WEB TUTORIAL WEEK 8 – ANSWER GUIDE
An approach to reading cases.
What follows are outline answers for the case reading questions. The real
point of these case reading questions is to develop case reading skills
rather than determine the answers.
Curtis v Chemical Dry Cleaning
a) [1951] 1 KB 805
b) Chemical Cleaning & Dyeing Co was the Appellant (defendant at first
instance).
c) Mrs Curtis was the Respondent (plaintiff at first instance).
d) Court of Appeal, King’s Bench Division
e) Heard Feb 15 and decided on Feb 16, 1951
f) Somervell, Singleton and Denning LJJ. They are listed in order of seniority.
g) Three judges sat because the case was an appeal and an odd number of judges
will sit whenever possible to ensure a clear decision and prevent a divided
court.
h) Appellant (defendant) represented by Geoffrey Lawrence KC and AM
Wallace. Respondent (plaintiff) represented by Turner – Samuels KC and DJ
Turner – Samuels
i) The plaintiff took a satin dress to the defendant’s shop to be cleaned. She was
handed a piece of paper headed ‘receipt’ and was asked to sign it. She asked
why she had to sign it and was told by the shop assistant that the shop did not
accept responsibility for certain specified risks, such as damage to the beading
on the dress. The clause in fact purported to exclude liability for any The
plaintiff took a satin dress to the defendant’s shop to be cleaned. She was
handed a piece of paper headed ‘receipt’ and was asked to sign it. She asked
why she had to sign it and was told by the shop assistant that the shop did not
accept responsibility for certain specified risks, such as damage to the beading
on the dress. The clause in fact purported to exclude liability for any damage
howsoever arising. The dress was stained when returned as a result of the
defendant’s negligence.
j) There are no issues of fact. This is an appeal. Issues of fact are (almost)
always decided at first instance when the judge has direct access to the
witnesses. Appeals lie on issues of law.
k) The plaintiff sought damages in the first instance. On appeal the defendant
(Appellant) sought to overturn the decision of Judge Blagden in the County
Court to award damages.
l) The issue of law was: whether the defendant could rely on an exclusion clause
when its content had been misrepresented by the defendant’s agent.
m) The ratio decidendi – or reason for decision – will generally be the answer
given by the Court to the issue of law. Here, the ratio decidendi is that an
exclusion clause will not be effective to the extent that its content has been
misrepresented by an agent of the party seeking to rely on it. This applies
equally to fraudulent and to innocent misrepresentation.
n) Obiter dicta are judicial opinions, not necessary to the final decision on the
issue of law. In Lord Denning’s judgement in the present case, the following
obiter can be found:
a. In my opinion (words such as this are often a good guide) any
behaviour by words or conduct is sufficient to be a misrepresentation if
it conveys a false impression.
b. If nothing was said (words such as ‘if” are good guides – they are
presenting a scenario which is an alternative to the present case and
therefore by definition does not fall for decision) about the contents of
the exclusion clause the document may have only had the status of a
voucher, or if signed with no enquiry, the conduct of the cleaners may
have been such as to give the impression that there was no condition at
all.
o) Cases followed: L’Estrange v Graucob; Olley v Marlborough Court; Rex v
Kyslant; Chapleton v Barry Urban District Council; Low v Bouverie
p) No. Denning LJ added a more general comment as to what constitutes
misrepresentation.
q) Appeal dismissed. The defendant (Appellant) could not rely on the exclusion
clause.
R v Clarke
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
l)
(1927) 40 CLR 227, [1927] HCA 47
The Crown; at first instance the Crown was the respondent.
Evan Clarke; at first instance Clarke was the petitioner.
The High Court of Australia
Heard on 14th, 15th Sept, 1927. Decided on 22nd Nov, 1927. (these details
not on Austlii).
Isaacs ACJ, Higgins, Starke JJ, in order of seniority.
3 judges sat as it is an appeal and an odd number is preferred to prevent
there being an evenly split decision.
The Crown was represented by: JL Walker, barrister and the Crown
Solicitor. Clarke was represented by Keenan KC and Roe, barristers and
by Parker and Roe, solicitors.
While Clarke was under arrest for murder, he provided information to the
police which led to the arrest and conviction of another person. He gave
this information only to clear himself of the murder charge. At the time of
providing the information Clarke knew of a proclamation that offered a
reward for information which would lead to the arrest and conviction of
the person who committed this crime. Clarke claimed the reward.
The Crown sought to have the decision of the Supreme Court of WA (Full
Court) overturned.
There are no issues of fact, this is an appeal and appeals are to decide
issues of law. ( See particularly the comments by Starke J end p 7)
The issue of law is whether there is a contract between the Government
and Clarke. So – can an offer be accepted by performance if there is no
reliance on the offer? ( see Higgins J at Para 1)
m)
n)
o)
p)
q)
r)
For there to be a contract, performance and hence, acceptance must be in
reliance on the offer.
Isaacs ACJ stated that he considered performance to have been sufficient
for acceptance but it was unnecessary for him to decide this point ( at p
237) ; Higgins J equated the need for reliance to that required for an action
in misrepresentation (at p 6) and further discussed what is needed for the
conditions of the offer to be satisfied.
The main cases followed: General Accident Fire and Life Assurance Corp
v Robertson [1909] AC 404 ; Carlill v Carbolic Smoke Ball Co [1893] 1
QB 256;
Williams v Carwardine (1833) 4 B. & Ad 621 discussed.
American cases also discussed.
There is little difference between the judges.
The appeal was allowed
The judges wrote their individual judgements and the reporter the rest, ie
the headnote and the arguments.
NB Note this case is also an interesting example of the distinction the judges
make between law and policy. See Higgins J 1sst para
LEWIS v AVERAY
a)
Lewis v Averay [1971] 3 All ER 907; [1972] 1 QB 198. Note the spelling
of the case names!!
b)
The Appellant is Anthony John Averay, the defendant at first instance.
c)
The Respondent is Mr Lewis, the plaintiff at first instance.
d)
Court of Appeal, Civil Division
e)
22nd July 1971
f)
Lord Denning MR; Megaw, Phillimore LJJ. The judgments are reported in
order of the seniority of the judges.
g)
Three judges sat. This is an appeal and an uneven number of judges always
sits to ensure a clear verdict.
h)
The Appellant was represented by both RN Titheridge and ACBM David
of Counsel, and Amery- Parker & Co, solicitors.
The Respondent was represented by DL Prebble of Counsel and Adams,
Brown & Co, Bristol, solicitors.
i)
Mr Lewis’ car was for sale. A rogue, who represented himself as the
famous actor Richard Greene, offered to buy the car for the agreed price of
$450. He proffered a cheque for this amount but Mr Lewis was reluctant to
hand over the car until the cheque cleared. The rogue purported to
establish his identity by showing a special admission pass to Pinewood
Studios. This satisfied Mr Lewis who handed over the car and log books
in return for the cheque. The cheque was worthless. The rogue sold the car
to Mr Averay, an innocent purchaser.
The rogue could not be found.
j)
The remedy sought on this appeal was to have the decision of the County
Court judge overturned. (The remedy sought at first instance was damages
for conversion of the car).
k)
The issue of law is (Lord Denning at 205)
Was there a valid contract of sale between Mr Lewis and the rogue?
To decide this, the following issue needs to be decided (per Lord Denning,
at 206)
What is the effect on the contract of a mistake by one party as to the
identity of the other?
l)
There are no issues of fact. Any issues of fact would have been decided at
first instance.
m)
Ratio: Per Lord Denning (at 207) and Phillimore LJ ( at 208) mistake as
to the identity of the rogue did not prevent the formation of a valid
contract. But it did render it voidable, “that is liable to be set aside at the
instance of the mistaken person, so long as he does so before third parties
have in good faith acquired rights”.
The reasoning of Megaw LJ: mistake as to the identity of the rogue did
not prevent the formation of a valid contract because it was a mistake as to
attributes (creditworthiness), not identity.
Be aware of the very different reasons for the judges’ decisions. So even
though the decision was unanimous, the reasons for the decision are not
consistent and each reason does not constitute separate ratios. There can
only be one ratio for a case and unless this is found in unanimity or a clear
majority it does not exist. See Laying Down the Law for a more detailed
discussion of what happens when the reasons of the judges is not
consistent, even when the decision is the same.
n) Obiter
Lord Denning:
206
Unilateral mistake as to identity does not render a contract
void.
206
Fine distinctions between mistake as to identity and its
attributes ‘do no good to the law’. ”This is a distinction without a
difference”.
207
It is wrong that the rights of an innocent purchaser should
depend on whether the original seller was mistaken as to identity or
attribute.
207
When a contract is made between parties in person then the
contract is made between the parties physically present ( even though it
may be avoided for fraud)
Per Megaw LJ
209
discussion of the value of Mrs Lewis’ evidence.
o) Cases followed: Phillips v Brooks, and King’s Norton Metal v Eldridge
Merrett
Cases distinguished: Lake v Simmons, Sowler v Potter, (Ingram v Little
was overturned rather than distinguished)
p) Look at the answer to number (m) above. The reasoning of the majority
(though Phillimore LJ’s reasons are not very detailed) is quite different
from the reasoning of Megaw LJ. This is very important to note when the
decision of the judges is the same but the rationale for those decisions is
quite different. Depending on the extent of the difference between the
judges this may mean that there is no true ratio in the case and each of the
judgments is merely persuasive. If a subsequent set of facts is before the
courts which are indistinguishable from the facts in the original case then
there is a precedent for the outcome even if the reasoning is not consistent.
But if the subsequent case draws on similar principles but with different
facts then the original case is not a binding precedent.
In this case, with the 2:1 reasoning the reasoning of Lord Denning is the
rationale that is followed by the courts in later decisions.
q) The Court held that the appeal be allowed. The contract between Mr Lewis
and the rogue was voidable, but could not be avoided once the car had
been on sold to a bona fide purchaser for value without notice.
r) Regardless of the difficulty arising from there being conflicting reasons
given by the judges, as an English decision, this case is not a binding
precedent in NSW. It is, however of great persuasive value and in the
absence of any cases considering the same issue, it can be considered the
law in NSW. However, it is not only necessary to look at what Australian
cases have considered this issue but it is necessary to look also at its
development in the English Courts. A more recent decision is Shogun
Finance v Hudson in which many of these issues were considered in great
detail. So in considering the law in NSW you must look at the different
reasons in the Lewis case as well as the more recent English decisions that
consider Lewis. Then look at the comments that have been made by the
Australian Courts about this line of cases.
(To find these cases you would consult a current text book and search the
case name on Austlii, Bailii and similar databases to discover any recent
commentary.)