April 2010 Case Law Reports
IAN HALL v (1) NEWALL HEATING LTD (2) AGF INSURANCE LTD (2010)
The evidence failed to prove that the second defendant insurer insured the first defendant company against employers' liability or public liability risks at the relevant time.
The claimant sought to recover personal injury damages from the second defendant insurer. He was suffering from mesothelioma. His case was that that disease was caused by exposure to asbestos while he was employed by the first defendant company during the period 1967 to 1974. The defendant company, although still in existence, was not trading and was insolvent. The claimant obtained a default judgment against the first defendant for damages to be assessed. His solicitors sought to identify insurers who were on risk during the relevant period and who might accordingly be liable to satisfy the judgment pursuant to the provisions of the Third Parties (Rights against Insurers) Act 1930. As a result of their investigations they identified AGF Insurance Limited who were added as a party to the action.
It was subsequently held that there was no documentary evidence of the insurer having issued any employers' liability or public liability policy to the first defendant company. The evidence compelled the conclusion that the insurer did not at the material time insure the first defendant against employers' liability or public liability risks.
TERENCE MILNER & CYNTHIA MARY MILNER v CARNIVAL PLC (T/A CUNARD) (2010)
The Court of Appeal assessed the correct measure of damages to be awarded to a couple as compensation for their ruined holiday.
The defendant company appealed against the level of damages awarded to the claimant couple as a result of their ruined holiday. The claimants paid a discounted price of £59,052 for the 106-day trip. However, on the first night the ship entered stormy conditions and their cabin was damaged. As a consequence of noise resulting from the damage, they suffered two sleepless nights before being moved to an inside cabin which lacked some of the amenities of their chosen cabin. Their clothes, including 21 formal gowns which had been bought especially for the cruise, were left in the damaged cabin. The couple were temporarily moved to a suite, but later rejected an offer to accommodate them in another cabin on the basis that it lacked a bath and hanging space for clothes. Consequently they moved back to their original cabin, but the noise continued to cause them distress and so they disembarked in Hawaii 28 days into the trip. They then spent six weeks in Hawaii at their own expense before returning home. The couple accepted a refund of £48,270, making the net cost of their holiday £10,812.
The Claimants were awarded a total of £22,000; £2,500 each for the diminution in the value of their cruise, £7,500 each for their distress and disappointment when the cruise did not match their expectations, and £2,000 for wasted expenditure on a wardrobe of formal gowns.
The Court of Appeal held;-
(1) The measure of damages was such compensation as would place the claimants, so far as money could do so, in the same position as they would have been in had the contract been properly performed. Assessing loss was a question of fact and degree in each case.
(2) In assessing the diminution in value the court had to assess the difference between what the supplier contracted to provide and what was actually provided. The judge had erred in using the advertised price of the holiday as a benchmark for damages; what mattered was the discounted price actually paid, namely £10,812 for 28 days. Accordingly, the claimants would be awarded £3,500 for diminution in value.
(3) The court also had to compare expectations with reality when assessing damages for physical inconvenience, discomfort and mental distress. The award of £7,500 each for distress and disappointment was excessive and disproportionate. The correct sums were £4,000 for the husband and £4,500 for the wife.
(4) Where it was permissible to assess damages under two heads, judges should ensure that there was no duplication of damages. In the instant case, the total award of £12,000 was fair and just compensation for the defendant's failure to meet their guests' legitimate expectations.