The Gazette 1961 - 64

party notice on T. claiming an indemnity against any damages S. had to pay to the plaintiff, founding his case on the county court decision. The High Court awarded the plaintiff damages against both S. and T. On the third party notice S. sought to rely on the county court judge's notes of evidence. Held, that neither the common law nor the Law Reform (Married Women and Joint Tortfeasors) Act, 1935, allowed an action to be based on an estoppel, and in any case the precise questions of S.'s and T.'s liability to the plaintiff and their liabilities as against each other for damages to the plaintiff were not in issue in the county court and accordingly the third party notice must be dis– missed. But the judge's notes of evidence could properly be looked at to see what question was raised in the previous proceedings. Randolph v. Tuck, 105 S.J. 157 ; (1961) i All E.R. 814, Lawton, J- A plaintiff whose chattel is damaged by the escape of harmful substances from the defendant's property can recover damages even though the chattel was not standing on land of the plaintiff, either on the basis of the Rylands v. Fletcher doctrine or on the footing of public nuisance from which the plaintiff has suffered special damage. The plaintiff lived opposite to a depot owned and operated by the defendant company. Acid smuts containing sulphate or sulphuric acid escaped from the defendant's chimney and damaged the plaintiff's car while it was standing on the public highway. There was a continual emission of smells from the depot which on frequent occasions were particularly pungent though not injurious to health. Readings taken outside the plaintiff's house showed a noise in the evenings of from 64 to 68 decibels from plant at the depot, and tankers which left the depot in large numbers produced noise at 83 decibels. Held, the plaintiff was entitled to damages totalling £235 on all these grounds, and there would be injunctions suspended for six weeks to restrain the making of noise at night and the emission of smells at any time so as to cause a nuisance to the plaintiff. Halsey v. Esso Petroleum Co. (1961) i W.L.R. 683 ; 105 S.J. 209. (1961) 2 All E.R. 145. Veale, J. Damage to chattel not on plaintiff's land. Bailment garage car left for repair theft and damage. In Cooper v. Dempsey (March 21, 1961) C. took his car to D.'s garage for repairs. D. left it in his car park, with the ignition key in the switch, the doors unlocked, and without supervision. The car was stolen, and later found in a damaged con– dition as the result of a crash. The Court of Appeal (Pearce, Harman and Dayies L.JJ.) held that D. had

failed to- do what a reasonable and prudent man looking after his own property would have done, that the damage suffered by C. was not too remote ; and that D. was accordingly liable to C. 105 S.J. 320. Limitation of Actions computation of period date of issue of writ. In Marren v. Dawson Bentley & Co. (March 13, 1961) Havers J. held that the day on which an accident occurred was to be excluded from the computation of the period within which an action should be brought in respect of that accident; so that a writ issued on November 8, 1957, in respect of an accident which occurred on November 8, 1954, was not statute-barred. 231 L.T. 224. Road Traffic objective test "reasonable doubt". In Oakes v. Foster (April 18, 1961) F. was riding his motor-cycle along a road at a fairly fast speed. In the course of negotiating a sharp left-hand bend the motor-cycle mounted the kerb, travelled 121 feet along the footpath, then travelled a further 101 feet across the road, colliding with a car coming in the opposite direction. The justices, being of the opinion that there was a reasonable doubt whether or not something had happened before the collision which had caused the defendant to lose control (though there was no evidence to support such in inference), dismissed the information charging careless driving. The Divisional Court (Lord Parker C.J., Hilbery, Gorman, Salmon and Stevenson J.J.) held,allowing an appeal, that careless driving must be judged by the objective test; and that the justices' "reason– able doubt" was no more than a fanciful doubt. The Times, April 19, 1961. Tort maintenance payment of counsel's fees. In William Hill (Park Lane) v. Sunday Pictorial Newspapers (1920), (April 14, 1961) W. Brought an action for maintenance against Sunday Pictorial alleging that W. had suffered pecuniary loss, namely the payment of costs to their solicitors, as the result of an unsuccessful action and appeal brought against them by L. Sunday Pictorial Newspapers (1920) had promised to pay L. 200 guineas towards his counsel's fees. Winn J. held that although the provision of counsel's fees or the promise to make such provision was maintenance of a. tortious character, the action failed because special damage, which was an essential ingredient of an action for maintenance, had not been proved : there was no evidence that L. was caused to continue his action by the promise of financial assistance, or that he would have discontinued it had it not been made. The Times, April 15, 1961.