259 / 736
layman might think: that it had nothing to do
with assignment of underletting or might think
that the provision that consent ought not to be
unreasonably withheld referred
to all superior
lessors. The effect of the two clauses together
with the provisions of the Landlord and Tenant
Act, 1927 (which provides that consent to assign
should not be unreasonably withheld) was that
while the plaintiffs could assign they could only
assign to other architects and surveyors if any of
the landlords in a chain
(in
the present case
there were three in addition to the immediate
landlord) were to refuse consent.
The solicitor had failed to advise his clients
when they were taking the lease as to the effect
of these provisions and the plaintiffs now sued
his estate.
In giving
judgment
for
the plaintiffs Mr.
Justice Paul said that in taking a lease the client
relies on the solicitor not to present him with a
document which contains hidden danger of which
the solicitor ought to know but which he as a
non-lawyer might well not know. What has to be
pointed out will vary with the client; the test for
negligence is whether in any particular case the
court is prepared to hold that the solicitor ought
to have realised that the consequences of the par
ticular words used in the lease might well not
be fully realised by his client. If there are several
clients he must consider each of them although
if one is acting -as sole agent an explanation to
him may (but not necessarily will) be sufficient :
each case must be considered on its facts. In this
case the solicitor had not really analysed
the
consequences and accordingly he was negligent.
Damages were assessed on the following basis.
From time of entering into possession under the
leases the plaintiffs were paying rent in excess of
the market value
as
the premises were not
capable of being sub-let except with the consent
of
the
immediate Landlord. The amount of
damages was the capitalised value of the excess
and this was agreed at £9,000.
[Sykes & ors. v. Midland Bank Executor &
Trustee Co. Ltd., & ors.
The Times,
March 1969].
Notice to Quit, Validity
A notice to quit contained
two errors—(1) It
purported to be served "on behalf of your land
lord, Mr. R. P. Harvey" :
in fact Mr. Harvey
was a Director of
the landlord company and
acted as their general agent but was always con
sidered by the tenant to be the Landlord.
(2)
The Notice was addressed to the tenant as "Mr.
Walter Gajdzis" :
the correct Christian name was
Wladyslaw, the Polish equivalent of Walter. The
tenant claimed that the Notice to Quit was in
valid on account of these errors.
The Court of Appeal held that the notice was
valid as it is well established that a general agent
can give notice without any obligation to disclose
his principal. The only question therefore was
whether the words "your landlord" invalidated
the Notice and on the facts of this case they did
not. The second ground was dismissed as being
without substance.
[Harmond Properties v. Gajdzis (1968 1WLR
1858)].
Negligence, Vicarious Liability
H Drove a fork lift truck in such a way that it
crashed into a stack of wood behind the plaintiff
and which came up to the height of his knees.
As a result the plaintiff sustained serious damage
to his legs. H and the plaintiff were employed
by the defendant. The accident occurred during
a half hour tea break :
it was customary to use
the fork lift truck by putting a piece of board
on the fork to provide a seat for the men during
the tea break, and this was what H was doing
when the accident occurred. It was not denied
that H was negligent the question at issue was
whether H was doing something which took him
outside the course of his employment so that the
employer was not vicariously liable.
In his judgment McVeagh, L. J. said that there
was no single test to decide whether an act is
inside or outside the scope of employment. It
was held that the act was in the course of the
employment and the following facts were indi
cated as being relevant, the most important being
that at (d) :—
(a) H was doing something he was permitted
to do, namely making a seat for the work
men out of the fork lift.
(b) At the time he was driving the fork lift
which was primarily
the
thing he was
employed to do.
(c) The accident occurred in the course of the
working day.
(d) It could reasonably be inferred that he
was driving the truck with his employer's
authority during the meal break for the
purpose of providing a seat.
(e) While what he was doing was not of any
real benefit to the defendants it was not
a disadvantage to them.
[Joseph Donnelly v. J. P. Corry & Co. Ltd.,
Court of Appeal
in Northern
Ireland,
18th
December 1968].
115