Von Colson and Kamann v Land Nordrhein-Westfalen [1984]

European Law

 

Von Colson and Kamann v Land Nordrhein-Westfalen
‘The Prisoner’ by Jean-Leon Gerome

Sexual discrimination and the right to enforce Directive 76/207/EEC when applying for a position was unprecedented within the European Community, and so when two well-qualified female social workers applied for similar posts at the Land Nordrhein-Westfalen (a male populated prison) and were refused employment on grounds of their gender, the Arbeitsgericht Hamm (German Labour Court) referred a number of questions to the European Court of Justice under art.177 EC. 

Having referred to the principles of Directive 76/207/EEC governing equal access to employment, training, promotion and working conditions, the claimants contended that denial of this particular post was tantamount to a breach of Member State obligations and that legal remedy should constitute either six months full pay or the creation of another position within the offer of employment. 

However German law had been amended to incorporate the Directive measures with a degree of discretion, inasmuch as proof of sexual discrimination within the recruitment process only provided resulting sanctions as one incurring travel costs and not those allowing compensatory damages or the employment provision sought. 

This led to the formulation of five interrelated questions, and which asked:

1. Whether under breach of the anti-discrimination Directive, was the employer liable to provide for, and offer, employment to those parties affected? 

2. If so, was it on grounds that the claimant could provide evidence of greater qualification than those required for the position applied for?

3. Was equal competence acceptable as grounds for the provision of additional employment, or was the claimant entitled to employment irrespective of qualifying ability? 

4. Did Directive 76/207/EEC provide clear instruction as to the form of remedy awarded where discrimination occurred, but no employment was required? 

5. Could the terms of the Directive be relied upon by an individual when the discrimination was between private individuals?

When examining the exactness of the Directive it was held by the European Court of Justice that while the effects of Community law and transposition of those Directives must observe and follow the principles expressed, where discriminatory acts are proven, the Commission did not intend that an employer was imposed with any obligation to create positions beyond those advertised. 

Thus in terms of legal clarity, the Court held that further national debate was needed in order to amend the legislation in line with a fair and balanced level of compensation, while it was also held that the terms of the Directive were too ambiguous as to offer individual powers to enforce against another party where such provisions were not already in place, before reminding the parties that:

“[D]irective No.76/207 does not require discrimination on grounds of sex regarding access to employment to be made the subject of a sanction by way of an obligation imposed upon the employer who is the author of the discrimination to conclude a contract of employment with the candidate discriminated against.”

Collins v Wilcock (1984)

English Criminal Law

Collins v Wilcock
‘Parisian Life’ by Juan Luna

Most likely uncertain to many members of the general public, the difference between assault and battery are markedly different, as was established in a case involving a uniformed policewoman and a suspected prostitute, judged to be loitering for the purposes of unlawful solicitation.

In the summer of 1982, the now respondent was driving in her patrol car when herself and her colleague observed what appeared to be two prostitutes standing around in the street whilst conversing with two men for what was determined to be a negotiation of solicitation, upon which the respondent requested that the now appellant enter the car so they could question her, to which the appellant lawfully refused and proceeded to walk away.

It was at this point that the respondent left the vehicle and attempted to question the appellant again while in pursuit, to which the appellant told her unceremoniously to ‘fuck off’, a statement that caused the respondent to physically grab the appellant by the forearm so as to restrain her from walking further, and which in turn resulted in the appellant shouting again ‘just fuck off copper’ and scratching the respondent’s forearm with her fingernails; an action that led to the appellant’s arrest and subsequent charge of assaulting a police officer in the line of duty.

Having contended the offence before the then Metropolitan Stipendiary Magistrate presiding in the Marylebone office, London, the appellant argued that the respondent was at the time of her physical exertion, acting beyond the scope of her police powers, while the respondent countered that she had acted lawfully under the Street Offences Act 1959, in which s. 1(1) which read that:

“It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.”

And s. 3, which further reads that:

“A constable may arrest without warrant anyone he finds in a street or public place and suspects, with reasonable cause, to be committing an offence under this section.”

To which the magistrate held the appellant guilty of the offence of assault, and fined her £50 under s. 51(1) of the Police Act 1964 while holding that:

“[I]n the circumstances the placing of her hand on [the defendant’s] arm to restrain her from moving away, yet again, was within her duty and was not unreasonable.”

A decision which the appellant challenged in the High Court, holding as before that the respondent had acted unlawfully when attempting to deny the appellant her freedom to leave when questioned.

