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A summary of the law of torts : or, wrongs independent of contract online

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((f) Morfimer v. Cradock; 12 L. J. C. P. l«(i.

(.(•) Phillipfi V. London and South Westtrii Rai/. Co., 4 Q. B. D. 406.

(!/) IhdieM V. White d- Sons, [1901] 2 K. B. 669— an action for negli-
gence; and WilkinAon v. Domitou, [1S97] 2 Q. B. 57 — an action for
damages for shock caused by tlie defendant, as a practical joke, falsely
telling the plaintiff that her husband luid liad liis legs broken in an

(:;) ])i\>'oii V. Be//, 1 Stark. 2S9 ; and see Spark v. Hedop, 28 L. J.
Q. B. 197.

92 Of Damages in Actions for Tort.

Art. 34. being collected, there was found to be a ticket short. The
plaintiff was wrongly charged by the collector with being
the defaulter, and, on his refusing to pay, was removed by
the officers of the company, but without unnecessary
violence. In an action for assault, it was held, that the
loss of a pair of race-glasses, which the plaintiff had left
behind him in the carriage when he was removed, and
which were not proved to have come into the possession of
any of the company's servants, was not such a natural
consequence of the assault as to be recoverable (a).
Lord (5) The damages awarded under Lord Campbell's Act to

Campbeirs ^^^ relatives of persons killed through the default of the
defendant, should be calculated in reference to a reasonable
expectation of pecuniary benefit, as of right or otherwise,
from the continuance of the life of the deceased (b). But
the jury cannot, in such cases, take into consideration the
grief, mourning, and funeral expenses to which the survivors
were put. And this seems reasonable ; for, in the ordinary
course of nature, the deceased would have died sooner or
later, and the grief, mourning, and funeral expenses would
have had to be borne then, if not at the time they were
borne (c).

And, on the same principle, where a deceased had made
provision for his wife, by insuring his life in her favour,
then, inasmuch as she is benefited by the accelerated receipt
of the amount of the policy, the jury ought, in estimating
the widow's loss, to deduct from the future earnings of the
deceased, not the amount of the policy moneys, but the
premiums which, if he had lived, he would have had to pay-
out of his earnings for the maintenance of the policy [d).
Injury to (6) So, in estimating the damages in an action for libelling

a tradesman, the jury should take into consideration the
prospective injury which will probably happen to his trade
in consequence of the defamation {e).

(a) Glover v. London, and South Western Bail. Co., L. R. ,S Q. B. 25.

(b) Franklin v. South Eastern Rail. Co., 3 H. & N. 211.

(c) Blake v. Midland Bail. Co., 18 Q. B. 93 ; Dalton v. South Eastern
Rail. Co., 4C. B. (n.s.)296.

(d) Grand Trnnk Rail. Co. v. Jennings, 13 App. Cas. 800.

(e) Gregory v. Williams, 1 C. & K. 568.


Prospective Damages. 93

(7) A cattle-dealer sold to the plaintiff a cow, fraudulently -^-rt. 34.
representing that it was free from infectious disease, when j . . ■

he knew that it was not ; and the plaintiff having placed the
cow with five others, they caught the disease and died. It
was held that the plaintiff was entitled to recover as damages
the value of all the cows, as their death was the natural
consequence of his acting on the faith of the defendant's
representation (/).

(8) In collision cases, the loss of earnings from a second Earnings
voyage for which the ship was let, is not too remote (g). " ^"^'

(9) So, where a steamer (wholly to blame) collided with Loss of shiji.
a sailing vessel, and destroyed its instruments of navigation,

and in consequence of that loss, the sailing ship ran ashore,
and was lost while making for port, it was held that the loss
of the ship was the natural result of the collision, and that
the steamer was liable (/i).

(10) So, again, a landlord, upon his tenant giving notice Having been

to quit, entered into a contract with a new tenant. Upon ^''^igfcl t'^

■^ . . . ^ pay damages

the expiration of the notice, the first tenant refused to quit, to a third

and the new tenant not being able to enter in consequence, ^^^^y-

brought an action against the landlord for breach of contract.

It was held that the landlord might recover, in an action

against the tenant, the costs and damages to which he had

been put in the action against himself ; for they were the

natural and ordinary result of the defendant's wrong (i).

Aet. 35 — Prosjiective Damages.

(1) The damages awarded must include the
probable future injury which will result to the
plaintiff from the defendant's tort.

(/) Mullet V. Mason, L. R. 1 C. P. 559.
{g) The Argentino, 14 App. Cas. 519.
(h) The City of Lincoln, 15 P. D. 15.

