaintiff in respect of trespass to those particular documents."
Forgery Act 1913 16(1)
1 Cites

1 Citers


 
Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20; [1985] 2 All ER 1; [1985] IRLR 157; [1985] ICR 886; [1985] 2 WLR 1081
1985
ChD
Scot J
Vicarious Liability, Torts - Other, Nuisance
Threats made by pickets to those miners who sought to go to work were not an assault because the pickets had no capacity to put into effect their threats of violence whilst they were held back from the vehicles which the working miners were within. The plaintiffs were, however, entitled to enjoy their right to use the highway to go to work without unreasonable harassment and that picketing by 50 to 70 striking miners shouting abuse was a tortious interference with that right. The actions of the striking miners were therefore actionable in nuisance.
1 Citers


 
Moss v McLachlan [1985] IRLR 76
1985
QBD
Skinner J, Otton J
Police, Torts - Other
Four striking miners were travelling in a convoy of motor vehicles and were stopped by a police cordon at a junction within several miles of four collieries. The inspector in charge believed with reason that a breach of the peace would be committed if they continued to the pits and asked them to turn back. He told them that if they continued they would be obstructing an officer in the execution of his duty and therefore liable to arrest. Many refused to turn back however and, after blocking the road with their vehicles, a group comprising the four striking miners attempted to push their way through the police cordon. They were arrested on the ground that the police feared a breach of the peace at one of the four collieries if the miners had been allowed to proceed. The men were convicted of wilfully obstructing a police officer in the execution of his duty. Held: The appeal was dismissed: "The situation has to be assessed by the senior police officers present. Provided they honestly and reasonably form the opinion that there is a real risk of a breach of the peace in the sense that it is in close proximity both in place and time, then the conditions exist for reasonable preventive action including, if necessary, the measures taken in this case. . . But, says [counsel], the police can only take preventive action if a breach of the peace is imminent and there was no such imminence here." R v Howell] must be read in the light of Piddington v Bates and "We do not think that there is any conflict between the two approaches. The possibility of a breach must be real to justify any preventive action. The imminence or immediacy of the threat to the peace determines what action is reasonable." Later Skinner J added: "For the reasons we have given, on the facts found by the magistrates, a breach of the peace was not only a real possibility but also, because of the proximity of the pits and the availability of cars, imminent, immediate and not remote."
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 British Airways Board v Laker Airways Limited; HL 1985 - [1985] AC 58; [1984] UKHL 7; [1984] 3 WLR 413; [1984] 3 All ER 39
 
Bourgoin SA v Minister of Agriculture Fisheries and Food [1985] Unreported
1985


Torts - Other, Administrative
The Minister had revoked the plaintiffs' licence in order to protect English turkey producers against competition from French turkey producers, knowing that this was in breach of the UK's obligations under article 30 of the EEC treaty, that the act would and was calculated to injure the plaintiffs in their businesses, and that protecting English turkey farmers was not a purpose for the achievement of which the relevant powers were conferred upon him. Held: The court considered the tort of misfeasance in public office "I do not read any of the decisions to which I have been referred as precluding the commission of the tort of misfeasance in public office where the officer actually knew that he had no power to do that which he did, and that his act would injure the plaintiff as subsequently it does. I read the judgment in Dunlop v Woollahra Municipal Council [1982] AC 158 in the sense that malice and knowledge are alternatives. There is no sensible reason why the common law should not afford a remedy to the injured party in circumstances such as are before me. There is no sensible distinction between the case where an officer performs an act which has no power to perform with the object of injuring A (which the defendant accepts is actionable at the instance of A) and the case where an officer performs an act which he knows he has no power to perform with the object of conferring a benefit on B but which has the foreseeable and actual consequence of injury to A (which the defendant denies is actionable at the instance of A). In my judgment each case is actionable at the instance of A and, accordingly, I determine that paragraphs 23 and 36 of the amended statement of claim do disclose a cause of action."
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Murphy v Oxford Unreported 15 February 1985
15 Feb 1985
CA

