The Gazette 1973

Drive, Thames Ditton, Surrey, obtained a declaration that the council had no power to enter and pull it down or demolish it. Hutton and Another v. Esher Urban District Council; Court of Appeal; 7/4/1973. Medical Reports Before Mr. Justice Bean. Judgment delivered May 17. A man suing his employer for damages for personal injuries was held to be unreasonable in refusing to submit to a medical examination requested by the employer except on the condition that the report was shown to him immediately without his offering his own medical report in exchange. Mr. Justice Bean allowed an appeal by the employer, Mr. Frank Burke, of Tottenham, against the refusal of Master Jacob to make an order staying all further proceedings in the action on the ground that Mr. Daniel McGinley, of Kensington, had unreasonably refused to submit himself to a medical examination on behalf of Mr. Burke. McGinley v. Burke; Queen's Bench Division; 22/5/1973. Negligence—Damages for Flooding Before Lord Justice Davies, Lord Justice Stephenson and Lord Justice Lawton. A council tenant whose house was flooded when the cold water tank burst was entitled to damages against the council because of their failure to keep it in repair. Their Lordships allowed an appeal by Mr. Jeffrey Sheldon, of West Bromwich, against the dismissal by Judge Harington at West Bromwich County Court last May of his claim for damages against the landlords, West Bromwich Corporation. Sheldon v. West Bromwich Corporation; Court of Appeal; 27/3/1973. Planning Before Lord Hailsham, the Lord Chancellor, Lord Diplock, Lord Simon of Glaisdale and Lord Salmon. The forecourt of a petrol filling station is not a "building" and accordingly not "business premises" for the purposes of the Town and Country Planning (Control of Advertisements) Regulations, 1969. Advertisements affixed to the forecourt exceeding 4.5 square metres in total area therefore need the express consent of the local authority. But advertisements affixed to canopies over pumps may be exempt. The House of Lords dismissed an appeal by Heron Service Stations Ltd. from a decision of the Queen's Bench Divisional Court (the Lord Chief Justice, Mr. Justice Shaw and Mr. Justice Wien) holding in favour of the local authority prose- cutor for the borough of Hounslow that advertisements ex- ceeding an aggregate are of 4.5 square metres displayed on the forecourt of a filling station contravened regulations 6 and 8 (1) of the 1969 Regulations and section 63 (2) of the Town and Country Planning Act, 1962. The Divisional Court remitted 10 informations to Brentford justices, who had dismissed them, with a direction to convict. Their Lord- ships held that only nine of the informations should be remitted. Heron Service Stations Ltd. v. Coupe; 5/4/1973. Rating Liability Before Lord Widgery, the Lord Chief Justice, Mr. Justice Ashworth and Mr. Justice Bridge. An absent husband was held to be liable for rates of a house which he jointly owned with his mother-in-law who lived there with his wife to whom he was paying £ 5 a week under a maintenance order. Their Lordships allowed an appeal by Bromley London Borough Council, the rating authority, against the decision of Bromley justices that Mr. Michael Brooks was not liable for the payment of £101 rates on a house in Woodside Avenue, Chislehurst, which became due since the mainten- ance order was made in July, 1970. An order was made direct- ing the justices to issue a distress warrant for the amount claimed by the rating authority, being half of the total rates, the other half having been paid by the mother-in-law. Bromley London Borough Council v. Brooks; 12/4/1973. Redundancy Before Lord Denning, the Master of the Rolls, Lord Justice Buckley and Lord Justice Orr. Seven china clay workers who lived 30 miles from their employers' works and had been provided with free bus trans- port as a term of their contracts of employment were held not to have been dismissed "by reason of redundancy" and not entitled to payments under the Redundancy Payments Act, 1965, when the employers found it uneconomic to continue to provide the bus and the men gave up their jobs as a result. Their Lordships dismissed appeals by seven workmen from

