Rhesa Shipping Co SA v Edmonds (The Popi M): HL 16 May 1985

The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was caused by a peril of the sea or alternatively by crew negligence. The suggested peril of the sea was a moving submerged object, i.e. a submarine. The underwriters contended that the vessel was not seaworthy. More specifically, the underwriters advanced a mechanism for unseaworthiness through wear and tear, based on expert metallurgical evidence. The judge rejected that theory. He also rejected the owners’ argument that there had been crew negligence. That left the possibilities that the vessel was in some other way unseaworthy or that it collided with a submarine. There was no clear basis upon for the court to say that burden of proof had been discharged.
Held: The burden of proving this, on a balance of probabilities, lay on the plaintiffs. A trial judge is not bound to accept the evidence of one side or the other: there remains the possibility of deciding the case on the burden of proof. The court should avoid deciding cases on a balance of improbabilities. It was not possible to proceed on the basis of eliminating the impossible and deciding that the remaining explanation, however improbable, must be the cause, unless all the relevant facts were known; that state of affairs did not exist, as the ship had sunk in deep water. The concept of proof on a balance of probabilities had to be applied with common sense. It required a judge, before he found a particular event occurred, to be satisfied on the evidence that it was more likely to have occurred than not.
(1) where the cause of a past event is in issue and two or more competing causes are advanced the burden of proving his case on causation remains on the claimant throughout, and though the defendant can advance a competing cause there is no obligation on him to prove this case.
(2) Even after a prolonged enquiry with a mass of expert evidence, it is open to the courts to conclude that causation remains in doubt and the result will be that the claimant has failed to discharge the burden of proof.
(3) Therefore the effect of this decision is that where the court considers one theory as improbable but also rules out all other theories the court should not treat the improbable theory as the likely cause of the event.
Lord Brandon of Oakbrook said: ‘the appeal does not raise any question of law, except possibly the question what is meant by proof of a case ‘on a balance of probabilities’. Nor do underwriters challenge . . any of the primary findings of fact made by Bingham J. The question, and the sole question, which your Lordships have to decide is whether on the basis of those primary findings of fact, Bingham J and the Court of Appeal were justified in drawing the inference that the ship was, on the balance of probabilities, lost by perils of the sea.
In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the seas is and remains throughout on the shipowners. Although it is open to the underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.
The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship’s loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay on them.’
As to the Sherlock Holmes fallacy that ‘once you have eliminated the impossible, whatever remains, however improbable, is the truth ‘: ‘In my view there are three reasons why it is inappropriate to apply the dictum of Mr. Sherlock Holmes, to which I have just referred, to the process of fact-finding which a Judge of first instance has to perform at the conclusion of a case of the kind here concerned.
The first reason is one which I have already sought to emphasize as being of great importance, namely, that the Judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.
The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated.
The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a Judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the Judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.

In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship’s hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them.’

Lord Brandon of Oakbrook
[1985] 2 All ER 712, [1985] 1 WLR 948, [1985] 2 Lloyds Rep 1, [1985] UKHL 15
Bailii
England and Wales
Citing:
At First Instance – The Popi M; Rhesa Shipping Co SA v Edmonds 1983
The parties disputed the cause of the loss of a ship. The experts suggested different but improbably explanations; each supported as the most likely explanation only because any other hypothesis was regarded as almost (if not altogether) impossible. . .
Approved – La Compania Martiartu v Royal Exchange Assurance Corporation CA 1923
The court found, on limited evidence, that the ship in respect of which her owners had claimed for a total loss of perils by sea, had in fact been scuttled with the connivance of those owners.
Scrutton LJ said: ‘This view renders it . .

Cited by:
Cited – Gibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
Cited – Moiz Ahmed Siddiqui, Ishrat Siddiqui/Bhajan Singh Sohanpal v Council of the London Borough of Hillingdon TCC 15-Apr-2003
The claimants sought damages for cracks in their house caused by the roots of trees on the defendant’s land.
Held: The claimants had failed to establish by evidence that the tree roots were the cause of the damage. The claim failed. . .
Cited – UCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
Cited – Exel Logistics Ltd v Curran and others CA 30-Sep-2004
The claimants sought damages for personal injuries after a crash in a Land Rover maintained by the defendants. The defendants appealed findings of negligence in failing properly to inflate the rear tyres, in continuing despite the danger, and poor . .
Cited – Stephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .
Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Carisbrooke Shipping Cv5 v Bird Port Ltd ComC 13-Sep-2005
. .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Kastor Navigation Co Ltd and Another v AGF M A T and others (‘Kastor Too’) ComC 4-Dec-2002
The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore . .
Cited – Hill Street Services Company Ltd v National Westminster Bank Plc and Burjor Mistry ChD 19-Oct-2007
The claimant company said that the bank had allowed money to be removed from its account without authority. Originally it said the second defendant, its former director had authrised the payments. On the second defendant denying this, the company . .
Explained – Ide v ATB Sales Ltd and Another CA 28-Apr-2008
Each appellant challenged how the judge had decided between alternative proofs of causation of the respective loss. In Ide, the claimant asserted a fault in a cycle handlebar, and in Lexus, the claimant asserted that it caught fire whilst . .
Cited – Fosse Motor Engineers Ltd and others v Conde Nast and National Magazine Distributors Ltd and Another TCC 20-Aug-2008
The claimant said that the defendant’s employees had negligently started a fire which burned down the claimant’s warehouse. There was limited evidence to establish the cause.
Held: The claim failed. The scientific evidence did not point to any . .
Cited – Piper v Hales QBD 18-Jan-2013
The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.
Held: The Defendant as hirer was under an . .
Cited – Nulty and Others v Milton Keynes Borough Council CA 24-Jan-2013
There had been two fires at a depot owned by the claimants. The fires were found to have been likely to have been caused by the deceased employee. His insurers had repudiated liability saying that the had not been notified oin a timely fashion.
Cited – Milton Keynes Borough Council v Nulty and Others TCC 3-Nov-2011
There had been two fires at depots owned by the claimants. They brought proceedings against an employee, but his insurers repudiated liability saying that they had not been promptly notfied of the claim.
Held: The first fire was caused either . .
Cited – Love v Halfords Ltd QBD 8-Apr-2014
The claimant had purchased a new bicycle from the defendants who also maintained it. Several months later, the steerer tube broke causing an accident and severe injury. The cycle had been finally assembled by the defendant after importation, but . .
Cited – The Worshipful Company of Grocers v Keltbray Group Holdings Ltd and Another QBD 19-May-2016
Allegation that a collapse in a nearby building caused a water leak in the claimant’s nearby building.
Held: the effects of the collapse did not cause the major cracking at Grocers’ Hall which was reported on following the flood. The Grocers . .

Lists of cited by and citing cases may be incomplete.

Evidence, Damages, Insurance, Evidence

Leading Case

Updated: 02 November 2021; Ref: scu.184697

Dingle v Associated Newspapers: HL 1964

The plaintiff complained of an article written in the Daily Mail which included the reporting of a report of a Parliamentary select committee. The reporting of the select committee’s report was privileged under the Parliamentary Papers Act 1840. At trial the judge held that the part of the article which reported on the proceedings in Parliament was privileged. The remainder of the article was found to be defamatory and the judge then set about fixing the damages for the libel. The court had to decide on how the responsibility might be apportioned.
Held: The appeal was dismissed. It was not permissible to mitigate damages by saying that others had said the same thing. ‘Damages for defamation are an expression of many contributing factors, and, as we know, they can be affected one way or another by a defendant’s conduct, by his pleadings, by his counsel’s handling of his case, just as, occasionally, even a plaintiff may find his damages affected by the way that he has behaved.’ The judge had wrongly taken into account evidence that the plaintiff’s reputation had already been damaged by what had been said in Parliament or by what had been said on other occasions, and that the Daily Mail had subsequently published an article which vindicated the plaintiff’s reputation.

Lord Radcliffe, Lord Morton of Henryton, Lord Cohen, Lord Denning and Lord Morris of Borth-y-Guest
[1964] AC 371, [1972] UKHL 2
Bailii
England and Wales
Citing:
Appeal from – Dingle v Associated Newspapers CA 1961
A defamation of the claimant had been published and then repeated by others.
Held: The court discussed the logical impossibility of apportioning damage between different tortfeasors: ‘Where injury has been done to the plaintiff and the injury . .

Cited by:
Cited – Godfrey v Demon Internet Limited (2) QBD 23-Apr-1999
Evidence of Reputation Admissible but Limited
The plaintiff had brought an action for damages for defamation. The defendant wished to amend its defence to include allegations that the plaintiff had courted litigation by his action.
Held: A judge assessing damages should be able see the . .
Cited – Nail v Jones, Harper Collins Publications Ltd; Nail v News Group Newspapers Ltd, Wade etc QBD 26-Mar-2004
The claimant was upset by an article published by the defendant making false allegations that he had behaved in a sexually profligate manner many years earlier. When it was substantially repeated he sued.
Held: The words were defamatory. An . .
Cited – Nail and Another v News Group Newspapers Ltd and others CA 20-Dec-2004
The claimant appealed the award of damages in his claim for defamation. The defendants had variously issued apologies. The claimant had not complained initially as to one publication.
Held: In defamation proceedings the damage to feelings is . .
Cited – Curistan v Times Newspapers Ltd CA 30-Apr-2008
The court considered the availability of qualified privilege for reporting of statements made in parliament and the actionable meaning of the article, which comprised in part those statements and in part other factual material representing the . .
Cited – Mardas v New York Times Company and Another QBD 17-Dec-2008
The claimant sought damages in defamation. The US publisher defendants denied that there had been any sufficient publication in the UK and that the court did not have jurisdiction. The claimant appealed the strike out of the claims.
Held: The . .
Cited – Prince Radu of Hohenzollern v Houston and Another (No 4) QBD 4-Mar-2009
Orders were sought to strike out part of the defendants defence of justification to an allegation of defamation.
Held: Where there remains the possibility of a jury trial, it becomes especially important to identify the issues the jurors are . .
Cited – Cairns v Modi CA 31-Oct-2012
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 . .
Still Good Law – Lachaux v Independent Print Ltd (1) CA 12-Sep-2017
Defamation – presumption of damage after 2013 Act
The claimant said that the defendant had published defamatory statements which were part of a campaign of defamation brought by his former wife. The court now considered the requirement for substantiality in the 2013 Act.
Held: The defendant’s . .
Cited – Turley v Unite The Union and Another QBD 19-Dec-2019
Defamation of Labour MP by Unite and Blogger
The claimant now a former MP had alleged that a posting on a website supported by the first defendant was false and defamatory. The posting suggested that the claimant had acted dishonestly in applying online for a category of membership of the . .

Lists of cited by and citing cases may be incomplete.

Defamation, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.185259

Dimond v Lovell: HL 12 May 2000

A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
Held: The arrangement was a consumer credit agreement, and since it was not in proper form, the sums were not recoverable from the claimant and so in turn were not recoverable either from the defendant. The Act was intended to punish those who sought to work around it.
The additional benefits achieved as part of the mitigation of loss must be taken into account. Even if the claimant could have recovered she could have recovered no more than the ‘spot’ charge and not the charges made for an agreement that entitled the claimant to more benefit than the cost of hire itself (eg by way of financing the cost of replacement pending resolution of a claim or the cost of fighting the claim itself).

Lord Browne-Wilkinson, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Saville of Newdigate, Lord Hobhouse of Wood-borough
Gazette 31-May-2000, Times 12-May-2000, [2000] UKHL 27, [2000] 2 All ER 897, [2000] 2 WLR 1121, [2002] 1 AC 384, (2000) Rep LR 62, [2000] CCLR 57, [2000] RTR 243
House of Lords, Bailii
Consumer Credit Act 1974 127(1)
England and Wales
Citing:
Appeal from – Dimond v Lovell CA 29-Apr-1999
Mrs Dimond had a car accident as a result of Mr Lovell’s negligence and sought to recover from him the cost of the hire of a replacement vehicle while her car was being repaired. Under clause 5 of the hire agreement the hire company had the conduct . .
Cited – McAll v Brooks CA 1984
After a road accident the plaintiff hired a car. His insurance brokers provided the car under an arrangement that was alleged to be illegal insurance business and would have prevented them from being subrogated to the plaintiff’s claim for damages . .
Cited – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Cited – Donnelly v Joyce CA 18-May-1973
A six year old injured his leg in a road accident, and needed daily attention. His mother gave up her job to look after him. The claim for damages on behalf of he boy included the mother’s loss of earnings. This was objected to on the grounds that . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Cited – Hunt v Severs HL 7-Sep-1994
The tortfeasor, a member of the claimant’s family provided her with voluntary nursing care after the injury. The equivalent cost of that care, was recoverable, but would be held on trust for the carer. The underlying rationale of English Law is to . .
Cited – Bellingham v Dhillon QBD 1973
The plaintiff claimed damages for personal injuries, and in particular the loss of profits from his driving school business. He lost the opportunity to lease a driving simulator which would have enabled his company to earn a continuing profit. In . .
Cited – Orakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .

Cited by:
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Cited – McMillan Williams (a Firm) v Range CA 17-Mar-2004
The respondent was employed as a solicitor to be paid commission on fees paid. She received advances against those payments. She was dismissed after failing to reach the targets. The employer sought repayment of the excess advances. She replied that . .
Cited – Bee v Jenson ComC 21-Dec-2006
The defendant objected to paying the plaintiff the costs of a replacement hire car after the accident for which he was liable. He said that the plaintiff was in any event insured to recover that cost, and the insurance company were subrogated to the . .
Cited – Bee v Jenson CA 13-Sep-2007
The claimant hired a car whilst his own, damaged by the defendant, was being repaired. His insurer sought to recover the cost from the other driver. The insurer had first arranged te hire with one company, but then another provided a finacial reward . .
Cited – Armchair Passenger Transport Ltd v Helical Bar Plc and Another QBD 28-Feb-2003
Objection was made to the use of an expert witness who had formerly been a senior employee of the defendant.
Held: The court set out criteria for testing the independence of a proposed expert witness: ‘i) It is always desirable that an expert . .
Cited – Heath v Southern Pacific Mortgage Ltd ChD 29-Jan-2009
The appellant challenged a mortgagee’s possession order saying that the loan agreements sought to be enforced were invalid and the charges unenforceable. The loan had been in two parts. She said that as a multi-part agreement it fell within section . .
Cited – Copley v Lawn; Maden v Haller CA 17-Jun-2009
The parties had been involved in a road accident. The insurer for the liable party offered a car for use whilst the claimant’s car was being repaired. The claimants had rejected that offer, and now appealed against a refusal to award them the cost . .
Cited – Southern Pacific Mortgage Ltd v Heath CA 5-Nov-2009
The court considered the effect of an agreement within the 1974 Act falling into more than one category of agreement. Part was used to be used for the repayment of an existing mortgage (restricted use credit), and part was unrestricted. The question . .
Cited – Carey v HSBC Bank plc, Yunis v Barclays Bank plc and similar QBD 23-Dec-2009
carey_hsbcQBD2009
(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give . .
Cited – Sternlight v Barclays Bank Plc QBD 22-Jul-2010
Various credit card customers said that the respondent banks had mis-stated the interest rates applied to them, in that the interest charged did not match the APR advertised, and that therefore the agreements were unenforceable.
Held: The . .
Cited – The Office of Fair Trading v Ashbourne Management Services Ltd and Others ChD 27-May-2011
The OFT alleged that the defendant companies had been engaged in breaches of the Act and the Regulations in their practices in selling gym memberships. The defendant were selling and managing memberships for gyms. They advised as to the different . .
Cited – Dickinson and Others v Tesco Plc and Others CA 4-Feb-2013
The court considered the practice on claims for hire of a replacement car on credit terms after a road traffic accident. The defendant resisted paying for the credit where the claimant could have hired without a credit arrangement. The defendants . .
Cited – Salat v Barutis CA 20-Nov-2013
The claimant had been knocked from his motor cyle by the defendant. He hired a replacement, but when he sought payment of the associated hire charges, the defendant said that the hire company had failed to comply with the 208 Regulations, and that . .

Lists of cited by and citing cases may be incomplete.

Consumer, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.79968

Doyle v Olby (Ironmongers) Ltd: CA 31 Jan 1969

The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the action. But despite this he had to remain in occupation: ‘he had burned his boats and had to carry on with the business as best he could.’ After three years, he managed to sell the business for 3,700 pounds, but in the meantime he had incurred business debts.
Held: He should recover these losses. The plaintiff in an action for deceit is not entitled to be compensated in accordance with the contractual measure of damage, ie the benefit of the bargain measure. He is not entitled to be protected in respect of his positive interest in the bargain. The plaintiff in an action for deceit is, however, entitled to be compensated in respect of his negative interest. The aim is to put the plaintiff into the position he would have been in if no false representation had been made. The measure of damages where a contract has been induced by fraudulent misrepresentation is reparation for all the actual damage directly flowing from entering into the transaction. In assessing such damages it is not an inflexible rule that the plaintiff must bring into account the value as at the transaction date of the asset acquired: although the point is not adverted to in the judgments, the basis on which the damages were computed shows that there can be circumstances in which it is proper to require a defendant only to bring into account the actual proceeds of the asset provided that he has acted reasonably in retaining it. Damages for deceit are not limited to those which were reasonably foreseeable. The damages recoverable can include consequential loss suffered by reason of having acquired the asset.
Winn LJ said: ‘It appears to me that in a case where there has been a breach of warranty of authority, and still more clearly where there has been a tortious wrong consisting of a fraudulent inducement, the proper starting-point for any court called upon to consider what damages are recoverable by the defrauded person is to compare his position before the representation was made to him with his position after it, brought about by that representation, always bearing in mind that no element in the consequential position can be regarded as attributable loss and damage if it be too remote a consequence . . The damage that he seeks to recover must have flowed directly from the fraud perpetrated upon him.’
Lord Denning MR said: ‘In contract, the defendant has made a promise and broken it. The object of damages is to put the plaintiff in as good a position, as far as money can do it, as if the promise had been performed. In fraud, the defendant has been guilty of deliberate wrong by inducing the plaintiff to act to his detriment. The object of damages is to compensate the plaintiff for all the loss he has suffered, so far, again, as money can do it. In contract, the damages are limited to what may reasonably be supposed to have been in the contemplation of the parties. In fraud, they are not so limited. The defendant is bound to make reparation for all the actual damages directly flowing from the fraudulent inducement. The person who has been defrauded is entitled to say:
‘I would not have entered into this bargain at all but for your representation. Owing to your fraud, I have not only lost all the money I paid you, but, what is more, I have been put to a large amount of extra expense as well and suffered this or that extra damages.’
All such damages can be recovered: and it does not lie in the mouth of the fraudulent person to say that they could not reasonably have been foreseen. For instance, in this very case Mr Doyle has not only lost the money which he paid for the business, which he would never have done if there had been no fraud: he put all that money in and lost it; but also he has been put to expense and loss in trying to run a business which has turned out to be a disaster for him. He is entitled to damages for all his loss, subject, of course to giving credit for any benefit that he has received. There is nothing to be taken off in mitigation: for there is nothing more that he could have done to reduce his loss. He did all that he could reasonably be expected to do.’

Lord Denning MR, Winn LJ
[1969] 2 QB 158, [1969] EWCA Civ 2, [1969] 2 All ER 119, [1969] 2 WLR 673
Bailii
Misrepresentation Act 1967 2(1)
England and Wales
Citing:
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Too Rigid – McConnel v Wright CA 24-Jan-1903
In an action by a shareholder in a limited company against a director for damages for misrepresentation in the prospectus, the time at which the damage is ordered to be assessed, is the date of the allotment to the plaintiff; accordingly, where the . .
Cited – Clark v Urquhart HL 1930
The House considered the measurement of damages where property had been purchased as the result of a misrepresentation. Lord Atkin said: ‘I find it difficult to suppose that there is any difference in the measure of damages in an action of deceit . .

Cited by:
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Approved – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – Clef Aquitaine Sarl and Another v Laporte Materials (Barrow) Ltd (Sued As Sovereign Chemical Industries Ltd) CA 18-May-2000
The defendants appealed a finding of fraudulent misrepresentation, saying that no damages had in fact flowed from any misrepresentation. . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Approved – East v Maurer CA 1991
The plaintiffs had bought a hair dressing salon from the defendant, who continued to trade from another he owned, despite telling the plaintiffs that he intended not to. The plaintiffs lost business to the defendant. They invested to try to make a . .
Approved – Downs v Chappell; Downs v Stephenson Smart (a Firm) CA 1996
The plaintiff purchased a book shop. He claimed that in doing so he had relied upon the accounts prepared and signed off by the respective defendants.
Held: The judge had been wrong by testing what would have been the true figures as against . .
Applied – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Applied – Royscot Trust Ltd v Rogerson 1991
Doyle -v- Olby (Ironmongers) Ltd was an appropriate way of assessing damages for an action under the Act, and damages are calculated on the basis of fraud.
A client misled into an investment is entitled to the measure of damages he would . .
Applied – Archer v Brown 1984
The defendant sold shares in his company to the plaintiff. He had however already sold them elsewhere. The plaintiff sought both rescission and damages. The defendant argued that he could not be entitled to both.
Held: The misrepresentation . .
Cited – London Borough of Haringey v Hines CA 20-Oct-2010
The authority sought rescission of a lease granted to the defendant under the right to buy scheme, saying that she had misrepresented her occupation when applying. The tenant replied that no adequate evidence had been brought that she was not a . .
Cited – Esso Petroleum Company Ltd v Mardon CA 6-Feb-1976
Statements had been made by employees of Esso in the course of pre-contractual negotiations with Mr Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the station. Mr Mardon was persuaded by the . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .
Applied – Naughton v O’Callaghan 1990
Damages Award to Restore Plaintiff’s Poistion
In 1981 the plaintiffs had bought a thoroughbred yearling colt called ‘Fondu’ for 26,000 guineas. In fact a mistake had been made and its pedigree was not as represented. Its true pedigree made it suitable only for dirt track racing in the United . .
Cited – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.186451

Edwards v The United Kingdom: ECHR 14 Mar 2002

The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His family asserted that the prison authorities had failed to protect his Article 2 right to life, and Article 13 right to a remedy. A series of shortcomings had been found in the Prison Service’s management, but no remedy had been offered.
Held: The deceased’s article 2 and 13 rights had been infringed. There had been no inquest, and the enquiry, whilst detailed, had been private and without the ability to compel witnesses to attend. The limits placed on the appellants’ involvement meant that that enquiry could not be seen as a proper opportunity for them to represent their interests. The remedies under the 1976 Act would not provide damages for non-financial loses, and legal aid would not be available.
‘The applicants, parents of the deceased, were only able to attend three days of the inquiry when they were themselves giving evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel, or, for example, through the Inquiry Panel. They had to wait for the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject-matter of the Inquiry, the Court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests.’

I Cabral Barreto, President and Judges Sir Nicolas Bratza, L. Caflisch, P. Kuris, R. Turmen, H. S. Greve and K. Traja
Times 01-Apr-2002, 46477/99, (2002) 35 EHRR 487, [2002] ECHR 303
Worldlii, Bailii
European Convention on Human Rights, Fatal Accidents Act 1976
Human Rights
Cited by:
Applied – Regina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
Cited – Khan, Regina (on the Application of) v Secretary of State for Health CA 10-Oct-2003
The claimant’s child had died as a result of negligence in hospital. The parents had been told the result of police investigation and decision not to prosecute, and the hospital’s own investigation, but had not been sufficiently involved. There . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department Admn 28-Apr-2005
D was undergoing trial for offences and was held in prison. He self-harmed repeatedly, and was recorded to require extra vigilance. He attempted to hang himself. Prison staff saved his life, but he was left paraplegic, and was then detained under . .
Cited – Plymouth City Council v HM Coroner for the County of Devon and Another Admn 27-May-2005
The local authority in whose care the deceased child had been held challenged a decision by the coroner not to limit his inquiry to the last few days of the child’s life. The coroner had decided that he had an obligation to conduct a wider enquiry . .
Cited – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department (Inquest Intervening) CA 28-Feb-2006
The respondent appealed from orders made as to the conduct of an investigation into an attempted suicide in prison. The judge had severely criticised the appellant’s treatment of the case.
Held: The appeal failed. The court recited the . .
Cited – Van Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
Cited – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
See Also – Edwards v The United Kingdom ECHR 3-Dec-2009
. .
Cited – Mousa and Others v Secretary of State for Defence and Another Admn 16-Jul-2010
The claimants sought judicial review of the respondent in respect of alleged mistreatment when detained in Iraq. They sought a judicial inquiry. . .
Cited – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.168003

Balfour Beatty Construction (Scotland) Ltd v Scottish Power Plc: HL 23 Mar 1994

The House was asked as to the treatment of the idea of remoteness of damages in a claim under contract in Scotland.
Held: A supplier was not to be imputed with knowledge of his purchaser’s technical processes.

Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Jauncey of Tullichettle, Lord Brown Wilkinson, Lord Nolan
Times 23-Mar-1994, [1994] UKHL 11, [1994] CLC 321, 1994 SC (HL) 20, 1994 SLT 807
Bailii
Scotland

Damages, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.78106

Hadley v Baxendale: Exc 23 Feb 1854

Contract Damages; What follows the Breach Naturaly

The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying that the damages were too remote.
Held: The case was to be retried.
Alderson B said: ‘Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may be fairly and reasonably be considered either as arising naturally, ie according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made where communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants. The Judge ought, therefore, to have told the jury, that, upon the facts then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. There must therefore be a new trial in this case.’

