Cases

1. Commonwealth v State of Tasmania http://en. wikipedia. org/wiki/Commonwealth_v_Tasmania 2. Lee v Knapp In Lee v Knapp [1967] 2 QB 442 an Act required that a motorist â€Å"stop† after an accident. The defendant claimed that they did in fact momentarily halt, before proceeding, therefore complying with a commonly accepted literal meaning of â€Å"stop†. The judge found that in this circumstance â€Å"stop† meant halt and wait for police or other officials to investigate the accident. A literal interpretation was against the purpose of the law. 3a Smith v Hughes SMITH v HUGHES (1960) 1 WLR 830 LORD PARKER CJ: These are six appeals by way of case stated by one of the stipendiary magistrates sitting at Bow Street, before whom informations were preferred by police officers against the defendants, in each case that she ‘being a common prostitute, did solicit in a street for the purpose of prostitution, contrary to section 1 (1) of the Street Offences Act, 1959. ’ The magistrate in each case found that the defendant was a common prostitute, that she had solicited and that the solicitation was in a street, and in each case fined the defendant. The facts, to all intents and purposes, raise the same point in each case; there are minute differences. The appellants in each case were not themselves physically in the street but were in a house adjoining the street. In one case the appellant was on a balcony and she attracted the attention of men in the street by tapping and calling down to them. In other cases the appellants were in ground-floor windows, either closed or half open, and in another case in a first-floor window. The sole question here is whether in those circumstances each appellant was soliciting in a street or public place. The words of s. 1 (1) of the Act are in this form: ‘It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution. ’ Observe that it does not say there specifically that the person who is doing the soliciting must be in the street. Equally it does not say that it is enough if the person who receives the solicitation or to whom it is addressed is in the street. For my part, I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half open; in each case her solicitation is projected to and addressed to somebody walking in the street. For my part, I am content to base my decision on that ground and that ground alone. I think that the magistrate came to a correct conclusion in each case, and that these appeals should be dismissed. LORD PARKER CJ: These are six appeals by way of Cases Stated by one of the stipendiary magistrates sitting at Bow Street, before whom informations were preferred by the respondent in each case against the appellant for that she ‘being a common prostitute, did solicit in a street for the purpose of prostitution, contrary to s 1(1) of the Street Offences Act, 1959. The magistrate in each case found that the appellant was a common prostitute, that she had solicited and that the solicitation was in a street, and in each case fined the appellant. The facts, to all intents and purposes, raise the same point in each case; there are minute differences. The appellants in each case were not themselves physically in the street but were in a house adjoining the street. In one case the appellant was on a balcony and she attracted the ttention of men in the street by tapping and calling down to them. In other cases the appellants were in ground-floor windows, either closed or half open, and in another case in a first-floor window. The sole question here is whether in those circumstances each appellant was soliciting in a street or public place. The words of s 1(1) of the Act are in this form: ‘It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution. ’ Observe that it does not say there specifically that the person who is doing the soliciting must be in the street. Equally it does not say that it is enough if the person who receives the solicitation or to whom it is addressed is in the street. For my part, I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half open; in each case her solicitation is projected to and addressed to somebody walking in the street. For my part, I am content to base my decision on that ground and that ground alone. I think that the magistrate came to a correct conclusion in each case, and that these appeals should be dismissed. HILBERY J: I agree. 9, Curzon Street, from the papers in front of us, appears to be let to two prostitutes who practise their profession from that address, and the way of practising it is shown by the Cases Stated, as my Lord has said; in one case by tapping on the window pane with some metal object as men passed by in the street in front of her, and then openly inviting them into her room. In the other cases it was done by tapping on the windows of various rooms occupied by these prostit utes and then, if the window was open, giving nvitations by way of solicitation or signals representing solicitation. In each case signals were intended to solicit men passing by in the street. They did effect solicitation of the men when they reached those men. At that moment the person in the street to whom the signal was addressed was solicited and, being solicited in the street, I agree with the conclusion of my Lord and for these reasons I have intimated that these appeals must be dismissed. DONOVAN J: I agree with both the judgments which have been delivered. Cases stated These were appeals by Cases Stated from the adjudications of one of the magistrates of the police courts of the metropolis sitting at Bow Street Magistrates’ Court as a magistrates’ court, before whom informations were preferred on 27 November 1959, 8 December 1959, 5 January 1960 and on a day unknown in 1960 by the respondents, police officers, that the appellants, Marie Theresa Smith and Christine Tolan being common prostitutes, did solicit in a street for the purpose of prostitution, contrary to s 1(1) of the Street Offences Act, 1959. There were two informations against Marie Theresa Smith, which were heard on 4 February 1960, when the following facts were found. The appellant was a common prostitute, living at 39, Curzon Street, W1, and using the premises for the purposes of prostitution. That on 4 November 1959, between 8. 