Tag: Commonwealth

Regina v Regan; 14 Feb 2002

References: 2002 SCC 12, [2002] 1 SCR 297, 201 NSR (2d) 63, 209 DLR (4th) 41, 161 CCC (3d) 97, 49 CR (5th) 1
Links: Canlii
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
Canlii Supreme Court of Canada – Criminal law – Remedies – Abuse of process – Stay of proceedings – Accused charged with sex-related offences – Police identifying accused as suspect before charges laid – Crown engaging in ‘judge shopping’ and conducting pre-charge interviews of complainants – Trial judge staying some of charges – Court of Appeal overturning stay – Whether conduct of Crown and police amounted to abuse of process – Whether partial stay of proceedings warranted – Whether Court of Appeal entitled to interfere with trial judge’s decision to grant partial stay.
This case is cited by:

  • Cited – Maxwell, Regina -v- SC (Bailii, [2010] UKSC 48, [2011] 2 Cr App Rep 31, [2011] 1 WLR 1837, SC Summary, UKSC 2010/0003, SC)
    The defendant had had his conviction for murder set aside after a finding of gross prosecutorial misconduct by the police. The Court was now asked as to the propriety of the order for a retrial. The police involved in the case had misled the CPS, . .

Peconic Industrial Development Ltd v Lau Kwok FAI; 27 Feb 2009

References: [2009] HKCFA 16, [2009] 5 HKC 135, [2009] 2 HKLRD 537, (2009) 12 HKCFAR 139
Links: HKLii
Coram: Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Lord Hoffmann NPJ
Hong Kong Court of Final Appeal. The limitation period for a claim in dishonest assistance is 6 years. For limitation purposes a distinction is to be made between two kinds of constructive trustees: those who are fiduciaries and those who are non-fiduciaries. The distinction between the two classes was made clear in the judgment of Lord Hoffmann: ‘First, there are persons who, without any express trust, have assumed fiduciary obligations in relation to the trust property; for example as purchaser on behalf of another, trustee de son tort, company director or agent holding the property for a trustee. I shall call them fiduciaries. They are treated in the same way as express trustees and no limitation period applies to their fraudulent breaches of trust. Then there are strangers to the trust who have not assumed any prior fiduciary liability but make themselves liable by dishonest acts of interference. I shall call them non-fiduciaries. They are also called constructive trustees but this, as Ungoed-Thomas J said in Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 1 WLR 1555, p1582 is a fiction: ‘nothing more than a formula for equitable relief’. They are not constructive trustees within the meaning of the law of limitation.’
This case cites:

  • Cited – Soar -v- Ashwell CA ([1893] 2 QB 390)
    Trustees under a will had entrusted the trust fund to a solicitor for investment. The solicitor exercised all of their administrative and investment powers for them and distributed part of the fund invested to the beneficiaries under the will but . .

This case is cited by:

  • Highly Persuasive – Williams -v- Central Bank of Nigeria QBD (Bailii, [2011] EWHC 876 (QB))
    The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
  • Cited – Williams -v- Central Bank of Nigeria SC (Bailii, [2014] UKSC 10, 16 ITELR 740, [2014] WLR(D) 88, [2014] 2 All ER 489, [2014] 2 WLR 355, [2014] WTLR 873, WLRD, Bailii Summary, UKSC 2012/0113, SC Summary, SC)
    The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .

Schreiber v Canada (Attorney General); 12 Sep 2002

References: [2002] SCJ No 63, [2002] 3 SCR 269, [2002] SCC 62
Links: SCC
Coram: McLachlin, Beverley; Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ
SCC (Supreme Court of Canada) International law – Sovereign immunity – Attornment to Canadian court’s jurisdiction exception – Germany initiating extradition process against Canadian citizen – Citizen arrested by RCMP and spending eight days in jail – Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada – Whether Germany immune from jurisdiction of Canadian courts – Whether attornment to Canadian court’s jurisdiction exception applicable so as to deprive Germany of its immunity from instant action – Whether Germany waived its immunity from lawsuits in Canadian courts when it initiated extradition process – State Immunity Act, R.S.C. 1985, c. S-18, s. 4(2)(b).
International law – Sovereign immunity — Personal injury exception — Scope of exception — Germany initiating extradition process against Canadian citizen — Citizen arrested by RCMP and spending eight days in jail — Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada — Whether Germany immune from jurisdiction of Canadian courts — Whether personal injury exception applicable so as to deprive Germany of its immunity from instant action — Whether exception distinguishes between jure imperii and jure gestionis acts — Whether exception applies only to claim of physical injury — State Immunity Act, R.S.C. 1985, c. S-18, s. 6(a).
Statutes — Interpretation — Bilingual statutes — Personal injury exception to state immunity — Meaning of expression ‘personal injury’ — Whether French version best reflects common intention of legislator found in both versions — Whether amendment made by Federal Law-Civil Law Harmonization Act to English version substantively changed the law — Purpose of harmonization legislation — State Immunity Act, R.S.C. 1985, c. S-18, s. 6(a) — Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 121.
This case is cited by:

  • Cited – The Federal Republic of Nigeria -v- Ogbonna EAT (Bailii, [2011] UKEAT 0585_10_1207)
    EAT JURISDICTIONAL POINTS – State immunity
    A claim for compensation for psychiatric illness caused by unlawful discrimination is a claim for ‘personal injury’ within the meaning of section 5 of the State . .

Roxborough v Rothmans of Pall Mall Australia Ltd; 6 Dec 2001

References: (2001) 208 CLR 516
Coram: Gleeson CJ, Gaudron, Gummow, Kirby, Haynes, Callinan JJ
High Court of Australia – Rothmans were licensed to act as wholesalers of tobacco products under a New South Wales statute. They sold products to retailers for a price including licence fees, which were in reality a form of indirect taxation, payable by Rothmans to the New South Wales government. The Act imposing that liability on Rothmans was held by the High Court to be unconstitutional. The retailers then sued Rothmans to recover the amounts which they had paid in respect of the tax which had until then been unlawfully imposed on Rothmans.
The retailers argued unsuccessfully that there was an implied agreement under which they could claim repayment of any unpaid tax. This argument was described in the leading judgment of Gleeson CJ, Gaudron and Hayne JJ, as ‘artificial and unconvincing’. However, the retailers succeeded in restitution.
Gleeson CJ, Gaudron and Hayne JJ, stated that ‘Failure of consideration is not limited to non-performance of a contractual obligation, although it may include that’. They also rejected Rothmans’ argument that the restitution claims failed because there had not been a total failure of consideration, by interpreting the consideration for the total payments made by the retailers as containing severable parts.
Gummow J (concurring), advocated: ‘caution in judicial acceptance of any all-embracing theory of restitutionary rights and remedies founded upon a notion of ‘unjust enrichment’. To the lawyer whose mind has been moulded by civilian influences, the theory may come first, and the source of the theory may be the writing of jurists not the decisions of judges. However, that is not the way in which a system based on case law develops; over time, general principle is derived from judicial decisions upon particular instances, not the other way around.’
After reviewing the authorities Gummow J held that failure of consideration in this area of law may include the collapse of a bargain, which need not be contractual in nature. There had been no failure in the performance by Rothmans of any promise made by them, but there had been a ‘failure of consideration’ in the ‘failure to sustain itself of the state of affairs contemplated as a basis for the payments the appellants seek to recover’.
This case is cited by:

Martel Building Ltd v Canada; 30 Nov 2000

References: 2000 SCC 60, [2000] 2 SCR 860
Links: Canlii
Coram: McLachlin CJ, Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ
Canlii Supreme Court of Canada – Torts – Negligence – Economic loss – Whether Canadian law recognizes duty of care on parties in commercial negotiations – Whether tort of negligence extends to damages for pure economic loss arising out of conduct of pre-contractual negotiations.
Torts – Negligence – Economic loss – Whether tender-calling authority owed duty of care to bidders in drafting tender specifications – Whether sphere of recovery for pure economic loss should be extended to cover circumstances surrounding preparation of tender specifications.
Contracts – Tenders – Obligation to treat all bidders fairly – Whether tender-calling authority breached its implied contractual duty to treat all bidders fairly and equally – If so, whether bidder’s loss caused by contractual breach.
The prospect of causing deprivation by economic loss is implicit in the negotiating environment
This case is cited by:

  • Cited – Cramaso Llp -v- Ogilvie-Grant, Earl of Seafield and Others SC (Bailii, [2014] UKSC 9, 2014 SLT 521, [2014] 2 All ER 270, [2014] WLR(D) 64, [2014] 2 WLR 317, WLRD, UKSC 2012/0025, SC Summary, SC)
    The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .

Crampton v Nugawela; 23 Dec 1996

References: [1997] Aust Torts Reports 81-416, (1996) 41 NSWLR 176, [1996] NSWSC 651
Links: Austlii
Coram: Mahoney ACJ, Handley JA, Giles AJA
(Supreme Court of New South Wales) Defamation – Damages – Aggravated and general damages – Economic loss with respect to professional standing – Principles relevant to assessment of damages for defamation – Relationship to damages for serious personal injury
When considering the likelihood of repetition of a libel once published, the court spoke of ‘the grapevine effect’.
This case is cited by:

  • Cited – Cairns -v- Modi CA ([2012] WLR(D) 302, Bailii, [2012] EWCA Civ 1382, WLRD, Gazette)
    Three appeals against the levels of damages awards were heard together, and the court considered the principles to be applied.
    Held: In assessing compensation following a libel, the essential question was how much loss and damage did the . .

Wan v Minister for Immigration and Multi-cultural Affairs; 18 May 2001

References: [2001] FCA 568
Links: Austlii
Coram: Branson, North and Stone JJ
(Federal Court of Australia) The law required the Tribunal, in determining whether to confirm the refusal to grant a visa to Mr Wan, to treat the best interests of any child affected by its decision as a primary consideration: ‘[The Tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.’
This case is cited by:

  • Cited – ZH (Tanzania) -v- Secretary of State for The Home Department SC ([2011] 1 FCR 221, [2011] 2 WLR 148, Bailii, [2011] UKSC 4, Bailii Summ, UKSC 2010/0002, SC, SC Summary, [2011] Fam Law 468, [2011] 2 AC 166)
    The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .

Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component; 10 Jul 2009

References: [2009] 2 SCR 295, 309 DLR (4th) 277, 2009 SCC 31, [2009] 8 WWR 385, 272 BCAC 29, 389 NR 98, 93 BCLR (4th) 1, EYB 2009-161351, JE 2009-1320, [2009] SCJ No 31 (QL), 179 ACWS (3d) 98, 192 CRR (2d) 336
Links: Canlii
Coram: McLachlin CJ and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Application of Charter – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Actions brought alleging that transit authorities’ policies violated freedom of expression – Whether entities which operate public transit systems ‘government’ within meaning of s. 32 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Freedom of expression – Advertisements on buses – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Whether advertising policies infringing freedom of expression – If so, whether infringement can be justified – Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Constitutional law – Charter of Rights – Reasonable limits prescribed by law – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Policies infringing freedom of expression -Whether policies are ‘law’ within meaning of s. 1 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Remedy – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Policies unjustifiably infringing freedom of expression – Declaration that policies are of ‘no force or effect’ sought – Whether declaration ought to be based on s. 52 of Constitution Act, 1982 or s. 24(1) of Canadian Charter of Rights and Freedoms – Whether policies are ‘law’ within meaning of s. 52 of Constitution Act, 1982.