Police, Torts - Other

1 Citers


 
Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 All ER 643; [1985] 2 WLR 480; [1985] AC 871; [1985] UKHL 1
21 Feb 1985
HL
Lord Templeman, Lord Diplock, Lord Scarman, Lord Keith
Health, Torts - Other, Negligence
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised. Held: The appeal failed. A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death.
However, where a patient does not ask as to the risks, Lord Diplock said: "we are concerned here with volunteering unsought information about risks of the proposed treatment failing to achieve the result sought or making the patient's physical or mental condition worse rather than better. The only effect that mention of risks can have on the patient's mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied." and "a doctor's duty of care, whether he be general practitioner or consulting surgeon or physician is owed to that patient and none other, idiosyncrasies and all." ."
Lord Scarman said: "Damage is the gist of the action of negligence"
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1 Citers

[ Bailii ]
 
Regina v Board of Visitors of Gartree Prison, Ex parte Sears Times, 20 March 1985
14 Mar 1985


Prisons, Torts - Other
A prisoner sought damages in respect of cellular confinement and loss of privileges. Held. Mann J. said: "If a person is imprisoned in a place where he is lawfully so imprisoned, then it does not seem to me that a variation in conditions of confinement can constitute the tort of false imprisonment at common law."
1 Citers



 
 Armagas Ltd v Mundogas SA ('The Ocean Frost'); HL 22-May-1985 - [1986] AC 717; [1985] 1 Lloyd's Rep 1; [1985] UKHL 11; [1986] 2 All ER 385; [1986] 2 WLR 1063
 
Amstrad Consumer Electronics Plc v British Phonographic Industry Limited [1986] FSR 159
29 Oct 1985
CA
Glidewell LJ, Slade LJ, Lawton LJ
Intellectual Property, Torts - Other
Amstrad sought a declaration that their retailing of equipment with two cassette decks was not unlawful. A declaration was not granted because Amstrad might be guilty of a criminal offence. However in the absence of any evidence that Amstrad was acting in concert with members of the public, the Court thought that Amstrad's conduct was not tortious. Held: Thought the court disagreed with the trial judge's assertions as to et unlawfulness of Amstrad's actions, it refused a declaration. The concept of accessories is a familiar one in the criminal law, however, no authority shows that a person can be civilly liable as 'accessory' to the tortious act of another (whether the relevant tort arises under the common law or by virtue of statute) unless he is actually a joint tortfeasor or has procured or incited such act (as to which see below). The relevant question is simply whether Amstrad could be regarded as joint tortfeasor with those members of the public who infringed the copyrights. . The grounds upon which they are alleged to be joint tortfeasors are that . . 'the defendants knew before parting with each of the said machines that they were certainly (or in the alternative very probably) going to be used by members of the public to infringe one or more of the aforesaid copyrights to the damage of the copyright owners. Accepting that it has this knowledge, even this intention, does this render Amstrad itself an infringer and thus a joint tortfeasor? A long line of authority relating to patents but equally applicable to copyright, shows that it does not. There was no distinct tort of procuring or inciting infringement of copyright.
Copyright Act 1956
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1 Citers



 
 W v Meah; 1986 - [1986] 1 All ER 935
 
Houghton v Chief Constable of Greater Manchester [1986] 84 Cr App R 31
1986


Crime, Torts - Other
An off-duty policeman was returning from a fancy dress party in a policeman's uniform, carrying a truncheon. The issue arose in the course as to whether or not that would constitute an offence. Held: The words "reasonable excuse" in section 1(1) were wide enough to enable the off-duty police officer to be not criminally liable under section 1, because he had a "reasonable excuse" for carrying the truncheon.
Prevention of Crime Act 1953 1
1 Citers



 
 Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada; HL 1986 - [1987] 1 AC 460; [1986] 3 All ER 843; [1986] 3 WLR 972; [1986] UKHL 10
 