Alderson B
[1854] EWHC Exch J70, [1854] EngR 296, (1854) 9 Exch 341, (1854) 156 ER 145
Bailii, Commonlii
England and Wales
Cited by:
Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
Cited – Watford Electronics Ltd v Sanderson CFL Ltd CA 23-Feb-2001
The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
Held: It is for the party claiming that a contract . .
Cited – Platform Home Loans Ltd v Oyston Shipways Ltd and others HL 18-Feb-1999
The plaintiffs had lent about 1 million pounds on the security of property negligently valued at 1.5 million pounds. The property was sold for much less than that and the plaintiffs suffered a loss of 680,000 pounds. The judge found that the . .
Cited – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Jackson and Davies (Trading As Samson Lancastrian) v Royal Bank of Scotland CA 28-Jun-2000
In error, the bank disclosed to one customer, the mark up being taken by another in selling on goods to that first customer. The second customer went to make its purchasers direct, and the first customer sought damages from the bank. The bank . .
Applied – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
Restated – Victoria Laundry (Windsor) Ltd v Newman Industries CA 1949
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Applied – Cox v Philips Industries Ltd 15-Oct-1975
Damages for distress, vexation and frustration, including consequent ill-health, could be recovered for breach of a contract of employment if it could be said to have been in the contemplation of the parties that the breach would cause such distress . .
Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – Croudace Construction Limited v Cawoods CA 1978
A clause in a contract provided that: ‘We are not under any circumstances to be liable for any consequential loss or damage caused or arising by reason of late supply or any fault, failure or defect in any material or goods supplied by us or by . .
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Cited – Wiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – The ‘Pegase’ 1981
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single . .
Cited – Sempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Cited – Penwith District Council v VP Developments Ltd TCC 2-Nov-2007
The council sought to appeal against an interim arbitration award.
Held: Leave to appeal was refused. The application was wholly unjustified. This was an appeal on the facts dressed up as an appeal on law. . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Cited – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .
Cited – Markerstudy Insurance Company Ltd and Others v Endsleigh Insurance Services Ltd ComC 18-Feb-2010
The claimant insurers alleged the mishandling of insurance claims by the defendant of many claims leading to substantial losses. The parties asked the court to determine a basis for calculation of damages under the contract.
Held: A similar . .
Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Applied – Herbert Clayton and Jack Waller Ltd v Oliver HL 1930
When awarding damages for breach of contract courts should take care to confine the damages to their proper ambit: making good financial loss. When considering an award of damages to an actor who should have been billed to appear at the London . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.182804

Halifax Building Society v Thomas and Another: CA 29 Jun 1995

Defrauded Mortgagee cannot take surplus on sale

A Building Society cannot keep any excess proceeds of sale of a house mortgaged to it by fraud. Policy was against unjust enrichment and will not allow a lender to take a profit from a fraudulent borrower.
Peter Gibson LJ said: ‘I remain wholly unpersuaded that in the circumstances of the present case the law should accord a restitutionary remedy to a secured creditor who has elected not to avoid the mortgage but to affirm it and has received full satisfaction thereunder. To my mind there is an inconsistency between a person being such a creditor and yet claiming more than that to which he is contractually entitled and which he has already fully recovered. Once the creditor has so elected and recovered in full, I do not see why the law should come to his aid to allow him to make a further claim. In re Simms; Ex parte Trustee [1934] Ch. 1 this court refused to allow a trustee in bankruptcy, who had elected to treat a receiver as a tortfeasor for converting to his own use the chattels of a bankrupt, to recover the profits made by the receiver as money had and received. The authority of that case is weakened by the reliance by this court on the now exploded implied promise theory, but I note that it is still cited in textbooks: see, for example, Chitty on Contracts, 27th ed. (1994), vol. 1, p. 1437, para. 29-052) and it serves to illustrate that not every action for an account of profits from a wrongdoer, even where there has been use of the plaintiff’s property, will be allowed, and that it may be barred when there has been an election for another remedy.
Further I am not satisfied that in the circumstances of the present case it would be right to treat the unjust enrichment of Mr. Thomas as having been gained ‘at the expense of’ the society, even allowing for the possibility of an extended meaning for those words to apply to cases of non-subtractive restitution for a wrong. There is no decided authority that comes anywhere near to covering the present circumstances. I do not overlook the fact that the policy of law is to view with disfavour a wrongdoer benefiting from his wrong, the more so when the wrong amounts to fraud, but it cannot be suggested that there is a universally applicable principle that in every case there will be restitution of benefit from a wrong. As Professor Birks says (An Introduction to the Law of Restitution, p. 24): ‘there are some circumstances in which enrichment by wrongdoing has to be given up. That is, the wrong itself is not always in itself a sufficient factor to call for restitution.’ On the facts of the present case, in my judgment, the fraud is not in itself a sufficient factor to allow the society to require Mr. Thomas to account to it.’
Glidewell LJ said: ‘The proposition that a wrongdoer should not be allowed to profit from his wrongs has an obvious attraction. The further proposition, that the victim or intended victim of the wrongdoing, who has in the event suffered no loss, is entitled to retain or recover the amount of the profit is less obviously persuasive.’ and
‘In order to succeed in this appeal, Mr. Waters is required to establish that the second proposition is correct, and that English law provides a mechanism by which it can be given effect. Despite his able argument, I cannot discern that there is any such general established principle. Indeed, Mr. Waters has to concede that there is no English authority upon which he can rely to establish his right to succeed either in the law of restitution, under the head of unjust enrichment, or in the law of constructive trusts. The sole American decision which appears to be directly in point, that of the U.S. District Court for the Southern District of New York in Federal Sugar Refining Co. v. United States Sugar Equalization Board (1920) 268 F. 575, is not sufficiently persuasive to secure a visa for admission into English jurisprudence. Like Judge Maddocks, in the passage from his judgment quoted by Peter Gibson L.J., I cannot conclude that the principle for which Mr. Waters contends is at present established as part of our law.’

Glidewell LJ, Glidewell LJ
Independent 04-Aug-1995, Times 04-Jul-1995, [1996] Ch 217, [1995] EWCA Civ 21, [1995] 4 All ER 673, [1996] 2 WLR 63
Bailii
England and Wales
Cited by:
Cited – David Macdonald v Geoffrey Myerson, John Callaghan, Derek A H Law CA 26-Jan-2001
The claimant had been involved in mortgage frauds, using the defendant firm of solicitors. He claimed an account following sales of the properties. At the time of the sales, the first defendant knew of the false identities used. The defendants . .
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Equity, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.81150

Jarvis v Swans Tours Ltd: CA 16 Oct 1972

The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, including a contract for a holiday, damages can be recovered for mental distress and vexation. The damages awarded by the county court judge were inadequate. The descriptions in the brochure were representations or warranties, but after the 1967 Act, it was no longer necessary to decide which since damages were available for either. The measure of damages was the loss of entertainment and enjoyment which was promised, and not delivered.
Lord Denning said: ‘In a proper case damages for mental distress can be recovered in contract, just as damages for shock can be recovered in tort. One such case is a contract for a holiday or any other contract to provide entertainment and enjoyment. If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. I know that it is difficult to assess in terms of money, but it is no more difficult than the assessment which the courts have to make every day in personal injury cases for loss of amenity. Take the present case. Mr Jarvis has only a fortnight’s holiday in the year. He books it far ahead and looks forward to it all that time. He ought to be compensated for the loss of it . . Here Mr Jarvis’s fortnight’s winter holiday has been a grave disappointment. It is true that he was conveyed to Switzerland and had meals and bed in the hotel. But that is not what he went for. He went to enjoy himself with all the facilities which the defendant said he would have. He is entitled to damages for the lack of those facilities and for his loss of enjoyment.’
Edmund Davies LJ said: ‘The court is entitled, and indeed bound, to contrast the overall quality of the holiday so enticingly promised with that which the defendant in fact provided . . When a man has paid for and properly expects an invigorating and amusing holiday and, through no fault of his, returns home dejected because his expectations have been largely unfulfilled in my judgment it would be quite wrong to say his disappointment must find no reflection in the damages to be awarded.’

Lord Denning MR, Edmund Davies and Stephenson LJJ
[1973] 1 All ER 71, [1972] 3 WLR 954, [1973] QB 233, [1972] EWCA Civ 8
lip, Bailii
Misrepresentation Act 1967
England and Wales
Citing:
Not Followed – Hobbs v London and South Western Railway Co 1875
The court considered an application for damages for inconvenience in a breach of contract case: ‘for the mere inconvenience, such as annoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your . .
Cited – Bailey v Bullock 1950
The court awarded damages against solicitors for the inconvenience to the plaintiff of having to live in an overcrowded house. . .
Cited – Stedman v Swan’s Tours CA 1951
The plaintiffs sought damages for their disappointing holiday in Jersey. Instead of enjoying the superior rooms with a sea view in a first class hotel expected, the holiday party found that the rooms reserved for them were very inferior and had no . .
Cited – Bruen v Bruce (Practice Note) CA 1959
. .
Cited – Feldman v Allways Travel Service 1957
The claimant sought damages after a disappointing holiday.
Held: Such damages were capable of being awarded. . .
Not Followed – Hamlin v Great Northern Railway Co 19-Nov-1856
A plaintiff can recover whatever damages naturally resulted from the breach of contract, but damages cannot be given ‘for the disappointment of mind occasioned by the breach of contract.’ . .
Cited – Griffiths v Evans CA 1953
The parties disputed the terms on which the solicitor had been engaged, and in particular as to the scope of the duty undertaken by and entrusted to the solicitor as regards advising the client.
Held: Where there is a dispute between a . .

Cited by:
Applied – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – Wiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .

Lists of cited by and citing cases may be incomplete.

Consumer, Contract, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.174316

Lavarack v Woods of Colchester Ltd: CA 1967

Damages for wrongful dismissal could not confer on an employee extra benefits that the contract did not oblige the employer to confer. There is a clear distinction between expectations, however reasonable, and contractual obligations.
Diplock LJ said: ‘the first task of the assessor of damages is to estimate as best he can what the plaintiff would have gained in money or money’s worth if the defendant had fulfilled his legal obligations and had done no more. Where there is an anticipatory breach by wrongful repudiation, this can at best be an estimate, whatever the date of the hearing. It involves assuming that what has not occurred and never will occur has occurred or will occur, ie that the defendant has since the breach performed his legal obligations under the contract and, if the estimate is made before the contract would otherwise have come to an end, that he will continue to perform his legal obligations thereunder until the due date of its termination. But the assumption to be made is that the defendant has performed or will perform his legal obligations under his contract with the plaintiff and nothing more.’

Diplock LJ, Lord Denning MR, Russell LJ
[1967] 1 QB 278, [1966] EWCA Civ 4, [1966] 3 All ER 683, [1966] 1 KIR 312, [1966] 3 WLR 706
Bailii
England and Wales
Citing:
Cited – Brace v Calder 1895
The dissolution of the employing partnership brings a contract of employment to an end.
Rigby LJ said: ‘a contract to serve four employers cannot, without express language, be construed as being a contract to serve two of them . . the . .

Cited by:
Approved – North Sea Energy Holdings Nv (Formerly Midland and Scottish Holdings Nv) v Petroleum Authority of Thailand CA 16-Dec-1998
The buyers repudiated an oil purchase agreement and the sellers accepted their repudiation. The sellers could not show that they would have been able to obtain the oil to sell.
Held: They were not entitled to substantial damages. . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
Cited – Nestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .

Lists of cited by and citing cases may be incomplete.

Damages, Employment, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.252494

Watts and Co v Morrow: CA 30 Jul 1991

The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his negligent survey of a property. The plaintiff sought damages for distress, and the cost of making good the defects. The appellant argued that he should pay or only the diminution in value of the house by reason of the existence of those defects.
Held: The correct level of damages to be awarded are for the diminution in value of the property with those faults, not the cost of repairing the faults. ‘A contract breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy. But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead. If the law did not cater for this exceptional category of case it would be defective. A contract to survey the condition of a house for a prospective purchaser does not, however, fall within this exceptional category. In cases not falling within this exceptional category, damages are in my view recoverable for physical inconvenience and discomfort caused by the breach and mental suffering directly related to that inconvenience and discomfort. If those effects are foreseeably suffered during a period when defects are repaired I am prepared to accept that they sound in damages even though the cost of the repairs is not recoverable as such.’ Exceptions mayinclude ‘where the very object of the contract is to provide pleasure, relaxation, peace of mind or freedom from molestation’, but this is an ‘exceptional category’.

Bingham LJ, Sir Stephen Brown LJ, Bingham LJ
Gazette 08-Jan-1992, [1991] 4 All ER 939, [1991] 1 WLR 1421, [1991] EWCA Civ 9
Bailii
England and Wales
Citing:
Cited – County Personnel (Employment Agency) Ltd v Alan R Pulver and Co (a Firm) CA 1987
The claimant sought damages after his negligent solicitors had saddled him with a ruinous underlease. They had had to buy themselves out of the lease. The court considered the date at which damages were to be calculated.
Held: The starting . .
Cited – Hayes and Another v Dodd CA 7-Jul-1988
The court considered what damages might be paid for inconvenience and distress. . .
Cited – Syrett v Carr and Neave 1990
The plaintiff sought damages for a negligent survey.
Held: On the particular facts, it was reasonable for the plaintiffs not to sell but to repair the property and seek the cost of such repairs. . .
Cited – Dodd Properties (Kent) Ltd v Canterbury City Council CA 21-Dec-1979
The defendants had, in the course of building operations, caused nuisance and damage to the plaintiff’s building. The dispute was very lengthy, the costs of repair increased accordingly, and the parties now disputed the date at which damages fell to . .
Cited – Philips v Ward CA 1956
The Plaintiff had relied on a negligent survey to purchase a substantial Elizabethan property and land. The report did not mention that the timbers of the house were badly affected by death watch beetle and worm so that the only course left to him . .
Cited – Hayes and Another v Dodd CA 7-Jul-1988
The court considered what damages might be paid for inconvenience and distress. . .
Cited – Bliss v South East Thames Regional Health Authority CA 1985
General damages cannot be awarded for frustration, mental distress or injured feelings arising from an employer’s breach of the implied term of confidence and trust. Dillon LJ said that damages for mental distress in contract are limited to certain . .
Cited – Perry v Sidney Phillips and Son CA 1982
In 1982 the surveyor failed to observe serious defects, including a leaking roof and a septic tank with an offensive smell. The plaintiff purchaser could not afford major repairs and executed only minor repairs himself. At the date of the trial the . .

Cited by:
Cited – Farley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
Cited – Smith and Another v South Gloucestershire Council CA 31-Jul-2002
The claimants purchased land. The local search did not reveal a planning permission which affected the value of the property by applying an occupancy condition. He claimed compensation. Compensation was eventually agreed to be payable, but the . .
Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Cited – Ezekiel v McDade CA 1995
As a result of the negligence of their builders, the plaintiffs were rendered homeless persons living in single room council accommodation for a long period. The builder appealed an award of andpound;6,000.
Held: The award should be reduced to . .
Cited – Boynton and Another v Willers CA 3-Jul-2003
The appellants challenged a finding that they were liable for their builders’ bill.
Held: Work which had been rejected had not in fact been charged for. The defendant’s appeal on that point failed. The measure of damages for distress and . .
Applied – Hamilton Jones v David and Snape (a Firm) ChD 19-Dec-2003
The claimant was represented by the respondent firm of solicitors in an action for custody of her children. Through their negligence the children had been removed from the country. She sought damages for the distress of losing her children.
Followed – Verderame v Commercial Union Assurance Co Plc CA 2-Apr-1992
The insurance brokers, acting to arrange insurance for a small private limited company did not owe a duty in tort to the directors of that company personally. Where an action was brought in a tort and in breach of contract, damages could not be . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Wiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Grobbelaar v News Group Newspapers Ltd and Another CA 18-Jan-2001
The claimant had been awarded andpound;85,000 damages in defamation after the defendant had wrongly accused him of cheating at football. The newspaper sought to appeal saying that the verdict was perverse and the defence of qualified privilege . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Cited – Bacciottini and Another v Gotelee and Goldsmith (A Firm) CA 18-Mar-2016
A property subject to a planning condition was purchased by the appellant under the advice of the respondent, who failed to notify him of the existence of a planning condition. The judge had awarded the claimant pounds 250 being the cost of the . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .

Lists of cited by and citing cases may be incomplete.

Damages, Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.90333

East Ham Corporation v Bernard Sunley and Sons Ltd: HL 1965

In cases in which the plaintiff is seeking damages for the defective performance of a building contract, which is a contract for labour and materials, the normal measure of his damages is the cost of carrying out remedial work, or re-instatement. Reasonableness is a part of the primary assessment of damages as well as of mitigation of damage.
Lord Cohen said: ‘the learned editors of Hudson’s Building and Engineering Contracts, 8th ed. (1959) say at p.319 that there are in fact three possible bases of assessing damages, namely, (a) the cost of reinstatement; (b) the difference in cost to the builder of the actual work done and work specified; or (c) the diminution in value of the work due to the breach of contract. They go on: ‘There is no doubt that wherever it is reasonable for the employer to insist upon reinstatement the courts will treat the cost of reinstatement as the measure of damage.’ In the present case it could not be disputed that it was reasonable for the appellants to insist upon reinstatement and in these circumstances it necessarily follows that on the question of damage the trial judge arrived at the right conclusion.’
Lord Upjohn stated that in a case of defective building work reinstatement was the normal measure of damages.

Lord Upjohn, Lord Guest, Lord Cohen and Lord Pearson
[1966] 1 AC 406, [1965] 3 All ER 619
England and Wales
Cited by:
Considered – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd CA 28-Jun-1994
The plaintiff council complained of the work done for it by the defendant builder.
Held: Steyn LJ said: ‘in the case of a building contract, the prima facie rule is cost of cure, i.e., the cost of remedying the defect: East Ham Corporation v. . .

Lists of cited by and citing cases may be incomplete.

Damages, Construction

Leading Case

Updated: 01 November 2021; Ref: scu.192627

SCM (United Kingdom) Ltd v W J Whittall and Son Ltd: CA 1970

The defendants’ workmen damaged an electric cable belonging to the electricity board, cutting off several factories, including the plaintiff’s. The defendant sought to have the claim struck out.
Held: The part of the claim arising from physical damage was not struck out, but that for economic loss was. Economic loss ought not to be put on one pair of shoulders, but spread among all the sufferers.
Lord Denning said: ‘I must not be taken, however, as saying that economic loss is always too remote. There are some exceptional cases when it is the immediate consequence of the negligence and is recoverable accordingly. Such is the case when a banker negligently gives a good reference on which a man extends credit, and loses the money. The plaintiff suffers economic loss only, but it is the immediate – almost, I might say, the intended – consequence of the negligent reference and is recoverable accordingly: see Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd. [1964] A.C. 465. Another is when the defendant by his negligence damages a lorry which is carrying the plaintiff’s goods. The goods themselves are not damaged, but the lorry is so badly damaged that the goods have to be unloaded and carried forward in some other vehicle. The goods owner suffers economic loss only, namely, the cost of unloading and carriage, but he can recover it from the defendant because it is immediate and not too remote. It is analogous to physical damage: because the goods themselves had to be unloaded. Such was the illustration given by Lord Roche in Morrison Steamship Co. Ltd. v. Greystoke Castle (Cargo Owners) [1947] A.C. 265. Likewise, when the cargo owners have to pay a general average contribution. It is not too remote and is recoverable.
Seeing these exceptional cases you may well ask: How are we to say when economic loss is too remote or not? Where is the line to be drawn? Lawyers are continually asking that question. But the judges are never defeated by it. We may not be able to draw the line with precision, but we can always say on which side of it any particular case falls.’

Lord Denning
[1971] 1 QB 337, [1970] 3 All ER 245, [1970] 3 WLR 694
England and Wales
Cited by:
Cited – Dutton v Bognor Regis Urban District Council CA 1972
The court considered the liability in negligence of a Council whose inspector had approved a building which later proved defective.
Held: The Council had control of the work and with such control came a responsibility to take care in . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .

Lists of cited by and citing cases may be incomplete.

Damages, Utilities

Leading Case

Updated: 01 November 2021; Ref: scu.186894

Catnic Components Ltd and Another v Hill and Smith Ltd: HL 1982

The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The patent was for a novel type of galvanised steel lintel, which the relevant claim described as including a rear support back plate ‘extending vertically’ from a horizontal plate. The allegedly infringing article included a rear support member which was inclined between 6 degrees and 8 degrees from the vertical. The defendants had not been in business in this field at all, entered the market at the expense of the plaintiffs using an infringing version of the plaintiffs’ patented construction.
Held: The appeal succeeded. The proper damages were on the assumption that the plaintiffs would have made, with their patented lintels, those sales made by the defendants with the infringing lintels save as shown otherwise. An invention involves an inventive step if it is not obvious ‘to a person skilled in the art’ being a person likely to have a practical interest in the subject matter of the invention.
The approach to construction exemplified in Prenn and in Reardon-Smith is to be applied also to the construction of patents claims: ‘A patent specification should be given a purposive construction rather than a purely literal one derived from applying to it the kind of meticulous verbal analysis in which lawyers are too often tempted by their training to indulge.’ and ‘Both parties to this appeal have tended to treat ‘textual infringement’ and infringement of the ‘pith and marrow’ of an invention as if they were separate causes of action, the existence of the former to be determined as a matter of construction only and of the latter upon some broader principle of colourable evasion. There is, in my view, no such dichotomy; there is but a single cause of action and to treat it otherwise . . is liable to lead to confusion.’
Lord Diplock said that it would have been:
‘obvious to a builder familiar with ordinary building operations that the description of a lintel in the form of a weight-bearing box girder of which the back plate was referred to as ‘extending vertically’ from one of the two horizontal plates to join the other, could not have been intended to exclude lintels in which the back plate although not positioned at precisely 90 degree to both horizontal plates was close enough to 90 degree to make no material difference to the way the lintel worked when used in building operations.’ and
‘No plausible reason has been advanced why any rational patentee should want to place so narrow a limitation on his invention. On the contrary, to do so would render his monopoly for practical purposes worthless, since any imitator could avoid it and take all the benefit of the invention by the simple expedient of positioning the back plate a degree or two from the exact vertical.’
Buckley LJ said ‘I do not question the principle that in deciding whether what has been reproduced by an alleged infringer is a substantial part of the work allegedly infringed, one must regard the quality (that is to say the importance) rather than the quantity of the part reproduced (see Ladbroke (Football} Limited v. William Bill (Football J Limited [1964] 1 W.L.R. 273 per Lord Reid at page 276 and per Lord Pearce at page 293); but what is protected is the plaintiffs’ ‘artistic work’ as such, not any information which it may be designed to convey. If it is said that a substantial part of it has been reproduced, whether that part can properly be described as substantial may depend upon how important that part is to the recognition and appreciation of the ‘artistic work’. If an ‘artistic work’ is designed to convey information, the importance of some part of it may fall to be judged by how far it contributes to conveying that information, but not, in my opinion, by how important the information may be which it conveys or helps to convey. What is protected is the skill and labour devoted to making the ‘artistic work’ itself, not the skill and labour devoted to developing some idea or invention communicated or depicted by the ‘artistic work’. The protection afforded by copyright is not, in my judgment, any broader as counsel submitted, where the ‘artistic work1 embodies a novel or inventive idea than it is where it represents a commonplace object or theme.’

Lord Diplock
[1983] FSR 512, [1982] RPC 183
Patents Act 1977 3, Patents Act 1949
England and Wales
Citing:
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
Cited – Clark v Adie HL 1877
The court should look to the ‘pith and marrow’ of the invention to see whether a patent infringement had occurred. For a claim be made for a ‘subordinate’ invention, it would have been necessary distinctly to claim it in the patent. . .

