Topp v London Country Bus (South West) Ltd (1993)

English Tort Law

Topp v London Country Bus (South West) Ltd
‘London Transport Rt’ by Mike Jeffries

Proximity and lack of foreseeability, prevent this tragic claim for damages when a grieving husband argues that the owners of a minibus are liable for the death of his wife.

In 1988, a minibus owned and driven by bus company staff, was left parked and unlocked with the keys in the ignition, in the lay by of a nearby public house. It was considered normal practice for the drivers of these vehicles to leave them there in that state, as literally minutes later, it would typically be collected and driven by a replacement driver.

On this occasion, the replacement driver failed to turn up for work due to illness, which left the bus unlocked and clearly vulnerable to theft. During the time between the driver leaving the minibus and the accident taking place, the original driver had noticed it had not been taken as expected, and promptly notified his employers. At 11.15pm that evening, an unknown person took the minibus, and shortly afterwards ran down and killed the appellant’s wife as she was out cycling. This led to action being taken against the bus company, on grounds of breach of duty of care, negligence and foreseeability.

In the first instance, the court dismissed the claim, whereupon the appellant claimed the judge erred in law on three grounds, namely (i) judging the claim unreasonable, (ii) holding that the facts fell outside the scope of award for duty of care, and (iii) not finding the respondents liable for the victim’s death.

In Smith v Littlewoods Organisation Ltd, it was cited by Goff LJ that:

“[E]ven though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do . . . [that] may be read as expressing the general idea that the voluntary act of another, independent of the defender’s fault, is regarded as a novus actus interveniens which, to use the old metaphor, ‘breaks the chain of causation.’”

While in Denton v United Counties Omnibus Co, the court agreed that although an omnibus belonging to the defendants was stolen from an unsecured storage yard before bring driven into the claimant’s car, there was insufficient proximity between the owners, and the party liable for the accident to warrant any duty of care.

This translated that the thief and alleged joy-rider, was clearly in no position to consider the danger his actions posed, and irrespective of whether his identity could be established, and unfortunate as it was to have had his wife killed for no reason, a claim of negligence could not reasonably stand, on grounds of proximity and lack of foreseeability, thus the Court dismissed the appeal while holding that:

“[T]here was in the circumstances of this case a relationship of proximity between the defendants and Mrs. Topp. But I entirely agree with the judge that no duty of care is shown either in principle or having regard to the authority of this court…”

Faccini Dori v Recreb Srl [1994]

European Law

Faccini v Recreb Srl
‘Snake Oil Salesman’ by Morgan Weistling

Private contracts between individuals are often overlooked in terms of actual rights, therefore when an Italian consumer entered into an agreement to purchase an English language course while visiting a railway terminal, the vendor looked to enforce the contract when notified that her order was to be cancelled.

Relying upon Doorstep Selling Directive 85/577/EEC the applicant later issued proceedings against the vendor and contended to the Giudice Concilliatore (Judge-Concillaitor) that arts.1(1), 2 and 5 conferred protective measures allowing for rescindable notice within a period of seven days between consumers and private companies, which on this occasion had been undertaken through written instruction to the contracting vendor.

Although Directive 85/577/EEC had been in force for a number of years the Italian government had failed to transpose it within the allotted time, therefore no domestic legislation existed in support of this specific issue, while it was acknowledged that a failure to adopt Directives in the prescribed period resulted in a loss of profit to the Member State when defending against ‘direct effect’ claims by their citizens.

However in this instance the terms of the Directive were both clear and precise, yet  related to dealings between individuals and so not subject to the benefit of protection unless transposed under the guidance of Community law and within the adoption window, which presented the national court with a dilemma inasmuch as they were unable to determine exactly what rights the claimant had when seeking cancellation of the contract, and if consideration was ultimately due to the vendor as per the agreement.

For this reason the court sought a preliminary ruling from the European Court of Justice under art.177 EC, while asking:

1. Were the terms of the Directive clear and precise enough to provide direct effect?

2. Despite a failure to adopt the measures in accordance with the Treaty, could the claimant rely upon them to enforce her individual right to cancel?

Having examined the arguments around Directive powers and the horizontal effect between parties, it was agreed that for reasons of legal certainty future consideration must be given to broaden the scope of those entitlements when applying them to private and not public matters, yet it was still held that although the terms of the Directive served horizontal dealings it was not possible for the claimant to rely upon them when seeking to terminate her agreement with the vendor.

However the Court held that in light of the fact that the Italian government had failed to adopt the Directive and in the absence of relevant domestic legislation, it was now possible for the national courts to transpose the effects of Directive 85/577/EEC in order that a remedy could be provided in favour of the consumer, while reminding the parties that:

“Where damage has been suffered and that damage is due to a breach by the State of its obligation, it is for the national court to uphold the right of aggrieved consumers to obtain reparation in accordance with national law on liability.”