Bourgoin SA v Minister of Agriculture Fisheries and Food [1986] QB 716
1986
CA
Oliver LJ, Mann J
Torts - Other, Administrative
The plaintiffs were French producers of turkeys. They alleged that the Minister revoked their licence to import turkeys into this country by a decision that was ultra vires and motivated by a desire to assist British turkey producers, and that this amounted to misfeasance in public office. The Minister sought to have the plea struck out on the ground that it lacked the essential averment that the Minister acted with the purpose of inflicting harm on the plaintiffs, in other words that he had 'targeted malice'. Held: It was proper to draw an inference from a party's behaviour as to their tortious intentions: 'If an act is done deliberately and with knowledge of its consequences, we do not think that the actor can sensibly say that he did not "intend" the consequences or that the act was not "aimed" at the person who, it is known, will suffer them.' The court examined the necessary ingredients of the tort of misfeasance in public office. It recognised and analysed two strands of the tort. The claim against the nominated department of state depended on proof that "the minister's motive was to further the interests of English turkey producers by keeping out the produce of French turkey producers – an act which must necessarily injure them"
It was 'immaterial that one purpose was dominant and the second merely a subsidiary purpose for giving effect to the dominant purpose. If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not "intend" the consequences of the act or that the act was not "aimed" at the person who, it is known, will suffer them.'
Oliver LJ: "If it be shown that the minister's motive was to further the interests of English turkey producers by keeping out the produce of French turkey producers – an act which must necessarily injure them – it seems to me entirely immaterial that the one purpose was dominant and the second merely a subsidiary purpose for giving effect to the dominant purpose. If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not "intend" the consequences or that the act was not "aimed" at the person who, it is known, will suffer them. In my judgment, the judge was right in his conclusion also on this point."
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Kings North Trust Ltd v Bell [1986] 1 All ER 423, CA; [1986] 1 WLR 119
1986
CA

Banking, Torts - Other
The wife claimed to have signed a legal charge in favour of the plaintiffs by virtue of her husband's fraudulent misrepresentation. The charge secured the business borrowings of the husband. She did not get independent advice. Held: The bank had entrusted the charge to the husband to have it signed by her. He was therefore acting as the bank's agent, and it was bound by his misrepresentations, and could not enforce the charge. Dillon LJ made it a necessary condition of such a finding that the creditor had entrusted to the husband the task of obtaining his wife's signature.
1 Cites

1 Citers



 
 Armour Glass v Mundo Gas SA; HL 1986 - [1986] AC 717
 
Barretts and Baird (Wholesale) Ltd v Institution of Professional Civil Servants (IPCS) [1986] IRLR 331
1986

Henry J
Torts - Other, Employment
A strike by civil servants in the Ministry of Agriculture in support of a pay claim was not intended to cause damage to an abattoir which was unable to obtain the certificates necessary for exporting meat and claiming subsidies. The damage to the abattoir was neither the purpose of the strike nor the means of achieving that purpose, which was to put pressure on the government.
1 Cites

1 Citers


 
Kingdom of Spain v Christie, Manson and Woods Ltd [1986] 1 WLR 1120
1986

Sir Nicolas Browne-Wilkinson VC
Torts - Other
The court questioned the basis of the cause of action asserted in Austria -v- Day.
1 Cites

1 Citers


 
Thomas v NUM [1986] 1 WLR 20
1986

Scott J
Torts - Other
Threats made by pickets to miners going in to work were not an assault because the pickets had no capacity to put into effect their threats of violence whilst they were held back from the vehicles carrying the workers.
1 Citers


 
Wilson v Pringle [1986] 2 All ER 44 CA; [1986] 3 WLR 1; [1987] QB 237; [1986] EWCA Civ 6
26 Mar 1986
CA
Croom-Johnson LJ
Torts - Other
Two boys played in a school yard. D said he had pulled a bag from the other's shoulder as an ordinary act of horseplay. The plaintiff said it was a battery. Held: The defendant's appeal against summary judgment was allowed. A claim of trespass to the person amounting to a battery was established by showing an intentional touching of the plaintiff and that the touching was hostile. Where the facts of the touching did not themselves establish hostility, the pleadings should particularise just how hostility is shown. Force applied by way of self-defence amounts to lawful excuse.
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[ Bailii ]
 