Cited by:
Cited – Coflexip Sacoflexip Stena Offshore Limited v Stolt Offshore Limitedstolt Offshore Limited Stolt Offshore A/S CA 13-Mar-2003
In proceedings already heard the defendant had been found liable for patent infringement, and damages remained to be assessed. They claimed for loss of profits and royalties, and for damages through dilution of the market. The claimants said that to . .
Cited – Stena Rederi Aktiebolag and Another v Irish Ferries Ltd CA 6-Feb-2003
A ferry plied its way between Dublin and Holyhead, coming into English territorial waters three or four times a day, and for up to three hours on each occasion. The claimants asserted that the construction of the hull infringed its patent.
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Explained – Improver Corporation v Remington Consumer Products Ltd ChD 1989
Protocol Tests For Onbviousness Set Out
The invention was based upon the discovery that an arcuate rod with slits, when rotated at high speed, would take the hair off the skin by means of the opening and closing of the slits. The claim was to a rod in the form of an ‘helical spring’ but . .
Cited – PLG Research Ltd and Another v Ardon International Ltd and Others CA 1995
As to Catnic: ‘Lord Diplock was expounding the common law approach to the construction of a patent. This has been replaced by the approach laid down by the Protocol. If the two approaches are the same, reference to Lord Diplock’s formulation is . .
Cited – Assidoman Multipack Ltd v The Mead Corporation 1995
In patents law, the Catnic approach accords with the Protocol. . .
Cited – W L Gore and Associates Gmbh v Geox Spa PatC 7-Oct-2008
The claimants sought a declaration of non-infringement of four patents relating to waterproof fabrics for shoes.
Held: The patents could not be set as invalid for obviousness. . .
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Cited – PLG Research Ltd and Another v Ardon International Ltd and Others ChD 25-Nov-1994
A patent infingement claim was met by the assertion that the material covered had been disclosed before the patent had been obtained. The court was asked as to the test of whether the information in a claim had been disclosed. Aldous J said: ‘Mr. . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – Eli Lilly v Actavis UK Ltd and Others SC 12-Jul-2017
The issue raised on this appeal and cross-appeal is whether three products manufactured by Actavis would infringe a patent whose proprietor is Lilly, namely European Patent (UK) No 1 313 508, and its corresponding designations in France, Italy and . .
Cited – Interlego AG v Tyco Industries Inc PC 5-May-1988
How much new material for new copyright
(Hong Kong) Toy building bricks were manufactured by Lego in accordance with engineering drawings made for that purpose. One issue was whether new drawings made since 1972, altering the original drawings in various minor respects but added new . .
Cited – Warner-Lambert Company Llc v Generics (UK) Ltd (T/A Mylan) and Another SC 14-Nov-2018
These proceedings raise, for the first time in the courts of the United Kingdom, the question how the concepts of sufficiency and infringement are to be applied to a patent relating to a specified medical use of a known pharmaceutical compound. Four . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.179765

Haithwaite v Thomson Snell and Passmore (A Firm): QBD 30 Mar 2009

The claimant sought damages from his former solicitors for admitted professional negligence. The court considered the loss suffered in the handling of his claim against a health authority. The solicitors received advice after issuing that the claimant was a patient and therefore required consent to issue proceedings. Having received that consent they were then advised that he was no longer a patient.
Held: The court found that he would have had a 30% chance of establishing negligence against the hospital, and calculated the losses accordingly.

Nicol J
[2009] EWHC 647 (QB), [2009] 15 EG 99, [2009] PNLR 27
Bailii
England and Wales
Citing:
Cited – Mount v Baker Austin CA 18-Feb-1998
The Defendant solicitors had allowed the Plaintiff’s claim to be struck out for want of prosecution. The court considered how to calculate the value of the loss of the chance of pursuing the claim: ‘1. The legal burden lies on the plaintiff to prove . .
Cited – Hanif v Middleweeks (a firm) CA 19-Jul-2000
The client was the co-owner of a nightclub which had been destroyed by fire. The insurers had issued proceedings for a declaration of non-liability, on the ground (among others) that the fire had been started deliberately by Mr Hanif’s co-owner. Mr . .
Cited – Dixon v Clement Jones Solicitors (A Firm) CA 8-Jul-2004
The defendant firm had negligently allowed a claim for damages against a firm of accountants to become statute barred. The defendants said the claim was of no or little value, since the claimant would have proceeded anyway.
Held: The court had . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Sharif and Others v Garrett and Co CA 31-Jul-2001
The applicants sought damages from the defendant solicitors who had failed to prosecute properly a claim for damages. Their building was damaged by fire, but they had not been insured. The action was against the brokers. The court had awarded them . .
Cited – Hatswell v Goldbergs (a firm) CA 2002
The claimant sought damages from his solicitors where his claim for medical negligence was struck out for delay. The High Court declared his claim as of no value.
Held: The underlying claim in medical negligence was made simply impossible by a . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 01 November 2021; Ref: scu.326985

Bain v Fothergill: HL 1874

The defendants intended to sell to the plaintiffs their leasehold interests in mining royalties, but were under a covenant not to sell without the consent of the lessors. A condition of the sale provided for ‘ the usual covenant for our protection as standing between you and our lessors’. A deposit was paid, but the lessors refused consent. The plaintiffs sought return of their deposit, their costs and expenses of investigating title, and for loss of bargain.
Held: The case fell within Flureau -v- Thornhill, and damages were limited to the recovery of the deposit and expenses of investigating title. ‘It is recognised on all hands that the purchaser is not to be held entitled to recover any loss on the bargain he may have made, if in effect it should turn out that the vendor is incapable of completing his contract in consequence of his defective title.

Hatherley L
(1874) LR 7 HL 158, 43 LJ Ex 243, 31 LT 387, 39 JP 228, 23 WR 261
England and Wales
Citing:
Approved – Flureau v Thornhill 1746
A person who contracts to purchase land, but where the title is, without collusion, defective cannot claim for his loss of bargain. ‘These contracts are merely upon condition, frequently expressed, but always implied, that the vendor has good title. . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.183266

Pickett v British Rail Engineering: HL 2 Nov 1978

Lost Earnings claim Continues after Death

The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives appealed.
Held: The House assumed that, because the claimant had brought a successful claim for his personal injury, a claim by his dependants under the Fatal Accidents Act was precluded, although Lord Salmon emphasised that he expressed no concluded opinion about the correctness of that assumption. Damages could be recovered for loss of earnings in the claimant’s lost years. Only in this way could provision be made for the loss to be suffered by the dependants. Referring to Skelton: ‘The judgments, further, bring out an important ingredient, which I would accept, namely that the amount to be recovered in respect of the earnings in the ‘lost’ years should be that amount after deduction of an estimated sum to represent the victim’s probable living expenses during those years.
There is the additional merit of bringing awards under this head into line with what could be recovered under the Fatal Accidents Acts.’

Lord Wilberforce, Lord Salmon, and Lord Edmund-Davies
[1980] AC 136, [1978] UKHL 4
Bailii
Fatal Accidents Act 1976 1(1)
England and Wales
Citing:
Overruled – Oliver v Ashman CA 1961
The rule that loss of earnings, in the years lost to an injured plaintiff whose life expectancy had been shortened, were not recoverable, was still good law.
Pearce LJ summarised the authorities: ‘The Law Reform Miscellaneous Provisions Act . .
Followed – Skelton v Collins 7-Mar-1966
(High Court of Australia) Damages – Personal Injuries – Loss of earning capacity – Loss of expectation of life – Loss of amenities during reduced life span – Pain and suffering – Plaintiff rendered permanently unconscious by injuries – Basis of . .
Cited – Benham v Gambling HL 1941
The injured person was a child of two and a half. He was unconscious from the moment of the accident until his death, which occurred later on the same day. He had acquired at the time of injury a cause of action for loss of expectation of life.
Cited – Admiralty Commissioners v Steamship Amerika (Owners), The Amerika PC 13-Aug-1917
The Admiralty sought to recover as an item of loss the pensions payable to the widows of sailors killed in an accident to a submarine: . .
Cited – Rose v Ford HL 1937
Damages might be recovered for a loss of expectation of life. A claim for loss of expectation of life survived under the Act of 1934, and was not a claim for damages based on the death of a person and so barred at common law.
Lord Wright . .
Cited – Brunner v Greenslade ChD 1971
Megarry J discussed the ratio decidendi of and approving dicta in Lawrence.
‘The substance of the views of Simonds J was that where there is a head scheme, any sub-purchasers are bound inter se by the covenants of that head scheme even though . .
Cited – Roach v Yates CA 1937
The plaintiff had been gravely injured. His wife and sister-in-law had nursed him and gave up their employment for that purpose.
Held: The plaintiff could recover their lost wages, albeit there was no suggestion of any agreement between the . .
Cited – Chaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
Cited – Read v Great Eastern Railway Company QBD 25-Jun-1868
A railway passenger was injured; he sued and was awarded damages. He died later from injury on the accident.
Held: The widow could not bring an action for loss of dependency under section 1 of the 1846 Act. The cause of action was the . .
Cited – Phillips v London and South Western Railway
Co CA 1879
In an action against the railway company for personal injury to a passenger, a physician, making pounds 5,000 a year, and where is an increasing practice, the jury in assessing the damages to their consideration, besides the pain and suffering of . .
Cited – Williams v Mersey Docks and Harbour Board CA 1905
The deceased suffered an injury in December 1902 which would have entitled him to institute proceedings against the harbour board within the special statutory period of six months pursuant to the 1893 Act. No such action was brought by the deceased, . .
Cited – Murray v Shuter CA 1972
The plaintiff had been badly injured and was not expected to live long. When his claim for damages was almost ready for trial, his lawyers requested an adjournment. It was not possible for a live plaintiff to claim damages for his ‘lost years’. They . .
Cited – Harris v Brights Asphalt Contractors Ltd QBD 1953
The plaintiff was not to be prevented from recovering the costs of private medical treatment.
It was argued and decided that (a) damages for the loss of earnings for the ‘lost years’ is nil, and (b) ‘the only relevance of earnings which would . .
Cited – Pope v D Murphy and Son Ltd QBD 1961
Both the injured plaintiff’s earning capacity and his expectation of life had been diminished and in assessing damages for the diminution of his earning capacity his Lordship had regard to the plaintiff’s pre-accident expectation of life.
Cited – Reid v Lanarkshire Traction Co SCS 1934
(Inner House) The shortening of life was accepted as a head of damage: ‘while the doctrine of an award in respect of the shortening of life may have originated in the theory of mental disquiet about the prospect or the possibility of death . . . . .
Cited – Wise v Kaye CA 1-Dec-1961
. .
Cited – Shephard v H West and Son Ltd HL 27-May-1963
The House looked at how personal injury damages shoud be set in cases of severe injury.
Lord Pearce said: ‘[i]f a plaintiff has lost a leg, the court approaches the matter on the basis that he has suffered a serious physical deprivation no . .
Cited – Jefford v Gee CA 4-Mar-1970
The courts of Scotland followed the civil law in the award of interest on damages. The court gave examples of the way in which they apply the ex mora rule when calculating the interest payable in a judgment. If money was wrongfully withheld, then . .
Cited – McCann v Sheppard CA 1973
The injured plaintiff succeeded in his action for damages for personal injury. The defendants appealed the quantum of damage but before the appeal was heard the plaintiff died. The court was now asked to reduce the award because of the death.
Cited – Cookson v Knowles CA 1977
Lord Denning MR said: ‘In Jefford v Gee . . we said that, in personal injury cases, when a lump sum is awarded for pain and suffering and loss of amenities, interest should run ‘ from the date of service of the ‘writ to the date of trial’. At that . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – Davies v Powell Duffryn Associated Collieries Limited HL 1941
Damages under the Fatal Accidents Acts are calculated having regard to ‘a balance of gains and losses for the injury sustained by the death.
An appellate court should be slow to interfere with a judge’s assessment of damages. Lord Wright . .

Cited by:
Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Applied – Gammell v Wilson; Furness v Massey HL 1982
In each case, the deceased, died as a result of the defendants’ negligence. The parents claimed damages for themselves as dependants under the 1976 Act, and for the estate under the 1934 Act. The claims under the 1976 Act were held to have been . .
Cited – O’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Cited – Reader and others v Molesworths Bright Clegg Solicitors CA 2-Mar-2007
The claimants were children of the victim of a road traffic accident. The solicitors were conducting a claim on his behalf for damages, but when he died, they negligently discontinued the action.
Held: The claimants’ action as dependants of . .

Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Leading Case

Updated: 01 November 2021; Ref: scu.190060

Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas): HL 9 Jul 2008

The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the owners’ new charter which was cancelled. In the meantime hire rates had fallen. The owners claimed damages. The House was asked ‘is the rule that a party may recover losses which were foreseeable (‘not unlikely’) an external rule of law, imposed upon the parties to every contract in default of express provision to the contrary, or is it a prima facie assumption about what the parties may be taken to have intended, no doubt applicable in the great majority of cases but capable of rebuttal in cases in which the context, surrounding circumstances or general understanding in the relevant market shows that a party would not reasonably have been regarded as assuming responsibility for such losses? ‘
Held: The charters were not liable for the owners losses in the absence of a clause making them so. The general understanding in the shipping industry was that damages were not recoverable for loss of a profitable following fixture.

Lord Hoffmann, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond
[2008] UKHL 48, Times 10-Jul-2008
Bailii, HL
England and Wales
Citing:
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
At first instance – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Appeal from – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia (the ‘Achilleas’) CA 6-Sep-2007
The court considered damages for late redelivery of a time-chartered vessel. . .
Cited – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) HL 28-Oct-1994
In a continuing charter when it was clear that the time of the charter will be exceeded, the contract allows an action for an anticipatory breach. Any new redelivery order was to be obtained after after it first became impossible to meet the charter . .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – Alma Shipping Corpn of Monrovia v Mantovani (The Dione) CA 1974
Lord Denning MR said that, in relation to a charterparty for a stated period such as ‘three months’ or ‘six months’, without any express margin or allowance: ‘the court will imply a reasonable margin or allowance. The reason is because it is not . .
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .
Cited – Hyundai Merchant Marine Co Ltd v Gesuri Chartering Co Ltd (The Peonia) CA 1991
If a legitimate last voyage under a charterparty nevertheless proves in the event to exceed the implied margin, the charterer will be bound to pay any increase in the market rate above the charter rate during the period of the excess. . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Cited – Arta Shipping Co Ltd v Thai Europe Tapioca Service Ltd (The Johnny) 1977
When claiming damages for the loss of a charter, the market rate for a substitute charter ‘must be ascertained by postulating a charter-party which corresponds as closely as possible with the actual charter-party.’ . .
Cited – Satef-Huttenes Albertus SpA v Paloma Tercera Shipping Co SA (The Pegase) 1981
Robert Goff J set out the limits of the kinds of losses for which a reasonable person would consider himself responsible: ‘The test appears to be: have the facts in question come to the defendant’s knowledge in such circumstances that a reasonable . .
Cited – Mulvenna v Royal Bank of Scotland Plc CA 25-Jul-2003
The court considered an an application to strike out a claim for damages for the loss of profits which the claimant said he would have made if the bank had complied with its agreement to provide him with funds for a property development.
Held: . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Monarch Steamship Co Ltd v Karlshamns Oljefabriker A/B HL 1949
Damages were sought for breach of contract.
Held: After reviewing the authorities on remoteness of damage, the court reaffirmed the broad general rule that a party injured by the other’s breach of contract is entitled to such money . .
Cited – Transworld Oil Ltd v North Bay Shipping Corpn (The Rio Claro) 1987
Staughton J said that for a loss arising from a breach of contract to be recoverable: ‘It must be such as the contract breaker should reasonably have contemplated as not unlikely to result. To that direction must be added the point that the precise . .
Cited – Victoria Laundry (Windsor) Ltd v Newman Industries CA 1949
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
Cited – Banco de Portugal v Waterlow and Sons Ltd HL 28-Apr-1932
Lord Macmillan said: ‘Where the sufferer from a breach of contract finds himself in consequence of that breach placed in position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in . .
Cited – The ‘Pegase’ 1981
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single . .
Cited – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) ChD 1991
The ship was returned late from a charter. The court was asked whether or not the legitimacy of the last voyage fell to be established at the date when the order was given or at the time when the last voyage began.
Held: It was the second: . .
Cited – Torvald Klaveness A/S v Arni Maritime Corporation (The Gregos) CA 4-Jun-1993
The ship was returned by the charterer after the expiry of the time charter. The court was asked as to when the validity of the last order was to be tested.
Held: The legitimacy of the charterer’s final order was to be tested at the date it . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.270659

Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority: CA 26 Jun 1996

A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now appealed an order striking out their claim on the baiss that it disclosed no reasonable cause of damage.
Held: The appeal failed. Next of kin have no right to regain possession of a deceased’s body part which had been removed for autopsy. There was no ownership of a body after death. The autopsy process did not transform a body part into an object capable of ownership. The claim was pleaded in conversion, bailment and wrongful interference with the brain, and the plaintiffs could not establish that they had the right to possession at the time the brain was disposed of. The plaintiff’s desire to discover exactly what had happened to all the body parts was not a sufficient reason for litigation.
Where there is no executor the duty to take possession of and dispose of the body of the deceased falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration

Peter Gibson LJ, Butler-Sloss LJ, Peter Gibson LJ
Times 15-Jul-1996, Gazette 29-Aug-1996, [1997] 1 WLR 596, [1996] EWCA Civ 1301, (1997) 33 BMLR 146, [1997] 1 FLR 598, [1997] 8 Med LR 357, [1996] 4 All ER 474, [1997] Fam Law 326, [1997] 2 FCR 651
Bailii
Coroners Rules 1984 (1984 No 552)
England and Wales
Citing:
Considered – Doodeward v Spence 1908
(High Court of Australia) The police seized from an exhibitor the body of a two headed still born baby which had been preserved in a bottle.
Held: An order was made for its return: ‘If, then, there can, under some circumstances, be a continued . .
Cited – Armory v Delamirie KBD 1722
A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled ‘unless the defendant did produce the . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Williams v Williams 1882
By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her . .
Cited – Clarke v London General Omnibus Co Ltd 1906
The parent of an infant child who dies where the parent has the means to do so, has a responsibility to arrange and pay for the burial. . .
Cited – Sharp v Lush 1879
An executor appointed by will is entitled to obtain possession of the body for its proper disposal. . .
Cited – Rees v Hughes 1946
The need to arrange for funerals is a common law obligation ‘in the nature of a public duty’. . .

Cited by:
Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Buchanan v Milton FD 27-May-1999
The applicant sought to displace, solely for burial purposes, as personal representative a person who was otherwise entitled to a grant.
Held: Hale J said: ‘There is no right of ownership in a dead body. However, there is a duty at common law . .
Cited – Anstey v Mundle and Another ChD 25-Feb-2016
The deceased had been born in Jamaica, but had lived in the UK for many years. The parties, before a grant in the estate of the deceased, disputed whether he should be buried in England or returned to Jamaica for burial.
Held: Having . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.80077

Esso Petroleum Company Ltd v Mardon: CA 6 Feb 1976

Statements had been made by employees of Esso in the course of pre-contractual negotiations with Mr Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the station. Mr Mardon was persuaded by the statements to enter into the tenancy; but he suffered serious loss when the actual throughput proved to be much lower than had been predicted. Mr Marden did his best but he lost his capital and incurred a large bank overdraft as a result of his trading losses.
Held: Mr. Mardon was entitled to recover damages from Esso, on the basis of either breach of warranty or (on this point affirming the decision of the judge below) negligent misrepresentation. A contractor is not free to carry on with a disastrous contract and then seek to recover any losses on the basis of fraud. A special relationship, giving rise to a duty of care, may arise between the parties negotiating a contract if information is given in connection with the contract.
Lord Denning MR held: ‘A professional man may give advice under a contract for reward; or without a contract, in pursuance of a voluntary assumption of responsibility, gratuitously without reward. In either case he is under one and the same duty to use reasonable care: see Cassidy v. Ministry of Health [1951] 2 K.B. 343, 359-360. In the one case it is by reason of a term implied by law. In the other, it is by reason of a duty imposed by law. For a breach of that duty he is liable in damages: and those damages should be, and are, the same, whether he is sued in contract or in tort.’ and: ‘He is only to be compensated for having been induced to enter into a contract which turned out to be disastrous for him. Whether it be called breach of warranty or negligent misrepresentation, its effect was not to warrant the throughput but only to induce him to enter the contract. So the damages in either case are to be measured by the loss he suffered. Just as in Doyle v Olby he can say: ‘I would not have entered into this contract at all but for your representation. Owing to it, I have lost all the capital I put into it. I also incurred a large overdraft. I have spent four years of my life in wasted endeavour without reward: and it will take sometime to re-establish myself.’ For all such loss he is entitled to recover damages.’
Ormrod and Shaw LJJ agreed that Mr. Mardon was entitled to recover damages either for breach of warranty or for negligent misrepresentation.

Lord Denning MR, Ormrod, Shaw LJJ
[1976] QB 801, [1976] EWCA Civ 4, [1976] 2 All ER 5
Bailii
England and Wales
Citing:
Cited – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages, Negligence, Contract

Leading Case

Updated: 31 October 2021; Ref: scu.185449

Paff v Speed: 6 Apr 1961

(High Court of Australia) ‘The first consideration is what is the nature of the loss or damage which the plaintiff says he has suffered.’
Damages – Personal injuries – Matters to be considered in reduction of damages – Plaintiff policeman at time of injury – Subsequent compulsory retirement from Police Force – Pension awarded – Evidence adduced by plaintiff of pension rights had he continued in Police Force – Evidence of award of pension admissible – Excessiveness of damages – Consideration of present value of pension – Police Regulation Act, 1899

Dixon C.J.(1), McTiernan(2), Fullagar(3), Menzies(4) and Windeyer(5) JJ.
(1961) 105 CLR 549, [1961] HCA 14, [1961] ALR 614, 35 ALJR 17
Austlii
Australia
Cited by:
Cited – Cantwell v Criminal Injuries Compensation Board HL 5-Jul-2001
When calculating the losses suffered by a victim of crime, the allowance to be made for losses to a retirement pension through having to retire early should have set off against them, the benefits received by way of payments for his ill-health, . .
Cited – Longden v British Coal Corporation HL 13-Mar-1997
The plaintiff was injured whilst at work in one of the defendant’s collieries. The House considered the deductibility from damages awarded for personal injury of a collateral benefit.
Held: The issue of deductibility where the claim is for . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Cited – Jones v Gleeson 1965
(Australia) When a policeman who had retired retired through injury sought damages for that injury, the pension he received as a result of his retirement was to be ignored entirely: ‘In recent years, however, the relevance or otherwise to the issue . .

Lists of cited by and citing cases may be incomplete.

Damages

Leading Case

Updated: 31 October 2021; Ref: scu.219831

Yarl’s Wood Immigration Ltd and Others v Bedfordshire Police Authority: CA 23 Oct 2009

The claimant sought to recover the costs of damage to their centre following a riot, saying that under the 1886 Act, they were liable. It appealed against a ruling that they were unable to claim as a public authority, saying that the 1886 Act was not limited in the way suggested.
Held: Though privately operated, the claimants were satisfying a statutory duty. The appeal succeeded, and the claimants could continue with their claims. The law operated within the Centre as much as outside it. The Act imposed strict liability: ‘as is so often the case with strict liability, it is because those who are liable to compensate are also regarded by the law as standing in the shoes of the wrongdoers themselves (as, for instance, in the case of the vicariously liable), in part because their obligation, their strict obligation, is to prevent what has happened happening.’

Rix, Wall, Aikens LJJ
[2009] EWCA Civ 1110, [2010] 2 WLR 1322, [2010] 2 All ER 221
Bailii
Riot (Damages) Act 1886
England and Wales
Citing:
Appeal from – Yarl’s Wood Immigration Ltd and others v Bedfordshire Police Authority ComC 30-Sep-2008
The owners of the Yarslwood Immigration centre sought damages under the 1886 Act after a riot at the centre caused substantial damage.
Held: The claim failed: ‘The fact that YWIL and GSL [the appellants] were acting as public authorities . .
See Also – Bedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
See Also – Bedfordshire Police Authority v Constable CA 12-Feb-2009
The police had responded to a riot at Yarlswood detention centre. They had insurance to cover their liability under the 1886 Act, but the re-insurers said that the insurance did not cover the event, saying that the liability was for statutory . .
Cited – YL v Birmingham City Council and Others HL 20-Jun-2007
The House was asked whether a private care home when providing accommodation and care to a resident under arrangements with a local authority the 1948 Act, is performing ‘functions of a public nature’ for the purposes of section 6(3)(b) of the Human . .
Cited – Glasbrook Brothers Limited v Glamorgan County Council HL 1925
A colliery manager asked for police protection for his colliery during a strike. He wanted police officers to be billeted on the premises. The senior police officer for the area was willing to provide protection by a mobile force, but he refused to . .
Cited – Radcliffe v Eden 1776
Police Liabie for Damage to Furniture in Riot
The owners of furniture destroyed by rioters who entered a house and damaged it recovered compensation, even though the 1714 Act did not expressly mention furniture.
Lord Mansfield said: ‘To encourage people to resist persons thus riotously . .
Cited – Mason v Sainsbury 19-Apr-1782
A claim was made upon insurance after a riot. The court asked asked ‘Who is first liable?’ This was not an issue of chronology but of establishing where the primary responsibility lay to make good the loss. The Act laid the primary responsibility . .
Cited – Glamorgan Coal Co v Glamorgan Joint Standing Committee 1915
Bankes LJ said that the duties of police forces include the preservation of the peace, the protection of the inhabitants, and the safeguarding of property within their area. . .
Cited – Kaufmann Brothers v Liverpool Corporation KBD 1916
It was argued that a claim under the 1886 Act was a claim for ‘alleged neglect or default’ within the meaning of the 1893 Act, so that the claim was time-barred under that Act.
Held: The argument failed. The 1893 Act did not apply.
Lush J . .
Cited – Pitchers v Surrey County Council 1923
In 1919 there was a riot involving Canadian soldiers from a local Camp. They released fellow soldiers in custody and raided the officers’ mess, and damaged and stole the contents of a tailor’s shop and other shops known as ‘Tin Town’ – a group of . .
Cited – Glasbrook Brothers Limited v Glamorgan County Council HL 1925
A colliery manager asked for police protection for his colliery during a strike. He wanted police officers to be billeted on the premises. The senior police officer for the area was willing to provide protection by a mobile force, but he refused to . .
Applied – Pitchers v Surrey County Council CA 2-Jan-1923
The claimant sought payment for damages to his property after imprisoned Canadian troops were released and came into the town causing damage.
Held: Lord Sterndale said: ‘it is said that this camp under the circumstances ceased to be within the . .
Cited – J W Dwyer Ltd v Metropolitan Police District Receiver 1967
The owner of a jewellery shop claimed to recover compensation from the police for damage to his shop in a smash and grab raid. Since there were more than 3 robbers, the police accepted that there had been a riot but defended the claim on the basis . .
Cited – River Wear Commissioners v Adamson HL 1877
It was not necessary for there to be an ambiguity in a statutory provision for a court to be allowed to look at the surrounding circumstances.
As to the Golden Rule of interpretation: ‘It is to be borne in mind that the office of the judge is . .
Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – DH Edmonds Ltd v East Sussex Police Authority CA 6-Jul-1988
The plaintiffs Brighton jewellers sought compensation from the police authority for a raid on their premises by three or four men. Kenneth Jones J at first instance held that the incident did not involve a tumultuous assembly and accordingly the . .
Cited – Moses v Marsland 1901
A ‘public building’ is a building which the public is invited to enter or to which it can demand admission. . .
Cited – Stock v Frank Jones (Tipton) Ltd HL 1978
Where the words of a statute are clear, it is not open to the court to limit, change or disregard that meaning on the ground that the result of the legislation as drafted would be anomalous or absurd.
Lord Simon of Glaisdale said as to an . .

