A Sideways Glance to the Court of Appeal decision in
Kandaurova
V
Circle K Energy Group Ltd
Brilliant.
The opening to Noonan J’s Court of Appeal judgment this week in the case of Kandaurova v Cirkle K Energy Group Ltd. was brilliantly effective, reminiscent of the vivid staccato style often associated with Lord Denning in his pomp. To Denning, the writing of judgments was an art form. And the beginning mattered:
I try to make my judgments live … I start my judgment, as it were, with a prologue – as the chorus does in one of Shakespeare’s plays – to introduce the story.
Professor James Raymond, former Professor of Rhetoric at the University of Alabama, maintained that the first page of a judgment is “prime real estate.” In a well-constructed judgment, “the front page says it all.”
Danger here
In Kandaurova, Noonan J opened as follows;
Life is full of dangers which may cause injury if not avoided. Small children develop by encountering and learning to avoid things that can be fallen off, bumped into, tripped over or knocked down. In the common law of occupiers’ liability, ordinary everyday dangers are described as “usual” and as such, do not attract liability
The reader is given a simple and direct introduction to the case. The direction of the wind is clear. People can be injured due to danger, but where it is a usual or common danger, there may not be a liability. In this case, a lady tripped on a kerb. It was not defective. The Court of Appeal held that she could not recover damages from the Occupier.
The Bluebell opening
There are other fine examples of opening paragraphs in Personal Injury cases. Denning’s ‘Bluebell opening’ is perhaps the most celebrated;
It happened on the 19th April, 1964. It was bluebell time in Kent, Mr. and Mrs. Hinz had been married some 10 years, and they had four children, all aged 9 and under. The youngest was one. Mrs. Minz was a remarkable woman. In addition to her own four, she was foster-mother to four other children. To add to it, she was two months pregnant with her fifth child.
On this day they drove out in a Bedford Dormobile van from Tonbridge to Canvey Island. They took all eight children with them. As they were coming back they turned into a lay by at Thurnham to have a picnic tea. The husband, Mr. Hinz, was at the back of the Dormobile making the tea. Mrs. Hinz had taken Stephanie, her third child, aged 3, across the road to pick bluebells on the opposite side. There came along a Jaguar car driven by Mr. Berry, out of control. A tyre had burst. The Jaguar rushed into this layby and crashed into Mr. Hinz and the children. Mr. Hinz was frightfully injured and died a little later. Nearly all the children were hurt. Blood was streaming from their heads. Mrs. Hinz, hearing the crash, turned round and saw this disaster. She ran across the road and did all she could. Her husband was beyond recall. But the children recovered.
Home Run
This blog has previously written of the Irish case of Kane v Kennedy and Budd J’s tremendously evocative :
The news of the death of Joe DiMaggio came while I was writing this judgment. His record streak in 1941, when he got a hit in fifty-six consecutive games, still stands. His grace at the plate and his defensive qualities at centre field, his leadership of the New York Yankees to victory in nine of the ten World Series in which he led them, and above all his gentlemanly conduct made him a legend in his own lifetime. I wonder what he would have made of the problems with which I have been confronted in resolving the conflicts of evidence presented by what followed the strike by Alice Dunne during the game of rounders played in the sports hall of a convent school in Glasnevin on the morning of Tuesday 21st May 1996.
Life and Death
One of the first Constitutional cases this reader encountered was the X Case (1992). This form Denham J:
This application for an injunction raises issues of the utmost seriousness affecting a girl of 14 years of age and her family. It concerns matters of life and death, and touches on the deepest aspects of human experience and the moral and legal norms of our Justice.
Short and Sweet
Lord Hoffmann’s opening to his judgment in the case Investors Compensation Scheme Ltd v West Bromwich Building Society could not have been in plainer language;
My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Lloyd of Berwick. I agree with it, and for the reasons which he has given, I would allow the appeal.
Signal of Intent
Lord Wilberforce in Anns v Merton London Borough Council got straight to the point with:
In my opinion the time has come when we should say that the law ought to recognise our responsibility going beyond the present cases, a duty to behave conscientiously, responsibly and with humanity.
Lunar Law
For the property lawyers out there, what about I leave you with this from our Supreme Court and Higgins CJ in Vone Securities Ltd v. Cooke:
As stated by Mr. Justice Costello in his Judgment, at common law the ordinary primary meaning of month, when used in instruments such as leases, was and is lunar month. This meaning is taken to be intended by the parties to any such instrument unless that instrument read as a whole, or the surrounding contemporaneous circumstances, show that the other, or secondary meaning, of calendar month, was, in fact, intended. It will, no doubt, surprise many people to learn that a rule as archaic as this surely is and so far removed from the needs and uses of modern society should still be part of our law. Even in the days of Charles Dickens, the rule was probably sufficiently out of date to justify Mr. Bumble’s description of the law. Today, its continued existence as a rule of the common law is opposed to all common sense and indicates how much remains to be done by way of reform to bring the common law up to date.
You learn something new every day! Or should that be every 1/29th of a lunar month (Approx. Maths is not my thing)
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