Gulf Oil (Great Britain) Limited v Page [1987] 1 Ch 327
1987
CA
Parker LJ, Nicholas Browne-Wilkinson V-C
Torts - Other, Litigation Practice
The plaintiff had contracted exclusively to supply to the defendants owners of petrol stations. On arrears arising, the plaintiff discontinued deliveries save on cash on delivery and direct debit terms. The defendants obtained supplies from another source and the plaintiff terminated the agreement. There then followed proceedings which the defendants lost in court and which were the subject of an appeal. While the appeal was pending the defendant circulated leaflets to several of the plaintiff's customers, giving an account of the litigation and judgment. Also, when the plaintiff was entertaining customers at a hospitality tent at the Cheltenham Gold Cup race meeting, the defendant flew a light aircraft over the racecourse, displaying a banner with the words "Gulf Exposed in Fundamental Breach". Held: The court granted an injunction in conspiracy which enabled the plaintiff to circumvent the rule in Bonnard v Perryman, but Parker LJ said that the court "would require to be satisfied that [a claim in conspiracy] was not merely an attempt to circumvent the rule in defamation".
"It is true that there is no wrong done if what is published is true provided it is not published in pursuance of a combination and, even if it is, there is still no wrong unless the sole or dominant purpose of the combination in publication is to injure the plaintiff. If, however, there is both combination and purpose or dominant purpose to injure, there is a wrong done. When a plaintiff sues in conspiracy, there is therefore, a potential wrong, even if it is admitted as it is in the present case, that the publication is true and thus that there is no question of a course of action in defamation. In such a case the court can, and should not proceed on the same principle as it would in the case of any other tort.
The prospect that this would open the floodgates and reverse the principle applicable in libel actions is, in my view unreal, a plaintiff against the author and publisher of a newspaper article, for example, might well establish a combination, but it appears to me that it would only be in the rarest case that sufficient evidence of a dominant purpose to injure could be made out to warrant the ground of interlocutory relief, and I have no doubt that the court would scrutinise with the greatest care any case where a course of action in conspiracy was joined to a course of action in defamation and would require to be satisfied that such joinder was not merely an attempt to circumvent the rule in defamation".
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Ahmed v Kendrick (1987) 56 P&CR 120
1987


Trusts, Torts - Other
The effect of the passing of a beneficial interest by a fraudster owner of that interest to a third party is to sever the beneficial joint tenancy.
1 Citers


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


 
Pollivitte Ltd v Commercial Union Assurance Company Plc (1987) 1 Lloyds Rep 379
1987

Garland J
Litigation Practice, Torts - Other
An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise.
1 Citers


 
Patel v Patel [1988] 2 FLR 179
1988
CA
Waterhouse J, May LJ
Torts - Other, Family
An exclusion zone order had been removed from an injunction granted to a father-in-law against his son-in-law. May LJ observed that an injunction 'can only be an appropriate remedy where an actual tortious act has been or is likely to be committed'. Waterhouse J said that 'in the present state of the law there is no tort of harassment'.
1 Citers


 
D and F Estates v Church Commissioners for England [1988] 2 All ER 992; [1987] CLY 3582; [1987] 1 FTLR 405
1988
CA

Construction, Torts - Other
The main contractor on the site subcontracted the interior plastering. Fifteen years later, the plasterwork collapsed causing injury. The plasterer had not used the plaster specified. Held: Appeal allowed. A contractor may have contractual or statutory duty to supervise, but not necessarily in tort. A main contractor will not have responsibility in tort for failure to supervise the acts of a sub-contractor where it would be unreasonable to expect him to provide supervision.
1 Citers



 
 Metall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc and another; QBD 29-Mar-1988 - [1990] QB 391

 
 CBS Songs Ltd v Amstrad Consumer Electronics Plc; HL 12-May-1988 - [1988] AC 1013; [1988] 2 WLR 1191; [1988] UKHL 15; [1988] 2 FTLR 168; [1988] RPC 567; [1988] 2 All ER 484

 
 CBS Songs Ltd v Amstrad Consumer Electronics Plc; HL 12-May-1988 - [1988] AC 1013; [1988] 2 WLR 1191; [1988] UKHL 15; [1988] 2 FTLR 168; [1988] RPC 567; [1988] 2 All ER 484