Port Isaac, Cornwall, formerly employed by the Rostowrack China Clay Co. Ltd., of St. Stephen, Cornwall, from the National Industrial Relations Court (Sir John Donaldson presiding) ( The Times, November 10, 1972; [1973] ICR 50), which had dismissed their appeals from the industrial tribunal's decision that they had not been dismissed by reason of redundancy. Chapman and Others v. Goonvean and Rostowrack China Clay Co. Ltd.; Court of Appeal; 17/4/1973. Restraint of Trade—Too Wide and Unreasonable Before Lord Denning, the Master of the Rolls, Lord Justice Orr and Lord Justice Lawton. Restrictive covenants in service agreements between a debt collecting agency company and sales representatives and col- lectors in Birmingham "for a period of six months . . . after the determination of the . . . employment" not to "solicit business from any person . . . firm or companies who shall a any time during the continuance of his employment . . . have been a client of the company .. . within the area specified .. .", the area of restriction being described as "Birmingham/ Glasgow/Lrrds/Liverpool/London/Manchester", were held to be too wide and in unreasonable restraint of trade. The court allowed an appeal by the defendants, Mr. Laurence Batey, of Birmingham; Mr. Philip Carr, of Wateror- ton; Mr. Anthony Coats, of Great Barr, and Mr. David Groves, of Solihull, against an injunction granted by Mr. Justice Shaw in March to the plaintiffs, Financial Collection Agencies (UK) Ltd., of Lee Green, London, restraining "the defendants and each of them until June 30, 1973, by them- selves, their servants or agents from soliciting business on behalf of themselves or of any other person or persons, firm or company from any person or persons firm or companies who shall at any time during the continuance of their respec- tive employment by the plaintiffs have been a client of the plaintiffs." Financial Collection Agencies (UK) Ltd. v. Batey and Others; Court of Appeal; 3/5/1973. Road Traffic Acts Before Lord Justice Edmund Davies, Lord Justice Stephen- son and Lord Justice Roskill. Judgments delivered March 6. In so far as the Highway Code (1968 edition, pages 7 and 35) may be read as indicating that, if traffic indicators and stoplights are both fitted and in good working order, arm signals need never be used it was unwise advice and should not universally be adopted. This view was expressed by Lord Justice Edmund Davies when the Court of Appeal dismissed an appeal and cross- appeal on an apportionment of damages by Mr. John Willett, the first defendant, and S. J. Harris (Transport) Ltd., the second defendants (owners of a motor van driven by an employee, Mr. Thomas Orr), who had been held liable in negligence for an accident in March, 1967, which caused the death of another motorist, Mr. Rodney Kelly. Mr. Justice Cumming-Bruce, at Leeds Crown Court in March, 1972, had awarded Mr. Kelly's widow, Mrs. Eileen Goke (now remarried) £23,461 damages on her claims under the Fatal Accidents Acts, 1946-1959, and the Law Reform (Miscellaneous Provisions) Act, 1934, and apportioned the blame as to one-third against Mr. Willett and two-thirds as against Harris Transport. Goke v. Willett and Another; 7/3/1973. Before Lord Widgery, the Lord Chief Justice, Lord Justice James and Mr. Justice Nield. Rationalization of decided cases relating to driving with excess blood-alcohol contrary to section 1 of the Road Safety Act, 1967, was an impossible task, the Lord Chief Justice said when giving judgment on an appeal by a motorist who had been stopped by police during a search for sheep rustlers and was convicted of contravening section 1. Their Lordships dismissed the appeal of William Herd, aged 37, of Oakworth, Yorkshire, from conviction at Leeds Grown Court (Judge Hartley) last July. He was fined £40 and disqualified for 12 months. Regina v. Herd; 13/3/1973. Before Lord Justice Lawton, Lord Justice Scarman and Mr. Justice Phillips. No excuse for failing to provide a speciment for a laboratory test under section (33) of the Road Safety Act, 1967, can be adjudged reasonable unless the person from whom it is re- quired is physically or mentally unable to provide it or its

provision would entail a substantial risk to his health. Regina v. Lennard; Court of Appeal; 8/3/1973. Words and Phrases "Building", see under Planning. 147