(i) Bramley v. Chesterton, 2 C. B. (n.s.) 605 ; and see Tindale v. Bell,
11 M. & W. 228.


Of Damages ix Actions for Tort.

Art. 35. (2) But where an act of the defendant is
merely the causa causans, and the actual cause
of action {i.e., the tort) is injury to the plaintiff's
property, then each such injury constitutes a
fresh cause of action.




caused by
one act of

(1) In Bichardson v. MclUsli (k), Best, C.J., said:
"When the cause of action is complete, when the whole
thing has but one neck, and that neck has been cut off by
one act of the defendant, it would be mischievous to say —
it would be increasing litigation to say — ' You shall not
have all you are entitled to in your first action, but you
shall be driven to a second, third, or fourth for the recovery
of your damages.' " A corollary to this rule is, that several
actions cannot be brought in respect of the same injury.
Therefore, where a bodily injury at first appeared slight,
and small damages were awarded, but subsequently it
became a very serious injury, it was held that another
action would not lie ; for the action having been once
brought, all damages arising out of the wrong were satisfied
by the award in the action (/).

(2) But if the tort be a continuing tort, the principle does
not apply ; for in that case a fresh cause of action arises
de die in diem. Thus, in a continuing trespass or nuisance,
if the defendant does not cease to commit the trespass or
nuisance after the first action, he may be sued until he
does. Whether, however, there is a continuing tort, or
merely a continuing daviage, is often a matter of difficulty
to determine.

(3) In the recent case oi' Mitchell v. Darley Main Co. (m),
the defendant worked his mines too close to the plaintiff's
property, and in consequence some cottages of the plaintiff
were injured in 1868, and were repaired by the defendant.
In 1882, in consequence of the scone icorkings wliich caused
the damage of 1868, a further subsidence took place, and

(k) 2 Bing. 240.

{I) Fttter V. Beat, 1 Ld. Raym. 389—692.

(m) 11 App. Cas. 127.

Aggravation and Mitigation.


the plaintiff's cottages were again injured. The case turned Art. 35.
on the question of whether the plaintiff was barred by the
Statute of Limitations, but incidentally it was decided that
the tort was not the excavation, but the causing the plaintiff's
land to subside. The excavation was no doubt the proxi- .
mate cause of the subsidence (the causa cansans), but the
tort itself was the infringement of the plaintiff's right of
support, and consequently each separate subsidence was a
distinct and separate cause of action.

(A) So also, where the same wrongful act causes damage Damage to
V^/ "^^J ' "^ , 111 piopertv and

to goods, and also damage to the person, it has been lieici person dis-
that there were two distinct causes of action, for which tinct torts,
separate proceedings might be prosecuted (;/).

Aet. 36. — Aggra ration and Mitigation.

The jury may look into all the circumstauces,
and at the conduct of both parties, and see where
the blame is, and what ought to be the compen-
sation according to the way the parties have
conducted themselves (o) .

(1) In seduction, if the defendant had couniiitted the Illustrations.

offence under the guise of honourable courtship, that is Seduction

" . , -, , , under guise

ground for aggravatmg the damages; not, however, on ^^^ ^^^^^.^g^p^

account of the breach of contract, for that is a separate

offence, and against a different person. " The jury did

right, in a case where it was proved that the seducer had

made his advances under the guise of matrimony, in giving

liberal damages ; and if the party seduced brings an action

for breach of promise of marriage, so much the better. If

much greater damages had been given, we should not have

been dissatisfied therewith, the plaintiff having received

(u) Bninsden v. Humphni/, 14 Q. li D. 141, Coleridoe, C.J.,

(o) Daris v. London and North Western Rdil. Co., 7 W. R. 10.").


Of Damages in Actions for Toet.

Art. 36.

Character of
girl seduced.

Plea of
truth in

bad character

conduct in

this insult in his own house, where he had civilly treated
the defendant, and permitted him to pay his addresses to
his daughter" (jj).

(2) On the other hand, the previous loose or immoral
character of the party seduced is ground for mitigation.
The using of immodest language, for instance, or submitting
herself to the defendant under circumstances of extreme

(3) In actions for defamation, a plea of truth is matter of
aggravation unless proved, and may be taken into con-
sideration by the jury in estimating the damages (g).