 
 Murray v Ministry of Defence; HL 25-May-1988 - [1988] 1 WLR 692; [1988] UKHL 13; [1988] 2 All ER 521

 
 Castorina v Chief Constable of Surrey; CA 10-Jun-1988 - [1988] NLJR 180; Times, 15 June 1988; [1996] LG Rev Rep 241; [1996] LGR 241
 
Lonhro plc v Fayed [1988] 3 All ER 464; Independent, 19 July 1988
19 Jul 1988

Pill J
Torts - Other
The plaintiff and defendant competed in bidding for a public company. The plaintiff having been restrained by the Secretary of State, alleged that the defendant had used a fraudulent misrepresentation to achieve this. Held: It was not a tort to intefere in another's right to make a takeover bid.
1 Citers


 
Kemp Properties (UK) Ltd v Dentsply Research and Development Corporation [1989] 2 EGLR 205
1989


Legal Professions, Torts - Other
The court considered a Solicitor's possible personal liability for misrepresentation made in replies given to enquiries before contract on acting on the sale of land.
1 Citers


 
Unilever Plc v Gillette (UK) Limited [1989] RPC 583
1989
CA
Lord Justice Mustill
Intellectual Property, Torts - Other
Unilever claimed infringement of its patent. The court was asked whether there was a good arguable case against the United States parent company of the existing defendant sufficient to justify the parent company to be joined as a defendant and to serve proceedings out of the jurisdiction. Held: Section 60(1) of the 1977 Act, described which acts amounted to infringement.
Lord Justice Mustill said: "In a case such as the present, where the infringement alleged includes (for example) the sale of the patented product made up into marketable form, and the importation of the product, a literal interpretation of the section might lead to the conclusion that only the person who has actually sold the product and imported it can be an infringer . . the law has developed. It has gone further than this, in two stages.
The first stage concerned a general question in the law of tort, arising where two persons were acknowledged or found to have committed tortious acts which led to the same damage. The question was whether these persons had committed individual wrongs for which they were individually liable, or whether they had joined together in committing the same wrong. This was formerly of great importance, for there could only be one action in relation to one tort, so that judgment against one tortfeasor A would release any claim against the other tortfeasor B; and so also with any accord and satisfaction of the liability of A. The severity of this rule was mitigated by statute in 1935, but by then a jurisprudence had grown up concerning the distinction between joint and several tortfeasors. The most celebrated example of this is to found in . . The Koursk [1924] P 140 at 156 where three situations are identified where A might be jointly liable with B: i.e., where A was master and B servant; where A was principal and B agent; and where the two were concerned in a joint act done in pursuance of a common purpose. This list may not be exhaustive, but it forms the basis for all subsequent statements of the law.
Thus far, the cases were concerned with the question whether A and B, acknowledged or found to be joint tortfeasors, were responsible individually or jointly for what had been done: The Koursk being a particularly acute case of such a dispute. "
and
"Brook v Bool has engendered curiously little in the way of subsequent reported authority, but no doubt has been cast in the intervening 60 years on the proposition that participation in a common venture may cause someone to become directly liable as a tortfeasor, together with the person who actually did the damage.
The second line of authority concerns persons who are said to have jointly infringed a patent. Essentially this takes a situation where A is an infringer, and adds to it (via the authorities on joint tortfeasors) the possibility that B may also have infringed, not through any act which he himself has done, but by virtue of a common design with A. This also is a bold step, since it applies a common law doctrine to the interpretation of a statute. Nevertheless, in the light of C.B.S. Songs v Amstrad Consumer Electronics [1988] 2 WLR 1191 the principle is firmly established: for although it is true that the Amstrad case was concerned with the Copyright Act 1956, the statements in the leading speech of Lord Templeman, to which I shall later return, are applicable equally to the patent legislation, and indeed most of the authorities cited in support were drawn from the field of patents."
Lord Justice Mustill: "My Lords, joint infringers are two or more persons who act in concert with one another pursuant to a common design in the infringement. In the present case there was no common design. Amstrad sold a machine and the purchaser or the operator of the machine decided the purpose for which the machine should from time to time be used. The machine was capable of being used for lawful or unlawful purposes."
As to common design, he said: "I use the words 'common design' because they are readily to hand, but there are other expressions in the cases, such as 'concerted action' or 'agreed on common action' which will serve just as well. The words are not to be construed as if they formed part of a statute. They all convey the same idea. This idea does not, as it seems to me, call for any finding that the secondary party has explicitly mapped out a plan with the primary offender. Their tacit agreement will be sufficient. Nor, as it seems to me, is there any need for a common design to infringe. It is enough if the parties combine to secure the doing of acts which in the event prove to be infringements."
1 Cites

