DAMAGES IN FULL

Dominion, Volume 27, Issue 280, 23 August 1934, Page 10

DAMAGES IN FULL

Award to Petro! Station Proprietor MAGISTRATE’S DECISION Holding that Todd Motors, Ltd., Petrol Supplies, Ltd., the De Luxe Service Station, E. K. Read and W. M. King, service station proprietors, had combined together wilfully to injure James Leach, proprietor of the London Petrol Station, in his trade by cutting off all the sources of his supply, Mr. E. Page, S.M., in a reserved decision delivered in the Magistrate’s Court yesterday, awarded Mi - . Leach £5O, full damages claimed by him for alleged victimisation. In reviewing the evidence, the magistrate said that the minute in the Petrol Resellers’ Association’s own book of April 19 on the question of “the desirability of co-operating with the oil companies in preventing Leach from obtaining supplies,” recorded that the feeling of the meeting was “that Leach was a most undesirable type of reseller, having strong price-cutting tendencies and that the city was at present well catered for.” No suggestion that he was a price-cutter had been made in the case of the other man whose supplies the association endeavoured to block, and there was, he thought, little doubt that the motive actuating defendants in the steps taken by them against plaintiff was the desire to shut out a competitor, and the purpose of their action was to ruin his business. Cases in England“The law on this subject.” Mr. Page added, “is not easy either to ascertain or to apply. In the latest case in the House of Lords (Sorrell v'. Smith) wherein the earlier decisions are reviewed, Lord Dunedin said: ‘The books are full of decisions, so many and so various that it would be an impossible task to reconcile either the decisions or the dicta. . . . The difficulty is enhanced by the fact that . . • there is a mass of commentary on what the authorities really come to, and many of the commentaries do not agree.’ The case of Sorrell v. Smith supra, on which the present defendants chiefly rely, has some features of resemblance to the present case, but is in my opinion clearly distinguishable. In that case plaintiff, in concert with others, with a view to compelling certain wholesale distributors (Ritchie Bros.) to cease supplying newspapers to certain news vendors that had commenced business in the locality transferred his custom to another wholesaler (Watson). Ritchie Bros, complained to the circulation managers- of the London dailies, and they in turn, with a view to sending plaintiff back to Ritchie Bros., threatened to cut off Watson’s supply unless he ceased supplying plaintiff. Plaintiff then ‘ran to the court for protection,’ and brought action against the circulation managers seeking an injunction. It was held that defendants’ move was taken for the sole purpose of protecting their own trade by promoting the free sale of newspapers and was not actionable. “The case of the Mogul Steamship Company v. McGregor Gow and Co., on which the present defendants also reply, is also, in my view, clearly distinguishable. All that . defendants there did is stated by Lord Halsbury thus: ‘An associated body of traders endeavour to get the whole of a limited trade into their own hands by offering exceptional and very favourable terms to customers who will deal exclusively’ with them.’ It was held, that this gave plaintiff no right of action. “In the case of Ware and de Freville v. Motor Traders’ Association, Lord Justice Banks puts the matter thus: ‘.. . the law allowing'persons to combine for the purpose of obtaining a lawful benefit to themselves gives no sanction to combinations which have for their immediate purpose the hurt of another.’ . “In the present case,” the magistrate continued, “the action of defendants went far beyond that disclosed in the Sorrell or the Mogul case. They combined together wilfully to injure plaintiff in his' trade by cutting off all his sources of supply. Such was their immediate purpose, and such a purpose had no immediate connection with the carrying out of their own business. Such a ' combination, if it results in damage, is actionable. Malice in the sense of personal enmity or spite is not an essential element in such-an offence, though if it were necessary it seems to me that the lengths to which the present defendants have gone might supply evidence of malice. I think,-therefore, that on this ground alone—-namely, the combination wilfully to injure him in his trade by cutting off all his sources of supply—the plaintiff is entitled to succeed. Breach of Act. “There are, however, other grounds. To watch or beset a man’s house or place of business with a view to compel him to do or not to do that which is lawful for him not to do or to do is a nuisance at comffion law for which an action would lie, for such conduct seriously interferes with the ordinary comfort of human existence and the ordinary enjoyment of the house or place of business beset. Proof that the nuisance was caused in an attempt ‘peaceably to persuade other people’ would afford no defence to such an action. It is also a breach of section 33 of the Police Offences Act, 1927, and is therefore unlawful. That section provides that ‘Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, wrongfully and without legal authority . . . follows such other person about from plac,e to place, or watches or besets the house or place of business of such other person, is liable to a fine. In the expression at the beginning of that section ‘with a view to compel’ the word ‘view’ does not import motive, it imports purpose. Watching a person’s house or place of business with a view to compel someone else is within the section.

“Similarly, it seems to me that where there is, for a like purpose, an organised following with a motor-car or motor-cars of a person whenever he leaves his house or his business premises that would be a nuisance at common law and therefore actionable. It constitutes an intolerable interference with the freedom of the individual. For the above reasons I am of opinion that the plaintiff is entitled to a verdict. The sum asked as damages, £5O. is in my view a moderate claim, and I give judgment for plaintiff for that amount witli costs to scale. “I wish to say that I am indebted to counsel on both sides for the thoroughness witli which the many eases wore examined and for the lucid manner In which counsel’s respective propositions were put before the court." Security for appeal was fixed at tlie amount of the judgment and costs plus £lO/10/At the hearing Mr. R. Watterson appeared’for plaintiff and Mr. H. Taylor for all the defendants.