Sreemanchunder Dey v Gopaulchunder Chuckerbutty, Doorgapersaud Dey, Russickloll Dey, And Prosonomoye Dossee; 14 Nov 1866

References: [1866] EngR 190, (1866) 11 Moo Ind App 28, (1866) 20 ER 11
Links: Commonlii
(Fort William, Bengal) A. purchased a Talook at a sale, in execution of a decree obtained by a judgment-creditor. The Assignee of another judgment-creditor, who had obtained a decree in a separate suit against the estate, brought a suit against the purchaser to set aside the sale, on the ground that the purchase was not bona fide, being made in collusion with the judgment-debtors. Held, on a review of the evidence, that there was not sufficient evidence to warrant the decree of the High Court at Calcutta that it was a benamee transaction ; or that the purchaser was acting as an Agent for the judgment-debtors; and the decree of the Court below reversed [11 Moo. Ind. App. 49]. Held further, that the onus probandi was on the Plaintiff to establish the affirmative issue that the money for the purchase of the Talook was supplied by the judgment-debtors, or a third party for them, and not by the purchaser. Evidence showing circumstances which may create suspicion is not enough to justify the Court making a decree resting on suspicion only.
On an appeal to the High Court, that Court, acting under the power conferred by section 355 of the Code of Civil Procedure, Act, No. VIII. of 1859, ex mera motu, called for and examined fresh witnesses. Held that such power should be cautiously exercised, and the reasons for exercising it recorded or minuted by the High Court on the proceedings;as, first, the witnesses may be such as the parties to the suit do not wish to call ; and, secondly, thc new evidence may not be sufiiciently extensive to satisfy the ends of justice.

Capita Financial Group Ltd v Rothwells Ltd; 20 Apr 1989

References: (1989) 15 ACLR 348
Links: NSW
Coram: Rogers CJ
(New South Wales) The parties had guaranteed borrowings of a third party. The plaintiff had paid on call, and now sought a contribution from the defendant. After issue, the defedant began a winding up petition. The plaintiff sought leave to continue the action.
Held: It was a given that a plaintiff in this position must demonstrate a prima facie case. It had not done so here, but an arguable case had been shown, and this could be supplemented later by affidavit evidence. The claim could proceed.
This case is cited by:

Regina v Dadshani; 8 Feb 2008

References: 2008 CanLII 4266 (ON SC)
Links: Canlii
Coram: C McKinnon J
Ontario – Superior Court of Justice – proceeding in the nature of a Rowbotham or Fisher application to secure state funding for the defences of the accused who are facing charges of first degree murder.
This case cites:

  • Cited – Regina -v- Rowbotham and others ((1988) 41 CCC,(3d) 1)
    Ontario Court of Appeal – ‘In our view a trial judge confronted with an exceptional case where legal aid has been refused and who is of the opinion that representation of the accused by counsel is essential to a fair trial may, upon being satisfied . .

This case is cited by:

  • Cited – P, Regina -v- Misc (Bailii, [2008] EW Misc 2 (EWCC))
    Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings. . .

Rosenberg v Percival; 5 Apr 2001

References: 205 CLR 434, 75 ALJR 734, [2001] HCA 18
Links: Austlii
Coram: Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ
Austlii High Court of Australia – Negligence – Breach of duty – Surgeon’s duty to warn of material risk in proposed surgery – Identification of the material risk – Meaning of material risk.
Negligence – Causation – Whether failure to warn of a material risk causative of plaintiff’s injury – Whether patient would not have undergone treatment if warned.
Appeal – Appeal by rehearing – Powers of appellate court – Decision dependent on credibility findings – Authority of appellate court to reach conclusions different from trial judge.
Evidence – Credibility of witnesses – Limits of appellate review in respect of findings of fact based on assessment of the credibility of a witness.
Gummow J said that courts should not be too quick to discard the possibility that a medical practitioner was or ought reasonably to have been aware that the particular patient, if warned of the risk, would be likely to attach significance to it, merely because it emerges that the patient did not ask certain kinds of questions.
This case is cited by:

  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Sauve v Canada (Chief Electoral Officer); 31 Oct 2002

References: 218 DLR (4th) 577, 168 CCC (3d) 449, 5 CR (6th) 203, 294 NR 1, JE 2002-1974, [2002] SCJ No 66 (QL), 117 ACWS (3d) 553, [2002] ACS no 66, 55 WCB (2d) 21, 98 CRR (2d) 1, [2002] 3 SCR 519, 2002 SCC 68 (CanLII)
Links: Canlii
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Right to vote – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Crown conceding that provision infringes right to vote – Whether infringement justified – Canadian Charter of Rights and Freedoms, ss. 1, 3 – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Constitutional law – Charter of Rights – Equality rights – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Whether provision infringes equality rights – Canadian Charter of Rights and Freedoms, s. 15(1) – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Elections – Disqualifications of electors – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Whether provision constitutional – Canadian Charter of Rights and Freedoms, ss. 1, 3, 15(1) – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
This case is cited by:

  • Cited – Chester, Regina (on The Application of) -v- Secretary of State for Justice SC (Bailii, [2013] UKSC 63, [2014] 1 AC 271, [2014] HRLR 3, [2013] 3 WLR 1076, [2014] 1 All ER 683, [2013] WLR(D) 392, [2014] 1 CMLR 45, 2014 SC (UKSC) 25, 2014 SLT 143, 2013 GWD 34-676, WLRD, Bailii Summary, UKSC 2012/0151, SC Summary, SC)
    The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
    Held: The . .

Rogers v Whitaker; 19 Nov 1992

References: [1992] HCA 58, (1992) 175 CLR 479
Coram: Mason CJ, Brennan, Dawson, Toohey, Gaudron, McHugh JJ
High Court of Australia – Negligence – Breach of duty – Medical practitioner – Duty to warn of possibility of adverse effect of proposed treatment – Extent of duty.
The patient complained that the doctor when proposing a form of treatment to his left eye had not explained the associated risks. Those risks had become realised. The plaintiff was already blind in the other eye, giving the risk a greater significance than it would otherwise have had. In addition, she had asked anxiously about risks.
Held: Why should the patient’s asking a question make any difference in negligence, if medical opinion determines whether the duty of care requires that the risk should be disclosed? The patient’s desire for the information, even if made known to the doctor, does not alter medical opinion. ‘Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment.’
The court restated the test of the materiality of a risk so as to encompass the situation in which, as the doctor knows or ought to know, the actual patient would be likely to attach greater significance to a risk than the hypothetical reasonable patient might do: ‘a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.’
This case is cited by:

  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Post Investments Pty Ltd v Wilson; 1 Feb 1990

References: (1990) 26 NSWR 598
Coram: Powell J
Ratio (New South Wales) The court considered the situation where both the dominant and servient lands affected by a restricive covenant came into common ownership. There must be complete unity not merely of ownership, but also of possession. The law has developed by analogy with the law relating to easements, and the benefit of a restrictive covenant is destroyed ‘upon the ownership and possession of both dominant and servient tenements coming into the same hands’. The basis for the qualification is that a restrictive covenant is not to be extinguished if there continues to exist a person (whether or not the successor in title to the estate held by the original covenantor or the original covenantee) entitled to the benefit or subject to the burden of the restrictive covenant.
This case is cited by:

(This list may be incomplete)

Last Update: 14-May-16
Ref: 220708

Housen v Nikolaisen; 28 Mar 2002

References: [2002] 2 SCR 235, 2002 SCC 33
Links: SCC
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ
Supreme Court of Canada – Torts – Motor vehicles – Highways – Negligence – Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge apportioning part of liability to rural municipality — Whether Court of Appeal properly overturning trial judge’s finding of negligence — The Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1, s. 192.
Municipal law — Negligence — Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge apportioning part of liability to rural municipality — Whether Court of Appeal properly overturning trial judge’s finding of negligence — The Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1, s. 192.
Appeals — Courts — Standard of appellate review — Whether Court of Appeal properly overturning trial judge’s finding of negligence — Standard of review for questions of mixed fact and law.
‘The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.’
This case is cited by:

  • Cited – McGraddie -v- McGraddie and Another (Scotland) SC (Bailii, [2013] UKSC 58, [2013] 1 WLR 2477, [2013] WLR(D) 323, 2013 GWD 25-471, 2013 SLT 1212, WLRD, Bailii Summary, UKSC 2012/0112, SC Summary, SC)
    The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
  • Cited – Henderson -v- Foxworth Investments Limited and Another SC (Bailii Summary, [2014] 1 WLR 2600, Bailii, [2014] UKSC 41, [2014] WLR(D) 290, 2014 GWD 23-437, 2014 SLT 775, [2014] WLR(D) 290, 2014 SCLR 692, WLRD, UKSC 2013/0083, SC, SC Summary)
    It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
    Held: The critical issue was whether ‘the alienation was made for adequate consideration’. . .

