TORT

Cycle track maintained by local authority - cyclist injured by falling into gully at the edge of the track - local authority not liable

Beaton v Devon County Council: CA (Lords Justice Judge and May): 31 October 2002

The local authority maintained a cycle trail in its rural area which was used by about 30,000 cyclists a year and passed through a disused railway tunnel.

The trail consisted of a concrete path with drainage gullies on either side between the edge of the track and the tunnel wall.

The depth of the gullies was about six inches when not filled with gravel.

The tunnel was fully lit with 70 watt lights placed at 20 metre intervals.

The claimant, while riding her bicycle through the tunnel, stopped and sustained injuries by a fall when, she claimed, she put her foot in a gully.

There had been no previous complaints of any similar accidents.

The judge held the authority liable for breach of the common duty of care on the basis that the accident was a reasonably foreseeable result of its failure to fill the gullies.

The authority appealed.

Martin Hodgson (instructed by Howe Roche & Waller, Stevenage) for the claimant.

William Audland instructed by Veitch Penny, Exeter) for the local authority.

Held, allowing the appeal, that the duty of the local authority, as the occupiers of the cycle track, was to maintain the track to be reasonably safe to all users of it; that a reasonable user of the cycle track was not expected to cycle in such a way as to come close to the gullies; that since there had not been any complaint of previous accidents involving the gullies, the judge's finding that the accident was reasonably foreseeable amounted to equating the common duty of care under the Occupiers Liability Act 1957 with a duty protect against accidents, which it was not; and that, accordingly, the authority was not liable.

Deceit - defence of contributory negligence not available in fraudulent misrepresentation - director personally liable for deceit carried out on behalf of company

Standard Chartered Bank v Pakistan National Shipping Corporation and others: HL(E) (Lord Hoffmann, Lord Slynn of Hadley, Lord Mustill, Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry ): 6 November 2002

The seller contracted to ship a cargo of bitumen to a buyer.

Payment was to be made by a letter of credit issued by a Vietnamese bank in favour of the seller and confirmed by the claimant bank.

A condition of the credit was that shipment be effected and all documents be presented by specified dates.

The seller's shipping agent and the shipowners agreed with M, the seller's managing director, to issue falsely dated bills of lading.

The claimant, relying on the falsely dated bills, decided to waive late presentation, authorised payment to the seller by discounting its bills, and wrote to the issuing bank stating that the documents had been presented in time and claiming reimbursement.

The issuing bank refused payment because of other discrepancies in the documents which the claimant's employees had not noticed.

The claimant claimed damages for deceit and conspiracy in respect of the falsely dated bills against, among others, the shipowners and M.

Mr Justice Cresswell held that the claimant had established a good cause of action in deceit against the ship-owners and personally against M.

The shipowners and M appealed on the grounds, among other things, that the claimant had suffered loss partly as a result of its deceit upon the issuing bank and that constituted 'fault' within the meaning of section 4 of the Law Reform (Contributory Negligence) Act 1945 so that the damages payable fell to be apportioned pursuant to section 1(1); M appealed against the ruling that he was personally liable.

The Court of Appeal [2001] EWCA Civ 55; [2001] 1 All ER (Comm) 822 held that M was not personally liable because he had acted as the seller's representative but dismissed the shipowners' appeal, holding by a majority that the1945 Act was inapplicable to claims in deceit.

The claimant appealed.

John Cherryman QC, Timothy Young QC and Lawrence Akka (instructed by Ashok Patel & Co) for M.

Jeffrey Gruder QC and Zoe O'Sullivan (instructed by Lovells) for the claimant.

Held, allowing the appeal, that although M's fraudulent misrepresentation was relied upon by the claimant as a representation by the seller, it was also relied upon as M's representation based on his knowledge and he was being sued for his own tort of fraud; and that once all the elements of the tort were established against him M could not escape personal liability by relying on the fact that he had acted within the scope of his employment; that the definition of 'fault' in section 4 of the 1945 Act was divided into two limbs, one of which applied to defendants and the other to claimants; that 'fault' was 'negligence, breach of statutory duty or other act or omission' which, in the case of a defendant, gave rise to a liability in tort, but which, in the case of a claimant, gave rise at common law to a defence of contributory negligence; that in relation to fraudulent misrepresentation there was no common law defence of contributory negligence so that, if a claimant would not have parted with his money if he had known that a representation made by the defendant was false, it was irrelevant that the claimant also held an irrational or negligent belief about another matter, and but for that belief would not have parted with his money either; and that, accordingly there could be no apportionment under the 1945 Act for the damages suffered by the claimant as a result of being induced to make payment in reliance on the falsely dated bills of lading.

(WLR)