The cases that changed Britain: 1955-1971 (Part IV)

From Times By Gary Slapper

Entores Ltd v Miles Far East Corporation
May 18, 1955

Another key case in which the law adapted to a social change: this time the advent of the telex (electric typewriters connected via cable systems). The decision had a huge impact on business. Under general principles in the law of contract, if there is to be an enforceable agreement, acceptance of an offer must be communicated to the person who has made the offer. Here, the court was concerned with the technicality of precisely where a deal for 100 tons of Japanese cathodes had been completed. The court had to consider at what point an acceptance made by telex (a precursor of the fax machine) in Amsterdam was “communicated” to the person receiving the message in London. Was it communicated when it was typed by the sender or when it was printed at the other end? The Court of Appeal decided the deal was made in London when the telex message was printed in that office.

Bolam v Friern Hospital Management Committee
February 27, 1957
In cases of alleged medical negligence there are commonly various schools of medical thought about how something should be done. This case gave guidance about how far a treatment must be accepted among doctors in order for it not to be seen as negligent if it goes wrong. An action for damages was brought by a psychiatric patient, John Bolam, for a fracture sustained during electro-convulsive therapy. Although he had signed a consent form, Bolam hadn’t been warned of the risk of fracture, which was one in 10,000. Nor had he been given relaxant drugs, which would have excluded the risk of fracture. However, the lawsuit failed. The court ruled that in order to prove negligence a doctor had to fall below a standard of practice recognised as proper by every responsible body of opinion. At the time it was not common practice to warn patients about the dangers of the treatment and many doctors were opposed to the use of relaxant drugs.

Sayers v Harlow Urban District Council
May 08, 1958

An amusing drama, this case also carried an important point about the law relating to accidents. Something of the mood of the case is heralded by the fact that The Times law report was headed “Lady Locked in Lavatory”. Eileen Sayers and her husband were on a coach trip to London from Essex. At one point on the journey, Mrs Sayers went to the lavatory but became locked in the cubicle. She injured herself when she fell trying to climb out using the toilet roll holder as a foothold. Although Mrs Sayers was successful in her claim for damages, the court found that she was guilty of some contributory negligence in the way she endeavoured to escape. She bore 25 per cent of the blame, and so the damages were reduced by that amount.

R v Smith
March 26, 1959

This gruesome case decided an essential principle of cause and effect in the law of murder. Is the chain of causation broken if a victim of violence is injured by someone else before he dies? Private Thomas Joseph Smith was convicted of murdering a fellow soldier whom he had stabbed with a bayonet during a barrack room fight. The victim received a peirced lung that caused a haemorrhage. He was taken to hospital. On the way, he was dropped twice. When he got to the hospital, the graveness of his condition was missed because the medical staff were so busy with other patients. Had the victim been given a blood transfusion his chances of recovery would have been as high as 75 per cent, but he received “thoroughly bad” treatment, including inappropriate artificial respiration, and died. Private Smith’s appeal concerned the “causation” of the death. He argued that while he had caused the victim’s wound he could not be held responsible for his death because the chain of unfortunate events after the injury had really killed him. But the court held that Private Smith had been rightly convicted. If at the time of the death, the original wound is still “an operating and substantial cause”, then the death can be said to be the result of the wound, even though some other cause of death is also operating. Only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.

Chappell & Co and others v Nestlé and others
June 19, 1959

In the 1950s, giving away discounted goods in exchange for chocolate or candy wrappers was a popular marketing scheme. The law had to decide how this should work if royalties were payable on the discounted item. Should the copyright owners get a percentage of just the discounted price paid by the customers, or should the royalty be based on the price of the item plus the value of the wrappers they handed in? In this case, Nestle, in a promotion for its chocolate bars, gave away a pop single, “Rockin’ Shoes”, in exchange for three wrappers and 1s 6d (about 8p) for postage. According to the law, Chappell, the publisher of the song, was entitled to 6.25 per cent of the “selling price” of each record. It sued Nestle. Chappell won the case as the House of Lords decided that the “selling price” on which their royalty should be based wasn’t just the 1s 6d but also included the value represented by the three wrapping papers. It didn’t matter that the actual papers themselves were of no intrinsic value (Nestle threw them away when they got them back from customers) as they were the value asked for by Nestle.

