swarb.co.uk - law index
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Torts - Other - From: 1993 To: 1993
This page lists 18 cases, and was prepared on 02 April 2018.
Paragon v Thakerer [1993] 1 All ER 400
1993
Trusts, Torts - Other, Litigation Practice
A claim for fraudulent or intentional breach of trust/fiduciary duty is a different cause of action from a claim for breach of trust/fiduciary duty generally and must be separately and distinctly pleaded.
1 Citers
Alliance and Leicester Building Society v Edgestop [1994] 2 EGLR 229; [1993] 1 WLR 1462
1993
ChD
Mummery J
Torts - Other, Litigation Practice
The court refused to allow the defendants to amend their defence so as to rely upon the second limb of the definition of fault in the 1945 Act as grounds for reducing a claim for deceit.
Law Reform (Contributory Negligence) Act 1945
Bradley v Wingnut Films Ltd [1993] 1 NZLR 415
1993
Gallen J
Torts - Other, Media, Land
(New Zealand High Court) The plaintiffs complained that a relative's tombstone was depicted in a satiric film set in part in a cemetery, and containing a significant degree of gore and violence. The tombstone was never shown in its entirety, appearing for 14 seconds only, and it was not possible to read any writing on the tombstone. Held: The tombstone could not be identified by viewers. Moreover, there was nothing to connect the action in the film with the tombstone. A child may have a right of residence with her parents, but does not have a sufficient interst in the land to bring an action for trespass. There was however a tort of invasion of privacy involving public disclosure of private facts, but the disclosure, to be actionable, must be highly offensive and objectionable to a reasonable person of ordinary sensibility.
The infliction of emotional distress which is recognised by the authorities requires proof of something more than a transient reaction of emotional distress, regardless of initial severity.
1 Cites
1 Citers
Khorasandjian v Bush; CA 16-Feb-1993 - Gazette, 21 April 1993; Independent, 17 March 1993; [1993] Fam Law 679; [1993] 3 WLR 476; [1993] QB 727; [1993] 3 All ER 669; [1993] EWCA Civ 18
Regina v Managers of South Western Hospital and Another, Ex Parte M Gazette, 24 March 1993; [1993] QB 683; [1994] 1 All ER 161; [1993] 3 WLR 376
24 Mar 1993
QBD
Laws J
Health, Torts - Other
The patient was detained on the application of an AMHP. In purported pursuance of section 11(4) the AMHP had consulted the patient's mother as her nearest relative. However, the patient's mother was not ordinarily resident in the UK, and, according to the statutory definition of "nearest relative", the AMHP ought to have consulted the patient's uncle. He was in fact consulted, but not in the capacity of nearest relative. Neither the patient's mother nor the patient's uncle objected to her admission. Held: The AMHP had unwittingly acted outside the Act. An application for the renewed detention of a patient under section 3 was proper despite a recent tribunal ruling that the patient should be released. The social worker had a duty under the Act to admit a patient in this way when the circumstances of the Act applied. The application should have been made by way of judicial review rather than under habeas corpus. 'there is no sense in which those concerned in a section 3 application are at any stage bound by an earlier tribunal decision.'
Mental Health Act 1983 2 3 4 6 11 13
1 Citers
Kelly v Chief Constable Hampshire and Another; CA 25-Mar-1993 - Independent, 25 March 1993
In Re S (Minor) (Parental Rights) Times, 30 March 1993
30 Mar 1993
QBD
Children, Torts - Other
There is no cause of action known to the law such as interference with parental rights, and any action based upon such an assertion must be struck out.
Hall v Hebert [1993] 2 SCR 159; (1993) 101 DLR (4th) 129; 1993 CanLII 141
29 Apr 1993
McLachlin J
Commonwealth, Torts - Other
(Canadian Supreme Court) After they had been drinking heavily together, Mr Hebert, who owned a car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car careered down the slope and Mr Hall was seriously injured. Held: The illegality of his driving did not bar his claim against Mr Hebert but that he was contributorily negligent as to 50%.
McLachlin J discussed the need for a consistent and defensible principle for the operation of the doctrine ex turpi causa: "a need in the law of tort for a principle which permits judges to deny recovery to a plaintiff on the ground that to do so would undermine the integrity of the justice system. The power is a limited one. Its use is justified where allowing the plaintiff's claim would introduce inconsistency into the fabric of the law, either by permitting the plaintiff to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law. Its use is not justified where the plaintiff's claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant." He explained the principle, saying that: "to allow recovery in these cases would be to allow recovery for what is illegal. It would put the courts in the position of saying that the same conduct is both legal, in the sense of being capable of rectification by the court, and illegal. It would, in short, introduce an inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which - contract, tort, the criminal law - must be in essential harmony. For the courts to punish conduct with the one hand while rewarding it with the other, would be to 'create an intolerable fissure in the law's conceptually seamless web': Weinrib - "Illegality as a Tort Defence" (1976) 26 U.T.L.J. 28 at p. 42. We thus see that the concern, put at its most fundamental, is with the integrity of the legal system."