1 Citers


 
Commercial Union Assurance Co. of NZ Ltd v Lamont [1989] 3NZLR 187
1989

Richardson J
Torts - Other
(Court of Appeal of New Zealand) Richardson J said: "a defendant who has procured the institution of criminal proceedings by the police is regarded as responsible in law for the initiation of the prosecution . . that requires close analysis of the particular circumstances . . It does not follow that there is any call for modifying the test which has been developed in the decisions of this court for determining whether a third party is responsible in an action for malicious prosecution for criminal proceedings instituted by the police. What is required is a cautious application of that test where the police have conducted an investigation and decided to prosecute. The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff. One should never assume that tainted evidence persuaded the police to prosecute. In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police. The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterised as having procured the prosecution."
1 Citers


 
Lonrho plc v Fayed [1990] 2 QB 479; [1989] 2 All ER 65
1989
CA
Dillon LJ, Ralph Gibson LJ, Woolf LJ
Torts - Other
There had been a battle to purchase the share capital of the House of Fraser which owned Harrods. Lonrho alleged that the Fayed brothers had perpetrated a fraud on the Secretary of State, and thereby secured permission to buy the company without a reference to the Monopolies and Mergers Commission and preventing Lonrho from buying the company. Lonrho did not pursue a claim for tortious conspiracy, accepting that this required a predominant intention to injure them. They did, however, pursue a claim for unlawful interference, appealing against an order striking out this claim. Held: The appeal succeeded. Dillon LJ held that, in relation to unlawful interference with business, it was sufficient to show an intention directed at the claimant or alternatively intent to injure the claimant. Ralph Gibson and Woolf LJJ held that intention would be shown where the defendant had deliberately embarked on a course of conduct, "the probable consequences of which to the plaintiff he appreciated". In Woolf LJ's view it was unnecessary to show that the interference was inevitable. It might be enough that the results were probable.
Dillon LJ: "It is submitted to us that, even with this tort, it must, as with the tort of conspiracy, have been the predominant purpose of the tortfeasor to injure the victim rather than to further the tortfeasor's own financial ends. I do not accept that. It would be inconsistent with the way Lord Diplock treated this tort and the tort of conspiracy differently in his speech in Lonrho Ltd v Shell Petroleum Co. Ltd (No2) and in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191, 228-229. No predominant purpose to injure is required where the tortuous act relied on is injury by wrongful interference with a third party's contract with the victim or by intimidation of a third party to the detriment of the victim, nor should it in my view be required where the wrongful interference has been by the practice of fraud on a third party, aimed specifically at the plaintiff. . . "
Woolf LJ: "So far as conspiracy is concerned, there is good reason for requiring that predominant intent should be an ingredient of the tort. Great difficulty would, in my view, arise if a requirement of predominant intent to injure were to be introduced into the tort with which we are concerned here. This tort is not based upon any agreement, but interference, and frequently it will be fully appreciated by a defendant that a course of conduct that he is embarking upon will have a particular consequence to a plaintiff and the defendant will have decided to pursue that course of conduct knowing what the consequence will be. Albeit that he may have no desire to bring about that consequence in order to achieve what he regards as his ultimate ends, from the point of view of the plaintiff, whatever the motive of the defendant, the damage which he suffers will be the same. If a defendant has deliberately embarked upon a course of conduct, the probable consequences of which to the plaintiff he appreciated, I do not see why the plaintiff should not be compensated."
1 Cites