(4) Evidence of the plaintiff's general had character is
allowed in mitigation of damages in cases of defamation ;
for, as is observed in Mr. Starkie's book on Evidence, " To
deny this, would be to decide that a man of the worst
character is entitled to the same measure of damages with
one of unsullied and unblemished reputation. A reputed
thief would be placed on the same footing with the most
honourable merchant ; a virtuous woman with the most
abandoned prostitute." But although evidence of general
reputation of bad character is admissible, evidence of
rumours and suspicions before the publication of the libel
that the plaintiff had done what was charged in it, or
of facts showing the misconduct of the plaintiff, is not
admissible {r).

(5) In Kelly v. Sherlock (s), the action was brought in
respect of a series of gross and offensive libels contained in
the defendant's newspaper. It appeared, however, that the
first libel was written because the plaintiff preached, and
published in the local papers, two sermons reflecting on
the magistrates for having appointed a Eoman Catholic
chaplain to the borough gaol, and on the town council for

(p) Wn.MOT, C.J., in Ttdlidge v. n'ade, 3 W'ils. 18.
(q) Warivick v. Foulkes, 12 M. & W. 508.

(r) See Scott v. Samp-ton, 8 Q. B. D. 491, and Wood v. Durham,
21 Q. B. D. 501 ; and as to giving particulars, see Order XXXVI., r. 37.
(a) L. R. 1 Q. B. 686.


Aggravation and Mitigation. 97

having elected a Jew as their mayor. The plaintiif had, Art. 36.
also, soon after the libels had commenced, alluded to the
defendant's paper, in a letter to another paper, as " the
dregs of provincial journalism," and he had delivered from
the pulpit, and published, a statement to the effect, that
some of his opponents had been guilty of subornation of
perjury in relation to a charge of assault of which the
plaintiff' had been convicted. The jury having returned a
verdict for a farthing damages, the court refused to interfere
with the verdict on the ground of its inadequacy, intimating
that, although, on account of the grossness and repetition
of the libels, the verdict might well have been for larger
damages, yet it was a question for the jury, taking the
plaintiff's own conduct into consideration, what amount of
damages he was entitled to, and that the court ought not to

(6) In false imprisonment and assault, if the imprison- Imprison-
,11 i?ii c £ ^ 1 fi ment on false

ment has been upon a false charge of felony, where no felony d^aroe of

has been committed, or no reasonable ground for suspecting felony,
the plaintiff, this will be matter of aggravation.

(7) But if an assault and battery have taken place in Battery in
consequence of insulting language on the part of the conseiiuence
plaintiff, this will be ground for mitigating the damages {t).

(8) Where a person trespassed upon the plaintiff's land, Insolent
and defied him, and was otherwise very insolent, and the "''^^P''^^^-
jury returned a verdict for £500 damages, the court refused

to interfere, Gibbs, C.J., saying: "Suppose a gentleman
has a paved walk before his window, and a man intrudes,
and walks up and down before the window, and remains
there after he has been told to go away, and looks in while
the owner is at dinner, is the trespasser to be permitted to
say, ' Here is a halfpenny for you, which is the full extent
of all the mischief I have done ' ? ^Yould that be a
compensation?" (u).

(t) Thomas v. Powell, 7 C. & P. 807.
(tt) Merest v. Harvey, 5 Tannt. 441.

7 '^■r<fJJU 'ftH"


Of Damages in Actions for Tort.

Art. 36. (9) Aucl so where the defendant wrongfully seizes

,^^ 7", another's chattels, and exercises dominion over them,


seizure. substantial damages will be awarded for the invasion of the

right of ownership {x).

suspicion of

(10) And where the defendant took the plaintiff's goods
under a false claim, whereby certain persons concluded that
the plaintiif was insolvent, and that the goods had been
seized under an execution, it was held that exemplary
damages might be given {ij).

Art. 37. — Joint Tort-feasors.

(1) Persons who jointly commit a tort may
be sued jointly or severally ; and if jointly, the
damages may be levied from both or either {z).

(2) A judgment against one of several joint
tort-feasors is a bar to an action against the
others, even although the judgment remains
unsatisfied (a).

(3) A release of one of several joint tort-feasors
is a bar to an action against the others {h) ; but a
mere covenant not to sue one of them is not (c).

(4) If damages are levied upon one only, then
(a) where the tort consists of an act or omis-
sion, the illegahty of which he must be pre-
sumed to have known, he will have no right to
call upon the others to contribute (cZ). But (b)

(x) Baylwn V. Fisher, 7 Bing. 153.

(y) Brewer v. Dew, 11 M. & W. 6'29.

(z) Hume v. Oldacre, 1 Stra. 252 ; Blair v. DeaMn, 57 L. T. 522.

« (a) Brinsmead v. Harrison, L. R. 7 C. P. 547.

{b) Cocke V. Jennor, Hob. 06.