Lists of cited by and citing cases may be incomplete.

Police, Damages

Updated: 31 October 2021; Ref: scu.377240

Johnson v Unisys Ltd: HL 23 Mar 2001

The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair dismissal is a complete system, and was intended to replace any common law action for damages arising from the manner of dismissal. The statutory system allowed a tribunal to award such compensation as it thought just and equitable. It is no longer proper to try to treat contracts of employment as commercial contracts. The statutory system could include damages for matters beyond the purely financial. The statutory system included elements of policy foreign to the common law system. Nevertheless damages might properly be awarded for losses by way of psychiatric damages and consequent losses which arise from the manner of dismissal where that was a breach of the contractual duty of good faith. It would not be appropriate to attempt to achieve the same result by subjecting the employer’s contractual rights to a tortious duty of care.
Lord Hoffmann said: ‘At common law the contract of employment was regarded by the courts as a contract like any other. The parties were free to negotiate whatever terms they liked and no terms would be implied unless they satisfied the strict test of necessity applied to a commercial contract. Freedom of contract meant that the stronger party, usually the employer, was free to impose his terms upon the weaker. But over the last 30 years or so, the nature of the contract of employment has been transformed. It has been recognised that a person’s employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. The law has changed to recognise this social reality. Most of the changes have been made by Parliament. The Employment Rights Act 1996 consolidates numerous statutes which have conferred rights upon employees . . ‘

Lord Bingham of Cornhill Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Millett
Times 23-Mar-2001, [2001] UKHL 13, [2001] IRLR 279, [2001] 2 All ER 801, [2001] 2 WLR 1076, [2001] ICR 480, [2003] 1 AC 518
House of Lords, Bailii
Employment Rights Act 1996
England and Wales
Citing:
Appeal from – Johnson v Unisys Limited CA 4-Dec-1998
The claimant had been dismissed. He said the manner of his dismissal had caused him to suffer a mental breakdown, and claimed for loss of earnings. He asserted a duty on an employer not to dismiss him in such a way as to infringe the duty of trust . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Explained – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited – Scally v Southern Health and Social Services Board HL 1991
The plaintiffs were junior doctors employed by the respondents. Their terms had been collectively negotiated, and incorporated the Regulations. During the period of their employment different regulations had given and then taken way their right to . .
Cited – Spring v Guardian Assurance Plc and Others HL 7-Jul-1994
The plaintiff, who worked in financial services, complained of the terms of the reference given by his former employer. Having spoken of his behaviour towards members of the team, it went on: ‘his former superior has further stated he is a man of . .
Cited – West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation HL 1970
The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the . .
Cited – United Bank Ltd v Akhtar 1989
An employer’s express right to transfer an employee may be qualified by the obligation of mutual trust and confidence. . .
Cited – Foaminol Laboratories Ltd v British Artide Plastics Ltd 1941
There is no justification for artificially excising from the damages recoverable for breach of contract that part of the financial loss which might or might not be the subject of a successful claim in defamation. A claim for mere loss of reputation . .
Cited – Malloch v Aberdeen Corporation HL 1971
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: ‘At common law a master is not bound to hear his . .
Cited – Walker v Northumberland County Council QBD 16-Nov-1994
The plaintiff was a manager within the social services department. He suffered a mental breakdown in 1986, and had four months off work. His employers had refused to provide the increased support he requested. He had returned to work, but again, did . .

Cited by:
Cited – Morrow v Safeway Stores Plc EAT 21-Sep-2000
The complainant appealed a decision that she had not been constructively dismissed. She had been told off in public, causing her great distress. The tribunal had found the employer’s behaviour regrettable but not such as to break the duty of trust . .
Cited – McCabe v Cornwall County Council, The Governing Body of Mounts Bay School CA 23-Dec-2002
The claimant sought damages for the consequences of having been suspended from work as a teacher. He later recovered damages for unfair dismissal, and the court had struck out his claim for damages over and above those already awarded.
Held: . .
Cited – Kenneth Cobley v Forward Technology Industries Plc CA 14-May-2003
The claimant had been chief executive and a director of the respondent for many years, but was dismissed upon it being taken over. His contract of employment as chief executive provided that it was to be coterminous with his appointment as director. . .
Examined – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Cited – Eastwood v Magnox Electric plc CA 2002
There was a claim for damages in respect of psychiatric injury said to result from a breach of the implied term of trust and confidence, which was asserted to be recoverable notwithstanding Johnson, on the basis that the acts of the employer . .
Cited – Boardman v Copeland Borough Council CA 13-Jun-2001
The claimant had ‘neither pleaded nor shown any damage to him during the course of his employment which resulted from his employer’s conduct. The only damage which is demonstrated is that which followed from his dismissal and, arguably, the manner . .
Cited – Horkulak v Cantor Fitzgerald International QBD 31-Jul-2003
The claimant sought damages for constructive dismissal. He said that verbal abuse he had suffered from the manager damaged his health and destroyed the relationship of trust and confidence.
Held: The manager was dictatorial and saw it as his . .
Cited – Sally Harper v Virgin Net Limited CA 10-Mar-2004
The employee had been dismissed. Her contractual notice period was longer than the statutory period.
Held: The statutory notice period prevailed in calculating the date of dismissal. The contractual period could not be used to extend the total . .
Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Cited – Dunnachie v Kingston-upon-Hull City Council HL 15-Jul-2004
The claimant sought damages following his dismissal to include a sum to reflect the manner of his dismissal and the distress caused.
Held: The remarks of Lord Hoffmann in Johnson -v- Unysis were obiter. The court could not, under the section, . .
Cited – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Cited – Kaur v MG Rover Group Ltd CA 17-Nov-2004
The applicant was employed by the respondent who had a collective agreement with a trade union.
Held: Not all elements of the collective agreement need be intended to be legally enforceable. She complained that the collective agreement would . .
Cited – Reda, Abdul-Jalil v Flag Limited PC 11-Jul-2002
PC (Bermuda) The courts should be reluctant to accept a fetter on the employer’s right to dismiss on notice where there is an express term in the contract empowering the employer to do so.
Lord Millet . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Morrow v Safeway Stores Plc EAT 21-Sep-2001
The claimant appealed against dismissal of her claim of unfair constructive dismissal. She complained of having been publicly told off. The court considered whether this amounted to a breach of a fundamental term of her contract entitling her to . .
Cited – GAB Robins (UK) Ltd v Triggs CA 30-Jan-2008
The claimant had been awarded damages for unfair constructive dismissal. The employer appealed an award of damages for the period prior to the acceptance by the employee of the repudiatory breach.
Held: Where a claimant’s losses arose before . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust QBD 31-Jul-2009
The claimant, a consultant surgeon had been subject to disciplinary proceedings by his employer. They were however conducted in a manner which breached his contract. The GMC had summarily dismissed the same allegations. The claimant now appealed . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust CA 26-May-2010
The claimant, a consultant doctor, sought damages saying that his employer had failed to follow the contract when disciplining and dismissing him. The GMC had dismissed as unfounded the allegation on which the dismissal was based. He sought damages . .
Cited – Botham v The Ministry of Defence QBD 26-Mar-2010
botham_modQBD10
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
Cited – Gisda Cyf v Barratt SC 13-Oct-2010
The parties disputed the effective date of termination of the claimant’s employment. Was it the date on which the letter notifying her was sent, or was it on the day she received it. She had been dimissed without notice, and the date was the date on . .
Cited – The Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust SC 14-Dec-2011
The claimant had been employed as consultant surgeon. He had been dismissed in a manner inconsistent with the extress terms of his employment contract. He sought common law damages for the manner of his dismissal. The employer appealed.
Held: . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Cited – Braganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .
Cited – Sharpe v The Bishop of Worcester CA 30-Apr-2015
Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles but a person could not be nominated without the Bishop’s approval, which was . .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .

Lists of cited by and citing cases may be incomplete.

Employment, Damages

Leading Case

Updated: 31 October 2021; Ref: scu.82561

TLT and Others v The Secretary of State for The Home Department and Another: QBD 24 Jun 2016

Damages for Publication of Asylum Applicants Data

The claimants had been part of the family returns process, returning failed asylum seekers to their countries of origin. The defendant collected data about the process and published a spreadsheet which was intended to provide an anonymous summary of the process, but in fact also contained many private details about the claimants.
Held: The court found that the various defendants were living difficult lives and were variously subject to fear stress and shock. Damages were awarded at between 2500 and 6000 pounds.

Mitting J
[2016] EWHC 2217 (QB)
Bailii
Data Protection Act 1998 13
England and Wales
Citing:
Applied – Google Inc v Vidal-Hall and Others CA 27-Mar-2015
Damages for breach of Data Protection
The claimants sought damages alleging that Google had, without their consent, collected personal data about them, which was resold to advertisers. They used the Safari Internet browser on Apple products. The tracking and collation of the claimants’ . .

Lists of cited by and citing cases may be incomplete.

Information, Damages

Updated: 31 October 2021; Ref: scu.570720

Dutton v Bognor Regis Urban District Council: CA 1972

The court considered the liability in negligence of a Council whose inspector had approved a building which later proved defective.
Held: The Council had control of the work and with such control came a responsibility to take care in performing all associated tasks.
Lord Denning MR said: ‘If Mr Tapp’s submissions were right, it would mean that if the inspector negligently passes the house as properly built and it collapses and injures a person, the council are liable : but if the owner discovers the defect in time to repair it – and he does repair it – the council are not liable. That is an impossible distinction. They are liable in either case’.
Lord Denning MR
[1972] 1 All ER 462, [1972] 2 WLR 299, [1972] 1 QB 373, [1972] CLY 2352
England and Wales
Citing:
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Cited – Dorset Yacht Co Ltd v Home Office HL 6-May-1970
A yacht was damaged by boys who had escaped from the supervision of prison officers in a nearby Borstal institution. The boat owners sued the Home Office alleging negligence by the prison officers.
Held: Any duty of a borstal officer to use . .
Cited – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
Cited – Launchbury v Morgans CA 1971
The wife owned the car. The husband who had drunk to excess drove the car with her permission, causing severe injury to the passengers and his own death. She was not present.
Held: From considerations of policy, as the owner of the family car . .
Cited – SCM (United Kingdom) Ltd v W J Whittall and Son Ltd CA 1970
The defendants’ workmen damaged an electric cable belonging to the electricity board, cutting off several factories, including the plaintiff’s. The defendant sought to have the claim struck out.
Held: The part of the claim arising from . .

Cited by:
Cited – Anns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .
Cited – Murphy v Brentwood District Council HL 26-Jul-1990
Anns v Merton Overruled
The claimant appellant was a house owner. He had bought the house from its builders. Those builders had employed civil engineers to design the foundations. That design was negligent. They had submitted the plans to the defendant Council for approval . .
Cited – Bellefield Computer Services Limited, Unigate Properties Limited; Unigate Dairies Limited; Unigate (Uk) Limited; Unigate Dairies (Western) Limited v E Turner and Sons Limited Admn 28-Jan-2000
The Defendant builders constructed a steel building to be used as, inter alia. a dairy. The original owners sold it to the appellants. A fire spread from the storage area to the rest of the dairy and caused much damage. The Builders, had they . .
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.180551

McFarlane v Tayside Health Board: OHCS 11 Nov 1996

No damages are awardable for the birth of child following the failure of a vasectomy. It is against public policy to treat the birth of a child as a loss.
Times 11-Nov-1996
Scotland
Cited by:
Appeal from – McFarlane v Tayside Health Board IHCS 8-May-1998
Damages were payable where child born after vasectomy of husband and sperm tests gave false confirmation. This even though gift of a child a normal and healthy process and happy outcome. . .
Outer House – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.83533

McFarlane v Tayside Health Board: IHCS 8 May 1998

Damages were payable where child born after vasectomy of husband and sperm tests gave false confirmation. This even though gift of a child a normal and healthy process and happy outcome.
Times 08-May-1998
Scotland
Citing:
Appeal from – McFarlane v Tayside Health Board OHCS 11-Nov-1996
No damages are awardable for the birth of child following the failure of a vasectomy. It is against public policy to treat the birth of a child as a loss. . .

Cited by:
Appeal from – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.83534

Hayes and Another v Dodd: CA 7 Jul 1988

The court considered what damages might be paid for inconvenience and distress.
Purchas LJ, Staughton LJ, Waller LJ
[1988] EWCA Civ 8, [1990] 2 All ER 815
Bailii
England and Wales
Cited by:
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.252501

Lips Maritime Corp. v President of India: PC 1988

Lord Brandon of Oakbrook: ‘There is no such thing as a cause of action in damages for late payment of damages. The only remedy which the law affords for delay in paying damages is the discretionary award of interest pursuant to statute.’
Lord Brandon of Oakbrook
[1988] AC 395
Commonwealth
Cited by:
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.252498

Evis and Smith v Commission for New Towns: LT 31 Dec 2000

LT COMPENSATION – preliminary issue – disturbance payment – Land Compensation Act 1973 s 37 – business premises acquired by authority with compulsory purchase powers – land later developed by company with lease from authority – entitlement to compensation under Landlord and Tenant Act 1954 s 37 – whether such entitlement precludes compensation under 1973 Act s 37(1)(a) – whether fact that development not carried out by authority precludes compensation under s 37(1)(c) – held compensation under s 37(1)(a) not precluded but no entitlement under s 37(1)(c)
ACQ/125-7/2000
Land Compensation Act 1973 37
England and Wales

Updated: 10 October 2021; Ref: scu.170276

Heaton and others v AXA Equity and Law Life Assurance Society Plc and Another: CA 19 May 2000

Where a claimant had settled one claim with one of two joint tortfeasors on an issue which also concerned the action against the second, it was a matter for interpretation of that settlement as to whether or not the claimant could continue the action against the remaining defendant. In such an action where the claimant had received full compensation the defendant in the second action could seek a contribution from the defendant in the first.
Times 07-Jun-2000, [2000] EWCA Civ 164, [2000] 3 WLR 1341, [2001] Ch 173, [2001] CP Rep 10, [2000] 4 All ER 673, [2000] CPLR 505
Bailii
Civil Liability (Contributions) Act 1978
England and Wales
Citing:
Cited – Jameson and Another v Central Electricity Generating Board and others HL 16-Dec-1998
A joint tortfeasor’s concurrent liability was discharged entirely by a full and final settlement and compromise of the claim against the other tortfeasor if in respect of the same harm. A dependency claim made by the claimant’s executors could not . .
Appeal from – Heaton and Others v Axa Equity and Law Life Assurance Society Plc and Axa Equity and Law Unit Trust Managers Limited ChD 27-May-1999
Where a plaintiff settled a claim against one of two defendants, the court would be ready to look carefully at the full details of the settlement to see whether or not the co-defendant was intended also to be released by or under the terms of that . .

Cited by:
Appeal from – Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Updated: 10 October 2021; Ref: scu.147197

Abnett v British Airways Plc (Scotland): IHCS 28 Apr 1995

A passenger wrongfully detained in Kuwait, whilst travelling at the time when Iraq invaded Kuwait, only has right to claim damages under Warsaw Convention.
Lord Allanbridge, Lord Mayfield and Lord Clyde
Times 22-Jun-1995, 1996 SLT 529
Warsaw Convention for the Unification of Certain Rules regarding International Air Transport 1929
Scotland
Citing:
Distinguished – Gatewhite v Iberia Lineas Aereas de Espana SA 1990
In a contract for the carriage of goods by air, the court considered whether the owner of goods who had not been named as the consignor or consignee on the air waybill was entitled to sue the carrier for damages to the goods while in transit.
Cited by:
Appeal from – Sidhu and Others v British Airways Plc; Abnett (Known as Sykes) v Same HL 13-Dec-1996
The claimants had been air passengers who were unlawfully detained in Kuwait, when their plane was captured whilst on the ground on the invasion of Kuwait. They sought damages for that detention.
Held: There are no exceptions to the Warsaw . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.77611

Reichmann and Another v Gauntlett and Another: CA 20 Jun 2006

Application for leave to appeal. Defendant tenant arguing that landlord had duty to mitigate losses after tenant vacates premises. Leave granted.
Lord Justice Auld, Lord Justice Rix and Lord Justice Lloyd
[2006] EWCA Civ 967
Bailii
England and Wales
Cited by:
See Also – Reichman and Another v Beveridge CA 13-Dec-2006
The defendants were tenants of the claimant. They vacated the premises and stopped paying the rent. The claimant sought payment of the arrears of rent. The defendants said that the claimants should have taken steps to reduce their damages by seeking . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.243360

Smith v Lancashire Teaching Hospitals NHS Foundation Trust and Others: CA 28 Nov 2017

Sir Terence Etherton MR agreed with counsel that ‘the only sure common thread running through the various descriptions of the ambit test, for the purposes of article 14, in the several speeches in M [2006] 2 AC 91 is that the connection or link between the facts and the provisions of the Convention conferring substantive rights must be more than merely tenuous’. He summarised the position: ‘The claim is capable of falling within article 14 even though there has been no infringement of article 8. If the state has brought into existence a positive measure which, even though not required by article 8, is a modality of the exercise of the rights guaranteed by article 8, the state will be in breach of article 14 if the measure has more than a tenuous connection with the core values protected by article 8 and is discriminatory and not justified. It is not necessary that the measure has any adverse impact on the complainant in a positive modality case other than the fact that the complainant is not entitled to the benefit of the positive measure in question.’
Sir Terence Etherton MR, McCombe LJ, Sir Patrick Elias
[2017] EWCA Civ 1916, [2018] 2 WLR 1063, [2017] WTLR 1469, [2017] WLR(D) 799, (2018) 162 BMLR 1, [2018] QB 804, [2018] PIQR P5
Bailii, WLRD
Fatal Accidents Act 1976, European Convention on Human Rights
England and Wales
Cited by:
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.599717

Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Man) Ltd: CA 8 Mar 1994

Where shares had been purchased at an artificially inflated price, after a fraudulent misrepresentation, the loss was calculated on the value they would have had on the market with full knowledge of the company’s affairs, absent that misrepresentation.
Gazette 08-Jun-1994, Times 08-Mar-1994, Gazette 20-Apr-1994
England and Wales
Cited by:
Appeal from – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.89322

Ruxley Electronics and Construction Ltd v Forsyth: CA 7 Jan 1994

In 1986, the defendant, wanted a swimming pool adjoining his house. He contracted with the plaintiffs. The contract price for the pool, with certain extras, was 17,797.40 pounds including VAT. The depth of the pool was to be 6 ft 6 in at the deep end. Later Mr Forsyth wanted the depth increased to 7ft 6in. He had a conversation with Mr Hall, who owned or controlled the plaintiff company. Mr Hall agreed to increase the depth without extra charge, but built it to the original specification.
Held: The damages payable for the incorrect building of a swimming pool may be the cost of rebuilding it according to correct specification.
Dillon LJ, dissented, saying: ‘If the evidence had been that the value of the pool as constructed was less than the value of a pool with a depth of 7 ft 6 in as contracted for, but that the loss of value was substantially less than the andpound;21,560 cost of reinstatement, then, given the finding that the pool as constructed is still deep enough to be perfectly safe to dive into, the obvious course would have been to award Mr Forsyth the loss of value. The basis of that would have been reasonableness. He has no absolute right to be awarded the cost of reinstatement. I see no reason, therefore, why if there has been no loss in value, he should automatically become entitled to the cost of reinstatement, however high. That would be a wholly unreasonable conclusion in law. Accordingly, I agree with the judge’s approach and would dismiss this appeal.’
Staughton LJ held that Mr Forsyth was entitled to the cost of reinstatement, however expensive, since there was no other way of giving him what he had contracted for. While reasonableness lies at the heart of the rule that a plaintiff must mitigate his damage, it plays no part at all where there is no cheaper remedy available for the defendant’s breach of contract: ‘What money will place him ‘in the same situation . . as if the contract had been performed?’ The answer, on the facts of this case, is the cost of replacing the pool. Otherwise, a builder of swimming pools need never perform his contract. He can always argue that 5 ft in depth is enough for diving, even if the purchaser has stipulated for 6, 7 or 8 ft, and pay no damages. In my judgment the key lies in the proposition of Oliver J that reasonableness is a matter of mitigation. It is unreasonable of a plaintiff to claim an expensive remedy if there is some cheaper alternative which would make good his loss. Thus he cannot claim the cost of reinstatement if the difference in value would make good his loss by enabling him to purchase the building or chattel that he requires elsewhere. But if there is no alternative course which will provide what he requires, or none which will cost less, he is entitled to the cost of repair or reinstatement even if that is very expensive . . Since there is no other alternative which will provide that which he has contracted for, he is entitled to incur that expense and charge it to the defendant.’
It was irrelevant that Mr Forsyth did not intend to rebuild the pool. What a plaintiff does with his damages is no concern to the defendant.
Mann LJ accepted that there may be cases where it would be unreasonable to award the cost of rectifying a failed project. But this was not such a case, because the bargain was for what Mann LJ called ‘a personal preference’. Although the value of the pool was the same, as found by the judge, Mr Forsyth was entitled to have his personal preference satisfied. The only way that could be done was by rebuilding the pool. Since the majority of the court awarded the full cost of reinstatement, they set aside the judge’s award of andpound;2,500 general damages for loss of amenity.
Mann LJ, Dillon LJ, Staughton LJ
Gazette 16-Feb-1994, Times 07-Jan-1994, [1994] 3 All ER 801, [1994] 1 WLR 650
England and Wales
Cited by:
Appeal from – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Channel Island Ferries Ltd v Cenargo Navigation Ltd (The Rozel) QBD 5-Apr-1994
Arbitrator to award all costs even if award much less than original claim.
Phillips J said: ‘It is always necessary to exercise the greatest care before applying the reasoning in one case to a different factual situation, and this is . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.88940

