TUTORIAL 2 – 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 skills in finding and reading cases.
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 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. At 808 - 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. At 809 - 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) (1927) 40 CLR 227, [1927] HCA 47
b) The Crown; at first instance the Crown was the respondent.
c) Evan Clarke; at first instance Clarke was the petitioner.
d) The High Court of Australia
e) Heard on 14th, 15th Sept, 1927. Decided on 22nd Nov, 1927. (these details not on Austlii).
f) Isaacs ACJ, Higgins, Starke JJ, in order of seniority.
g) 3 judges sat as it is an appeal and an odd number is preferred to prevent there being an evenly split decision.
h) 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.
i) 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 but he was not acting in response to this proclamation. Clarke claimed the reward. (See Isaacs ACJ – 231;Starke J – 242,243)
j) The Crown sought to have the decision of the Supreme Court of WA (Full Court) overturned.
k) There are no issues of fact, this is an appeal and appeals are to decide issues of law. ( See particularly the comments by Isaacs ACJ 236,237)
l) 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 238)
m) For there to be a contract, performance and hence, acceptance must be in reliance on the offer.
n) 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 241) and further discussed what is needed for the conditions of the offer to be satisfied.
o) 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; Chinnock v Marchioness of Ely (1865) 4DeG.J.&S. 638
Williams v Carwardine (1833) 4 B. & Ad 621 discussed; Gibbons v Proctor (1891) 64 L.T. 594 distinguished.
American cases also discussed (especially Fitch v Snedaker (1868) 38N.Y. 248.)
p) There is little difference between the judges.
q) The appeal was allowed
r) The judges wrote their individual judgements and the reporter the rest, i.e. 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 at 238.