50 pm and 9. 5 pm the appellant solicited men passing in the street for the purposes of prostitution from a first floor balcony of 39, Curzon Street, the balcony being some eight to ten feet above street level. The appellant’s method of soliciting the men was (i) to attract their attention to her by tapping on the balcony railing with some metal object and by hissing to them as they passed in the street beneath her, and (ii) having so attracted their attention, to talk with them and invite them to come inside the said premises by such words as ‘Would you like to come up here a little while? ’ at the same time as she indicated the correct door of the premises. That on 9 January 1960, between 12. 0 am and 1 am the appellant solicited men passing in the street for the purposes of prostitution from a closed ground floor window of 39, Curzon Street, the window being some three feet from railings, four feet high, which bounded the pavement on the side of the premises. That the appellant’s method of soliciting the men was (i) to attract their attention to her by tapping on the window pane with some metal object as they passed by in the street in front of her and (ii) hav ing so attracted their attention, to invite them in for a price which she indicated by extending three fingers of her hand and indicating the correct door of the premises. That on one occasion the price so indicated by the appellant was agreed and the man entered the premises, leaving some fifteen minutes later. On another occasion the price so indicated by the appellant was not agreed by the man concerned, who made a counter-proposal as to price by extending two fingers of his hand. This counter-proposal was not accepted by the appellant and the man walked away. There were four informations against Christine Tolan which were heard on 4 February 1960, two being heard also on 8 February 1960, when the following facts were found. That the appellant was a common prostitute living at 39, Curzon Street, London, W1, and using the premises for the purposes of prostitution. That on 4 November 1959, between 9. 25 pm and 9. 35 pm the appellant solicited men passing in the street for the purposes of prostitution from a half-open ground floor window of 39, Curzon Street, the window being some three feet from four feet high railings which bounded the pavement on the side of the premises. That the appellant’s method of soliciting the men was (i) to attract their attention to her by half leaning out of the window towards the men as they passed by in the street in front of her and (ii), having so attracted their attention, to talk with them and invite them inside the premises by such words as ‘A short time for ? 3’ at the same time as she indicated the correct door of the said premises. That on 4 December 1959, at about 10. 50 pm the appellant solicited men passing in the street for the purposes of prostitution from a ground floor window of 39, Curzon Street. That the appellant’s method of soliciting the men was (i) to attract their attention to her by tapping on the window pane with some metal object as they passed by in the street in front of her and (ii), having so attracted their attention, to invite them inside the premises by smiling and indicating the correct door of the premises. That on one occasion a man accepted the appellant’s suggestion and went towards the door of 39, Curzon Street, which the appellant was holding open ready for him to enter. However, when a police officer came up, the appellant hastily slammed the door and the man left (not having entered the premises). About five minutes later a second man left the premises. That on 5 December 1959, at about 10. 40 pm the appellant solicited men passing in the street for the purposes of prostitution from a closed ground floor window of 39, Curzon Street. That the appellant’s method of soliciting the men was to attract their attention to her by tapping on the window pane with some metal object as they passed by in the street in front of her and (ii) having so attracted their attention to talk to them and invite them inside the said premises at the same time as she indicated the correct door of the said premises. That on 15 December 1959, between 10. 30 pm and 10. 50 pm the appellant solicited men passing in the street for the purposes of prostitution from a partly open first floor window of 39, Curzon Street, the window being about ten feet above street level. That the appellant’s method of soliciting the men was (i) to attract their attention to her by tapping on the window pane with some metal object as they passed by in the street beneath her and (ii) having so attracted their attention, to invite them in by gestures and for a price she indicated by extending three fingers of her hand and indicating the correct door of the premises. It was contended for the appellants that the balcony; the interior of the premises behind a closed or half closed window on the ground floor; and the interior of a building behind a slightly open window on the first floor were not ‘in a street’ within the meaning of s 1(1) of the Street Offences Act, 1959, and accordingly no offence had been committed. It was contended for the respondents that the soliciting had taken place ‘in a street’ within the meaning of that Act. The magistrate was of opinion that the said soliciting had taken place ‘in a street’ within the meaning of s 1(1) of the Street Offences Act, 1959, and accordingly convicted the appellants. 