R v Penguin Books Ltd
October 21, November 3, 1960
This is a classic case on law, art and freedom of expression. On October 20, 1960, a jury of nine men and three women were handed unexpurgated copies of D H Lawrence’s Lady Chatterley’s Lover and instructed to read it. Its publishers, Penguin Books Ltd, were being prosecuted under the Obscene Publications Act, which allowed for literary and artistic merit to be considered in judging whether a work was obscene. The prosecutor, Mervyn Griffith-Jones, argued that the book had no substantial literary merit and merely advocated “coarseness and vulgarity”. He set the jury the following test: “Is it a book you would even wish your wife or servants to read?” But Penguin’s lawyer, Gerald Gardiner, QC, defended the use of four-letter words by arguing that if such language was depraved and corrupt then “95 per cent of the Army, Navy, and Air Force are past redemption”. The defence also called the novelist EM Forster, who said he knew Lawrence well and regarded him as the greatest writer of his generation; Cecil Day-Lewis also testified on his behalf. Penguin was acquitted and Lady Chatterley’s Lover went on to sell three million copies in a year.

Fisher v Bell
November 11, 1960

This was a classic decision determining a highly consequential point of retail law. The Restriction of Offensive Weapons Act 1959 made it an offence to offer for sale certain offensive weapons, including “flick-knives”. James Bell, a Bristol shop keeper, displayed a weapon of this type, an “ejector knife” selling for 4s, in his shop window. The Divisional Court held that he could not be convicted because, giving the words in the Act their tight, literal legal meaning, Bell had not “offered” the knives for sale. Under the law of contract, placing something in a shop window is not, technically, an “offer for sale”; it is merely an “invitation to treat”. It is the customer who legally makes an “offer” to the shop when he proffers money for an item on sale. This decision has significance in other scenarios. What if a £2,000 multimedia system was mispriced in the shop window at £200? The decision in Fisher v Bell means that you can’t seal a contract by walking into the store and saying, “I accept”. The shop has the final say about whether it wants to make a contract with you and on the terms you offer.

Overseas Tankship (UK) Ltd V Morts Dock and Engineering Co Ltd
January 19, 1961
This landmark case decides the test for working out whether a defendant who starts a series of unusual events is liable to pay compensation for the damage they cause. The ruling was by the Privy Council on an appeal from Australia but it also changed English law, as it was later followed by English courts. Through carelessness, furnace oil from a ship in Sydney harbour was spilt into a bay. The oil spread over the water to a wharf 600 feet away where wharf owners were carrying out repairs to a ship, including welding metal. Molten metal from the wharf dripped down on to floating cotton waste which ignited the furnace oil on the water. The wharf was badly burnt in the resulting fire. The wharf owners sued for damages but the court found that the ship owners could not reasonably have known that the furnace oil was capable of being set alight when spread on water. It was held that the test of liability for the damage done by fire was whether it was “reasonably foreseeable” in the circumstances.

Ridge v Baldwin
March 15, 1963

This case cemented into English law a key principle of natural justice: that a court or tribunal cannot come to a fair decision unless both sides have been heard or have been given the chance to be heard. It was held by the House of Lords that the former Chief Constable of Brighton, Charles Ridge, had been unfairly dismissed in breach of the principles of natural justice. He had brought a legal action against George Baldwin of the Brighton police committee, in which he asked for a declaration that their termination of his appointment as chief constable was illegal and beyond the powers of the authority. At the core of his allegation was that at the appropriate time, no specific charge was notified to him and he was not given an opportunity of being heard. His solicitor was given an opportunity at one stage to address a committee but had been given no particulars of the case against him. Lord Reid recognised the cherished principle of the law audi alteram partem, which means a judge in a dispute should allow both parties to be heard and should listen to the point of view of each, or at least given an opportunity of each to speak.