Regina v Stingel; HCA 1990

References: (1990) 171 CLR 312
(Australia) An infatuated man had stabbed his former girlfriend’s lover.
Held: The judge had been right to withdraw the issue of provocation from the jury. Jealousy and possessiveness should not found a defence of provocation.
This case is cited by:

  • Cited – Regina -v- Smith (Morgan James) HL (Times 04-Aug-00, House of Lords, Gazette 28-Sep-00, House of Lords, Bailii, [2000] UKHL 49, [2001] 1 AC 146, [2001] 1 Cr App R 31, [2000] 4 All ER 289, [2000] 3 WLR 654)
    The defendant had sought to rely upon the defence of provocation. He had suffered serious clinical depression.
    Held: When directing a jury on the law of provocation, it was no longer appropriate to direct the jury to disregard any particular . .
  • Cited – Weller, David Regina -v- CACD (Bailii, [2003] EWCA Crim 815, [2003] Crim LR 724)
    The defendant appealed against his conviction for murder, saying that provocation should have been found. The issue was whether or not, in the course of his summing-up, the trial judge should have left, and if so whether he had left, to the jury the . .

Jacobi v Griffiths; 17 Jun 1999

References: (1999) 174 DLR(4th) 71, [1999] 9 WWR 1, 44 CCEL (2d) 169, 63 BCLR (3d) 1
Links: Canlii
(Canadian Supreme Court) The process for determining when a non-authorised act by an employee is so connected to the employer’s enterprise that liability should be imposed involved two steps: 1. Firstly a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. 2. If prior cases do not clearly suggest a solution the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability. In this case that test was not satisfied.
This case cites:

(This list may be incomplete)
This case is cited by:

  • Approved – Lister and Others -v- Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
    A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
    Held: ‘Vicarious liability is legal . .
  • Cited – Majrowski -v- Guy’s and St Thomas’ NHS Trust CA (Bailii, [2005] EWCA Civ 251, Times 21-Mar-05, [2005] QB 848, [2005] ICR 977, [2005] 2 WLR 1503, [2005] IRLR 340)
    The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
    Held: The appeal succeeded. The . .
  • Cited – Gravil -v- Carroll and Another CA (Bailii, [2008] EWCA Civ 689, Times 22-Jul-08, [2008] ICR 1222, [2008] IRLR 829)
    The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed a finding that they were not vicariously liable. The defendant player’s . .
  • Applied – Maga -v- The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA (Bailii, [2010] EWCA Civ 256, Times, [2010] PTSR 1618, [2010] 1 WLR 1441)
    The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
  • Cited – Graham -v- Commercial Bodyworks Ltd CA (Bailii, [2015] EWCA Civ 47, [2015] WLR(D) 50, WLRD)
    The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
    Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .

(This list may be incomplete)
Last Update: 14-Dec-15 Ref: 214670

A.R.P.L. Palaniappa Chettiar v P.L.A.R. Arunasalam Chettiar: PC 31 Jan 1962

References: [1962] UKPC 1a
Links: Bailii
Coram: Lord Denning, Lord Devlin, LND de Silva
(Malaya)
This case cites:

  • See Also – Chettiar -v- Chettiar PC ([1962] AC 294, Bailii, [1962] UKPC 1, Bailii, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238)
    (Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .

This case is cited by:

  • See Also – Chettiar -v- Chettiar PC ([1962] AC 294, Bailii, [1962] UKPC 1, Bailii, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238)
    (Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .

Bazley v Curry; 17 Jun 1999

References: (1999) 174 DLR(4th) 45, [1999] 8 WWR 197, 43 CCEL (2d) 1, 62 BCLR (3d) 173
Links: Canlii
Coram: McLachlin J
(Canadian Supreme Court) The court considerd the doctrine of vicarious liability: ‘The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.’ The court criticised the decision in Trotman, saying: ‘the opinion’s reasoning depends on the level of generality with which the sexual act is described. Instead of describing the act in terms of the employee’s duties of supervising and caring for vulnerable students during a study trip abroad, the Court of Appeal cast it in terms unrelated to those duties. Important legal decisions should not turn on such semantics. As Atiyah points out (Vicarious Liability in the Law of Torts, p 263): ‘conduct can be correctly described at varying levels of generality, and no one description of the ‘act’ on which the servant was engaged is necessarily more correct than any other’.’
This case cites:

This case is cited by:

  • Approved – Lister and Others -v- Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
    A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
    Held: ‘Vicarious liability is legal . .
  • Cited – Bernard -v- The Attorney General of Jamaica PC (PC, Bailii, [2004] UKPC 47, PC, No. 30 of 2003, [2005] IRLR 398)
    PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . .
  • Cited – Majrowski -v- Guy’s and St Thomas’ NHS Trust CA (Bailii, [2005] EWCA Civ 251, Times 21-Mar-05, [2005] QB 848, [2005] ICR 977, [2005] 2 WLR 1503, [2005] IRLR 340)
    The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
    Held: The appeal succeeded. The . .
  • Cited – Gravil -v- Carroll and Another CA (Bailii, [2008] EWCA Civ 689, Times 22-Jul-08, [2008] ICR 1222, [2008] IRLR 829)
    The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed a finding that they were not vicariously liable. The defendant player’s . .
  • Cited – Maga -v- The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA (Bailii, [2010] EWCA Civ 256, Times, [2010] PTSR 1618, [2010] 1 WLR 1441)
    The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
  • Cited – Weddall -v- Barchester Healthcare Ltd CA (Bailii, [2012] EWCA Civ 25)
    Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
    Held: Appeals were dismissed and allowed according to their facts.
    In one case, one employee . .
  • Cited – The Catholic Child Welfare Society and Others -v- Various Claimants & The Institute of The Brothers of The Christian Schools and Others SC (Bailii, [2012] UKSC 56, Bailii Summary, SC, SC Summary, UKSC 2010/0230, [2012] WLR(D) 335, [2013] 1 All ER 670, [2013] IRLR 219, [2013] PIQR P6, [2013] ELR 1, [2012] 3 WLR 1319, [2013] 2 AC 1)
    Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
  • Cited – Graham -v- Commercial Bodyworks Ltd CA (Bailii, [2015] EWCA Civ 47, [2015] WLR(D) 50, WLRD)
    The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
    Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .

Peters v Sinclair; 6 May 1913

References: 1913 CanLII 8 (SCC), 48 SCR 57
Links: Canlii
Coram: Sir Charles Fitzpatrick CJ and Davies, Idington, Duff and Anglin JJ
Ratio Supreme Court of Canada – S. brought action against P. for trespass on a strip of land called ‘Ancroft Place’ which he claimed as his property and asked for damages and an injunction. ‘Ancroft Place’ was a cul-de-sac running east from Sherbourne Street, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or user. On the trial it was shewn that the original owners had conveyed the lots to the east and south of ‘Ancroft Place’ to different parties, each deed describing it as a street and giving a right of way over it to the grantee. The deeds to P.’s predecessors in title did not give him a similar right of way, but some of these conveyances described it as a street. The deed to one of the predecessors in title of S. had a plan annexed shewing ‘Ancroft Place’ as a street fifty feet wide and the grantee was given the right to register said plan. The evidence also established that for 22 years before the action ‘Ancroft Place’ had been entered in the assessment rolls as a public street and had not been assessed for taxes and that the city had placed a gas lamp on the end; also, that for over twenty years it had been used by the owners of the lots to the south and east, and from time to time by the owner on the north side, as a means of access to, and egress from, their respective properties. In 1909 the fee in the land in dispute was conveyed to S. who had become owner of the lots to the east and south.
Held, Idington J. dissenting, Duff J. expressing no opinion, that the evidence was not sufficient to establish that the land had been dedicated to the public, and accepted by the municipality as a street.
Held, further, Idington and Duff JJ. dissenting, that the land was not a ‘way, easement or appurtenance’ to the lot to the north ‘held, used, occupied and enjoyed, or taken or known, as part and parcel thereof’ within the meaning of sec. 12 of ‘The Law and Transfer of Property Act,’ R.S.O., [1897] ch. 119.
Held, also, that, P. had not acquired a right-of-way by a grant implied from the terms of the deeds of the adjoining lots, Duff J. dissenting; nor by prescription, Duff J. expressing no opinion.
This case cites:

  • Cited – Attorney-General -v- Antrobus ChD ([1905] 2 Ch 188)
    The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
    Held: The court rejected a suggestion that . .

