Uk Tort - Case Law (D-F)

Front 1

Darby v National Trust [2001]

Back 1

The claimant’s husband, Mr Darby, drowned in a pond owned by the National Trust (NT). The pond was one of five ponds in Hardwick Hall near Chesterfield. Two of the ponds were used for fishing and NT had taken steps to prevent the use of those ponds for swimming or paddling. However, with regards to the pond in which the fatality occurred, NT had done nothing to prevent visitors using the pond and it was common for visitors to use the pond for paddling and swimming during the warm summer months. On the day in question Mr Darby had been paddling with his children around the edge of the pond. He then swam to the middle to play a game he had often played whereby he would go under water and then bob up to the surface. However, he got into difficulty and drowned. The claimant argued that because of NT’s inactivity in preventing swimmers using the pond, both she and her husband had assumed the pond was safe for swimming.
Held:
NT was not liable. The risk to swimmers was obvious

Front 2

Davis Contractors v Fareham UDC [1956]

Back 2

Davis Contractors agreed to build 78 houses for Fareham Council within 8 months for an agreed price of £85,000. Due to a shortage in skilled labour and material the contract took 22 months to complete and was much more expensive than anticipated. Davis Contractors were paid the contractually agreed price but bought an action arguing for more money based on the fact that the contract had become frustrated and therefore they were entitled to further payment based on a quantum meruit basis.
Held:
The contract was not frustrated. The fact that a contract becomes more difficult to perform or not so profitable is not sufficient to amount to frustration. It was still possible to perform the contract.

Front 3

Dick Bentley Productions v Harold Smith Motors [1965]

Back 3

Dick Bentley knew the defendant, who was a car trader specialising in the prestige market, for some time. He had asked him to look out for a well vetted Bentley car. The defendant obtained a Bentley and recommended it to the claimant. He told him that the car had been owned by a German Baron and had been fitted with a replacement engine and gearbox and had only done 20,000 miles since the replacement. Mr Bentley Purchased the car but it developed faults. The defendant had done some work under the warranty but then more faults developed. It transpired that the car had done nearer 100,000 miles since the refit. The question for the court was whether the statement amounted to a term in which case damages would payable for breach of contract, or whether the statement was a representation, in which case no damages would be payable since it was an innocent misrepresentation and the claimant has also lost his right to rescind due to lapse of time.
Held:
The statement was a term.

Front 4

Dickinson v Dodds (1876)
The defendant offered to sell his house to the claimant and promised to keep the offer open until Friday. On the Thursday the defendant accepted an offer from a third party to purchase the house. The defendant then asked a friend to tell the claimant that the offer was withdrawn. On hearing the news, the claimant went round to the claimant's house first thing Friday morning purporting to accept the offer. He then brought an action seeking specific performance of the contract.

Back 4

Held:
The offer had been effectively revoked. Therefore no contract existed between the parties. There was no obligation to keep the offer open until Friday since the claimant had provided no consideration in exchange for the promise.
The offeror is free to withdraw the offer at any time before acceptance takes place unless a deposit has been paid.

Front 5

Donoghue v Stevenson [1932]
Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer.

Back 5

Held:
Her claim was successful. This case established the modern law of negligence and established the neighbour test.
Lord Atkin:
"The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question " Who is my neighbour ?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour ? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

Front 6

Edwards v Railways Executive [1952]
A particular spot on a railway was used as a short cut on a regular basis. The fence was repaired on several occasions and whenever it was reported to have been interfered with. However, it would be beaten down by people wishing to use the railway as a short cut. Witness testimony was to the effect that the fence was in good repair the morning of the incident.

Back 6

Held:

No licence was implied. The Defendant had taken reasonable steps to prevent people coming onto the railway.

Lord Goddard:

"Repeated trespass of itself confers no licence"

Front 7

Edwards v Skyways [1964]
The claimant was an airline pilot working for the defendant. He was to be made redundant. The defendants said that if he withdrew his contributions to the company pension fund, they would pay him the equivalent of company contributions in an ex gratia payment. The claimant agreed to this and withdrew his contributions. The company then ran into further financial difficulty and went back on their promise relating to the ex gratia payment.

Back 7

Held:

The agreement had been made in a business context which raised a strong presumption that the agreement is legally binding. The claimant could therefore enforce the agreement and was entitled to the money.

Front 8

Esso Petroleum v Customs & Excise [1976]
Esso ran a promotion whereby any person purchasing four gallons of petrol would get a free coin from their World Cup Coins Collection. The question for the court was whether these coins were 'produced in quantity for general resale' if so they would be subject to tax and Esso would be liable to pay £200,000. Esso argued that the coins were simply a free gift and the promotion was not intended to have legal effect and also that there was no resale.

Back 8

Held: 3:2
There was an intention to create legal relations. The coins were offered in a commercial context which raised a presumption that they did intend to be bound. However, the coins were not exchanged for a money consideration and therefore the coins were not for resale.

Front 9

Fairchild v Glenhaven [2002]
This was a conjoined appeal involving three claimants who contracted mesothelioma, a form of lung cancer contracted by exposure to asbestos. Mesothelioma can be caused by a single fibre of asbestos. The condition does not get worse the greater the exposure. Once the fibre has embedded into the lung it can lay dormant for 30-40 years before giving rise to a tumour which can then take 10 years to kill. It will be only the last 1-2 years where a person may experience symptoms. By this time it is too late to treat. Each of the claimants had been exposed to asbestos by a number of different employers. They were unable to demonstrate, and medical science was unable to detect, which employer exposed each of them to the one fatal fibre.

Back 9

Held:
If the claimants could demonstrate that one employer had materially increased the risk of contracting mesothelioma they were entitled to claim full compensation from that one employer.
Barker v Saint Gobain Pipelines [2004] EWCA Civ 545 Court of Apeal
Mr Barker contracted mesothelioma from exposure to asbestos. He worked for the defendant between 1960-68. He worked for a different employer for 6 weeks where he was also exposed to asbestos. After 1968 he became self-employed as a plasterer for 20 years. Whilst self employed he was exposed to asbestos on three occasions. The defendant argued that his exposure to asbestos whilst self-employed prevented him from being able to rely on the causation principle established in Fairchild v Glenhaven whereby the claimant is able to demonstrate that the defendant's breach of duty materially increased the risk of contracting the disease.
Held:
Fairchild was thus successful in establishing causation. would be reduced under the Law Reform...

Front 10

Fibrosa Spolka v Fairbairn [1943]
An English company which manufactured textile machinery agreed by contract dated 12th July 1939 to supply some machines to a Polish company. The machines were to be delivered in 3-4 months. £1,600 was payable up front and the balance of £3,200 payable on delivery. The Polish company paid £1000 on 18th of July on account of the initial payment due. On 1st Sept Germany invaded Poland and on 3rd Sept Great Britain declared war on Germany. On 23rd of September Orders in Council made Poland an enemy territory making it illegal for British companies to trade with Poland.

Back 10

Held: the contract was frustrated as it was no longer possible to perform the contract because of the supervening illegality.