3. Carlill v Carbolic Smoke Ball Co. [1983] 1QB 256 (p259) Background The British influenza epidemic of 1891-92 extracted a heavy toll on human life. To the purveyors of quack medicines it provided a wonderful opportunity. The last decade of the nineteenth century was the golden age of quackey and the carbolic smoke ball patented by Frederick Roe in December 1989 was merely one of a range of devices that were aggressively promoted to a naive public at that time. Roe’s patent application described his smoke ball as ‘An improved device for facilitating the distribution, inhalation and application of medicated and other powder’ Although the patent specification envisaged other powders being used, Roe confined himself to using carbolic acid or phenol in powder form, this being the standard germ killer of the time. Early advertisement for this smoke ball made typically extravagant claims: Will positively cure Influenza, catarrh, Asthma, Bronchitis, Hay fever, Neuralgia, Throat deafness, Hoarseness, Loss of voice, Whooping cough, Croup, Coughs, Colds, and all other ailments caused by Taking cold. Facts An advertisement that offered a reward of ? 100 ‘ to any person who contracts the increasing epidemic, influenza, colds,†¦after having used the ball according to the printed directions’. Gave rise to litigation. The company was so convinced of the infallibility of its product that its advertisement pointed out that it had deposited the sum of ? 000 with its bank as ‘proof of its sincerity’. The advertisement that gave rise to the litigation first appeared in the Pall Mall Gazette on 13 November 1891. Mrs Carlill bought a carbolic smoke ball from a chemist shop, and used it three times daily for two weeks in accordance with the written instructions, she nevertheless c ontracted influenza. When the company refused to pay the ? 100 reward, Mrs Carlill sued for breach of contract. Issues In this defence the Carbolic smoke ball co. raised virtually every possible argument that was available to deny the existence of a contract. In summary he company argued that: †¢ The newspaper advertisement was not an offer †¢ Even if it was an offer, Mrs Carlill had not validly accepted the offer. †¢ Even if she had, the arrangement was not intended to create the legal relations †¢ Even if it was, she had provided no consideration in exchange for the company’s promise †¢ Even if a contract had been formed, it was of no effect since it failed to meet certain statutory requirements. Decision The English court of appeal dismissed all of these arguments and held that a valid contract had been formed and consequently Mrs Carlill was entitled to the ? 100. Implications For present purposes, the main implications of the case are in the way that court of appeal rejected the various arguments advanced to suggest that the advertisement didn’t constitute an offer. The company’s argument that the advertisement was not a statement that people would take seriously (it was a ‘mere puff’) was rejected by reference to the statement that ? 1000 had been deposited with the Alliance Bank to show the company’s ‘sincerity in the matter’. Lindley LJ(at 261) stated: Now, for what was the money deposited or that statement made except to negative the suggestion that this was a mere puff and meant nothing at all? The deposite is called in aid by the advertiser as proof of his sincerity in the matter- that is, the sincerity of his promise to pay this ? 100 in the event which he has specified. I say this for the purpose of giving that point to the observation that we are not interring a promise, there is the promise, as plain as words can make it. The company argued that the advertisement was so vague and incomplete that reasonable people wouldn’t interpret it. To contain any legal promise. For example, the advertisement didn’t specify any time limit within which a person had to contract influenza in order for them to claim the reward. Neither was there any way for the company to check that smoke ball had been correctly used. Bowen LJ held that: The answer to that argument seems to me to be that if a person chooses to make extravagant promises of this kind he probably does so because it pays him to make them, and, if he has made them, the extravagance of the promises is no reason in law why he shouldn’t be bound by them. Lindley LJ conceded that the language was vague and uncertain in some respects but nevertheless considered that ‘business people or reasonable people ‘ would understand it to mean that ? 00 would be paid to anybody who used the smoke ball three times daily for two weeks according to the printed directions, and who contracted influenza within a reasonable time after so using it. In response to the company’s argument that an offer had to be directed at a particular person or persons and couldn not be made to the whole world. Browen LJ stated that: It was also said that the c ontract is made with all the world. †¦that is †¦with everybody, and that you can not contract with everybody. it is not a contract made with all the world. There is fallacy of the argument. It is an offer made to all the world,and why should not any offer be made to all the world which is to ripen into a contract with anybody who comes forward and performs the condition? It is an offer to become liable to any one who, before it is retracted, performs the condition, and although the offer is made to the world, the contract is made with that limited portion to the public who come forward and perform the condition on the faith of the advertisement. 4. Havey v Facey [1983] (p259) 5. Pharmaceutical society of Great Britain v Boots Cash Chemist (p258) 6. Fisher v Bell (p257) 7. Partridge v Crittenden (p257) 8. R. Clarke (p265) Clarke, had claimed ? 