1 Citers


 
Calveley v Chief Constable of the Merseyside Police [1989] AC 1228; [1989] 1 All ER 1025; [1989] 2 WLR 624
1989
HL
Lord Bridge of Harwich
Police, Negligence, Torts - Other
Police officers brought an action in negligence against a Chief Constable on the ground that disciplinary proceedings against them had been negligently conducted. They claimed that the investigating officers had negligently failed to conduct the investigations properly or expeditiously and they sued for loss of overtime payments which they would otherwise have received during their periods of suspension. Held: The claim failed. It would be contrary to public policy to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.
Lord Bridge dealing with the question of whether the police owe a duty of care to a suspect in carrying out a criminal investigation observed that: "One must therefore ask the question whether foreseeable injury to the suspect may be caused on the hypothesis either that he has never been charged or, if charged, that he has been acquitted at trial or on appeal, or that his conviction has been quashed on an application for judicial review. It is, I accept, foreseeable that in these situations the suspect may be put to expense, or may conceivably suffer some other economic loss, which might have been avoided had a more careful investigation established his innocence at some earlier stage. However, any suggestion that there should be liability in negligence in such circumstances runs up against the formidable obstacles in the way of liability in negligence for purely economic loss. Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation. Finally, all other considerations apart, it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect. If no duty of care is owed by a police officer investigating a suspected crime to a civilian suspect, it is difficult to see any conceivable reason why a police officer who is subject to investigation under the Regulations of 1977 should be in any better position." and "…it is not reasonably foreseeable that the negligent conduct of a criminal investigation would cause injury to the health of the suspect, whether in the form of depressive illness or otherwise."
The availability of the tort of misfeasance in public office is one reason justifying the non-actionability of a claim in negligence where there is an act of maladministration: "where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation."'

The availability of the tort of misfeasance in public office was one reason justifying the non-actionability of a claim in negligence for an act of maladministration: "I do not regard this as an occasion where it is necessary to explore, still less to define, the precise limits of the tort of misfeasance in public office. It suffices for present purposes to say that it must at least involve an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds and which is done in bad faith or (possibly) without reasonable cause. The decision to suspend the plaintiff Park under regulation 24 was taken by the deputy Chief Constable. If this had been done maliciously in the sense indicated, this would certainly be capable of constituting the tort of misfeasance in public office. But it was conceded that no malice is alleged against the deputy Chief Constable and that malice on the part of Grant cannot be imputed to him. The pleaded case must therefore stand or fall according as to whether it identifies any act done by Grant in the exercise or purported exercise of a power or authority vested in him as investigating officer which was infected by the malice pleaded against him. I can find no such act identified by the pleading.
No formal application to amend the pleading was made in the course of the argument, but at a late stage a document was placed before your Lordships indicating a pleading of additional particulars under paragraphs 22 and 24 which the plaintiff might seek leave to add by way of amendment if those two paragraphs in the statement of claim were allowed to stand. The particulars which it is suggested might be added under paragraph 24 would read:
“From an early stage (the date whereof the plaintiff cannot further particularise until after discovery and/or interrogatories herein) Grant knew or believed that there were no proper grounds for suspending the plaintiff yet procured the imposition of and/or the continuation of the suspension by continuing the investigation and giving misleading and/or incomplete reports concerning the same.”
It is evident that if a police officer investigating suspected criminal or disciplinary offences makes a false report to his superior officer which is defamatory of the suspect and that report is made maliciously so as to lose its status of qualified privilege, the suspect has a cause of action in tort against the author of the report. But the tort is defamation not misfeasance in public office, since the mere making of a report is not a relevant exercise of power or authority by the investigating officer. I express no opinion as to whether in those circumstances the Chief Constable would be vicariously liable under section 48(1) of the Act of 1964. However that may be, the suggested additional particulars under paragraph 24 of the statement of claim would do nothing to validate the pleading of misfeasance in public office and obviously fall far short of disclosing a reasonable cause of action in defamation.” "
1 Citers