{(■) Duck V. Maye.u, [1892] 2 (,». B. 511.

, (fZ) M trry weather y. Nixon, 8 T. R. 186.

Joint Tort-feasoes. 99'

where the tort consists of an act not obviously Art. 37.
unlawful in itself {e.g.^ trover by a person from
whom the same goods are claimed by adverse
claimants), he may claim contribution or indem-
nity against the party really responsible for the
tort ; and this right is not confined to cases
where he is the agent or servant of the other
tort-feasor (6^).

(e) Adamson v. Jtrvis, 4 Bing. 72 ; Bttts v. Gihhins, 2 A. & E. 57.

100 )



Definition. An iujunctiou is an order of the Court of Appeal, or the
High Court of Justice, or any division or judge of either of
them, or of a county court (a) restraining the commission or
continuance of some act.

Interlocutory Injunctions are either interlocutory or perpetual. An

or perpetual, i^^iterlocutory injunction is a temporary injunction, granted

summarily on motion (b) founded on an affidavit, and before

the facts in issue have been formally tried and determined.

Such an injunction is granted to restrain the commission or

continuance of some act until the court has decided whether

^- a perpetual injunction ought to be granted. Aperpetual

^ injunction is one v\-hich is granted after the facts in issue

have been tried and determined, and is given by way of

\ final relief.

Art. 38. — Injuries Hemediahle h/j Injunction.

(1) AYherever a legal right, whether iu regard
to property or person, exists, a violation of that
right will be prohibited in all cases where the
injury is such as is not susceptible of being
adequately compensated by damages, or at least
not without the necessity of a multiplicity of
actions for that purpose (c).

(a) A county court has now, in actions witliin its jurisdiction, power
to grant an injunction against a nuisance, and to conunit to prison for
disobedience thereof [Ex parte Martin, 4 Q. B J). 212; Martin v.
Bannister, ib. 491).

(h) In the King's Bench Division applications for interlocutory in-
junctions are made by summons in chambers.

{<■) Imperial Gax Light and Coke Co. v. Broadhent, 7 H. L. Cas. 600.

Injuries Remediable by Injunction. 101

('2) The court has jurisdiction to give damages Art^8.
instead of granting an injunction, and will gene-
rally do so in cases where there are found in "
conibination the four following requirements,
viz., where the injmy to the plaintiff's legal
rights (1) is small, (2) is capable of being esti-
mated in money, (3) can be adequately compen- ,^^
sated by a small money payment, and (4) where i
the case is one in which it would be oppressive | ^; -
to the defendant to grant an injunction id). j l^

(3) To entitle a plaintiff to an interlocutory ] ■ :>^:
injunction, the court must be satisfied that there

is a serious question to be tried at the hearing, , '"(

and that, on the facts before it, there is a prob- ; C^

ability that the plaintiff is entitled to relief (e).

(4) An interlocutory injunction will be granted
to restrain the publication of a libel, even though
such libel affects the plaintiff in his character
only, and not m his business. But an injunc-
tion to restrain the pubhcation of a hbel will
only be granted in the clearest cases (/). \

(1) Thus, where substantial damages would be, or have illustrations,
been, recovered for injury done to land, or the herbage Nuisances,
thereon, by smoke or noxious fumes, an injunction will be

granted to prevent the continuance of the nuisance ; for
otherwise the plaintiff would have to bring continual
actions (r/).

(2) And so where a railway company, for the purpose of
constructing their works, erected a mortar mill on part of
their land close to the plaintiff's place of business, so as to
cause great injury and annoyance to him by the noise and

(f/) Per Baggallay, L.J. , \nSaytrs\. Col/i/er, 2SCh. 1). 108; Serrao
V. Xoel, 15 Q. B. D. 549 ; and ^jer A. L. Smith, L.J., in Sheffer v. City
of London Electric Liyhtmg Co., [1895] 1 Ch. 287, at p. 322.

(e) Pe7- Cotton, L.J., Preston v. Luck; 27 Ch. D. p. 506.

(/■) Bonnard v. Ferryman, [1891] 2 Ch. 269; Monson v. Tusmud,
[1894] 1 q. B. 671.

(V) Tipping v. St. Helena Smeltimj Co., L. R. 1 Ch. 66.

102 Of Injunctions to Prevent Continuance of Toets-

Art. 38. vibration, it was held that he was entitled to an injunction
to restrain the company from continuing the annoyance {h).

(3) As the atmosphere cannot rightfully be infected with
noxious smells or exhalations, so it should not be caused to
vibrate in a way that will wound the sense of hearing.
Noise caused by the ringing of church bells, if sufficient to
annoy and disturb residents in the neighbourhood in their
homes or occupations, is a nuisance, and will be restrained (i).