1000 from the police in the following circumstances. In May 1926 the commissioner of police gave notice by proclamation that he was authorized by the government of western Australia to ‘offer a reward of ? 1000 for such information as shall lead to the arrest and conviction of the person who committed the murders’ of an inspector of police and a sergeant of police, and that the governor would be advised to extend a free pardon to any accomplice not being the person who actually committed the murders who should first give the information. In June, one Treffene and Clarke were arrested and charged with one statement which led to the arrest of one coulter. Coulter and Treffene were convicted of the murder, Clarke giving evidence in accordance with is statement. Clarke was released and claimed the reward. The R alleged inter alia by way of defence that his statement was not made with a view to obtaining the reward. His petition was dismissed at first instance, the judge finding that he had not acted on the faith entering into any contract, but rather that he acted to save himself from the unfounded charge of murder. The plaintiff failed in an action to claim a reward offered for information leading to the conviction of a murderer. He knew of the reward but be admitted in court he gave the information to save himself from being charged with the murder and with the reward’ not present to his mind’. Higgins J, 241 stated that: The motive inducing consent maybe immaterial but the consent is vital. Without that there is no contract†¦Clark had seen the offer, indeed, but it was not present to his mind.. he had forgotten it, and gave no consideration to it, in his intense excitement as to his own danger. There can not be assent without knowledge of the offer, and ignorance of the offer is the same thing whether it is due to never hearing of it or forgetting it after hearing. (Acceptance must be made in reliance on the offer) 9. Hyde v Wrench June 6. The defendant wrote to the plaintiff offering to sell his farm for ? 1000. The plaintiff’s agent immediately called on the defendant, and made an offer of ? 920 which the defendant wished to have a few days to consider. June 27, the defendant wrote to say that he could not accept this offer. June 29, the plaintiff wrote ‘accepting’ the offer of June 6. The plaintiff brought an action for specific performance. The defendant filed a general demurrer. The Master of the rolls: Under the circumstances stated in this bill, I think there exists no valid binding contract between the parties for the purchase of the property. The defendant offered to sell it for? 1000, and if that had been at once unconditionally accepted, there would undoubtedly have been a perfect binding contract. Instead of that, the plaintiff made an offer of his own, to purchase the property for ? 950, and he thereby rejected the offer previously made by the defendant. I think that it was not fterwards competent for him to revive the proposal of the defendant, by tendering an acceptance of it, and that, therefore, there exists no obligation of any sort between the parties, the demurrer must be allowed. 10. Stevenson Jacques & Co. v McLean The plantiffs and the defendant were negotiating about the sale of a quantity of iron for which the defendant held warrants. Saturda y: The defendant wrote: â€Å"†¦I would now sell for 40s. net cash,open till Monday. † Monday: The plaintiffs telegraphed: â€Å"Please wire whether you would accept forty for delivery over two months, or if not, longest limit you would give. The defendant received the telegram at 10. 01am and subsequently sold the iron to a third party. 1. 25pm: the defendant telegraphed that he had sold the iron. 1. 3pm: the plaintiffs, having had no reply to their telegram, telegraphed again, accepting the offer to sell at 40s. cash. 1. 46pm: the defendant’s telegram arrived. The plaintiff sued for breach of contract, and the defendant objected that the telegram sent by the plaintiffs on the Monday morning was a rejection of the defendant’s offer and a new proposal on the plaintiffs’ part, and therefore that the defendant had a right to regard it as putting an end to the original negotiation. Lush J: Looking at the form of the telegram, the time when it was sent, and the state of the iron market, I can not think this is its fair meaning. The plaintiff Stevenson said he meant it only as an inquiry, expecting an answer for his guidance, and this, I think, is the sense in which the defendant ought to have regarded it. Stevenson, Jacques & Co v. McLean (1880) 5 QBD 346 is an English contract law case concerning the rules on communication of acceptance by telegraph. Its approach contrasts to the postal rule. McLean wrote to Stevenson, Jacques & Co. n Middlesbrough asking if he could get an offer for warrants on iron ore. He said 40s per ton in cash was the lowest price, the offer open till Monday. At 7. 42am, Stevenson telegraphed saying ‘Please wire whether you would accept forty for delivery over two months, or if not, longest limit you could give. ’ McLean did not answer, and sold at 1. 25pm to someone else. Stevenson, before hearing, telegraphed saying he had secured a price. McLean refused to deliver the iron, and Stevenson brought an action for non-delivery. Lush J held that the plaintiffs’ telegram at 9. 42 was not a rejection of the offer but a mere inquiry about whether the terms could be modified. Although McLean was at liberty to revoke the offer before Monday finished, that was not effective until it reached the plaintiffs. Therefore McLean’s offer was still open when Stevenson accepted it. 11. Power v Lee(266) 12. Felthouse v Bindley (p265) 13. Household Fire Insurance v Grant (267) 14. Holwell secutrities v Hughes (p267) 15. Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH Brinkibon Ltd v Stahag Stahl [1983] 2 AC 34 is a leading decision of the House of Lords on the formation of a contract using telecommunication. The Lords largely accepted the earlier leading decision of Entores v Miles Far East Co. [1955] 2 QB 327 on acceptance via telex. Brinkibon was a London company that purchased steel from Stahag, a seller based in Austria. Brinkibon sent their acceptance to a Stahag offer by Telex to Vienna. Brinkibon later wanted to issue a writ against Stahag and applied serve an out of jurisdiction party. They would only be able to do so if the contract had been formed in England. The question at issue was where the contract was formed. The Lords decided that the contract was formed in Vienna. They accepted the principle in Entores v Miles Far East Co where in the case of instantaneous communication, which included telex, the formation occurs in the place where the acceptance is received. Lord Wilberforce, however, did not see the rule as applying to all circumstances: Since 1955 the use of Telex communication has been greatly expanded, and there are many variants on it. The senders and recipients may not be the principals to the contemplated contract. They may be servants or agents with limited authority. The message may not reach, or be intended to reach, the designated recipient immediately: messages may be sent out of office hours, or at night, with the intention, or on the assumption that they will be read at a later time. There may be some error or default at the recipient’s end which prevents receipt at the time contemplated and believed in by the sender. The message may have been sent and/or received through machines operated by third persons. And many other variants may occur. No universal rule can cover all such cases; they must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgement where the risks should lie. 16. Dickinson v Dodds (1876) (p261) Dodds offered to sell Dickson some houses for ? 800. This offer was stated ‘to be left over Friday, 9am’. However, Dodds sold the houses to someone else on the Thursday. Dickson heard of this sale indirectly but still handed Dodds a formal acceptance of the offer before 9am. Friday, it was held that no contract was formed with Dickson. The offer had been revoked before acceptance since Dickinson had actually received notice of the revocation even though this was not from the offeror. (General rule: an offer can be revoked (withdrawn or cancelled) by the offeror any time before it is accepted. A revocation is not effective until the offeree becomes aware of it. It is not necessary that offeror personally communicate the revocation to the offeree. It is sufficient if a reasonable person would be aware that the offer had been withdrawn. 17. Byrne & Co. v. Van Tienhoven & Co. October 1: The defendants, in Cardiff, posted a letter to the plaintiffs, in New York, offering to sell them 1000 boxes of tinplates. October 8: The defendants posted a letter revoking their offer. October 11:The plaintiffs telegraphed acceptance October 15: The plaintiffs confirmed their acceptance by letter. October 20: The defendants’ letter of revocation reached the plaintiffs. (Revocation is effective when it arrives. Postal acceptance Rule) 18. Rose & Frank Co. v Crompton & Bros. The defendant manufactured carbon paper in England. The plaintiff bought the defendant's paper and sold it in New York. After dealing with each other for a number of years they entered into a written agreement as to the plaintiff having exclusive rights to buy and sell the defendant's goods. The agreement stated: â€Å"This agreement is not a formal or legal agreement. It will not be subject to the jurisdiction of either the British or American courts. It is a record of the intention of the parties to which they honourably pledge themselves and is to be carried out with mutual loyalty and friendly co-operation. Following a series of disputes the plaintiff claimed that the defendant was in breach of the agreement and the trial judge held that it was legally binding. The defendant appealed and the Court Of Appeal overturned the decision – it was quite possible for parties to agree that a legal relationship would not be formed. Bankes LJ said that an intention to be legally bound was essential. With business arrangements it usual ly follows as a matter of course that legal relations are intended. Whilst it was â€Å"most improbable† that firms engaged in international business arrangements should not have intended legal consequences there is no legal obstacle to prevent them from doing so. He added further that there is no law or issue of public policy that should preclude this rule. Thus after reading the agreement in its ordinary meaning, he said â€Å"it is manifest that no action can be maintained on the basis of it. † (Intention to create relations) 19. Balfour v Balfour (p271) 20. Merritt v Merritt The court held that the presumption that agreements between husband and wife are not intended to create legal relations doesn’t apply when they are not living in amity but are separated or about to separate. H had left W and was living with another woman. He agreed to pay W ? 40 a month. And signed a written agreement that, in consideration of W’s paying off the mortgage on their jointly owned house, he would then transfer it to her sole ownership. W paid off the jointly owned house, he would then transfer it to her sole ownership. W paid off the mortgage, Stamp J, made a declaration that W was the sole beneficial owner. H’s appeal was dismissed. Lord Denning said:’In all these cases the court does not try to discover the intention by looking into the minds of the parties. It looks at the situation in which they were placed and asks itself: would reasonable people regard this agreement as intended to be binding? † (google)A husband and wife separated. They then met to make arrangements for the future. After this the husband agreed to pay ? 