Here, the court first looked to Cole v Turner, in which the Court of the Kings Bench had held that:

“The least touching of another is battery.”

Which was a principle later expanded upon in William Blackstone’s ‘Commentaries on the Laws of England’ (1830), in which it was stated clearly that:

“[T]he law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being scared, and no other having a right to meddle with it, in any the slightest manner.”

And so noting that assault is an act that causes another person to ‘apprehend the infliction of immediate unlawful force’ upon them, battery requires the ‘actual infliction of unlawful force’, and so on this occasion the court held that when attempting to restrain the appellant, the respondent had acted outside her official powers when there had in that instance, been no grounds for any arrest, but instead the subjective compulsion to prevent the appellant from exercising her civil rights through the use of battery, thus the appeal was upheld, while the court held that:

“[E]verybody is protected not only against physical injury but against any form of physical molestation” 

And that: 

“[R]easonable force may be used in self-defence or for the prevention of crime.”

Hospital Products Ltd v United States Surgical Corporation (1984)

Australian Equity & Trusts

Hospital Products Ltd v United States Surgical Corporation
‘Portrait of Niccolò Machiavelli’ by Santi di Tito

In a case embroiling both arms-length and personal agreements, the unavoidable overlapping of contract and equity are held to extensive scrutiny in a suit between corporations and individuals across two jurisdictions.

After an American surgical staple manufacturer entrusted their foreign sales to a New York salesman, the man whose reputation historically rested upon a handshake eventually used his informal approach to business to establish an overseas corporation, under which he manufactured his own version of the patented staples and promoted them to an Australian market via the prolific brand name used by his new business partners.

Upon discovery his underhand scheme, the now respondents sued for damages in the New South Wales Supreme Court under § 2-306(2) of the Uniform Commercial Code, which read that:

“A lawful agreement by either the seller or the buyer for exclusive dealing in the kind of goods concerned imposes unless otherwise agreed an obligation by the seller to use best efforts to supply the goods and by the buyer to use best efforts to promote their sale.”

While contesting that any sales accrued during the years accounted for were now held upon constructive trust for the respondents.

In the first instance, the court found that a fiduciary relationship had become evident when the respondents had entrusted their product in the appellant, therefore showing a unique vulnerability to his actions when working overseas, while under challenge before the Court of Appeal, the court supported the principle of a constructive trust and thus held accordingly.

Presented to the High Court of Australia, the question of trust relationships and contractual breach became central to the issue in hand, and so the court quickly noted that the contract rested upon verbal agreements and subsequent exchanges of correspondence, yet no legally binding agreements had been entered into; and so when examining the question of validity the court referred to Oscar Chess Ltd v Williams, in which the English Court of Appeal illustrated that a representation made during contractual negotiations could also be construed as a binding warranty, and so held that:

“The question whether a warranty was intended depends on the conduct of the parties, on their words and behaviour, rather than on their thoughts. If an intelligent bystander would reasonably infer that a warranty was intended, that will suffice.”

However the court also noted that in order for any implication of a warranty to sustain judicial scrutiny it must be:

  1. Reasonable and equitable
  2. Necessary so as to show that the contract would be useless without it
  3. So obvious to the bargain that it needs no expression
  4. Capable of clear expression if called upon
  5. Wholly supportive of the contract

And so moving on to the concept of fiduciary obligations arising from the heart of the working relationship, the court noted that in Reading v The King the English Court of Appeal held how:

“[A]‘fiduciary relation’ exists (a) whenever the plaintiff entrusts to the defendant property, including intangible property as, for instance, confidential information, and relies on the defendant to deal with such property for the benefit of the plaintiff or for purposes authorized by him, and not otherwise….and (b) whenever the plaintiff entrusts to the defendant a job to be performed, for instance, the negotiation of a contract on his behalf or for his benefit, and relies on the defendant to procure for the plaintiff the best terms available….”

Yet in vol. 25 of the University of Toronto Law Journal (1975) it also reads that in commercial dealings:

“[A] mere sub-contractor is not a fiduciary. Although his work may be described loosely as work which is to be carried out in the interests of the head contractor, the sub-contractor cannot in any meaningful sense be said to exercise a power or discretion which places the head contractor in a position of vulnerability.”

Therefore with little to warrant the existence of either a trust/trustee relationship or the presence of fiduciary duty with which to underline the machiavellian behaviour of the appellant, the court remitted the case back to the New South Wales Supreme Court with a view to an assessment of damages in favour of the respondents.