Interference (4) So, where one has gained a right to the free access
° ' of light to his house, and buildings are erected which cause
a substantial privation of light sufficient to render the
occupation of the house uncomfortable, according to the
ordinary notions of mankind, and to prevent the plaintiff
from carrying on his business on the premises as beneficially
as before, an injunction will be granted in cases in which
damages do not afford an adequate remedy. In Colls v.
Home and Colonial Stores (k), Lord Macnaghten said :
"Then, with regard to giving damages in addition to
/ or in substitution for an injunction, that, no doubt, is
I / a delicate matter. It is a matter for the discretion of
\/ the court, and the discretion is a judicial discretion.

' It has been said that an injunction ought to be granted

when substantial damages would be given at law. I
have some difficulty in following out this rule. I observe
that in some cases juries have been directed to give Is.
damages as a notice to the defendant to remove the
obstruction complained of : and then, if the obstruction
was not removed, in a subsequent action the damages were
largely increased. In others a substantial sum has been
awarded, to be reduced to nominal damages on removal of
the obstruction. But the recovery of damages, whatever
the amount may be, indicates a violation of right, and in
former times, unless there were something special in the
case, would have entitled the plaintiff as of course to an

(A) Ftiiii-icl- V. East Loudon Hall. Co., "20 p]q., 'A\ ; hut see Harrison
V. South irark, etc. Water Co., {\S\)\] '1 Ch. 409, in which the former case
was distinguished.

(?) Soltuu V. De Held, 2 Sim. (x.s.) 1.S3.

{k) [1904] A. C. 179.

Injuries Eemediablb by Injunction. 103

injunction in equity. I rathei- doubt whether the amount Art. 38.

of the damages which may be supposed to be recoverable at

kiw affords a satisfactory test. In some cases, of course, an

injunction is necessary— if, for instance, the injury cannot

fairly be compensated by money— if the defendant has acted

in a high-handed manner — if he has endeavoured to steal a

march upon the plaintiff or to evade the jurisdiction of the

court. In all these cases an injunction is necessary, in

order to do justice to the plaintiff and as a warning to

others. But if there is really a question as to whether the

obstruction is legal or not, and if the defendant has acted

fairly and not in an unneighbourly spirit, I am disposed to

think that the court ought to incline to damages rather than

to an injunction. It is quite true that a man ought not to

be compelled to part with his property against his will, or

to have the value of his property diminished, without an

Act of Parliament. On the other hand, the court ought to

l)e very careful not to allow an action for the protection of

ancient lights to be used as a means of extorting money.

Often a person who is engaged in a large building scheme

has to pay money right and left in order to avoid litigation,

which will put him even to greater expense by delaying his

proceedings. As far as my own experience goes, there is

quite as much oppression on the part of those who invoke

the assistance of the court to protect some ancient lights,

which they have never before considered of any great value,

as there is on the part of those who are improving the

neighbourhood by the erection of buildings that must

necessarily to some extent interfere with the light of

adjoining premises."

(5) Formerly (1) if the plaintiff was out of possession, an Trespass on
injunction against a trespasser was refused, except in cases
of fraud, collusion, or destruction of the estate ; and it was
necessary that an action to try the right should be pending.
(2) If the plaintiff was in possession, the right to an injunc-
tion depended upon the fact of the trespass being by a
stranger, or under a claim of title (/). All such distinctions

(/) SUuiJonl V. Ilurlstom, 9 Ch. App. 116.

104 Of Injunctions to Prevent Continuance of Torts.

Art. 38. are, however, abolished by s. 25 (8) of the Judicature Act,
1873 {vi).

Sewage (6) An iujuuction will not be granted against a local

pollution. authority who are committing a nuisance by sewage
pollution when it is legally impossible for the authority
to obey the terms of the injunction, because they have no
power to stop up their sewers or prevent persons from using
them, or when it is physically impossible. In such cases
damages will be given instead (n).

Lateral (7) Again, deprivation of lateral or subjacent support, in

support. cases where a jury would give considerable damages, is

sufficient ground for an injunction. So also a mandatory

injunction will be granted for the removal of an obstruction

to a householder's access to a public highway (o).

Trademarks. (8) So infringements of trade marks, copyright, and
patent right, are peculiarly remediable by injunction ; for
not only are they continuing wrongs to proprietary rights,

Online LibraryArthur UnderhillA summary of the law of torts : or, wrongs independent of contract → online text (page 12 of 30)