40 per month maintenance, out of which the wife would pay the mortgage. When the mortgage was paid off it was agreed he would transfer the house from joint names to the wife's name. He wrote this down and signed the paper, but later refused to transfer the house. It was held that when the agreement was made, the husband and wife were no longer living together, therefore they must have intended the agreement to be binding, as they would base their future actions on it. This intention was evidenced by the writing and therefore the husband had to transfer the house to the wife. 21. Jones v Vernons Pools Ltd (p272) 22. White v Bluett (p277) 23. Roscorla v Thomas (p277) 24. Re Casey’s Patents (google) A and B owned a patent and C was the manager who had worked on it for two years. A and B then promised C a one-third share in the invention for his help in developing it. The patents were transferred to C but A and B then claimed their return. It was held that C could rely on the agreement. Even though C's consideration was in the past, it had been done in a business situation, at the request of A and B and it was understood by both sides that C would be paid and the subsequent promise to pay merely fixed the amount. (past consideration is good if: Must be done at the promisor's request Parties understand that the act was to be rewarded. Payment must have been legally enforceable had it been promised in advance) 25. Collins v Godefroy This case (Collins v Godefroy [1831] 1 BAd 950) is the archetype of cases where a duty imposed by law cannot be taken as Consideration to support a Contract. Godefroy promised Collins six guineas if he would attend court to testify on his behalf. At his agreement, Collins was subpeonaed. Godefroy refused to pay. In his defence, he claimed that there was no consideration moving from Collins, as he was obliged to attend court anyway. This view was upheld by the court. (It was held that as Collins was under a legal duty to attend court he had not provided consideration. His action therefore failed. ) 26. Ward v Byham The father of an illegitimate child agreed to pay the mother a sum of money for maintenance, provided that the child be well looked after and happy, and that the mother offer the child the choice of which parent to live with when she was old enough to understand. The father made payments until the child's mother married, and then he refused. The mother sued for breach of contract. The father's defence was that there was no consideration to the agreement, as the mother was legally obligated to care for the child. The Court of Appeal ruled that the mother had exceeded her statutory duty by bringing up the child in a particular way, and in accordance with the wishes of the father, and this was sufficient consideration. (Do more than public duty is good consideration) 27. Dunton v Dunton (p277) 28. Glasbrook Brothers Ltd v Glamorgan County Council (p278) 29. Stilk v Myrick (p278) 30. Musumeci v Winadell Pty Ltd (p278) 31. Shadwell v Shadwell (279) 32. Hartley v Ponsonby (p279) 33. Pinnel’s case ( ) The plaintiff sued the defendant for the sum of ? 8 10s. The defence was based on the fact that the defendant had, at the plaintiff's request, tendered ? 5-2s-6d before the debt was due, which the plaintiff had accepted in full satisfaction for the debt. payment of a lesser sum on the day in satisfaction of a greater, cannot be any satisfaction for the whole, because it appears to the Judges that by no possibility, a lesser sum can be a satisfaction to the plaintiff for a greater sum: but the gift of a horse, hawk, or robe, etc. in satisfaction is good†¦ [as] more beneficial to the plaintiff than the money. The rule is obiter dicta. In Pinnel's Case itself the debt was paid before the date of satisfaction, which was considered good consideration. 34. Foakes v Beer (p279) 35. Central London property Thust Ltd. v High Tress house Ltd. (p281) 36. Waltons Stores (interstate)Ltd. v Macher (p281) 37. Donoghue v Stevenson (p172) 38. Perre v Apand (p201) 39. Bolton v Stone (p187) 40. Haley v London Electricity Board (photocopy) 41. Pairs v Stepney BC (p190) 42. WATT v HERTFORDSHIRE COUNTY COUNCIL [1954] 1 WLR 835 DENNING LJ: †¦ It is well settled that in measuring due care one must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this. One must balance the risk against the end to be achieved. If this accident had occurred in a commercial enterprise without any emergency, there could be no doubt that the servant would succeed. But the commercial end to make profit is very different from the human end to save life or limb. The saving of life or limb justifies taking considerable risk, and I am glad to say there have never been wanting in this country men of courage ready to take those risks, notably in the fire service. In this case the risk involved in sending out the lorry was not so great as to prohibit the attempt to save life. I quite agree that fire engines, ambulances and doctors’ cars should not shoot past the traffic lights when they show a red light. That is because the risk is too great to warrant the incurring of the danger. It is always a question of balancing the risk against the end. Full text SINGLETON LJ: The plaintiff was employed in the fire service under the control of the defendants and he was stationed at Watford. He had a serious accident on 27 July 1951, as a result of which he brought this action, claiming damages for negligence. His case is that the defendants undertook to exercise the care which they owed to him and to other men employed in the fire service, and he gives particulars of negligence. There are always firemen on duty at the fire station at Watford, and on 27 July 1951, an emergency call was received there to the effect that there had been an