Morris-Garner and Another v One Step (Support) Ltd: SC 18 Apr 2018

The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to perform?
Held: The appeal was allowed. In such situations, an imagined negotiation to assess the loss was allowed. The loss to be compensated equated to the economic value of the right breached, if treated as an asset. The negotiation imagined to assess such ‘negotiating damages’ was a way of getting to the value and was not incompatible with the compensatory purpose of awarding contractual damages. The underlying question was as to the circumstances where that value did measure the claimant’s loss.
The court concluded that: ‘(1) Damages assessed by reference to the value of the use wrongfully made of property (sometimes termed ‘user damages’) are readily awarded at common law for the invasion of rights to tangible moveable or immoveable property (by detinue, conversion or trespass). The rationale of such awards is that the person who makes wrongful use of property, where its use is commercially valuable, prevents the owner from exercising a valuable right to control its use, and should therefore compensate him for the loss of the value of the exercise of that right. He takes something for nothing, for which the owner was entitled to require payment.
(2) Damages are also available on a similar basis for patent infringement and breaches of other intellectual property rights.
(3) Damages can be awarded under Lord Cairns’ Act in substitution for specific performance or an injunction, where the court had jurisdiction to entertain an application for such relief at the time when the proceedings were commenced. Such damages are a monetary substitute for what is lost by the withholding of such relief.
(4) One possible method of quantifying damages under this head is on the basis of the economic value of the right which the court has declined to enforce, and which it has consequently rendered worthless. Such a valuation can be arrived at by reference to the amount which the claimant might reasonably have demanded as a quid pro quo for the relaxation of the obligation in question. The rationale is that, since the withholding of specific relief has the same practical effect as requiring the claimant to permit the infringement of his rights, his loss can be measured by reference to the economic value of such permission.
(5) That is not, however, the only approach to assessing damages under Lord Cairns’ Act. It is for the court to judge what method of quantification, in the circumstances of the case before it, will give a fair equivalent for what is lost by the refusal of the injunction.
(6) Common law damages for breach of contract are intended to compensate the claimant for loss or damage resulting from the non-performance of the obligation in question. They are therefore normally based on the difference between the effect of performance and non-performance upon the claimant’s situation.
(7) Where damages are sought at common law for breach of contract, it is for the claimant to establish that a loss has been incurred, in the sense that he is in a less favourable situation, either economically or in some other respect, than he would have been in if the contract had been performed.
(8) Where the breach of a contractual obligation has caused the claimant to suffer economic loss, that loss should be measured or estimated as accurately and reliably as the nature of the case permits. The law is tolerant of imprecision where the loss is incapable of precise measurement, and there are also a variety of legal principles which can assist the claimant in cases where there is a paucity of evidence.
(9) Where the claimant’s interest in the performance of a contract is purely economic, and he cannot establish that any economic loss has resulted from its breach, the normal inference is that he has not suffered any loss. In that event, he cannot be awarded more than nominal damages.
(10) Negotiating damages can be awarded for breach of contract where the loss suffered by the claimant is appropriately measured by reference to the economic value of the right which has been breached, considered as an asset. That may be the position where the breach of contract results in the loss of a valuable asset created or protected by the right which was infringed. The rationale is that the claimant has in substance been deprived of a valuable asset, and his loss can therefore be measured by determining the economic value of the right in question, considered as an asset. The defendant has taken something for nothing, for which the claimant was entitled to require payment.
(11) Common law damages for breach of contract cannot be awarded merely for the purpose of depriving the defendant of profits made as a result of the breach, other than in exceptional circumstances, following Attorney General v Blake.
(12) Common law damages for breach of contract are not a matter of discretion. They are claimed as of right, and they are awarded or refused on the basis of legal principle’
Lady Hale, President, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath
[2018] UKSC 20, [2018] IRLR 661, [2018] 2 All ER (Comm) 769, [2018] 3 All ER 659, [2018] 1 Lloyds Rep 495, [2018] 2 WLR 135, UKSC 2016/0086, [2018] WLR(D) 260
Bailii, Bailii Summary, SC, SC Summary, SC Video Summary, SC 2017 Oct 11 amVideo, SC 2017 Oct 11 pm Video, SC 2017 Ot 12 am Video, WLRD, WLRD
Chancery Amendment Act 1858 2, Senior Courts Act 1981 50
England and Wales
Citing:
At QBD – One Step (Support) Ltd v Morris-Garner and Another QBD 7-Jul-2014
The defendant had sold her interest in the claimant company, undertaking not to compete. The claimant now sought damages alleging a breach.
Held: The defendants had acted in breach of contract by breaching the non-compete covenants (although . .
Appeal from (CA) – Morris-Garner and Another v One Step (Support) Ltd CA 22-Mar-2016
Alleged breach of non-solicitation covenants in the sale of a business providing ‘supported living’ services for children leaving care and vulnerable adults.
Held: The defendant’s appeal was dismissed.
The test was whether an award of . .
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Cited – Liverpool and Lancashire Properties Limited and Another v Lunn Poly Ltd and Another CA 15-Mar-2006
Where a tenant successfully obtained relief from forfeiture, and compensatory damages were payable under the 1858 Act in lieu of an injunction, and had assigned the lease for a profit the court could exceptionally use its equitable jurisdiction to . .
Cited – Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd and Others PC 26-Nov-2009
(From the Court of Appeal of Jersey) Lord Walker reviewed the principles in awarding damages under Lord Cairns Act, setting out five general principles established by the authorities. They included: ‘1. Damages (often termed ‘user damage’) are . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Cited – Strand Electric and Engineering Co Ltd v Berisford Entertainments Ltd 1952
The court assessed the amount of damages for the wrongful refusal to deliver up portable switchboards which the owner would not have used anyway (detinue). The measure was a sum equivalent to the price or hire that a reasonable person would pay for . .
Cited – Whitwham v Westminster Brymbo Coal and Coke Co CA 24-Jun-1896
Common law damages for the misuse of property involved an award of a sum equivalent to the price or hire that a reasonable person would pay for such use, even if the owner would not himself actually have been using the property. This case involved . .
Cited – Watson Laidlaw and Co v Pott Cassels and Williamson HL 26-Jun-1911
A patent was obtained for ‘improvements in centrifugal machines.’ It dealt with a means of supporting while preventing the oscillation of the spindle to which the basket rotated is attached, and the means employed was, in typical form, a hollow . .
Cited – The Owners of the Steamship Mediana v The Owners, Master and Crew of the Lightship Comet HL 1900
A lightship was damaged by negligence. The plaintiff harbour board kept a ship ready for emergencies, and consequently the damaged ship was replaced with the spare while she was being repaired. The question was whether the claimant could recover . .
Cited – Meters Limited v Metropolitan Gas Meters Limited ChD 1910
The plaintiffs had claimed and proved infringement of patents relating to improvements in gas meters. The Master had assessed damages in the inquiry in relation to the plaintiffs’ loss of profits in relation to entire meters. The defendants now . .
Cited – Stoke-on-Trent City Council v W and J Wass Ltd CA 1988
The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council . .
Cited – Meters Limited v Metropolitan Gas Meters Limited CA 1911
The defendant having been found to have infringed the defendants patents, now appealed against the method of calculation of damages.
Held: The appeal failed. Fletcher Moulton LJ emphasised the discretion given to a judge, and said: ‘But I am . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – Parabola Investments Ltd and Others v Browallia Cal Ltd and Others CA 5-May-2010
The second defendant appealed against the level of damages awarded against him after he was found guilty of a fraud on the claimant, saying that the loss of profits element was unproven.
Held: The appeal failed. Where a claimant’s investment . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Surrey County Council and Mole District Council v Bredero Homes Ltd ChD 1992
Land was agreed to be sold for development in accordance with an existing planning permission. Instead a later permission was obtained, and more houses were built. The plaintiff had not sought to restrain or prevent the breach, but now sought . .
Cited – Leeds Industrial Co-operative Society Ltd v Slack HL 1924
The plaintiff complained of a threatened interference with ancient lights.
Held: Damages may be awarded in lieu of an injunction even where the injunction sought is a quia timet injunction, but that power imports a further power to give an . .
Cited – Battishill v Reed and Another 28-May-1856
Action for disturbance of certain alleged rights of the plaintiff.. . .
Cited – Marathon Asset Management Llp and Another v Seddon and Others ComC 22-Feb-2017
. .
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – CF Partners (UK) Llp v Barclays Bank Plc and Another ChD 24-Sep-2014
CFP sought compensation for the alleged breach of an exclusivity agreement, and the misuse of confidential information, in the context of the pursuit and acquisition by the first defendant, Barclays Bank PLC of the second defendant, a body . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Cited – Vercoe and Others v Rutland Fund Management Ltd and Others ChD 5-Mar-2010
Claim in respect of a management buy-in transaction in relation to a company which carried on business as a pawnbroker. . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited by:
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.608734

BP Exploration Co (Libya) Ltd v Hunt (No 2): 1979

The contract between the parties relating to an oil concession in Libya had been frustrated by the nationalisation of the field.
Held: The court considered the setting of damages where the plaintiff had delayed in notifying the defendant of the claim. Interest is awarded not as a punishment but to compensate a claimant for having been deprived of the money which was due to him, though: ‘The basic principle, is, however, that interest will be awarded from the date of loss.’
are (a) receipt by the defendant of a benefit (b) at the plaintiff’s expense, (c) in such circumstances that would be unjust to allow the defendant to retain the benefit.’
In a claim for unjust enrichment, the formulation of the requirements of the cause of action are: (a) receipt by the defendant of a benefit (b) at the plaintiff’s expense, (c) in such circumstances that would be unjust to allow the defendant to retain the benefit.
Rober Goff J discussed the calculation of damages under the 1943 Act: ‘A crucial question, on which the Act is surprisingly silent, is this: what bearing do the terms of the contract, under which the plaintiff has acted, have on the assessment of the just sum? First, the terms on which the work was done may serve to indicate the full scope of the work done, and so be relevant to the sum awarded in respect of such work. For example, if I do work under a contract under which I am to receive a substantial prize if successful, and nothing if I fail, and the contract is frustrated before the work is complete but not before a substantial benefit has been obtained by the defendant, the element of risk taken by the plaintiff may be held to have the effect of enhancing the amount of any sum to be awarded. Secondly, the contract consideration is always relevant as providing some evidence of what will be a reasonable sum to be awarded in respect of the plaintiff’s work. Thus if a prospector, employed for a fee, discovers a gold-mine before the contract under which he is employed is frustrated (for example, by illegality or by his illness or disablement) at a time when his work was incomplete, the court may think it just to make an award in the nature of a reasonable fee for what he has done (though of course the benefit obtained by the defendant will be far greater), and a rateable part of the contract fee may provide useful evidence of the level of sum to be awarded. If, however, the contract had provided that he was to receive a stake in the concession, then the just sum might be enhanced on the basis that, in all the circumstances, a reasonable sum should take account of such a factor: cf Way v Latilla [1937] 3 All ER 759. Thirdly, however, the contract consideration, or a rateable part of it, may provide a limit to the sum to be awarded. To take a fairly extreme example, a poor householder or a small businessman may obtain a contract for building work to be done to his premises at considerably less than the market price, on the basis that he cannot afford to pay more. In such a case, the court may consider it just to limit the award to a rateable part of the contract price, on the ground that it was the understanding of the parties that in no circumstances (including the circumstances of the contract being frustrated) should the plaintiff recover more than the contract price or a rateable part of it. Such a limit may properly be said to arise by virtue of the operation of s 2(3) of the Act. But it must not be forgotten that, unlike money, services can never be restored, nor usually can goods, since they are likely to have been either consumed or disposed of, or to have depreciated in value; and since, ex hypothesi, the defendant will only have been prepared to contract for the goods or services on the basis that he paid no more than the contract consideration, it may be unjust to compel him, by an award under the Act, to pay more than that consideration, or a rateable part of it, in respect of the services or goods he has received. It is unnecessary for me to decide whether this will always be so; but it is likely that in most cases this will impose an important limit on the sum to be awarded: indeed it may well be the most relevant limit to an award under s 1(3) of the Act. ‘
. . And, as to the award of statutory interest under the 1838 Act: ‘Another matter which is generally ignored is the financial situation of the plaintiff; it should generally make no difference even if, for example, it could be shown that a plaintiff in a personal injury action was a person who would simply have paid the damages, if received earlier, into his current account at the bank which was permanently in credit.’
Robert Goff J
[1979] 1 WLR 783
Law Reform (Frustrated Contracts) Act 1943, Judgments Act 1838
England and Wales
Citing:
See Also – BP Exploration Co (Libya) Ltd v Hunt 1976
The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
The court should be careful before describing as non-disclosure as material not included in an affidavit in . .
Cited – General Tire v Firestone Tyre and Rubber Company Limited HL 1975
The object of damages is to compensate for loss or injury. The general rule for ‘economic’ torts is that the measure is that sum of money which will put the injured party in the same position as he would have been in if he had not sustained the . .

Cited by:
Cited – Stocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
Cited – Sycamore Bidco Ltd v Breslin and Another ChD 14-Feb-2013
The court considered whether it was correct to award interest on the sum of damages for the period before as well as after judgment, and if so, from what date and at what rate of interest.. . .
Cited – Jones and Others v Secretary of State for Energy and Climate Change and Another QBD 3-May-2013
The claimants sought an order for pre-judgment interest on the disbursements incurred in this group litigation. The clients were liable for payment of the disbursements under the conditional fee agreements, and in this case these amounted to over . .
Cited – Sabic UK Petrochemicals Ltd v Punj Lloyd Ltd TCC 10-Oct-2013
Dispute as to the approach applicable on calculation of statutory interest on judgment.
Held: Interest was awarded at the normal commercial rate. The correct question was how the Claimant ‘could have put itself in possession of the funds that . .
Cited – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
Cited – Gamerco Sa v ICM Fair Warning (Agency) Ltd and Another QBD 31-Mar-1995
The plaintiff Spanish concert promoter, and the defendant rock group, Guns ‘n’ Roses, agreed to provide a concert at the stadium of Atetico Madrid, but shortly before it was due to take place, the stadium was deemed unfit, and its licence withdrawn. . .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.238540

Tameside and Glossop Acute Services NHS Trust v Thompstone and others: CA 17 Jan 2008

The court set out the legal principles applying when making a Periodical Payments Order in an award of damages for serious personal injury. The periodical payments payable to the claimant in respect of his care costs should be calculated by reference to the actual cost of care, as set out in the Annual Survey of Hours and Earnings (‘ASHE’), rather than the RPI.
Waller LJ VP, Buxton, Smith LJJ
[2008] EWCA Civ 5, [2008] LS Law Medical 282, [2008] 1 WLR 2207, [2008] PIQR Q2, [2008] 2 All ER 553, (2008) 100 BMLR 113
Bailii
Damages Act 1996 2
England and Wales
Citing:
Appeal from – Thompstone v Tameside and Glossop Acute Services NHS Trust QBD 23-Nov-2006
. .

Cited by:
Cited – Preston v City Electrical Factors Ltd and Another QBD 13-Nov-2009
The claimant had received andpound;100,000 in interim payments on his personal injury claim, and now sought a further similar sum.
Held: The claim was thought substantial, but the defendants said that any final award would include an . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.263771

WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc: CA 2 Apr 2007

The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the agreement, challenging whether damages under Wrotham Park could properly be awarded for conduct ended by an injunction.
Held: ‘on a claim by a covenantee for an injunction and damages against a covenantor who has acted in breach of a restrictive covenant, the court may, in addition to granting an injunction to restrain further breaches, award damages in respect of past breaches notwithstanding that the covenantee cannot establish actual financial loss. In such a case the damages in respect of past breaches may be in an amount assessed as the sum which the court considers it would have been reasonable for the covenantor to pay and the covenantee to accept for the hypothetical release of the covenant. ‘ and (obiter) ‘in a case where a covenantor has acted in breach of a restrictive covenant, the court may award damages on the Wrotham Park basis, notwithstanding that there is no claim for an injunction – and notwithstanding that there could be no claim for an injunction. ‘
Chadwick LJ, Maurice Kay LJ, Wilson LJ
[2007] EWCA Civ 286, [2008] 1 All ER 74, [2008] 1 All ER (Comm) 129, [2008] 1 WLR 445, [2007] Bus LR 1252
Bailii
England and Wales
Citing:
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
First Instance – Liability – WWF -World Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc ChD 1-Oct-2001
The Fund sought summary relief against the use of the sign ‘WWF’ by the defendants, in breach of a contract. The defendants urged that the contract operated in restraint of trade. There had been long running and widespread trade mark disputes, . .
Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Appeal from – WWF-World Wide Fund for Nature and Another v World Wrestling Federation Entertainment Inc ChD 16-Feb-2006
. .
Cited – Tilling v Whiteman HL 1980
Lord Scarman said: ‘Preliminary points of law are too often treacherous short cuts. Their price can be, as here, delay, anxiety and expense.’
Lord Wilberforce said: ‘The judge took what has turned out to be an unfortunate course. Instead of . .
Cited – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Gafford v A H Graham and Grandco Securities Limited CA 8-Apr-1998
A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his . .
Cited – Amec Developments Limited v Jury’s Hotel Management (UK) Limited 2001
A hotel had been built so as to encroach across a building line in breach of covenant, allowing the hotel to have 25 more rooms than it would otherwise have enjoyed. The court considered conflicting evidence as to the capital value of the additional . .
Cited – Shaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .
Cited – Combe v Combe CA 1951
The defendant husband had promised his wife to allow her andpound;100 a year free of tax, without his wife furnishing any consideration for the promise. On his failing to pay, she sued on the promise.
Held: Her claim failed. The court declined . .
Cited – Tool Metal Manufactuing Company Ltd v Tungsten Electric Company Ltd HL 16-Jun-1955
The principle in Hughes v Metropolitan Railway could apply to a reduction by concession in payments due to a creditor and a concession could be terminated by giving reasonable notice. . .
Cited – Director of Public Prosecutions v Beard HL 1920
The accused raped a girl aged thirteen whilst he was drunk. He placed his hand over her mouth to stop her screaming, but without any intention of injuring her. He caused her death by suffocation, and was convicted of murder. It was argued on his . .
Cited – Foley v Classique Coaches Ltd CA 1934
The sellers had sold to the buyers a piece of land to use in the latter’s business as coach proprietors, and also contracted with them to supply all the petrol required for that business ‘at a price to be agreed by the parties in writing and from . .
Cited – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
Cited – Surrey County Council and Mole District Council v Bredero Homes Ltd ChD 1992
Land was agreed to be sold for development in accordance with an existing planning permission. Instead a later permission was obtained, and more houses were built. The plaintiff had not sought to restrain or prevent the breach, but now sought . .
Cited – Jaggard v Sawyer CC 1993
(Weymouth County Court) The court refused an injunction to a land owner who complained that a neighbour had erected a building over a right of way. The court awarded damages of andpound;694.44, being a proportionate part of the the sum he might be . .
See Also – WWF – World Wide Fund for Nature (Formerly World Wildlife Fund); World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc CA 27-Feb-2002
The claimant sought enforcement of a contract restricting the use by the appellant defendant of the initials ‘WWF’ in their trading. The agreement had been reached in settlement of an action for breach of the claimant’s trade mark rights. The . .
See Also – World Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Incorporated v World Wrestling Federation Entertainment Incorporated – Intervener Jakks Pacific Llc CA 27-Mar-2003
. .

Cited by:
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.250684

Strand Electric and Engineering Co Ltd v Berisford Entertainments Ltd: 1952

The court assessed the amount of damages for the wrongful refusal to deliver up portable switchboards which the owner would not have used anyway (detinue). The measure was a sum equivalent to the price or hire that a reasonable person would pay for such use.
[1952] 2 QB 246
England and Wales
Cited by:
Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Cited – Hillesden Securities Ltd v Ryjack QBD 1983
Parker LJ discussed the case of Strand Electric and said: ‘The action in that case was in detinue and not conversion, but there will in almost all cases of detinue have been an original act of conversion also and what was in effect held in that case . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.180881

Experience Hendrix LLC v PPX Enterprises Inc and Another: CA 20 Mar 2003

The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form the defendant doing what he had agreed not to do, in circumstances where damages might be inadequate. PPX risked being unable to market its products, and reached the agreement which it then went on to breach. Any reasonable observer would think the claimant entitled to damages. The award of a full account would be artificial, and an undertaking would be effective.
Lord Justice Peter Gibson Mr Justice Hooper Lord Justice Mance
[2003] EWCA Civ 323, Times 19-Apr-2003, Gazette 05-Jun-2003, [2003] 1 All ER (Comm) 830, [2003] EMLR 25, [2003] FSR 46
Bailii
Dramatic and Musical Performers Protection Act 1958 1
England and Wales
Citing:
Cited – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Cited – Whitwham v Westminster Brymbo Coal and Coke Co CA 24-Jun-1896
Common law damages for the misuse of property involved an award of a sum equivalent to the price or hire that a reasonable person would pay for such use, even if the owner would not himself actually have been using the property. This case involved . .
Cited – Penarth Dock Engineering Co Ltd v Pounds 1963
The court considered the level of damages to be awarded for misuse of property (failing to remove a floating dock) which the owner would not have used. The sum was the reasonable cost of hire. . .
Cited – Strand Electric and Engineering Co Ltd v Berisford Entertainments Ltd 1952
The court assessed the amount of damages for the wrongful refusal to deliver up portable switchboards which the owner would not have used anyway (detinue). The measure was a sum equivalent to the price or hire that a reasonable person would pay for . .
Cited – Esso Petroleum Co Ltd v Niad Ltd ChD 22-Nov-2001
The court ordered an account of profits as a remedy for breach of a contractual scheme called ‘Pricewatch’ operated by the claimant with its dealers, who agreed to report competitors’ prices and to abide by prices set daily by Esso to match the . .
Doubted – WWF -World Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc ChD 1-Oct-2001
The Fund sought summary relief against the use of the sign ‘WWF’ by the defendants, in breach of a contract. The defendants urged that the contract operated in restraint of trade. There had been long running and widespread trade mark disputes, . .
Cited – Rickless v United Artists Corporation CA 1987
The Act created a private right to performers. Although it might appear to provide criminal sanctions only, performers had the right to give or withhold consent to the use of their performances and to enforce that right by action in the civil . .
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Appeal from – Experience Hendrix Llc v PPX Enterprises Inc and Chaplin QBD 5-Jul-2002
. .

Cited by:
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.180332

Meadows v Khan: QBD 23 Nov 2017

Claim for the additional costs of raising the claimant’s son, A, who suffered from both haemophilia and autism. It is admitted that, but for the defendant’s negligence, A would not have been born because his mother would have discovered during her pregnancy that he was afflicted by haemophilia and so would have undergone a termination. It is agreed that she can recover the additional costs associated with that condition. What is in dispute is whether she can also recover the additional costs associated with A’s autism. The defendant’s position is that such costs are outside the scope of her liability because the service she was providing was only in relation to the risk of haemophilia.
Held: The claim succeeded. The Court of Appeal has decided in Parkinson and Groom that recovery for the costs associated with a disability not directly linked to the negligence is fair where the disabled child would not have been born but for the negligence and where the disability arises out of the normal incidents of conception, intra-uterine development and birth. I can see no good reason to distinguish this case as a matter of principle or policy.
Yip J said: ‘Once it is established that, had the mother been properly advised she would not have wanted to continue with her pregnancy, should it matter why she would have wanted a termination? Why logically should there be a distinction between the parent who did not want any pregnancy and one who did not want this particular pregnancy? In each case, the effect of the doctor’s negligence was to remove the mother’s opportunity to terminate a pregnancy that she would not have wanted to continue. To draw a distinction on the basis of considering the underlying reason why a mother would have wanted to terminate her pregnancy seems unattractive, arbitrary and unfair.’
Yip J
[2017] EWHC 2990 (QB), [2017] WLR(D) 778, [2018] Med LR 161, [2018] PIQR Q4, [2018] 4 WLR 8
Bailii, WLRD
England and Wales
Citing:
Cited – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .
Cited – Hardman v Amin QBD 2001
Henriques J said: ‘McFarlane does not affect the law so far as it relates to the wrongful birth of disabled children.’ . .
Cited – Groom v Selby CA 18-Oct-2001
The defendant negligently failed to discover the claimant’s pregnancy. A severely disabled child was born. The question was as to the responsibility for payment of excess costs of raising a severely disabled child, a claim for economic loss. The . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Parkinson v St James and Seacroft University Hospital NHS Trust CA 11-Apr-2001
A mother had undergone a negligent sterilisation, and in due course she gave birth to a disabled child.
Held: The right to bodily integrity is the first and most important of the interests protected by the law of tort. The cases saying that . .
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .

Cited by:
Appeal from – Khan v Meadows CA 15-Feb-2019
Appeal from the judgment of Yip J who determined that the costs related to the autism of Adejuwon, the respondent’s son, following his birth may be properly recovered by her and assessed damages in the agreed sum of pounds 9,000,000. Adejuwon . .
At First Instance – Khan v Meadows SC 18-Jun-2021
‘ A woman approaches a general medical practice for testing to establish whether she is a carrier of a hereditary disease. Tests which are inappropriate to answer that question are arranged. A general medical practitioner when informing her of the . .

These lists may be incomplete.
Updated: 01 July 2021; Ref: scu.601106

Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others Appealsz: CA 24 Feb 1995

References: Times 24-Feb-1995, Gazette 22-Mar-1995, Times 21-Feb-1995, [1995] QB 375, [1995] 2 All ER 769
Coram: Sir Thomas Bingham MR
Ratio: The plaintiffs were mortgagees. The defendants were valuers. The defendants negligently over-valued properties and the plaintiffs then accepted mortgages of the properties. Later the property market collapsed and the various borrowers defaulted and on sale the plaintiffs obtained substantially less than the sums they had advanced. The relevant question was whether the plaintiffs could include in their damages the difference in the value of the properties between the time of entering into the mortgages and the sale of the properties.
Held: Damages payable to a secured lender for a negligent valuation included losses attributable to general market. Discussing liability where two causes contributed to the damages: ‘the event which the plaintiff alleges to be causative need not be the only or even the main cause of the result complained of: it is enough if it is an effective cause’
Sir Thomas Bingham MR described the valuer’s task: ‘In the absence of special instructions, it is no part of V’s duty to advise L on future movements in property prices, whether nationally or locally. The belief among buyers and sellers that prices are likely to move upwards or downwards may have an effect on current prices, and to that extent such belief may be reflected by V in his valuation. But his concern is with current value only. He is not asked to predict what will happen in the future. His valuation is not sought to protect L against future decline in property prices. In no sense is he a guarantor of L’s investment decision.’
He spoke also as to the measurement of damages: ‘where a mortgage lender would not, but for the negligent valuation, have entered into the transaction with the borrower he could recover the net loss he had sustained as a result of having done so; that a fall in the market was foreseeable, and since, in such a case, the lender would not have entered into the transaction but for the valuer’s negligence and could not escape from it unless and until the borrower defaulted, that negligence was the effective cause of his loss, and a fall in the market was not to be treated as a new intervening cause breaking the link between the valuer’s negligence and the damage sustained; accordingly on the assumed facts the mortgagees were entitled to recover damages in respect of the loss they had sustained which was attributable to market fall.’
. . And: ‘In a no-transaction purchase case, it seems clear on English authority that effect will be given to the restitutionary principle by awarding the buyer all that he has paid out less what (acting reasonably to cut his losses including selling the property) he has recovered. In no case before [the present case] has any head of foreseeable damage been excluded from the calculation.’
. . And: ‘In no-transaction mortgage lending cases it has been the practice since Baxter v Gapp [1939] 2 AER 752 to award the lender the net loss sustained as a result of entering into the transaction, which may be expressed as the difference between what the lender advanced and what the lender would have advanced if properly advised (which is always nil). Thus related expenses of sale and realisation less sums recovered. … Should a rise in the market have contributed to [a full recovery] then, as in the successful transaction case, that contribution will not be ignored so as to treat the lender as sustaining a financial loss which in fact he has not sustained. If in such a case a fall in the property market between the date of the transaction and the date of realisation contributes to the lender’s overall loss sustained as a result of entering into the transaction, it would seem to us, on a straight forward application of the restitutionary principle, that the lender should be entitled to recover that element of his loss against the negligent party.’
. . And :’Where a buyer is claiming damages for negligence in a successful transaction case the diminution in value rule ordinarily provides an adequate measure of the buyers loss. As the cases show, to award, for example, the full cost of repairs will usually lead to over-compensation. This assessment will ordinarily be made as at the date of breach, for there is no other appropriate date. The same rule will usually be applied where the buyer decides to keep the property with knowledge of its defective condition or over-valuation even if, with that knowledge, he would not have bought in the first place. In such a case no account is taken of later fluctuations in the market, for he remains the owner of the property as a result of his own independent decision and not of the negligence of the valuer or surveyor.’
This case cites:

Appeal from – Banque Bruxelles Lambert Sa v Eagle Star Ins Co Ltd and Others QBD (Ind Summary 04-Apr-94, Times 07-Mar-94, [1995] 2 All ER 769)
A negligent valuer was liable for the loss arising from an overvaluation, but not from losses attributable to a general fall in the market. . .