 
 Associated British Ports v TGWU; CA 1989 - [1989] 1 WLR 939
 
Chapman v Director of Public Prosecutions [1989] 89 Cr App R 190
1989
CA
Bingham LJ
Police, Torts - Other
The section required a constable to have reasonable grounds for suspecting that an arrestable offence had been committed before he could arrest without warrant. Held: Bingham LJ said: "It is not of course to be expected that a police constable in the heat of an emergency, or while in hot pursuit of a suspected criminal, should always have in mind specific statutory provisions, or that he should mentally identify specific offences with technicality or precision. He must, in my judgment, reasonably suspect the existence of facts amounting to an arrestable offence of a kind which he has in mind. Unless he can do that he cannot comply with section 28(3) of the Act by informing the suspect of grounds which justify the arrest."
Police and Criminal Evidence Act 1984 24(6)
1 Citers



 
 Metal und Rohstoff AG v Donaldson Lufkin and Jenrette Inc; CA 27-Jan-1989 - [1990] 1 QB 391
 
F v West Berkshire Health Authority Unreported 3 Feb 1989
3 Feb 1989
CA
Lord Donaldson of Lymington MR, Neill L.J, Butler-Sloss L.J
Torts - Other, Health Professions
An application was made for a declaration that a proposed sterilisation of an adult woman who could not give consent would be lawful. Held: It would not.
Lord Donaldson of Lymington MR: "Just as the law and the courts rightly pay great, but not decisive, regard to accepted professional wisdom in relation to the duty of care in the law of medical negligence (the Bolam test), so they equally would have regard to such wisdom in relation to decisions whether or not and how to treat incompetent patients in the context of the law of trespass to the person. However, both the medical profession and the courts have to keep the special status of such a patient in the forefront of their minds. The ability of the ordinary adult patient to exercise a free choice in deciding whether to accept or to refuse medical treatment and to choose between treatments is not to be dismissed as desirable but inessential. It is a crucial factor in relation to all medical treatment. If it is necessarily absent, whether temporarily in an emergency situation or permanently in a case of mental disability, other things being equal there must be greater caution in deciding whether to treat and, if so, how to treat, although I do not agree that this extends to limiting doctors to treatment upon the necessity for which there are 'no two views' (per Wood J. in T. v. T. [1988] Fam. 52, 62). There will always or usually be a minority view and this approach, if strictly applied, would often rule out all treatment. On the otherhand, the existence of a significant minority view would constitute a serious contra-indication."
Neill LJ: "I have therefore come to the conclusion that, if the operation is necessary and the proper safeguards are observed, the performance of a serious operation, including an operation for sterilisation, on a person who by reason of a lack of mental capacity is unable to give his or her consent is not a trespass to the person or otherwise unlawful.
It therefore becomes necessary to consider what is meant by 'a necessary operation.' In seeking to define the circumstances in which an operation can properly be carried out Scott Baker J. said this: 'I do not think they are liable in battery where they are acting in good faith and reasonably in the best interests of their patients. I doubt whether the test is very different from that for negligence.
With respect, I do not consider that this test is sufficiently stringent. A doctor may defeat a claim in negligence if he establishes that he acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion skilled in the particular form of treatment in question. This is the test laid down in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582. But to say that it is not negligent to carry out a particular form of treatment does not mean that that treatment is necessary. I would define necessary in this context as that which the general body of medical opinion in the particular specialty would consider to be in the best interests of the patient in order to maintain the health and to secure the well-being of the patient. One cannot expect unanimity but it should be possible to say of an operation which is necessary in the relevant sense that it would be unreasonable in the opinion of most experts in the field not to make the operation available to the patient. One must consider the alternatives to an operation and the dangers or disadvantages to which the patient may be exposed if no action is taken. The question becomes: What action does the patient's health and welfare require?"
1 Citers



 
 In re F (Mental Patient: Sterilisation); HL 4-May-1989 - [1990] 2 AC 1; [1989] 2 WLR 1025; [1989] 2 All ER 545, CA and HL(E)

 
 Abbassy v Commissioner of Police for the Metropolis; CA 28-Jul-1989 - [1990] 1 WLR 385; [1989] EWCA Civ 7; [1990] 1 All ER 193; (1989) 90 Cr App R 250
 
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