Hedley Byrne & Co v Heller & Partners Ltd
May 29, 1963

This House of Lords case took the duty of care into the realm of advice. The law had previously applied only to manufacturers, but this ruling affected everyone from architects to zoo consultants. It now applied to anyone who gave advice in the course of their job. It began when a bank phoned a merchant bank to check on the financial position of a potential client, Easipower Ltd, which wanted to borrow money to fund advertising. The bank promised the merchant bank would be “without responsibility” in providing the information. After Easipower went into liquidation, out of pocket advertising agents sued the merchant bank to recover their losses, but lost. They would have won were it not for the “without responsibility” disclaimer.

Eastham v Newcastle United Football Club Ltd
June 12, July 5, 1963

A court blew the whistle on Newcastle FC and declared a foul. This case affected the way football contracts worked across the land. The claimant, George Eastham, became a professional football player in 1956 when he was 19. He then transferred to Newcastle United, entering into an annual contract. A while later, he asked for a transfer but the club notified him that his services would be retained for the next season at his current wage. The club cited regulation 26 of the Football Association rules. This blocked him from getting a transfer and meant he could not play for another club in the UK or Ireland provided Newcastle offered him a “reasonable wage”. But the court decided that this was an “unlawful restraint of trade”.

D & C Builders Ltd V Rees
November 13, 1965
This decision was influential in clarifying the law whereby traders are bullied by customers into accepting a smaller payment. The claimant company consisted of two jobbing tradesmen, one a decorator and the other a plumber. They carried out work for Rees, the defendant, worth £482 13s 1d. For months, the builders pressed for payment. Finally, the defendant’s wife, who knew that the company was in financial difficulties, offered £300 to settle the debt, saying that if that offer wasn’t accepted nothing more would be paid. They accepted the £300 but later sued for the balance of £182 13s 1d. The court held that the company was not barred from recovering the balance by the agreement to accept a smaller sum because there was “no true accord”. The defendant’s wife had put pressure on the company to accept the £300 in settlement by threatening that if they did not accept nothing would be paid.

R v Jordan
May 13, 1967

Under the British constitution there is nothing more sacred or potent than a properly passed Act of Parliament. It is the most powerful legal instrument and can’t be declared invalid by reference to any political principle. This case is a classic example of what that means in practice. Colin Jordan was sentenced to 18 months imprisonment for offences under the Race Relations Act 1965. He asked for legal aid to apply for a writ of habeas corpus (a process by which the authorities have to justify an imprisonment) on the grounds that the Act was invalid as it was a curtailment of free speech. It was held, dismissing his application, that Parliament was supreme and there was no power in the courts to question the validity of an Act passed by it.

R v Lamb
June 24, 1967
A dreadful human drama. In this case, the appeal court formulated an important rule about what does and doesn’t amount to an unlawful assault. The appropriate state of mental blameworthiness must exist at the time of the defendant’s conduct. Terence Lamb pointed a revolver in fun at a friend. He knew that there were two bullets in the revolver and also that neither of them was in the chamber opposite the barrel. But he didn’t realise that when the gun was fired the cylinder would automatically rotate. He shot his friend dead. The judge directed the jury that they could convict of manslaughter if the accused had been grossly negligent or if the killing had occurred in the course of an unlawful act. He told them that the pointing and firing of the revolver amounted to an unlawful act even if the accused had not intended to alarm or injure. On appeal, it was held that the pointing and firing was only the actus reus (the physical conduct) of assault but there was no criminal assault without the mens rea (a blameworthy mind). Although the accused might have been criminally negligent, the trial judge hadn’t properly explained to the jury what was required for there to be an criminal assault. His direction to them on an unlawful act had been wrong and so the conviction was quashed.

Barnett v Chelsea and Kensington Hospital Management Committee
November 9, 1967

This is a leading case on cause and effect in the law of tort. It shows a how medical negligence might not be the legal cause of someone’s injury or death if even good medical treatment would not have saved a patient. William Barnett was employed as a night watchman at the hall of residence at the Chelsea College of Sciences and Technology in London. On December 31, 1965, following celebrations with some friends at the hall, he went to hospital with symptoms that included continuous vomiting and cramp. The nurse telephoned a doctor. The doctor, who was himself unwell, instructed Barnett to go home and call his own doctor. He went away and died some hours later from what was later found to be arsenic poisoning. The court decided that although the doctor had been negligent in not seeing the man, the poisoning of Barnett was at that time so far advanced that even if the doctor had seen him he would have died. The hospital was found not liable — the death did not result from its negligence.