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

Appeal from – South Australia Asset Management Corporation v York Montague Ltd etc HL (Gazette 04-Sep-96, Times 24-Jun-96, [1997] AC 191, [1996] PNLR 455, [1996] 27 EG 125, [1996] 3 WLR 87, Bailii, [1996] UKHL 10, [1996] 3 All ER 365, [1996] 2 EGLR 93, 80 BLR 1, [1996] 5 Bank LR 211, [1996] CLC 1179, [1996] 50 Con LR 153)
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Paterson and Another v Humberside County Council QBD (Times 19-Apr-95, [1995] CLY 3661, [1996] Const LJ 64)
A local authority was liable for nuisance for damage (cracks to house) caused by tree roots once it could be shown that it knew of the soil condition, by virtue of the council’s own warnings to residents of the danger in the area meant that the . .
Cited – Helmsley Acceptances Ltd v Hampton CA (Bailii, [2010] EWCA Civ 356)
The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
Held: The . .
Cited – Downs and Another v Chappell and Another CA (Bailii, [1996] EWCA Civ 1358, [1996] 3 All ER 344, [1996] CLC 1492, [1997] 1 WLR 426)
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .

(This list may be incomplete)

Last Update: 31 July 2018
Ref: 78174

Rickless v United Artists Corporation: CA 1988

References: [1988] QB 40, [1987] 1 All ER 679, [1987] 2 WLR 945
Coram: Hobhouse J, Sir Nicolas Browne-Wilkinson V-C, Bingham LJ
Ratio: The Act created a private right to performers. Although it might appear to provide criminal sanctions only, performers had the right to give or withhold consent to the use of their performances and to enforce that right by action in the civil courts. This statutory right was not purely personal, but survived the death of the performer and vested in his or her personal representatives, so that in the absence of consent of a performer or his or her personal representatives, there was an actionable breach. A feature film (Trail of the Pink Panther – ‘Trail’) starring the late Peter Sellers had been made by use of cutting floor clips from previous films made with his consent. In two films, The Pink Panther Strikes Again and Revenge of the Pink Panther his consent extended to the use in this way of the cutting floor clips, and ordered the producer companies to account for percentages of the gross receipts of Trail as sums derived from Strikes and Revenge. In the case of three films where there had been no consent, damages were awarded for breach, or inducing breach, of contract in the sum of $1,000,000.
Sir Nicolas Browne-Wilkinson V-C observed that, while not decisive, it was generally easier to spell out civil liability where Parliament had expressly stated that an act was unlawful rather than merely classifying it as a criminal offence.
Statutes: Dramatic and Musical Performers Protection Act 1958 1
This case is cited by:

Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA (Bailii, [2003] EWCA Civ 323, Times 19-Apr-03, Gazette 05-Jun-03, [2003] 1 All ER (Comm) 830)
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 13-Jul-18
Ref: 180883

Caltex Oil (Australia) Pty Ltd v Dredge Willemstad”: 9 Dec 1976″

References: [1976] HCA 65, (1976) 136 CLR 529
Links: Austlii
Coram: Gibbs, Stephen, Mason, Jacobs and Murphy JJ.
Ratio: Austlii (High Court of Australia) Negligence – Duty of care – Foreseeability of harm – Economic loss not consequential upon damage to person or property – Damage to property of one person – Economic loss suffered by person as a result – Pipeline carrying oil to plaintiff’s depot – Damaged by defendant’s negligence – Supply interrupted – Pipeline and depot owned by different persons – Expense incurred by plaintiff in arranging alternative means of delivery – Whether recoverable – Remoteness of loss or damage.
Shipping and Navigation – Action in rem – Action against ship – Negligence – Master not sued as defendant – Appearance entered by master – No proprietary interest in ship – Whether master liable to judgment.
A pipeline was damaged and the owner of the terminal (who was not the owner of the pipeline) incurred expense in transporting refined oil to the terminal while the pipeline was out of use.
Held: The plaintiff was entitled to recover that expense from the dredger which had damaged the pipeline. Jacobs J said that the duty of care owed to the owner of the pipeline was also owed to ‘a person whose property was in such physical propinquity to the place where the acts of omissions of the dredge . . had their physical effect that a physical effect on the property of that person was foreseeable as the result of such acts or omissions’.
This case is cited by:

Approved – Candlewood Navigation Corporation Limited v Mitsui OSK Lines Limited and Matsuoka Steamship Co Limited PC ([1986] 1 AC 1, Bailii, [1985] UKPC 21, [1985] 3 WLR 381, [1985] 2 Lloyd’s Rep 303, [1985] 2 All ER 935)
(New South Wales) Two ships had collided, after, without negligence, an anchor on one ship failed. The Supreme Court had found the crew negligent after failing to react appropriately to the loss of the anchor. The company now appealed against the . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD (Bailii, [2009] EWHC 685 (QB))
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .

(This list may be incomplete)
Jurisdiction: Australia

Last Update: 13-Jul-18
Ref: 331084

McLoughlin v OBrian: HL 6 May 1982

References: [1983] 1 AC 410, [1982] 2 All ER 298, [1982] UKHL 3, [1982] 2 WLR 982
Links: Bailii
Coram: Lord Wilberforce, Lord Bridge, Lord Scarman
Ratio: The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had happened. She saw and comforted her injured husband and children, and was told of the death of her youngest child. She brought proceedings for the psychiatric effect of the shock that she sustained as a result.
Held: Her appeal was allowed. The House identified the circumstances in which such a claim could succeed:
1. While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for ‘nervous shock’ caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself.
2. A plaintiff may recover damages for ‘nervous shock’ brought on by injury caused not to him — or herself but to a near relative, or by the fear of such injury.
3. Subject to the next paragraph, there is no English case in which a plaintiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff.
4. An exception has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath.
5. A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer of those involved.
Three issues were to be addressed: the class of persons whose claims should be recognised, the proximity of such persons to the accident and the means by which the shock was caused. Foreseeability in any given set of circumstances is ultimately a question of fact.
On the issue of the court’s role in developing the law, Lord Scarman: ‘By concentrating on principle the judges can keep the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are equipped to resolve. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path.’
Lord Wilberforce said: ‘there remains, in my opinion, just because ‘shock’ in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims.’ and
‘As regards proximity to the accident, it is obvious that this must be close in both time and space . . The shock must come through sight or hearing of the event or of its immediate aftermath.’
and ‘Whatever is unknown about the mind body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. Thus there may be produced what is as identifiable an illness as any that may be caused by direct physical impact.’
This case cites:

Cited – Hambrook v Stokes Brothers CA ([1925] 1 KB 141)
The defendant’s employee left a lorry at the top of a steep narrow street unattended, with the engine running and without having taken proper steps to secure it. The lorry ran violently down the hill. The plaintiff’s wife had been walking up the . .
Cited – Hinz v Berry CA ([1970] 2 QB 40)
Then plaintiff saw her husband killed and her children injured by a runaway motor car. At trial she was awarded damages for nervous shock. The question was whether, having regard to the fact that she had suffered sorrow and grief it would not be to . .
Rejected – Bourhill v Young’s Executor HL ([1943] AC 92, [1943] SC (HL) 78, 1943 SLT 105, Bailii, [1942] UKHL 5)
When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been . .

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

Applied – Alcock and Others v Chief Constable of South Yorkshire Police QBD (lip, [1991] 2 WLR 814, [1991] CLY 2671)
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL (Gazette 22-Jan-92, lip, [1991] 3 WLR 1057, Times 29-Nov-91, [1992] 1 AC 310, Bailii, [1991] UKHL 5)
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
Cited – Keen v Tayside Contracts OHCS (Times 27-Mar-03, Bailii, [2003] ScotCS 55, ScotC)
The claimant sought damages for post traumatic stress disorder. He was a road worker instructed to attend by the defendant immediately after a terrible accident.
Held: It was a classic case of nervous shock. He was not a rescuer, and nor had . .
Cited – Giullietta Galli-Atkinson v Seghal CA ([2003] Lloyds Rep Med 285, Bailii, [2003] EWCA Civ 697)
The claimant’s daughter was fatally injured in car accident, dying shortly after. The mother came upon the scene, witnessed a police cordon at the scene of the accident and was told of her death. She later saw the injuries at the mortuary and . .
Cited – Marvin John Pearson v Anthony Lightning CA (Times 30-Apr-98, Gazette 20-May-98, Bailii, [1998] EWCA Civ 591)
The parties were golfers playing different holes at the same time. The shot of one hit the other in the eye. The shot was a recovery shot over where he should have known others would be playing. Where a golfer hit a shot which was difficult but . .
Cited – Jaensch v Coffey ((1984) 55 CLR 549, [1984] 54 ALR 417, [1985] CLY 2326, Austlii, [1984] HCA 52)
(High Court of Australia) The claimant’s husband was injured. She saw his injuries at hospital and was affected. She claimed damages for her own shock.
Held: The driver owed her a duty of care, and was liable for negligence which caused . .
Cited – Donachie v The Chief Constable of the Greater Manchester Police CA ([2004] EWCA Civ 405, Bailii)
The claimant had been asked to work under cover. The surveillance equipment he was asked to use was faulty, requiring him to put himself at risk repeatedly to maintain it resulting in a stress disorder and a stroke.
Held: There was a direct . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL (Bailii, [2005] UKHL 23, House of Lords, [2005] 2 AC 373, Times 22-Apr-05, [2005] 2 WLR 993)
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Quayle and others v Regina, Attorney General’s Reference (No. 2 of 2004) CACD (Bailii, [2005] EWCA Crim 1415, Times 22-Jun-05, [2006] Crim LR 148, (2006) 89 BMLR 169, [2006] 1 All ER 988, [2005] 2 Cr App R 34, [2005] 1 WLR 3642)
Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might . .
Cited – Rothwell v Chemical & Insulating Co Ltd and Another CA (Bailii, [2006] EWCA Civ 27, [2006] ICR 1458, Times 31-Jan-06)
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
Cited – French and others v Chief Constable of Sussex Police CA (Bailii, [2006] EWCA Civ 312, Times 05-Apr-06)
The claimants sought damages for psychiatric injury. They were police officers who had been subject to unsuccessful proceedings following a shooting of a member of the public by their force.
Held: The claim failed: ‘these claimants have no . .
Cited – Fook, Regina v CACD (Bailii, [1993] EWCA Crim 1)
The defendant appealed his conviction for assault. He had suspected a lodger of theft, and was accused of having assaulted him while interrogating him about it. He locked the complainant in his room, but he then fell whilst escaping through a first . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL (Bailii, [2007] UKHL 39, Times 24-Oct-07, [2007] ICR 1745, [2007] 4 All ER 104, [2008] LS Law Medical 1, [2007] 3 WLR 877, (2008) 99 BMLR 139, [2008] 1 AC 281, [2008] PIQR P6)
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – Hussain v West Mercia Constabulary CA (Bailii, [2008] EWCA Civ 1205, Times)
The claimant taxi driver complained of misfeasance in public office in the way the defendant had responded to the several calls for assistance made by him to the police.
Held: His appeal against the striking out failed. The damages pleaded . .
Cited – Taylor v A Novo (UK) Ltd CA (Bailii, [2013] EWCA Civ 194, [2013] 3 WLR 989, [2013] Med LR 100, [2013] PIQR P15, [2013] WLR(D) 119, [2014] Ch 150, [2014] 1 QB 150, WLRD)
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
Cited – Rhodes v OPO and Another SC ([2015] 2 WLR 137, Bailii, [2015] UKSC 32, [2016] AC 219, [2015] EMLR 20, [2015] HRLR 11, [2015] WLR(D) 227, [2015] 4 All ER 1, WLRD, Bailii Summary, UKSC 2014/0251, SC, SC Summary, SC Video Summary)
The mother sought to prevent a father from publishing a book about his life. It was to contain passages she said may cause psychological harm to their 12 year old son. Mother and son lived in the USA and the family court here had no jurisdiction to . .
Cited – OPO v MLA and Another CA (Bailii, [2014] EWCA Civ 1277, [2014] WLR(D) 422, WLRD)
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA (Bailii, [2015] EWCA Civ 588, [2015] WLR(D) 263, WLRD)
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Cited – Smith v Lancashire Teaching Hospitals NHS Trust and Another QBD (Bailii, [2016] EWHC 2208 (QB))
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 24-Nov-16
Ref: 180105

Malik and Another v Bank of Credit and Commerce International Sa; Chd 23 Feb 1994

References: Ind Summary 21-Mar-1994, Times 23-Feb-1994
Ratio: A stigma arising from an association with a notorious employer gave rise to no cause of action.
This case is cited by:

At First Instance – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL (Gazette 25-Jun-97, House of Lords, Bailii, [1997] 3 WLR 95, [1997] UKHL 23, [1998] AC 20, [1997] ICR 606, [1997] 3 All ER 1, [1997] IRLR 462)
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Appeal from – Malik and Another v Bank of Credit and Commerce International Sa CA (Times 12-Apr-95, Independent 17-Mar-95)
No compensation was payable for a stigma of innocent workers having worked for a fraudulent bank. . .

(This list may be incomplete)

Last Update: 01-Sep-16
Ref: 83351

Taunoa v Attorney General for New Zealand; 31 Aug 2007

References: [2007] NZSC 70, [2008] 1 NZLR 429, [2007] 5 LRC 680
Links: Nzlii
Coram: Elias CJ, Blanchard J, Tipping J, McGrath J
Ratio: Supreme Court of New Zealand – The claimants sought damages after their treatment in prison. They challenged the legality of a behaviour modification regime which five prisoners had been subjected to. The regime had been operated at Auckland Prison by the Department of Corrections over the period 1998-2004, to deal with extremely disruptive prisoners. There was a distinctly punitive element to the regime. The point of the regime was to change the prisoners’ behaviour. The regime involved a highly controlled environment and severe restrictions on association and maximum security conditions, which could become progressively less restrictive depending on a prisoner’s behaviour.
Held: (majority) Sections 9 and 23(5) establish a hierarchy of proscribed conduct:
(a) Blanchard J considered that there are ‘degrees of reprehensibility’ evident in sections 9 and 23(5). He considered that section 9 is concerned with conduct on the part of the state and its officials which is to be utterly condemned as outrageous and unacceptable in any circumstances; section 23(5) is confined in its application to persons deprived of their liberty. It proscribes conduct which is unacceptable in our society, but is of a lesser order, not rising to a level deserving to be called outrageous.
(b) Tipping J considered that s 9 can be seen as prohibiting inhumane treatment, whereas s 23(5) requires prisoners to be treated with humanity. He warned that there is a danger of these concepts being conflated in a way which reduces the degree of seriousness required for a section 9 breach. He considered that s 9 is reserved for truly egregious cases which call for a level of denunciation of the same order as that appropriate to torture.
(c) McGrath J considered that s 9 affirms the rights of all not to be tortured or subjected to cruel, degrading or disproportionately severe treatment or punishment, while s 23(5) focuses on the rights of those deprived of their liberty to be treated with respect for human dignity. He considered that there is a hierarchy between the two sections, and that they are separate, though complementary, affirmations of rights. That hierarchal relationship reflects the graduated standards of the two provisions in the relative gravity of breaches of the rights they respectively affirm. There is a high threshold to be met before the Court can find that there has been a breach of the prohibition in s 9. (d) Henry J agreed with Tipping J.
Tipping J noted that conduct breaching s 9 will usually involve intention to harm or at least consciously reckless indifference as to the causing of harm, as well as significant physical or mental suffering. It seems that s 9 could extend to: (a) torture involving the deliberate infliction of severe physical or mental suffering for a prescribed purpose, such as the obtaining of information; (b) cruel treatment which inflicts suffering, or results in severe or substantial suffering or distress. Views differed on whether or not this needs to be deliberate.
Elias CJ (dissenting) said that ss 9 and 23(5) are not simply different points of seriousness on a continuum, but that they involve distinct, though overlapping rights. She considered that s 9 is concerned with the prevention of treatment properly characterised as inhuman, amounting to a denial of humanity; s 23(5) is directed to an additional, but complementary requirement that prisoners be treated humanely. She considered that denial of humanity could occur through deprivation of basic human needs, including personal dignity and physical and mental integrity. In contrast, inhumane treatment was treatment that was not fitting for human beings, ‘even those behaving badly in prison.’
Statutes: New Zealand Bill of Rights Act 1990 9 23(5)
This case is cited by:

Cited – Takitota v The Attorney General and Others PC (Bailii, [2009] UKPC 11, 26 BHRC 578)
Bahamas – The claimant appeald as to the amount of compensation awarded to him for his unlawful detention for over eight years, in appalling prison conditions. The Court of Appeal categorised his treatment not only as ‘less than humane’ but as a . .

(This list may be incomplete)

Last Update: 29-Aug-16
Ref: 471045

Cumming v SSE Plc; SCsf 4 May 2016

References: [2016] ScotSC 35
Links: Bailii
Ratio:

Last Update: 29-Jul-16
Ref: 567227

Woodstock Shipping Co v Kyma Compania Naviera SA (‘The Wave’): 1981

References: [1981] 1 Lloyd’s Rep 521
Coram: Mustill J
Ratio:There was a time charter for 24 months, 3 months more or less at charterers’ option. The owners repudiated the charter and the charterers accepted their repudiation on 2 August 1979.
Held: Assessing the charterers’ loss, and allowing for their ability to obtain a substitute fixture in the available market shortly after the date of the accepted repudiation the court compared the charterparty rate with the market rate in the early days of September 1979, declining to speculate whether market rates in September 1981 would induce the charterers to exercise their three month option one way or the other.
This case cites:

Applied – Maredelanto Compania Naviera SA v BergbauHandel GmbH (The Mihalis Angelos) CA ([1971] 1 QB 164, Bailii, [1970] EWCA Civ 4, [1970] 3 WLR 601, [1970] 2 Lloyd’s Rep 43, [1970] 3 All ER 125)
The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .

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

Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL (Bailii, [2007] UKHL 12, Times 30-Mar-07, [2007] 2 Lloyds Rep 164, [2007] Bus LR 997, [2007] 3 All ER 1, [2007] 2 AC 353, [2007] 1 CLC 352, [2007] 2 WLR 691, [2007] 2 All ER (Comm) 97)
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .

(This list may be incomplete)

Last Update: 19-Jul-16
Ref: 252490

Kent CC v M and K (Section 20: Declaration and Damages); FC 13 May 2016

References: [2016] EWFC 28, [2016] WLR(D) 268, [2016] 4 WLR 97
Links: Bailii, WLRD
Coram: Theis DBE J
Ratio:Award of damages to a child against the local authority after it failed to pursue care proceedings,

Last Update: 07-Jul-16
Ref: 566228

Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd; 2 Feb 1981

References: (1981) 145 CLR 625, [1981] HCA 3
Links: Austlii
Coram: Barwick CJ, Gibbs, Stephen, Mason, Murphy, Aickin, Wilson JJ
Ratio: Austlii High Court of Australia – Damages – Calculation – Failure by insurance broker to arrange workers’ compensation insurance – Employer liable to make periodic payments of compensation to injured employee – Payments adjusted by reference to average weekly wage – Assessment of damages – Rate of discount for present payment – Significance of monetary inflation – Workers’ Compensation Act, 1926(N.S.W.),s. 9A.
Workers’ Compensation – Domestic assistance to injured worker – Whether ‘nursing’ – Workers’ Compensation Act, 1914 (N.S.W.),s. 10 (1), (2).

Last Update: 05-Jul-16
Ref: 566287

Burke v LFOT Pty Ltd; 18 Apr 2002

References: 187 ALR 612, [2002] HCA 17
Links: Austlii
Coram: Gaudron ACJ, McHugh, Kirby, Hayne, Callinan JJ
Ratio:(High Court of Australia) Trade and commerce – Damages – Equitable contribution – Liability to pay damages under ss 75B, 82, 87 of Trade Practices Act 1974 (Cth) for breach of s 52 of the Act – Whether solicitor who gave negligent advice should contribute to the loss suffered by his client as a consequence of another’s misrepresentation which loss could have been avoided by careful advice by the solicitor – Whether equitable maxims prevent requirement of contribution.
Equity – Equitable contribution – Scope of – Requirement of co-ordinate liability – Whether solicitor who gave negligent advice should contribute to loss suffered by client as a consequence of another’s representation where the loss could have been avoided by careful advice by the solicitor.
Contribution – Equitable contribution – Scope of and availability – Co-ordinate liability – Requirements of – Whether compatible with the obligations imposed by Trade Practices Act 1974 (Cth) for breach of s 52 of the Act.
Words and phrases – ‘co-ordinate liability’, ‘natural justice’.
This case is cited by:

Cited – Zurich Insurance Plc UK Branch -v- International Energy Group Ltd SC (Bailii, [2015] UKSC 33, [2015] Lloyd’s Rep IR 598, [2015] WLR(D) 233, [2015] 2 WLR 1471, [2016] AC 509, Bailii Summary, WLRD , UKSC 2013/0057, SC, SC Summary, SC Summary Video)
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .

(This list may be incomplete)

Last Update: 01-Jul-16
Ref: 566220

President of India v La Pintada Compagnia Navigacia SA (‘La Pintada’): HL 1985

References: [1985] AC 104
Coram: Lord Brandon, Lord Bridge
The house decided against altering the rule in Page -v- Newman. ‘The common law does not award general damages for delay in payment of a debt beyond the date when it is contractually due’ The power given to the court under s 35A is discretionary. It does not have the character of a substantive right. (Brandon) A judge ‘ . . already has a statutory remedy. What is more, the new cause of action [argued for] . . would constitute a remedy as of right for a creditor whereas the statutory remedy would remain discretionary only. There would accordingly exist . . two parallel remedies, one as of right and the other discretionary. It is, in my view, plainly to be inferred, from the form of the relevant provisions of the Acts of 1934 and 1982 that Parliament has consistently regarded the award of interest on debts as a remedy to which creditors should not be entitled as of right, but only as a matter of discretion. That being the manifest policy of the legislature, I do not consider that your Lordships should create . . a rival system of remedies, which because they would be remedies as of right, would be inconsistent with that manifest policy.’
This case cites:

Cited – Page -v- Newman ((1829) 9 B&C 378)
Under common law ‘the long-established rule that interest is not due on money secured by a written instrument, unless it appears on the face of the instrument that interest was intended to be paid, or unless it be implied from the usage of trade, as . .
Cited – Chandris -v- Isbrandtsen-Moller Co Inc CA ([1951] KB 240, (1950) 84 Ll LR 347)
The court considered whether an arbitrator could award interest in circumstances where section 3 of the 1934 Act expressly conferred such a power on ‘the court’ in proceedings tried in a ‘court of record’.
Held: Although section 3(1) of the . .

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

Cited – Mohammed Aslam -v- South Bedfordshire District Council CA (Times 18-Jan-01, Gazette 11-Jan-01, Bailii, [2000] EWCA Civ 355)
The claimant appealed an award of the Lands Tribunal of compensation for an order discontinuing his use as a slaughterhouse of premises of which he held a long lease. The tribunal had applied a discount for wastage on sheep carcasses of 25%, but had . .
Cited – Sempra Metals Ltd -v- Inland Revenue Commissioners and Another HL (Bailii, [2007] UKHL 34, [2007] 3 WLR 354, Times 25-Jul-07, [2008] 1 AC 561, [2008] Eu LR 1, [2007] 4 All ER 657, [2007] STC 1559, [2007] BTC 509, [2008] Bus LR 49, [2007] All ER (D) 294, 151 Sol Jo 985)
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Cited – Boake Allen Ltd and others -v- HM Revenue & Customs CA (Bailii, [2006] EWCA Civ 25, Times 10-Feb-06, [2006] STC 606, [2006] BTC 266, 8 ITL Rep 819, [2006] STI 32, [2006] Eu LR 755)
The claimant companies had paid corporation tax under rules which had later been found to be discriminatory. They now sought repayment by virtue of double taxation agreements with the countries in which the parent companies were based.
Held: . .