1 Citers
[ Canlii ]
Davidson v Chief Constable of North Wales Police and Another; CA 31-May-1993 - Ind Summary, 31 May 1993; [1994] 2 All ER 597
Burton v Winters; CA 2-Jun-1993 - Gazette, 02 June 1993; [1993] 1 WLR 1077; [1993] 3 All ER 847
Sussex Investments Ltd and Another v Jackson and Cornell Times, 29 July 1993; Gazette, 02 August 1993
29 Jul 1993
CA
Torts - Other, Land
Where the owner was registered as proprietor of the land between the towpath and the water's edge, the securing of boats at the water's edge and the laying out of gangplanks, is a trespass to the land despite the existence of a right of towage.
Millar and Others v Bassey and Another; CA 26-Aug-1993 - Independent, 26 August 1993; [1994] EMLR 44
Lonhro Plc and Others v Fayed and Others (No 5); CA 6-Oct-1993 - Gazette, 06 October 1993; Gazette, 29 September 1993; [1993] 1 WLR 1489
The Attorney General of Hong Kong v Reid and Reid And Marc Molloy Co; PC 1-Nov-1993 - [1993] UKPC 36; [1994] 1 All ER 1; [1994] AC 324; [1993] 3 WLR 1143
Whyfe v Michael Cullen and Partners and Others Ind Summary, 13 December 1993; Times, 15 November 1993
15 Nov 1993
CA
Torts - Other, Contract
The inclusion of a trick clause in a draft lease might be an intent to deceive. It was a triable issue as to whether the leases in issue had been obtained by a fraudulent misrepresentation as to their terms.
El Ajou v Dollar Land Holdings Ltd Times, 03 January 1994; [1994] 2 All ER 685; [1993] EWCA Civ 4; [1994] BCC 143; [1994] 1 BCLC 464
2 Dec 1993
CA
Nourse, Rose, Hoffmann LJJ
Company, Equity, Torts - Other, Trusts
The court was asked whether, for the purposes of establishing a company's liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company. Held: The company was fixed with the knowledge of its part-time chairman and a non-executive director, because he had acted as its directing mind and will for the particular purpose of arranging its receipt of the tainted funds. It was sufficient that the director had management and control so far as the receipt of the fraud was concerned, having made arrangements for the receipt and disposal of the money, even though he had no general managerial responsibility in the company.
Hoffmann LJ set out the ingredients of knowing receipt: "For this purpose the plaintiff must show, first a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff; and thirdly, knowledge on the part of the defendant that the assets are traceable to a breach of fiduciary duty."
When asking who was the controlling mind of a company, the relevant test is to find the person who had management and control in relation to the act or omission in point. The formal position or status as a director is relevant but not decisive. A "pragmatic" approach is necessary: "Decided cases show that, in regard to the requisite status and authority, the formal position, as regulated by the company's articles of association, service contracts and so forth, though highly relevant, may not be decisive. Here Millett J adopted a pragmatic approach. In my view he was right to do so, although it has led me, with diffidence, to a conclusion different from his own" and " . . different persons may for different purposes satisfy the requirements of being the company's directing mind and will. " The court considered the ingredients of the tort of 'knowing receipt': "For this purpose the plaintiff must show, first, a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff; and thirdly, knowledge on the part of the defendant that the assets he received are traceable to a breach of fiduciary duty." (Hoffmann LJ)
Nourse LJ said: "The doctrine attributes to the company the mind and will of the natural person or persons who manage and control its actions. At that point, in the words of Millett J ([1993] 3 ALL ER 717 at 740): "Their minds are its mind; their intention its intention; their knowledge its knowledge." It is important to emphasise that management and control is not something to be considered generally or in the round. It is necessary to identify the natural person or persons having management and control in relation to the act or omission in point. This was well put by Eveleigh J in . . R v Andrews Weatherfoil Ltd . .
Decided cases show that, in regard to the requisite status and authority, the formal position, as regulated by the company's articles of association, service contracts and so forth, though highly relevant, may not be decisive. Here Millett J adopted a pragmatic approach. In my view he was right to do so, although it has led me, with diffidence, to a conclusion different from his own."
1 Cites
1 Citers
[ Bailii ]
Department of Transport and Others v Williams and Others Gazette, 26 January 1994; Times, 07 December 1993
7 Dec 1993
CA
Torts - Other
An injunction to restrain a wilful interference with highway works was properly granted.
Highways Act 1980 303
Cambridge Water Company v Eastern Counties Leather Plc; HL 9-Dec-1993 - Times, 10 December 1993; Gazette, 16 March 1994; Independent, 10 December 1993; (1994) 1 All ER 53; [1994] 2 WLR 53; [1994] 2 AC 264; [1993] UKHL 12