accident and that a woman was trapped under a heavy vehicle about two hundred or three hundred yards away. In view of the nature of the emergency the officer in charge, Sub-officer Richards, gave directions that two teams of men should go out, and he himself went with the first team. It was clear that there might be need for lifting apparatus of some kind, and at the fire station there was a jack capable of raising heavy weights. The jack did not belong to the fire service. It was the property of London Transport Executive, whose practice it is to lend out jacks of this kind to various fire stations, and, perhaps, to other bodies, so that they can be on call in case of need. Thus, the jack was on loan to the defendants at this fire station. It is only on rare occasions that there is an emergency call requiring the services of a jack of this kind. The plaintiff had been in the fire service in Hertfordshire since 1939, and he had only known of one emergency call on which a jack was required. The defendants had an Austin vehicle fitted to carry this jack. The fire station at Watford is not a large one, and it had not a great many vehicles. The Austin vehicle was the only one fitted to carry the jack, but it was not kept purely for that purpose. It had other services to perform during part of the week, and on this day it was properly out on other service. The jack stands on four small wheels, two of which are castored, which means that they may turn all the way round the circle. There was at the fire station only one vehicle on which the jack could be carried in the absence of the Austin vehicle, a Fordson lorry, and before leaving with his team Sub-officer Richards told the leading fireman in charge of the second team, of which the plaintiff was a member, to take the jack on the lorry. Consequently, the five men in the second team lifted up the jack, which weighed between two and three hundredweight, and put it on to the flat Fordson lorry, which had boards at the sides and a tailboard. They got on the lorry themselves, two in the front seat, and three sitting in the body. The plaintiff was in the forward part of the body on the right-hand side, and the other two men there were, perhaps, a little further back and on the other side, and they held the jack somehow. Obviously there might be movement of the jack in the lorry, for there were no means of securing it, no place on which anything could be tied, and no built-in system which would prevent movement. There was, therefore, a risk. The men knew what they were doing. They started their journey, which was only two hundred or three hundred yards. But on the way something happened to cause the driver to apply his brakes suddenly, the jack moved inside the lorry, the plaintiff’s leg was caught, and he was injured. In these circumstances he claimed that the defendants, his employers, were negligent in that they ‘(a) failed to load or secure the said lifting jack in such a way that it could not become dislodged;(b) loaded the said lifting jack in such a way that they knew or ought to have known it was likely that if the said lorry pulled up suddenly the same would become dislodged and cause injuries to any person riding on the back of the said lorry;(c) permitted and/or caused the laintiff to ride on the back of the said lorry on to which the said lifting jack had been loaded as aforesaid;(d) caused or permitted the said jack to be transported on the said lorry which as the defendants knew or ought to have known was not provided with clips straps or other suitable means to secure the same;(e) failed to provide any or any adequate supervision of the loading of the said jack on to the said lorry’; and it was claimed that the plaintiff’s accident was due to negligence, and that he was entitled to recover damages against the defendants. Barry J heard the action, and on 16 December 1953, he gave judgment in favour of the defendants, holding that it was not shown that they had been guilty of any negligence towards the plaintiff or towards their other employees. I am in complete agreement with his judgment. The fire service is a service which must always involve risk for those who are employed in it, and, as counsel for the plaintiff pointed out, they are entitled to expect that their equipment shall be as good as reasonable care can secure. An emergency arose as often happens. Mr Richards, the sub-officer who had given the order, was asked in re-examination: ‘From your point of view you thought it was a piece of luck, with this unfortunate woman under the bus, that the Fordson was available and you could use it? A. – Yes. It is recognised in the service that we use our initiative at all times, and in doing so any reasonable step you take is considered satisfactory if it is a question of saving life. You have to make a sudden decision. ’ It is not alleged that there was negligence on the part of any particular individual, that the driver was negligent in driving too fast, or that Sub-officer Richards was negligent in giving the order which he did. The case put forward by counsel for the plaintiff in this court is that, as the defendants had a jack, it was their duty to have a vehicle fitted in all respects to carry that jack, from which it follows, I suppose, that it is said a vehicle must be kept at the fire station at all times, or that, if there is not one, the lifting jack must not be taken out. Indeed, counsel claimed that, in the case of such an occurrence as this, if there was no vehicle fitted to carry the jack, the sub-officer ought to have telephoned to the fire station at St Albans and arranged that they should attend to the emergency. St Albans is some seven miles away, and it was said an extra ten minutes or so would have elapsed if that had been done. I cannot think that is the right way to approach the