(This list may be incomplete)
Last Update: 16-Dec-15 Ref: 185178

Lac Minerals v International Corina Resources Ltd; 11 Aug 1989

References: (1989) 61 DLR (4th) 14 Can SC (Canada), [1989] 2 SCR 574, [1990] FSR 441, 69 OR (2d) 287, 1989 CanLII 34 (SCC)
Links: Canlii
Coram: McIntyre, Lamer, Wilson, La Forest and Sopinka JJ
Supreme Court of Canada on appeal from the court of appeal for ontario – Commercial law — Confidentiality — Mining companies discussing possible joint venture — Confidential exploration results disclosed during discussions — High potential property adjacent to lands of exploration company — Mining company in receipt of information purchasing property for own use — Whether or not company in breach of duty respecting confidences — Whether or not breach of fiduciary duty — If so, the appropriate remedy.
Industrial and intellectual property — Trade secrets — Confidentiality — Mining companies discussing possible joint venture — Confidential exploration results disclosed during discussions — High potential property adjacent to lands of exploration company — Mining company in receipt of information purchasing property for own use — Whether or not company in breach of duty respecting confidences — If so, the appropriate remedy.
Trusts and trustees — Fiduciary duty — Trade secrets — Confidentiality — Mining companies discussing possible joint venture — Confidential exploration results disclosed during discussions — High potential property adjacent to lands of exploration company — Mining company in receipt of information purchasing property for own use — Whether or not breach of fiduciary duty — If so, the appropriate remedy.
Remedies — Unjust enrichment — Restitution — Constructive trust — Nature of constructive trust — When constructive trust available.
Last Update: 03-Dec-15 Ref: 556253

Hodgkinson v Simms; 30 Sep 1994

References: [1994] 3 SCR 377, 117 DLR (4th) 161, [1994] 9 WWR 609, 97 BCLR (2d) 1, 16 BLR (2d) 1, 171 NR 245, 22 CCLT (2d) 1, 49 BCAC 1, 57 CPR (3d) 1, 5 ETR (2d) 1, [1994] CarswellBC 438, AZ-94111096, JE 94-1560, [1994] SCJ No 84 (QL), [1994] ACS no 84, 50 ACWS (3d) 469, 80 WAC 1, 95 DTC 5135
Links: Canlii
Coram: La Forest, L’Heureux-Dube, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ
Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by adviser — Ultimate decision as to whether or not to invest that of client — Substantial losses incurred during period of economic downturn — Whether or not fiduciary duty on part of adviser — If so, calculation of damages.
Contracts — Contract for independent services — Breach by failure to disclose — Calculation of damages.
La Forest J, giving the judgment of the majority, drew the distinction between fiduciary relationships and commercial interactions governed by the common law, the former being characterised by one party’s duty to act in the other’s best interests, and often by power on the one hand and dependency on the other, whereas the common law generally respected the pursuit of self-interest. The proper approach to damages for breach of a fiduciary duty was said to be restitutionary. On that basis, the majority of the court concluded that the claimant was entitled to be compensated for the loss sustained on investments which he had made on the advice of a fiduciary who had failed to disclose a conflict of interest, notwithstanding that the loss had resulted from an unforeseen general economic downturn.
This case is cited by:

Cited – Cadbury Schweppes -v- FBI Foods ([1999] 1 SCR 142, Canlii, 1999 CanLII 705 (SCC), 85 ACWS (3d) 166, 191 WAC 161, [1999] SCJ No 6 (QL), JE 99-317, AZ-99111005, 83 CPR (3d) 289, 235 NR 30, 117 BCAC 161, 42 BLR (2d) 159, 59 BCLR (3d) 1, 167 DLR (4th) 577)
Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction . .
Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Approved – Pilmer -v- Duke Group Ltd ((2001) 207 CLR 165, [2001] HCA 31, Austlii)
High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as . .

(This list may be incomplete)
Last Update: 05-Nov-15 Ref: 554204

Maguire v Makaronis; 25 Jun 1997

References: (1997) 188 CLR 449, [1997] HCA 23, (1997) 144 ALR 729, (1997) 71 ALJR 781
Links: Austlii
Coram: Brennan CJ, Gaudron, McHugh, Gummow, Kirby JJ
High Court of Australia – Equity – Fiduciary duties – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Ascertainment of particular fiduciary duties.
Equity – Equitable remedies – Rescission – Relevance of causal connection between breach of fiduciary duty and execution of mortgage – Scope of equity for rescission – Whether clients required to ‘do equity’ by honouring contractual obligation to pay principal and interest secured by mortgage – Rate of interest payable on principal sum outstanding under mortgage.
Legal practitioners – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Fiduciary duties – Equitable remedies.
‘In Australia, the measure of compensation in respect of losses sustained by reason of breach of duty by a trustee or other fiduciary is determined by equitable principles and . . these do not necessarily reflect the rules for assessment of damages in tort or contract.’
This case is cited by:

Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 05-Nov-15 Ref: 554208

Cadbury Schweppes v FBI Foods; 28 Jan 1999

References: [1999] 1 SCR 142, 1999 CanLII 705 (SCC), 85 ACWS (3d) 166, 191 WAC 161, [1999] SCJ No 6 (QL), JE 99-317, AZ-99111005, 83 CPR (3d) 289, 235 NR 30, 117 BCAC 161, 42 BLR (2d) 159, 59 BCLR (3d) 1, 167 DLR (4th) 577
Links: Canlii
Coram: L’Heureux-Dube, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ
Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction appropriate remedy for breach of confidence in this case – Whether ‘head start’ concept applies — Whether calculation of equitable compensation differs from common law damages.
This case cites:

Cited – Hodgkinson -v- Simms ([1994] 3 SCR 377, Canlii, 117 DLR (4th) 161, [1994] 9 WWR 609, 97 BCLR (2d) 1, 16 BLR (2d) 1, 171 NR 245, 22 CCLT (2d) 1, 49 BCAC 1, 57 CPR (3d) 1, 5 ETR (2d) 1, [1994] CarswellBC 438, AZ-94111096, JE 94-1560, [1994] SCJ No 84 (QL), [1994] ACS no 84, 50 ACWS (3d) 469, 80 WAC 1, 95 DTC 5135)
Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by . .

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

Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 03-Nov-15 Ref: 554203

Akai Holdings Ltd v Kasikornbank PCL; 8 Nov 2010

References: [2011] 1 HKC 357
Links: Hklii
Coram: Chief Justice Ma, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and, Lord Neuberger of Abbotsbury NPJ
Court of Final Appeal – Hong Kong – Lord Neuberger of Abbotsbury NPJ said: ‘the notion that equitable compensation is assessed on a somewhat different basis from common law damages is clearly right (albeit that the difference can be overstated)’ and ‘the losses made good are only those which, on a common sense view of causation, were caused by the breach’
This case is cited by:

Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 03-Nov-15 Ref: 554210

Canson Enterprises Ltd v Boughton and Co; 21 Nov 1991

References: [1991] 3 SCR 534, 1991 CanLII 52 (SCC), 85 DLR (4th) 129, [1992] 1 WWR 245, 1 BCLR (2d) 1
Links: Canlii
Coram: Lamer CJ and Wilson, La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ
Canlii Supreme Court of Canada – Canada – Damages — Breach of fiduciary duty — Solicitor preparing conveyance not advising purchasers of secret profit made on a flip — On agreed facts, purchasers fully apprised of situation would not have entered the transaction — Action arising because inability of other professionals found liable in tort for faulty construction of building on subject lands to pay damages — Whether or not damages recoverable.
The claim was brought by developers of land against the lawyers who had acted for them in the purchase of the land. The lawyers acted in breach of their fiduciary duty by failing to disclose their knowledge that a third party was making a secret profit from the purchase. The development proved to be a failure as a result of the negligence of the engineers and contractors involved. The appellants sought to recover the loss incurred on the development from the lawyers, on the basis that they would not have proceeded with the purchase if they had known of the secret profit. Recognising that the loss would not be recoverable in an action founded on breach of contract, negligence or deceit, the appellants instead sought equitable compensation for breach of fiduciary duty, arguing that such compensation was unlimited by principles of causation, remoteness or intervening acts.
La Forest J (majority) distinguished between the breach of a trustee’s obligation to hold the object of the trust, where ‘on breach the concern of equity is that it be restored . . or, if that cannot be done, to afford compensation for what the object would be worth’, and on the other hand ‘a mere breach of duty’, where ‘the concern of equity is to ascertain the loss resulting from the particular breach of duty.’ In the former situation the difference between restoration and damages was abundantly clear, but in the latter situation ‘the difference in practical result between compensation and damages is by no means as clear’. He went on to observe in relation to claims of the latter kind: ‘The truth is that barring different policy considerations underlying one action or the other, I see no reason why the same basic claim, whether framed in terms of a common law action or an equitable remedy, should give rise to different levels of redress.’
McLachlin J dissented as to the way the result was obtained but not as to the result. She rejected the argument that the starting point, when quantifying compensation for breach of fiduciary duty, should be an analogy with tort or contract. In her view, that approach overlooked the unique foundation and goals of equity. In negligence and contract the parties were taken to be independent and equal actors, concerned primarily with their own self-interest. Consequently, the law sought a balance between enforcing obligations by awarding compensation, and preserving optimum freedom for those involved in the relationship. The essence of a fiduciary relationship, by contrast, was that one party pledged herself to act in the best interests of the other. The freedom of the fiduciary was diminished by the nature of the obligation she had undertaken. The fiduciary relationship had trust, not self-interest, at its core.
She concluded: ‘In summary, compensation is an equitable monetary remedy which is available when the equitable remedies of restitution and account are not appropriate. By analogy with restitution, it attempts to restore to the plaintiff what has been lost as a result of the breach, ie, the plaintiff’s loss of opportunity. The plaintiff’s actual loss as a consequence of the breach is to be assessed with the full benefit of hindsight. Foreseeability is not a concern in assessing compensation, but it is essential that the losses made good are only those which, on a common sense view of causation, were caused by the breach.’
This case is cited by:

Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 03-Nov-15 Ref: 553778

Commonwealth of Australia v Amann Aviation Pty Ltd; HCA 12 Dec 1991

References: (1991) 66 ALJR 12, [1991] HCA 54, (1992) 174 CLR 64
Links: Austlii
Coram: Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ
(High Court of Australia) In a claim for damages for breach of contract, wasted expenditure was claimed and there was a complex dispute as to what the consequences of performing the contract would have been.
Held: The law should not, when assessing damages, adopt an all-or-nothing balance of probability approach, and assume certainty where none in truth exists.
This case is cited by:

Cited – Gregg -v- Scott HL (Bailii, [2005] UKHL 2, House of Lords, Times 28-Jan-05, [2005] 2 AC 176, [2005] 2 WLR 268)
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Omak Maritime Ltd -v- Mamola Challenger Shipping Co Ltd ComC ([2010] WLR (D) 230, [2010] EWHC 2026 (Comm), Bailii, WLRD)
The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .

Arab Monetary Fund v Hashim; 11 Oct 1994

References: Times 11-Oct-1994
Coram: Chadwick J
In cases under the 1978 Act the court does not ask whether, under some rule of English private international law to be found independently of that Act, the contribution claim is to be determined by reference to the 1978 Act. Rather, the court asks whether, under the provisions of the 1978 Act itself, the contribution claim ought to succeed. Chadwick J said: ‘If B and C were each persons against whom liability had been or could be established in an action brought against them by A in an English court, applying the appropriate law in accordance with English private international law rules, then the Act conferred on B a right of contribution against C to which the court had to give effect. There was no preliminary question as to proper law the answer to which determined, independently of the Act, whether the Act applied.’
Statutes: Civil Liability Contribution Act 1978
This case is cited by:

Cited – Cox -v- Ergo Versicherung Ag CA (Bailii, [2012] EWCA Civ 854)
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .

The ‘Pegase’: 1981

References: [1981] I Ll Rep 175
Coram: Goff J
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single principle – though it is recognised that the application of the principle may depend on the degree of relevant knowledge held by the defendant at the time of the contract in the particular case’.
This case cites:

Cited – Victoria Laundry (Windsor) Ltd -v- Newman Industries CA ([1949] 2 KB 528)
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
Cited – Czarnikow (C ) Ltd -v- Koufos; The Heron II HL ([1967] 3 All ER 686, [1969] 1 AC 350, [1967] 3 WLR 1491, Bailii, [1967] UKHL 4)
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – Hadley -v- Baxendale Exc (Bailii, [1854] EWHC Exch J70, [1854] EngR 296, Commonlii, (1854) 9 Exch 341, (1854) 156 ER 145)
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .

This case is cited by:

Cited – Transfield Shipping Inc of Panama -v- Mercator Shipping Inc of Monrovia ComC (Bailii, [2006] EWHC 3030 (Comm), [2007] 1 Lloyd’s Rep 19, [2007] 1 All ER (Comm) 379, [2006] 2 CLC 1069)
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – Transfield Shipping Inc -v- Mercator Shipping Inc (The Achilleas) HL (Bailii, [2008] UKHL 48, Times 10-Jul-08, HL)
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .

London and Overseas Freighters v Timber Shipping Co SA ‘The London Explorer’: HL 1972

References: [1971] 1 Lloyds Rep 523, [1972] AC 1
Coram: Lord Morris, Lord Reid
The London Explorer was under a charter where the hire was ‘to continue until the hour of the day of her redelivery’. The charterers redelivered the ship about 3 months late because, although she had set out on a legitimate last voyage, she had been delayed by strikes at her last two discharging ports.
Held: The owners recovered for the additional hire at the charterparty rate even though the market rate during the overrun period was less than the charterparty rate.
Lord Morris: ‘Even though the time set out in a charterparty is not made of the essence so that continued use of the vessel after the stated time will not at once have the result that such continued use will be in breach of contract, it will be necessary that redelivery should be within a reasonable time. It might well be . . that with a clause similar to clause 4 a charterer would be liable to pay hire at the contractual rate to the time of actual redelivery and in addition (if the current rate exceeded the contractual rate) to pay damages in respect of his failure to redeliver within a reasonable time’.
Lord Reid said: ‘There is a controversy as to whether one can ever look at deleted words in an agreement. If the words were first inserted by the draftsman of the agreement and then deleted before signature then I have no doubt that they must not be considered in construing the agreement. They are in the same position as any other preliminary suggestion put forward and rejected before the final agreement was made. But it appears to me that striking out words from a printed form is quite a different matter. The process of adapting a printed form to make it express the parties’ intentions requires two things to be done. Those parts which are not to be part of the agreement are struck out and words are inserted to complete the rest of the form so as to express the agreement. There is no inference that in striking out words the parties had second thoughts: the words struck out were never put there by the parties or any of them or by their draftsman.’
This case is cited by:

Cited – Transfield Shipping Inc of Panama -v- Mercator Shipping Inc of Monrovia ComC (Bailii, [2006] EWHC 3030 (Comm), [2007] 1 Lloyd’s Rep 19, [2007] 1 All ER (Comm) 379, [2006] 2 CLC 1069)
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .

Rolin And Another v Steward, Public Officer of The East of England Bank; 8 May 1854

References: [1854] EngR 492, (1854) 14 CB 595, (1854) 139 ER 245
Links: Commonlii
Substantial damages may be recovered against a banker, for dishonouring an acceptance and cheques of a customer, there being sufficient assets in his hands at the time to meet them.
This case is cited by:

Followed – Wilson -v- United Counties Bank Ltd HL ([1918-19] All ER Rep1035, [1920] LR AC 102, [1920] AC 102)
Major Wilson had left England on active service soon after the beginning of the great war, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business . .

Skelton v Collins; 7 Mar 1966

References: (1966) 115 CLR 94, [1966] HCA 14
Links: Austlii
Coram: Kitto, Taylor, Menzies, Windeyer and Owen JJ
(High Court of Australia) Damages – Personal Injuries – Loss of earning capacity – Loss of expectation of life – Loss of amenities during reduced life span – Pain and suffering – Plaintiff rendered permanently unconscious by injuries – Basis of assessment.
Precedent – Decisions of House of Lords – Applicability – High Court – Other Australian courts.
This case is cited by:

Followed – Pickett -v- British Rail Engineering HL ([1980] AC 136, Bailii, [1978] UKHL 4)
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Payne v Railway Executive; 2 Jan 1951

References: [1951] 1 All ER 1034
Coram: Cohen LJ, Singleton LJ, Birkett LJ
A Royal Navy sailor was disabled by a railway accident and was awarded a disability pension of £2 16s. 3d. per week. At first instance J Sellers had held that Bradburn’s case applied so as to prevent deduction of the value of the pension. If it had been deductible that would have reduced the damages for loss of earnings from £3,000 to £750.
Held: The appeal failed. The accident was not the causa causans of the receipt of the pension. Singleton LJ: ‘If there were no pension rights it is reasonable to assume that the pay would be higher. Why, then, should the pension enure to the benefit of a wrongdoer?’ The Minister had power to withhold or reduce the pension.
This case is cited by:

Affirmed on Appeal – Payne -v- Railway Executive ([1952] 1 KB 26)
Disablement pensions, whether voluntary or not, are to be ignored in the assessment of damages. . .
Cited – Parry -v- Cleaver HL ([1970] AC 1, [1969] 2 WLR 821, [1969] 1 All ER 555, [1969] 1 Lloyd’s Rep 183, Bailii, [1969] UKHL 2)
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Applied – Judd -v- Board of Governors, Hammersmith, West London and St. Mark’s Hospitals ([1960] 1 WLR 32, [1960] 1 All ER 607)
The plaintiff, a local government officer had made compulsory contributions to his superannuation scheme.
Held: A contributory pension received early on an injury was to be ignored until the normal retiring age, but deducted for the later . .

Tynes v Barr; 28 Mar 1994

References: (1994) 45 WIR 7, [1994] ICHRL 5
Links: Worldlii
(Supreme Court of the Bahamas) The plaintiff had been wrongfully arrested and humiliated publicly at an airport. He claimed exemplary damages. In assessing the exemplary damages in a court should take account of the injury the plaintiff has endured to his dignity and pride, mental suffering and loss of reputation: ‘Exemplary damages should be awarded in view of the arrogant, abusive and outrageous disregard shown by the police for the law, in particular, their delay in producing documents; the manner in which the defence was conducted; and the fact that liability was not conceded until the sixth and ninth days of the trial and even then with no appropriate apology being offered to the plaintiff. The police should be made aware of the need to observe the requirements as to when they may arrest and detain a person without a warrant and the way in which a person so detained must be humanely treated.’
This case is cited by:

Cited – Takitota -v- The Attorney General and Others PC (Bailii, [2009] UKPC 11, 26 BHRC 578)
Bahamas – The claimant appeald as to the amount of compensation awarded to him for his unlawful detention for over eight years, in appalling prison conditions. The Court of Appeal categorised his treatment not only as ‘less than humane’ but as a . .

Breavington v Godleman; 18 Aug 1988

References: [1988] HCA 40, (1988) 169 CLR 41, (1988) 80 ALR 362, (1988) 62 ALJR 447, (1988) 7 MVR 289
Links: Austlii
Coram: Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey, Gaudron JJ
Austlii (High Court of Australia) – Private International Law – Tort – Negligence – Act committed in Territory – Personal injury – Territory statute imposing limit on amount of damages – Action in State court – No limit on amount of damages under State law – Choice of law – Whether law of place of tortious act or of forum – The Constitution (63 and 64 Vict. c. 12), ss. 118, 122 – Motor Accidents (Compensation) Act 1979 (N.T.), ss. 4,5 – State and Territorial Laws and Records Recognition Act 1901 (Cth), s. 18.
Federal Jurisdiction – Conflict of laws – Full faith and credit – Whether State court required to give full faith and credit to Territory statute – Whether law of Territory a law of the Commonwealth – Inconsistency – The Constitution (63 and 64 Vict. c. 12), ss. 109, 118 – State and Territorial Laws and Recognition Act 1901 (Cth), s. 18.
Federal Jurisdiction – Action in State court against Commonwealth – Submission to jurisdiction – Whether federal jurisdiction – Whether State choice of law rules apply – The Constitution (63 and 64 Vict. c. 12), ss. 75(iii), 78 – Judiciary Act 1903 (Cth), ss. 39(2), 56, 64, 79.
This case is cited by:

Cited – Roerig -v- Valiant Trawlers Ltd CA ([2002] All ER (D) 234, Bailii, [2002] EWCA Civ 21, [2002] 1 WLR 2304)
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Cited – Roerig -v- Valiant Trawlers Ltd CA ([2002] All ER (D) 234, Bailii, [2002] EWCA Civ 21, [2002] 1 WLR 2304)
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .

George Franklin, Administrator Of Thomas Franklin, Deceased v The South Eastern Railway Company; 7 May 1858

References: [1858] EngR 669, (1858) 3 H & N 211, (1858) 157 ER 448
Links: Commonlii
In an action on the 9 & 10 Vict c. 93, for injury resulting from death, the damages should be calculated in reference to a reasonable expectation of pecuniary benefit, its of right or otherwise, from the continuance of the life. In an action by a father for injury resulting from the death of his son, it appeared that the father was old and infirm, that the son, who was young and earning good wages, assisted his father in some work for which the father was paid 3s 6d. a week. The jury having found that the father had a reasonable expectation of benefit from the continuatice of his son’s life : Held, that the action was maintainable.
This case is cited by:

Cited – Hay -v- Hughes CA ([1975] QB 790, Bailii, [1974] EWCA Civ 9)
A couple had died in a road accident. The court considered the award of damages for dependency. . .

Cavanagh v London Transport Executive; 23 Oct 1956

References: Times 23-Oct-1956
Coram: Devlin J
The deceased stepped onto the road just behind a taxi cab which was stationary or just drawing up. He neither saw nor heard an approaching number bus and walked directly into its path. He suffered a fractured skull. There was evidence that his mental processes became grossly abnormal. Some sixteen months after the accident he committed suicide.
Held: The court was satisfied that ‘an irrational state of mind arising from his head injuries was a cause, if not the main cause, of his suicide.’ The judge ‘would, if necessary, hold that the plaintiff (the widow of the deceased) had discharged the burden of causation upon her and that the financial worry did not amount to a novus actus. But if, looked at independently of its origins it would amount to a novus actus, he was satisfied that the deceased’s financial position in January, 1955, could be traced back to the accident.’
This case is cited by:

Cited – Corr -v- IBC Vehicles Ltd CA (Bailii, [2006] EWCA Civ 331, Times 21-Apr-06, [2006] ICR 1138, [2007] QB 46, [2006] 2 All ER 929, [2006] 3 WLR 395)
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .

British Columbia v Zastowny; 8 Feb 2008

References: [2008] 1 SCR 27, (2008), 290 DLR (4th) 21, [2008] 4 WWR 381, (2008) 76 BCLR (4th) 1
Links: Canlii
Coram: McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii (Supreme Court of Canada) Damages – Past and future wage loss – Periods of incarceration – Plaintiff seeking damages for injuries suffered as consequence of sexual assaults – Whether plaintiff entitled to compensation for wage loss while he was incarcerated – Whether plaintiff can be compensated for time spent in prison after he became eligible for parole – Whether recovery for past wage loss while incarcerated barred by application of ex turpi causa non oritur actio doctrine or novus actus interveniens doctrine – Whether Court of Appeal erred in reducing award for loss of future earnings.
Canlii In 1988, Z was twice sexually assaulted by a prison official while imprisoned for a break and enter committed to support a crack cocaine addiction. After his release from prison, Z became addicted to heroin and a repeat offender. He was in prison for 12 of the next 15 years. In 2003, Z commenced an action seeking damages for the sexual assaults. A psychologist testified that the assaults caused Z to start using heroin and exacerbated his substance abuse and criminality. Z was awarded general and aggravated damages, the cost of future counselling, and compensation for past and future wage losses. The award for past wage losses included compensation for time spent in prison. The Court of Appeal reduced the award for past wage loss in order to compensate Z only for the time spent in prison after eligibility for parole and it reduced Z’s future wage loss by 30 percent to reflect his high risk of recidivism.
Held: The appeal should be allowed and the cross-appeal should be dismissed.
This case is cited by:

Cited – Gray -v- Thames Trains and Others HL (Bailii, [2009] UKHL 33, Times, [2009] PIQR P22, (2009) 108 BMLR 205, [2009] 4 All ER 81, [2009] 3 WLR 167)
The claimant had been severely injured in a rail crash caused by the defendant’s negligence. Under this condition, the claimant had gone on to kill another person, and he had been detained under section 41. He now sought damages for his loss of . .

