The Gazette 1967/71

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