Fagan v Metropolitan Police Commissioner
August 1, 1968

A serious case (and one that decides an important point of law), but one posited on an extraordinary and comical set of facts. The court decided that although an omission to act cannot amount to an assault, the crime of assault will be committed if someone accidentally commits a battery which he then refuses to discontinue. Vincent Fagan drove his car on to the foot of PC David Morris in north London. It was most likely an accident, but when the PC said, “Get off, you are on my foot”, Fagan replied: “F–k you, you can wait”. Although Fagan soon relented and it had initially been an accident, his conviction for assault was upheld using what has become known as the “doctrine of the continuing act”.

Conway v Rimmer
May 4, 1970

This is a case of major importance in constitutional law. At its heart it is about the judicial control of public authorities. A police officer, Michal Conway, had been prosecuted for theft of a torch. He was acquitted but sacked nonetheless. He began a civil action for malicious prosecution against his former superintendent in the Cheshire constabulary, Thomas Rimmer. Conway wanted certain documents to prove his case, including reports about him relating to the prosecution. The Home Secretary objected to Conway getting the documents, saying that release of them would be “injurious to the public interest”. The House of Lords looked at the documents and disagreed. It said that where there was a clash between the public interest in withholding a document and the interests of justice in it being seen, the court could ask for documents, examine them itself and order their release if necessary. The police officer, however, eventually lost.

Home Office v the Dorset Yacht Company
May 7, 1970
In what circumstances Government departments owe a duty to members of the public is a point of momentous importance, and this case helped define the nature of that duty. The Dorset Yacht Company claimed that seven youths has escaped on the night of September 21, 1968 from the borstal institute on Brownsea Island and then boarded the yacht Silver Mist, cast her adrift and caused considerable damage to her and her contents. The company alleged that the Home Office was liable for the damage because of its negligence in failing to exercise effective control and supervision over the youths. The House of Lords held that public policy doesn’t require that the Home Office is immune from legal actions in such cases. It did owe a duty of care. But to establish liability, it had to be proved that the Borstal officers were negligent in performing their duties to control and supervise the teenagers and that the particular damage that did occur was the sort of thing likely to result from such negligence. The case was later settled out of court by the Home Office.

Blackburn v The Attorney General
March 15, 1971

Amid great political controversy this case confirmed that there was no constitutional reason why the UK could not join the Common Market (now the European Union). Raymond Blackburn of Chiswick, in London, asked the judges as “the guardians of the British constitution” to explain the constitutional position in relation to the Government’s application in 1971 to join the Common Market. He said that the Treaty’s provisions could be validly accepted only if a new constitution was adopted with the consent of the British people. The Court of Appeal disagreed, saying that Parliament was competent to hand over some parts of its sovereignty if it wished, although this would not necessarily be binding on future parliaments.

R v Hudson and Taylor
March 19th, 1971
In some circumstances, someone who commits a crime may have a defence if it was committed under duress. Linda Hudson and Elaine Taylor were two girls from Salford who, as witnesses at a criminal trial in Manchester, gave false evidence. Their defence on charges of perjury was that they had previously been threatened by violent men that they would be “cut up” if they told the truth. One of the men had been sitting in court when they gave their evidence. At their trial the judge directed the jury that this was no defence and they were convicted of perjury. Quashing the convictions, the Court of Appeal held that duress was a defence to all offences (except murder as principal offender, and possibly treason) if the will of the accused had been overborne by threats of death or personal injury. To be a defence, the threat had to have been “present”, which meant “effective at the moment the crime was committed”. In this case, the threats of future violence were likely to have been present. They were no less compelling just because they couldn’t be carried out in the court room itself: they could have been carried out in the streets later that evening.

One thought on “The cases that changed Britain: 1955-1971 (Part IV)

  1. … Giving the job of recent product development to the advertising … Derek Cheshire is surely an specialist, phone speaker, advisor and … Making it through your storm * creativeness is vital for organizing …

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