(This list may be incomplete)

Last Update: 15-May-16
Ref: 540228

Bruker v Marcovitz; 14 Dec 2007

References: 288 DLR (4th) 257, [2007] 3 SCR 607, 2007 SCC 54 (CanLII)
Links: Canlii, Canlii
Coram: McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii (Supreme Court of Canada) Contracts – Validity – Breach – Agreement with religious aspect – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether matter justiciable – Whether agreement satisfies all requirements to make it valid and binding under Quebec law – Whether husband can rely on freedom of religion to avoid legal consequences of failing to comply with agreement – Civil Code of Quebec, S.Q. 1991, c. 64, arts. 1373, 1385, 1412, 1413 – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
Human rights – Freedom of conscience and religion – Agreement with religious aspect – Jewish religious divorce or ‘get’ – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether husband entitled to immunity from damages for his breach of contract by invoking freedom of religion – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
This case is cited by:

  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

Clayton v Heffron; 17 Oct 1960

References: (1960) 105 CLR 214
Links: Austilii
Coram: Dixon CJ, McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ
(High Court of Australia) An Act was proposed to be introduced by the legislature to amend the constitution of New South Wales by abolishing the Legislative Council. There would be required first a vote in favour of that in a referendum. The proposed Act was to be passed under a procedure in s.5B of the New South Wales Constitution Act 1902-1956, whereby legislation could be enacted ultimately without the consent of the Legislative Council. S.5B had been introduced into the New South Wales Constitution by an enactment of the New South Wales legislature under s.5 of the Constitution Act which went: ‘The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever.’
Held: The Act was effective.
This case is cited by:

  • Cited – Regina on the Application of Jackson and others -v- HM Attorney General CA (Bailii, [2005] EWCA Civ 126, Times 17-Feb-05)
    The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
  • Cited – Jackson and others -v- Attorney General HL (House of Lords, [2005] UKHL 56, Times 14-Oct-05, Bailii, [2006] 1 AC 262, [2005] 2 WLR 87)
    The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .

Syndicat Northcrest v Amselem; 30 Jun 2004

References: (2004) 241 DLR (4th) 1, [2004] 2 SCR 551
Links: Canlii
Coram: McLachlin CJ and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ
Canlii (Supreme Court of Canada) Civil rights – Freedom of religion — Definition of freedom of religion — Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of their religious beliefs on balconies of their co-owned property — Syndicate of co-owners requesting removal of succahs because declaration of co-ownership prohibits decorations, alterations and constructions on balconies — Whether freedom of religion infringed by declaration of co-ownership — If so, whether refusal to permit setting up of succahs justified by reliance on right to enjoy property and right to personal security — Whether Orthodox Jewish residents waived their right to freedom of religion by signing declaration of co-ownership — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 1, 3, 6. Constitutional law — Charter of Rights — Freedom of religion — Definition of freedom of religion — Proper approach for freedom of religion analyses — Canadian Charter of Rights and Freedoms, s. 2(a).
The court is concerned to ensure that an assertion of religious belief before it is made in good faith: ‘neither fictitious, nor capricious, and that it is not an artifice’
This case is cited by:

  • Cited – Regina -v- Secretary of State for Education and Employment and others ex parte Williamson and others HL (House of Lords, [2005] UKHL 15, Bailii, Times 25-Feb-05, [2005] 2 WLR 590, [2005] 2 AC 246, [2005] 2 All ER 1, [2005] ELR 291, [2005] 2 FLR 374, [2005] 1 FCR 498)
    The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .