chapter  3
Ought God to be blamed for a gas explosion which blows a girl off her bicycle and injures others playing in the street? (i) Reasoning by analogy
Pages 3

Stocks v Magna Merchants Ltd [1973] 2 All ER 329 Queen’s Bench Division

Arnold J:… There is no authority on the point and the parties agree that it is a matter of principle, that is that it falls to be determined by reference to the proper method of assessing damages in such a case as the present…

The present question, in my judgment, falls to be answered in favour of the plaintiff if the redundancy payment in quality and, in particular, as regards its remoteness or proximity in relation to the dismissal of the plaintiff is analogous to a retirement pension, or predominantly analogous to that, but in favour of the defendants if it is analogous, or predominantly analogous, in those respects to unemployment benefit…

My view is that there is a closer analogy, as regards remoteness or proximity to the dismissal of the plaintiff, between the payment of unemployment benefit and the payment of a sum for redundancy under the 1965 Act than there is between the payment of a retirement pension and a redundancy payment. Consequently, in my judgment…the right conclusion here is that the amount of the redundancy payment does fall to be deducted in calculating the damages payable by the defendants to the plaintiff…

The Mediana [1900] AC 113 House of Lords

Earl of Halsbury LC:… Now, in the particular case before us...the broad proposition seems to me to be that by a wrongful act of the defendants the plaintiffs were deprived of their vessel. When I say deprived of their vessel, I will not use the phrase ‘the use of the vessel’. What right has a wrongdoer to consider what use you are going to make of your vessel? More than one case has been put to illustrate this: for example, the owner of a horse, or of a chair. Supposing a person took away a chair out of my room and kept it for 12 months, could anybody say you had a right to diminish the damages by showing that I did not usually sit in that chair, or that there were plenty of other chairs in the room? The proposition so nakedly stated appears to me to be absurd…

Butler Machine Tool Co Ltd v Ex-Cell-O Corporation [1979] 1 WLR 401 Court of Appeal

(See also p 430.)

Lord Denning MR:… Applying this guide, it will be found that in most cases when there is a ‘battle of forms’ there is a contract as soon as the last of the forms is sent and received without objection being taken to it… The difficulty is to decide which form, or which part of which form, is a term or condition of the contract. In some cases the battle is won by the man who fires the last shot. He is the man who puts forward the latest terms and conditions: and, if

they are not objected to by the other party, he may be taken to have agreed to them… In some cases, however, the battle is won by the man who gets the blow in first… There are yet other cases where the battle depends on the shots fired on both sides…

Lawton LJ:… In my judgment, the battle has to be conducted in accordance with set rules. It is a battle more on classical 18th century lines when convention decided who had the right to open fire first rather than in accordance with the modern concept of attrition…

White v Jones [1995] 2 AC 207 House of Lords

(See p 702.)

Lord Browne-Wilkinson:… In my view, although the present case is not directly covered by the decided cases, it is legitimate to extend the law to the limited extent proposed using the incremental approach by way of analogy advocated in Carparo Industries plc v Dickman [1990] 2 AC 605…

… In my judgment, this is a case where such development should take place since there is a close analogy with existing categories of special relationship giving rise to a duty of care to prevent economic loss…

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 House of Lords

(See p 727.)

Lord Browne-Wilkinson:… Like the majority in the Court of Appeal, I cannot accept these arguments. The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child. Moreover the tendering of any advice will in many cases involve interviewing and, in the case of doctors, examining the child. But the fact that the carrying out of the retainer involves contact with and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority. The Court of Appeal drew a correct analogy with the doctor instructed by an insurance company to examine an applicant for life insurance. The doctor does not, by examining the applicant, come under any general duty of medical care to the applicant. He is under a duty not to damage the applicant in the course of the examination: but beyond that his duties are owed to the insurance company and not to the applicant…

Goodwill v British Pregnancy Advisory Service [1996] 1 WLR 1397 Court of Appeal

(See p 722.)

Peter Gibson LJ:… Miss Booth also relied on White v Jones [1995] 2 AC 207 as providing an example of an analogous situation in which a duty of care has been recognised. In that case a solicitor who was instructed to prepare a will but delayed in carrying out his instructions was held to owe a duty of care to the intended beneficiaries. She submitted that a woman who had a sexual relationship with Mr MacKinlay is in an analogous position to the intended beneficiaries under the will, because just as the solicitor was employed to

confer a benefit (in the form of bequests) on a particular class of people (the beneficiaries), so the doctor is employed to confer a benefit (not getting pregnant) on a particular class of people (women who have sexual relationships with Mr MacKinlay). I admire the ingenuity of the suggested analogy, but I have to say that I am wholly unpersuaded that the analogy is real…

Spartan Steel and Alloys Ltd v Martin and Co (Contractors) Ltd [1973] 1 QB 27 Court of Appeal

(See also p 194.)

Lord Denning MR:… I do not like this doctrine of ‘parasitic damages’. I do not like the very word ‘parasite’. A ‘parasite’ is one who is a useless hangeron sucking the substance out of others. ‘Parasitic’ is the adjective derived from it. It is a term of abuse. It is an opprobrious epithet. The phrase ‘parasitic damages’ conveys to my mind the idea of damages which ought not in justice to be awarded, but which somehow or other have been allowed to get through by hanging on to others. If such be the concept underlying the doctrine, then the sooner it is got rid of the better…