matter. There was a real emergency. The woman was under a heavy vehicle. These men in the fire service thought they ought to go promptly, and thought they ought to take a lifting jack, and they did so. Most unfortunately this accident to the plaintiff happened. The duty owed by employers has been stated often. Lord Herschell in Smith v Baker & Sons said ([1891] AC 362): ‘It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk. The employee in this case was a member of the fire service, who always undertake some risk, though, according to counsel for the plaintiff, not this risk. Is it to be said that, if an emergency call reaches a fire station, the person in charge has to ponder on the matter in this way: Must I send out my men with the lifting jack in these circumstances, or must I telephone to St Albans , seven miles away, to ask them to undertake the task? I suppose he must think about his duty, but what would a reasonable man do placed as he was? Would the reasonably careful head of the station have done anything other than that which Sub-officer Richards did? I think not. Can it be said, then, that there is a duty on the employers here, the defendants, to have a vehicle built and fitted to carry this jack at all times, or, if they have not, not to take the jack for a short journey of two or three hundred yards? I do not think that will do. Asquith LJ in Daborn v Bath Tramways Motor Co Ltd & Trevor Smithey said ([4946] 2 All ER 336): ‘In determining whether a party is negligent, the standard of reasonable care is that which is reasonably to be demanded in the circumstances. A relevant circumstance to take into account may be the importance of the end to be served by behaving in this way or in that. As has often been pointed out, if all the trains in this country were restricted to a speed of five miles an hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk. ’ The purpose to be served in this case was the saving of life. The men were prepared to take that risk. They were not, in my view, called on to take any risk other than that which normally might be encountered in this service. I agree with Barry J that, on the whole of the evidence which was given, it would not be right to find that the defendants as employers were guilty of any failure of the duty which they owed to their workmen. In my opinion, the appeal should be dismissed. DENNING LJ: It is well settled that in measuring due care one must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this. One must balance the risk against the end to be achieved. If this accident had occurred in a commercial enterprise without any emergency, there could be no doubt that the servant would succeed. But the commercial end to make profit is very different from the human end to save life or limb. The saving of life or limb justifies taking considerable risk, and I am glad to say there have never been wanting in this country men of courage ready to take those risks, notably in the fire service. In this case the risk involved in sending out the lorry was not so great as to prohibit the attempt to save life. I quite agree that fire engines, ambulances and doctors’ cars should not shoot past the traffic lights when they show a red light. That is because the risk is too great to warrant the incurring of the danger. It is always a question of balancing the risk against the end. I agree with my Lord that this appeal should be dismissed. MORRIS LJ: I also agree. The accident in this case came about as a result of a somewhat unusual concatenation of circumstances. There had for a long time been no call for the use of the jack. Any such call, according to the evidence, was extremely rare. It so happened that a call came at a time when the Austin vehicle which would normally have carried the jack was otherwise engaged. I do not think it can be said to have been unreasonable to have had the Austin vehicle for use in the way that was arranged. Had the fire station been larger, had there been unlimited resources, unlimited space, and an unlimited number of vehicles, then it may be that another fitted vehicle would have been available. But that was not reasonably practicable or possible. When the call for the jack came, Mr Richards had to decide what to do, and I do not think that it would have been in accordance with the traditions of the fire service if he had said that he could do nothing other than call on St Albans. What he decided to do was in accordance with the practice of the fire service. Mr Bottin, the assistant chief officer in the London Fire Brigade, speaking of the provision of jacks, pointed out that in London there are twenty-nine sets of lifting gear, one being provided for every two stations. He said in evidence: ‘Q. Can you always undertake that that one vehicle will be available for the transport of a jack? A. – No. Q. – In your view is it reasonably practicable for a fire service to adapt all of its vehicles for the transport of jacks? A. – No. I would not think it was reasonable. Q. – You have been a station officer, have you not? A. – I have. Q. – Supposing you found yourself in charge of a stati on, and supposing the equipment available was not that most suitable for the purpose but you found that human life was in danger and you might save it by adopting a method not entirely suitable, what in your view would be your duty as a station officer? A. – I have had that experience, and I did not hesitate to get the equipment there as quickly as possible. ’ As I have said, I think Mr Richards acted in accordance with the traditions of the service, and I cannot for one moment think that the employers could be held responsible as having failed in the performance of their duties. I agree that the appeal fails. 43. Rogers v Whitaker (p189) 44. Barnett v Chelsea Hospital 45. March v E. & M. H Stramare Pty. Ltd.