The ‘Nukila’: CA 1987

References: [1987] 2 Lloyd’s Rep 146
Coram: Hobhouse LJ
Hobhouse LJ said: ‘Turning to the authorities it must at the outset be recognised that, whether or not they are strictly binding on us, they must, insofar as they represent the existing authoritative statements of the law only be departed from if they are clearly wrong. This principle has been stated on a number of occasions in the field of commercial law where it is recognised that the parties enter into contracts on the basis of the law as it has been stated in the applicable authorities. For a Court, in deciding a dispute under a commercial contract, later to depart from those authorities risks a failure to give effect to a contractual intention of those parties as evidenced by their contract entered into on a certain understanding of the law. ‘
This case cites:

Cited – Atlantic Shipping & Trading Co -v- Louis Dreyfus & Co HL ([1921] 2 AC 250, [1922] 10 Ll Rep 703)
Lord Dunedin said: ‘My Lords in these commercial cases it is I think of the highest importance that authorities should not be disturbed and if your lordships find that a certain doctrine has been laid down in former cases and presumably acted upon . .

This case is cited by:

Cited – Transfield Shipping Inc of Panama -v- Mercator Shipping Inc of Monrovia ComC (Bailii, [2006] EWHC 3030 (Comm), [2007] 1 Lloyd’s Rep 19, [2007] 1 All ER (Comm) 379, [2006] 2 CLC 1069)
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .

Robertson Or Macey-Lillie v Lanarkshire Health Board andC: OHCS 26 May 2000

References: Times 28-Jun-2000, [2000] ScotCS 136
Links: Bailii, ScotC
Coram: Lord Philip
Economic circumstances have not changed sufficiently yet to alter the rate of three per cent used when calculating damages in personal injury cases. Though the returns on government stocks had fallen the figure of two per cent was not yet appropriate, and lay within the range of returns contemplated when the original figures had been set.
Statutes: Damages Act 1996

Robinson v Harman; 18 Jan 1848

References: [1848] 1 Exch Rep 850, (1843-60) All ER 383, [1848] EngR 135, (1848) 1 Exch 850, (1848) 154 ER 363
Links: Commonlii
Coram: Baron Parke
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it to be placed in the same situation, with regard to damages as if the contract had been performed.’
This case is cited by:

Cited – Husain and Zafar -v- Bank of Credit & Commerce International SA CA (Bailii, [2002] EWCA Civ 82, [2002] 3 All ER 750, [2002] ICR 1258, [2002] IRLR 460, [2002] Emp LR 406, A3/2001/9016/CHANF)
The appellants challenged the refusal of their claims for stigma damages following the collapse of their former employer.
Held: If a relevant breach of contract is established, and causation, remoteness and mitigation are satisfied, recovery . .
Cited – HM Attorney General -v- Blake (Jonathan Cape Ltd third Party intervening) HL (Gazette 17-Aug-00, Times 03-Aug-00, House of Lords, Bailii, [2000] UKHL 45, [2000] 4 All ER 385, [2000] 3 WLR 625, [2001] 1 AC 268)
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Applied – Surrey County Council and Mole District Council -v- Bredero Homes Ltd ChD ([1992] 3 All ER 302)
Land was agreed to be sold for development in accordance with an existing planning permission. Instead a later permission was obtained, and more houses were built. The plaintiff had not sought to restrain or prevent the breach, but now sought . .
Cited – Alfred Mcalpine Construction Limited -v- Panatown Limited HL (Times 15-Aug-00, House of Lords, Gazette 05-Oct-00, Bailii, [2000] UKHL 43, [2000] 4 All ER 97, [2000] 3 WLR 946, [2001] 1 AC 518)
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Pegler Ltd -v- Wang (Uk) Ltd TCC (Bailii, [2000] EWHC Technology 137, 1997 TCC No 219)
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Cited – Catlin Estates Ltd and Another -v- Carter Jonas (A Firm) TCC (Bailii, [2005] EWHC 2315 (TCC))
The defendants had been employed to manage a building project which it was said went wrong. The court had to consider several different factual claims. . .
Cited – Golden Strait Corporation -v- Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL (Bailii, [2007] UKHL 12, Times 30-Mar-07, [2007] 2 Lloyds Rep 164, [2007] Bus LR 997, [2007] 3 All ER 1, [2007] 2 AC 353, [2007] 1 CLC 352, [2007] 2 WLR 691, [2007] 2 All ER (Comm) 97)
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Transfield Shipping Inc -v- Mercator Shipping Inc (The Achilleas) HL (Bailii, [2008] UKHL 48, Times 10-Jul-08, HL)
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Cited – Ruxley Electronics and Construction Ltd -v- Forsyth HL (Independent 12-Jul-95, Gazette 06-Sep-95, Times 03-Jul-95, [1996] 1 AC 344, [1995] 3 WLR 118, Bailii, [1995] UKHL 8, [1995] CLC 905, [1995] 3 All ER 268)
The appellant had constructed to build a swimming pool for the respondent, but, after agreeing to alter the sepcification to construct it to a certan depth, in fact built it to the original lower depth, Damages had been awarded to the house owner . .

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 . .

Radford v De Froberville; 2 Jan 1977

References: [1977] 1 WLR 1262
Coram: Oliver J
A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a certain specification on the plot so as to separate it from the plaintiff’s land. The plaintiff obtained judgment against the defendant for damages for breach of contract by reason of her failure to erect the dividing wall, but an issue arose as to the measure of the damages. The defendant having failed to build the dividing wall on the land purchased from the plaintiff, the plaintiff proposed to build a dividing wall on his own land, and claimed the cost of doing so from the defendant; whereas the defendant maintained that the appropriate measure of damages was the consequent diminution in the value of the plaintiff’s property, which was nil.
Held: The court described the distinction made in the Liesbosch between a plaintiff’s capacity to mitigate his loss and his duty to do so: ‘No doubt the measure of damages and the plaintiff’s duty and ability to mitigate are logically distinct concepts (see for instance, the speech of Lord Wright in Liesbosch (Dredger) v SS Edison (Owners) [1933] AC 449, 456-469). But to some extent, at least, they are mirror images . .’ A contracting party should not use the remedy of damages to recover ‘an uncovenanted profit.’ However: ‘If [the plaintiff] contracts for the supply of that which he thinks serves his interests – be they commercial, aesthetic or merely eccentric – then if that which is contracted for is not supplied by the other contracting party I do not see why, in principle, he should not be compensated by being provided with the cost of supplying it through someone else or in a different way, subject to the proviso, of course, that he is seeking compensation for a genuine loss and not merely using a technical breach to secure an uncovenanted profit.’ It was for the plaintiff to judge what performance he required in exchange for the price. The court should honour that choice.
Oliver J said: ‘In the instant case, the plaintiff says in evidence that he wishes to carry out the work on his own land and there are, as it seems to me, three questions that I have to answer. First, am I satisfied on the evidence that the plaintiff has a genuine and serious intention of doing the work? Secondly, is the carrying out of the work on his own land a reasonable thing for the plaintiff to do? Thirdly, does it make any difference that the plaintiff is not personally in occupation of the land but desires to do the work for the benefit of his tenants?’
This case cites:

Cited – Liesbosch Dredger (Owners of) -v- Owners of SS Edison, The Liesbosch HL ([1933] AC 449, [1933] All ER Rep 144, [1933] 149 LT 49, Bailii, [1933] UKHL 2)
The ship Edison fouled the moorings of the Liesbosch resulting in the total loss of the dredger when it sank. It had been engaged on work in the harbour under contract with the harbour board. All the owners’ liquid resources were engaged in the . .
Cited – Jackson -v- Horizon Holidays Ltd CA ([1975] 1 WLR 1468, Bailii, [1974] EWCA Civ 12, [1975] 3 All ER 92)
A family claimed damages for a disappointing holiday. The generous measure of damages given to the father was that the father was being fully compensated for his own mental distress, but the rule of privity of contract operated to bar the claim for . .
Cited – Tito -v- Waddell (No 2); Tito -v-Attorney General ChD ([1977] Ch 106, [1977] 3 All ER 129, [1977] 3 WLR 972)
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .

This case is cited by:

Cited – Lagden -v- O’Connor HL (House of Lords, [2003] UKHL 64, Bailii, Times 05-Dec-03, [2004] 1 AC 1067, [2004] 1 All ER 277, [2003] 3 WLR 1571, [2004] Lloyd’s Rep IR 315, [2004] RTR 24)
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Approved – Dodd Properties (Kent) Ltd -v- Canterbury City Council CA ([1980] 1 WLR 433, Bailii, [1980] 1 All ER 928, [1979] EWCA Civ 4)
The defendants had, in the course of building operations, caused nuisance and damage to the plaintiff’s building. The dispute was very lengthy, the costs of repair increased accordingly, and the parties now disputed the date at which damages fell to . .
Cited – Alfred Mcalpine Construction Limited -v- Panatown Limited HL (Times 15-Aug-00, House of Lords, Gazette 05-Oct-00, Bailii, [2000] UKHL 43, [2000] 4 All ER 97, [2000] 3 WLR 946, [2001] 1 AC 518)
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Golden Strait Corporation -v- Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL (Bailii, [2007] UKHL 12, Times 30-Mar-07, [2007] 2 Lloyds Rep 164, [2007] Bus LR 997, [2007] 3 All ER 1, [2007] 2 AC 353, [2007] 1 CLC 352, [2007] 2 WLR 691, [2007] 2 All ER (Comm) 97)
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Johnson -v- Agnew HL ([1980] AC 367, [1979] 2 WLR 487, [1979] 1 All ER 883)
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Cited – Alcoa Minerals of Jamaica Inc -v- Herbert Broderick PC (Times 22-Mar-00, Bailii, PC, PC, [2002] 1 AC 371, [2000] UKPC 11, (Appeal No 68 of 1998))
(Jamaica) Damage had been caused to the claimant’s property, but, because of his lack of funds, he was dependent upon the receipt of the damages to carry out the works of repair necessary. By the time the matter came to trial, inflation meant that . .
Cited – Ruxley Electronics and Construction Ltd -v- Forsyth HL (Independent 12-Jul-95, Gazette 06-Sep-95, Times 03-Jul-95, [1996] 1 AC 344, [1995] 3 WLR 118, Bailii, [1995] UKHL 8, [1995] CLC 905, [1995] 3 All ER 268)
The appellant had constructed to build a swimming pool for the respondent, but, after agreeing to alter the sepcification to construct it to a certan depth, in fact built it to the original lower depth, Damages had been awarded to the house owner . .

Farrell v Avon Health Authority; 8 Mar 2001

References: [2001] All ER (D) 17
Coram: Judge Bursell QC
The claimant was father to a new-born child. At the birth he was told that his baby son was dead before seeing his son and understanding that an error had been made. He sought damages asserting that he had suffered nervous shock. The Hospital said that he was not able to recover for psychiatric injury where no possibility of a physical injury was forseeable.
Held: He succeeded. As a primary victim a claim for psychiatric injury was possible even where no physical injury was risked. A real risk of suffering a recognised psychiatric disorder was sufficient.

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 . .

Shetland Sea Farms Ltd, Assuranceforeningen Skuld v International Oil Pollution Compensation Fund and others; ScS 28 May 2003

References: [2003] ScotCS 153
Links: Bailii, ScotC
Coram: Lord Hardie
The claimant’s fish farm had been damaged followng the discharge of oil from the Braer. The responders operated a scheme for compensation for losses. The parties disputed the entitlement of the claimants to compensation for losses following their inability to introduce smolt into the farm.

SIB International SRL v Metallgesellschaft Corporation (‘The Noel Bay’): CA 1989

References: [1989] 1 Lloyd’s Rep 361
Coram: Staughton LJ
The Noel Bay was let on a charterparty to carry oil between ports in Europe, with demurrage provisions. The owners treated the charterer’s failure to nominate a port, as a repudiation. The owners found alternative employment for the ship and sought the difference in return as damages and demurrage for 72 hours which they would have earned together with the cost of getting the ship to the new port. They appealed refusal of the award of these additional sums.
Held: The appeal failed. Though they would have earned the demurrage had the contract continued, since it had not been, the proper basis for delay, giving credit for earnings in that period. The cost of getting the ship to the new port (the approach voyage) was part of the cost of the new contract for which the owner had to give credit. Staughton LJ accepted counsel’s submission that the value of the contract which the owners lost ‘must be assessed as at . . the date when repudiation was accepted’ and ‘It is established law that, at any rate if the option has not already been exercised at the date of the breach, the charterer must be assumed to have exercised that option in a way most favourable to himself.’
This case cites:

Approved (Megaw LJ) – Maredelanto Compania Naviera SA -v- BergbauHandel GmbH (The Mihalis Angelos) CA ([1971] 1 QB 164, Bailii, [1970] EWCA Civ 4, [1970] 3 WLR 601, [1970] 2 Lloyd’s Rep 43, [1970] 3 All ER 125)
The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .

This case is cited by:

Cited – Golden Strait Corporation -v- Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL (Bailii, [2007] UKHL 12, Times 30-Mar-07, [2007] 2 Lloyds Rep 164, [2007] Bus LR 997, [2007] 3 All ER 1, [2007] 2 AC 353, [2007] 1 CLC 352, [2007] 2 WLR 691, [2007] 2 All ER (Comm) 97)
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .

Hogg v Kirby; 15 Mar 1803

References: [1803] EngR 513, (1803) 8 Ves Jun 215, (1803) 32 ER 336 (B)
Links: Commonlii
Coram: Lord Eldon LC
Injunction to restrain publishing a Magazine as a continuation of the Plaintiff’s Magazine in numbers, and as to communications from correspondents, received by the Defendant while publishing for the Plaintiff ; not preventing the publication of an original work of the same nature, and under a similar title. The Plaintiff was proprietor of a work, published in monthly numbers under the title ‘The Wonderful Magazine’.
Held: In assessing damages in a passing off case, the court said, ‘what is the consequence in Law and in Equity? . . a Court of Equity in these cases is not content with an action for damages; for it is nearly impossible to know the extent of the damage; and therefore the remedy here, though not compensating the pecuniary damage except by an account of profits, is the best: the remedy by an injunction and account.’ The reason for the general rule in courts of equity that an injunction would be granted as a matter of course to restrain infringements of property rights was the inadequacy of damages as a remedy.’
This case cites:

See Also – Hogg -v- Kirby (Commonlii, [1789] EngR 1227, (1789-1817) 2 Ves Jun Supp 100, (1789) 34 ER 1013 (B))
. .

This case is cited by:

Cited – HM Attorney General -v- Blake (Jonathan Cape Ltd third Party intervening) HL (Gazette 17-Aug-00, Times 03-Aug-00, House of Lords, Bailii, [2000] UKHL 45, [2000] 4 All ER 385, [2000] 3 WLR 625, [2001] 1 AC 268)
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Cited – Ludlow Music Inc -v- Williams and others ChD (Bailii, [2000] EWHC 456 (Ch), [2001] EMLR 7, [2001] FSR 19)
The claimant sought damages for copyright infringement in respect of two works which parodied a song to which they owned the rights.
Held: The amount copied, being as much as a quarter of the original work, meant that the claim was . .

Hamlin v Great Northern Railway Co; 19 Nov 1856

References: (1856) 1 H & N 408, [1856] EngR 918, (1856) 156 ER 1261
Links: Commonlii
Coram: Pollock CB
A plaintiff can recover whatever damages naturally resulted from the breach of contract, but damages cannot be given ‘for the disappointment of mind occasioned by the breach of contract.’
This case is cited by:

Not Followed – Jarvis -v- Swans Tours Ltd CA (lip, [1973] 1 All ER 71, [1972] 3 WLR 954, [1973] QB 233, Bailii, [1972] EWCA Civ 8)
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .

Cullinane v British ‘Rema’ Manufacturing Co Ltd: CA 1954

References: [1954] 1 QB 292
Coram: Lord Evershed MR, Jenkins LJ
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which it is pleaded was not sustainable, in so far as the plaintiff sought to recover both the whole of his original capital loss and also the whole of the profit which he could have made. I think that that is really a self-evident proposition, because a claim for loss of profits could only be founded upon the footing that the capital expenditure had been incurred.’ and
‘In the present case it is plain that to the knowledge of the defendants this machine was required to perform a particular function, and the warranty given shows what the function was that the machine was designed to perform. There is, therefore, no doubt at all that the plaintiff is entitled to rely on [the second limb of the rule in Hadley v Baxendale], and to claim as damages the business loss which must reasonably be supposed to have been, in the contemplation of both parties at the time when they made the contract, the probable result of the breach. In other words, this plaintiff is not confined to the loss which might be called the natural result of having a machine which turned out to be less that the purchase he has paid for it.’
This case is cited by:

Cited – Watford Electronics Ltd -v- Sanderson CFL Ltd CA (Gazette 03-May-01, Bailii, [2001] EWCA Civ 317, [2001] 1 All ER (Comm) 696, [2001] BLR 143, [2002] FSR 19, (2001) 3 TCLR 14, [2001] Masons CLR 57)
The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
Held: It is for the party claiming that a contract . .
Cited – Astea (Uk) Ltd -v- Time Group Ltd TCC (Bailii, [2003] EWHC 725 (TCC), [2003] All ER (D) 212)
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Cited – Anglia Television -v- Oliver Reed CA ([1972] 1 QB 60, [1971] 3 All ER 690)
The television company had agreed with the actor defendant for him to appear in a production. He breached the contract. The company sought both loss of profits and for the expense incurred. The issue before the Court of Appeal was whether such . .
Cited – Anglo Group Plc, Winther Brown & Co Ltd -v- Winter Brown & Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd TCC (Bailii, [2000] EWHC Technology 127)
cs Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses . .
Cited – East -v- Maurer CA ([1991] 1 WLR 461, Bailii, [1990] EWCA Civ 6, [1991] 2 All ER 733)
The plaintiffs had bought a hair dressing salon from the defendant, who continued to trade from another he owned, despite telling the plaintiffs that he intended not to. The plaintiffs lost business to he defendant. They invested to try to make a . .
Cited – Parker and Another -v- SJ Berwin & Co and Another QBD (Bailii, [2008] EWHC 3017 (QB))
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Cited – Omak Maritime Ltd -v- Mamola Challenger Shipping Co Ltd ComC ([2010] WLR (D) 230, [2010] EWHC 2026 (Comm), Bailii, WLRD)
The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
Cited – Bowlay Logging Limited -v- Domtar Limited ([1978] 4 WWR 105)
(Canada) The parties contracted for the claimant to cut timber and the defendant to haul it. The plaintiff said that the defendant breached the contract by supplying insufficient trucks to haul the timber away, and claimed as damages his wasted . .

Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others Appeals: CA 24 Feb 1995

References: Times 24-Feb-95, Gazette 22-Mar-95, Times 21-Feb-95, [1995] QB 375
Damages payable to a secured lender for a negligent valuation included losses attributable to general market. Discussing liability where two causes contributed to the damages: ‘the event which the plaintiff alleges to be causative need not be the only or even the main cause of the result complained of: it is enough if it is an effective cause’
This case cites:

Appeal from – Banque Bruxelles Lambert Sa -v- Eagle Star Ins Co Ltd and Others QBD (Ind Summary 04-Apr-94, Times 07-Mar-94, [1995] 2 All ER 769)
A negligent valuer was liable for the loss arising from an overvaluation, but not from losses attributable to a general fall in the market. . .

This case is cited by:

Appeal from – South Australia Asset Management Corporation -v- York Montague Ltd etc HL (Gazette 04-Sep-96, Times 24-Jun-96, [1997] AC 191, [1996] PNLR 455, [1996] 27 EG 125, [1996] 3 WLR 87, Bailii, [1996] UKHL 10, [1996] 3 All ER 365, [1996] 2 EGLR 93, 80 BLR 1, [1996] 5 Bank LR 211, [1996] CLC 1179, [1996] 50 Con LR 153)
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Paterson and Another -v- Humberside County Council QBD (Times 19-Apr-95, [1995] CLY 3661, [1996] Const LJ 64)
A local authority was liable for nuisance for damage (cracks to house) caused by tree roots once it could be shown that it knew of the soil condition, by virtue of the council’s own warnings to residents of the danger in the area meant that the . .
Cited – Helmsley Acceptances Ltd -v- Hampton CA (Bailii, [2010] EWCA Civ 356)
The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
Held: The . .

Kemble v Farren; 6 Jul 1829

References: [1829] EngR 590, (1829) 5 Bing 141, (1829) 130 ER 1234
Links: Commonlii
Coram: Tindall CJ
The manager of Covent Garden sought damages from an actor (a principal comedian) in the form of liquidated damages for breach of a contract. He had contracted to perform for four seasons, but had refused to continue after the first.
Held: Liquidated damages cannot be reserved on an agreement containing various stipuations, of various degrees of importance, unless the agreement specify the particular stipulation or stipulations to which the liquidated damages are to be confined.
Tindall CJ said: ‘We see nothing illegal or unreasonable in the parties, by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree. In many cases, such an agreement fixes that which is almost impossible to be accurately ascertained; and in all cases, it saves the expense and difficulty of bringing witnesses to that point.’
If the terms had been limited to breaches which were of an uncertain nature and amount, it would have been good. But the provision extended to any term including the payment of small amounts of money, or other trivial non-money breaches: ‘But that a very large sum should become immediately payable, in consequence of the nonpayment of a very small sum, and that the former should not be considered as a penalty, appears to be a contradiction in terms; the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by breach of the agreement.’
This case cites:

See Also – Kemble -v- Farren CCP (Commonlii, [1829] EngR 519, (1829) 3 Car & P 623, (1829) 172 ER 574 (A))
Where it appeared on the record, that an agreement sued on was made by the plaintiff, on behalf of himself and the other proprietors of a theatre, evidence of the declarations of one of such other proprietors was held admissible on the part of the . .

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

Cited – Dunlop Pneumatic Tyre Company Ltd -v- New Garage and Motor Company Ltd HL ([1915] AC 67, Bailii, [1914] UKHL 1, (1904) 12 SLT 498, (1904) 7 F (HL) 77)
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Cited – Parkingeye Ltd -v- Beavis CA (Bailii, [2015] EWCA Civ 402)
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of £85.00. The judge had found that the appellant was in breach of a . .

(This list may be incomplete)
Last Update: 04-Feb-16 Ref: 322458

Foss v Harbottle; 25 Mar 1843

References: [1843] 67 ER 189, [1843] EngR 478, (1843) 2 Hare 461
Links: Commonlii
Coram: Wigram VC, Jenkins LJ
Ratio A bill was lodged by two of the proprietors of shares in a company incorporated by Act of Parliament, on their own and the other shareholders’ behalf. They claimed against three bankrupt directors, a proprietor, solicitor and architect charging them with fraudulent transactions misapplying the company’s assets, that there had ceased to be a sufficient number of qualified directors to make up a board, and the company had no clerk or office, that in such circumstance the proprietors had no power to take the property out of the hands of the defendant directors. Observations were made on the point at which a relationship of trust arises between company promoters and the company. The possibility of avoiding a transaction does not necessarily create a void transaction. A corporation may later choose to adopt the transaction, and hold the directors bound by them. They can be confirmed if a transaction is a mortgage not authorised by powers given by the Act, this is an act beyond the powers of the corporation and can not be confirmed whilst there is any one dissenting voise raised against it.
Ratio Jenkins LJ said: ‘The proper plaintiff in an action in respect of a wrong alleged to be done to a corporation is, prima facie, the corporation.’
This case is cited by:

Cited – Johnson -v- Gore Wood and Co (a Firm) CA (Bailii, [1998] EWCA Civ 1763, [1999] BCC 474)
The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
Cited – Heyting -v- Dupont CA ([1964] 1 WLR 843)
The plaintiff owned shares in a company registered in Jersey and created to make the most of an invention. The articles contained a deadlock provision.
Held: This was ‘essentially a dispute between two discordant partners’ There was a general . .
Explained – Prudential Assurance Co Ltd -v- Newman Industries Ltd (No 2) CA ([1982] Ch 204)
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
Cited – Cabvision Ltd -v- Feetum and others CA (Bailii, [2005] EWCA Civ 1601, Times 02-Jan-06)
The company challenged the appointment of administrative receivers, saying there had been no insolvency.
Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were . .
Cited – Stuart -v- Goldberg and Linde (a firm) CA (Bailii, [2008] EWCA Civ 2, [2008] CP Rep 18, [2008] 1 WLR 823)
The claimant appealed against orders preventing him from suing his former solicitors in respect of heads of claim which the court said should have been included in earlier proceedings.
Held: When deciding whether a claim was an abuse of . .
Cited – Webster -v- Sandersons Solicitors (A Firm) CA (Bailii, [2009] EWCA Civ 830)
The claimant apealed against refusal of permission to amend his claim for negligence against his former solicitors by adding claims from 1993 and 1994 . .
Cited – Wallersteiner -v- Moir (No 2) CA ([1975] QB 373, [1975] 1 All ER 849, [1975] 2 WLR 389)
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Iesini and Others -v- Westrip Holdings Ltd and Others ChD (Bailii, [2009] EWHC 2526 (Ch), [2011] 1 BCLC 498, [2010] BCC 420)
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
Cited – Smith -v- Croft (No 3) ChD ([1987] BCLC 355)
Knox J said: ‘Ultimately the question which has to be answered in order to determine whether the rule in Foss v. Harbottle applies to prevent a minority shareholder seeking relief as plaintiff for the benefit of the company is, ‘Is the plaintiff . .
Cited – Bracken Partners Ltd -v- Gutteridge and Others ChD (Bailii, [2003] EWHC 1064 (Ch), [2003] 2 BCLC 84, [2003] WTLR 1241)
The claimant sought to claim against former directors of a company in which it held shares under the rule in Foss v Harbottle. . .

(This list may be incomplete)
Last Update: 09-Mar-16 Ref: 180903