R v HM Treasury ex p British Telecommunications plc (1996)

European Law

R v HM Treasury ex parte British Telecommunications
‘Red Telephone Box’ by Debbie Fisher

The successful transposition of EU Directives requires delicate application when ensuring the overriding objective of the Directive remains intact. On this occasion, the rules of Directive 90/531/EEC while specific in their construction, caused immediate conflict between the domestic government and a dominant telecommunications provider.

Basing their argument on principles examined in Francovich and others v Italy British Telecom (BT) took issue with Parliament’s decision to edit the transposed Directive in a way that precluded them from perceived equal rights in a highly competitive industry. In fact by all accounts, the telecommunications giant was already bound to cap its tariff rates, provide connection services irrespective of national geography, and publish its commercial intentions for all to see. However, when put in its proper context, the domestic market was disparagingly divided in such a way that afforded BT a ninety-percent share, while those new to the field were limited to only a collective three-percent stake.

This extended enormous advantage to the applicants, and yet they still felt that under the prescribed terms of the Directive, the EU Commission had intended that any exclusions to the benefit of Community law were decidable between those contracting, and not to the discretion of the Member State. It was understood that in circumstances providing a balanced economic market, the Directive required no degree of intervention, as the playing field would, in many events, present itself fairly, yet the UK government, having enjoyed the monopoly of BT as a state funded enterprise, were only too aware that without marshalling of the transposition, the essence of equality would be lost in translation, and the integrity of domestic contract law held to account.

By exercising its discretion, the applicants were (rightly or wrongly) denied access to the terms of the Directive, and therefore unable to determine for themselves which services they felt were excludable and why, a process that would have inevitably relied upon the wisdom of the EU Commission to decide, and so was not in any way affected by those preventative measures.

When transposing Directives, it is the duty of Member States to incorporate the relevant terms ‘as far as possible’, whereby on this occasion it was deemed that the steps taken reflected that ethos. This resulted in the Court of Justice reserving the rights of the legislature to act where appropriate, and that despite any sufferance on the part of the applicants, there were no grounds for either ‘direct effect’ damages nor compensatory award for economic loss, as the ends ultimately justified the means, while holding that for future reference:

“[I]t is not open to a Member State, when transposing the Directive into national law, to determine which telecommunications services are to be excluded from its scope in implementation of article 8(1), since that power is vested in the contracting entities themselves.”

Borman v Griffith (1928)

English Property Law

Borman v Griffith
‘Pathway of Life’ by Connie Tom

Implication by way of contract, is argued in a case involving the conflict of interests between two tenants and a perhaps disorganised and rushed grant of occupancy by the landlord.

In a time immediately before the Law of Property Act 1925, a landowner sought to let out a part of his estate for a determined period. Under the terms of the lease there was at the time, a gravelled road that passed by the tenant’s rented property named ‘The Gardens’, while leading to the door of the main estate property named ‘The Hall’.

At the time the tenant began his residence, there was also an unfinished bridleway that allowed for access to the rear of the Gardens, albeit given no mention within the contract, nor any reliable evidence that use of the drive had been orally agreed between the two parties. During this period, and shortly after taking occupancy of the Gardens, the Hall was leased to another occupier, with no issues arising between them.

A few years afterwards, this same tenant vacated the Hall, and so the landowner let it out to another party for a fixed period, after which the occupier of the Gardens continued to use the gravelled drive as a means of access to the front of his property, as he had since his lease began. Two years after taking up residency, the defendant in this case erected a wire fence to prevent the claimant and tenant of the Gardens from using the gravelled drive as a means of access, hence resulting in litigation.

Relying upon the wording of s.62(1) of the 1925 Act, and the fact that there had never been any other suitable means of access to his home, the claimant argued that an easement by way of implication had been granted by the landlord. When considered by the court, the facts determined that there was a clear difference between the granting of a lease and the conveyance of interest in land or property; and that in this instance the former applied.

There was however, the principle that under the terms of the contract there could be argued, an obligation to undertake full performance of the rights bestowed the claimant, where unless the contract provides specific exclusion of a right of way between two sharing tenants, the gravelled drive afforded both users equal powers to enforce their rights. It was on these grounds that the judge endorsed the action and awarded accordingly, while holding that:

“[A] grantor of property, in circumstances where an obvious, i.e., visible and made road is necessary for the reasonable enjoyment of the property by the grantee, must be taken prima facie to have intended to grant a right to use it.”

A Local Authority v E (2012)

English Medical Law

A Local Authority v E
‘Woman in Foetal Position’ by Unknown Artist

The struggle for autonomy amidst the pain of abuse, is central to a case involving the wishes of a patient with a debilitating illness, and the requisite obligations of the State. By balancing the safeguarding nature of the Mental Capacity Act 2005 with Convention rights, it is left to the courts to determine which argument offers the greatest reasoning.

After experiencing years of intense sexual abuse during the formative years of her childhood, the patient in question became prisoner to her manifestations of trauma, through increased dependency on alcohol and medically prescribed opiates. The prologue is one of repeated lapses of overall function, underpinned by contrasting highs of academic achievement that defied her emotional scars; but through time, the former overshadowed the applicants deliberate plans for happiness, in the form of chronic anorexia nervosa.

Following hospitalisation on numerous occasions through dangerously low body weight, and a number of therapeutic approaches proving collectively unsuccessful, it was decided by the applicant to submit advanced decisions surrounding life sustaining procedures, where her health suffered to the point of imminent death; only to then provide paradoxical statements portraying her deep conviction to regain a life of meaning that had once been enjoyed. This cyclical existence placed prolonged stress upon the applicant’s health, and that of her parents and appointed specialists, who had all extended themselves beyond any obligation to keep what was considered an engaging, and yet tormented, woman alive.

Several years of medical intervention provided little to no lasting results, and so it was largely accepted that after a year of no real calorific ingestion, the patient had made clear her decision to refuse food, and that in light of her last advanced decision, she wished to remain in palliative care until the date of her impending death. When her BMI (body mass index) then reached a potentially fatal level, it was with the concerns of those assigned her care, that the matter went before the Court of Protection, in the aim of determining if (i) the patient lacked mental capacity at the time her last advanced decision was made, and (ii) whether it was in her best interests to cease intervention, and leave her to die with dignity, or resort to long-term invasive nasogastric treatment to restore her BMI to that where therapeutic rehabilitation could again recommence.

Art.2 of the Human Rights Act 1998 (Right to life) determines that the State is under a duty to protect the individual right to life, and yet art.3 (Prohibition of torture) serves to prevent any inhuman or degrading treatment, which in this case, the proposed medical programme would, by all accounts, place unreasonably high levels of physical and emotional stress upon the patient; in part as the result of years of previous treatments producing a ravaged immune system with weakened bones mass. However, art.5 (Right to liberty and security) and art.8 (Right to respect for private and family life) both enforced the applicant’s right to die with dignity, in a manner that suited both herself and her family.

In light of her advanced decision, the contradiction of mental capacity while suffering from an eating disorder, allowed s.3(1) of the Mental Capacity Act 2005 to question if the cessation of ingestion can validate the supposition that a person can understand and evaluate, information as part of a decision making process, when they are consciously killing themselves, despite knowing the consequences of that action. For that reason, it was then argued that any suggestion that the advanced directive was undertaken while compos mentis, failed when an irrational request serves only to end a life and not preserve it.

With full appreciation of the medical evidence and lengthy testimony of all parties (aside from the patient whose heath was too critical for an appearance), it was concluded that in spite of the discouraging background to both the applicant’s childhood experiences and the endemic frustrations of anorexia, there remained a concept and hope, that at the age of thirty-two, it was not too late to rule out any meaningful recovery, nor the chance for the applicant to resume the full life she had once, if only briefly, created.

For those reasons, the court reasoned that the applicant lacked mental capacity upon the execution of her advanced decision, that subsequently forcible restitution was now in her best interests, and that such action failed to interfere with the rights presented, while further holding that:

“[W]here a person lacks capacity, there is a duty to make the decision that is in [their] best interests.”

Chester v Afshar (2004)

English Medical Law

Chester v Afshar
‘No Full Disclosure’ by Robert Burridge

‘But for’ causation and the principles of tort, while reminiscent of criminal procedure, can fall foul to policy loopholes when a duty of care is involved. In this matter, the actions (or inactions) of a neurosurgeon left a patient paralysed and angry after full disclosure had not been established prior to her operation.

After suffering for a number of years with lower back pain, the respondent had reached the point that regular injections were no longer of relief, and had now given serious thought to surgical intervention, despite long standing fears around the field of operative medicine. Having consulted her rheumatologist at length, she was confidently advised to procure the services of a Harley Street practitioner with a solid reputation for the proposed kind of operation.

The recommended procedure involved delicate removal of a number of vertebrae that would by extension, bring an end to her pain, but not without associated risks inherent to the work. Upon her first visit with the appellant, the two individuals took time to discuss the course of action, along with the known side-effects and possible nerve damage. Having consented to undergo the surgery, the respondent was treated a few days following the meeting; after which her recovery was less positive than had been anticipated, and which had in fact left the respondent immobile and diagnosed with cauda equina syndrome.

Having sought damages for what the respondent considered to be negligence through a breach of duty to inform her of the known (and well documented) risks associated with the operation, the first judge found that in order to reach a balanced decision, it was important to address both the breach of duty to fully disclose, and the liability for the subsequent injury arising from the procedure. On this occasion, and relying upon the evidence presented, the court took time to debate the principal function of causation, in which the defendant is not required to establish exemption, but that the claimant must take the necessary steps to demonstrate how their breach caused either injury or loss, and that where adherence to policy and procedure had occurred, the results would have prevented any need for legal remedy.

With judgment found in favour of the respondent in the first hearing, the surgeon moved to appeal, before finding his challenge dismissed for the same reasons. It was then after granting permission to appeal to the House of Lords, that the finer details of causation and right to damages became of greater significance.

While the discussion revolved around similar medical cases applying tortious doctrines of causality, the named risk attached to lumbar stenosis removal ran within a very narrow margin of around one to two percent, and it had been proven as well as agreed, that irrespective of the performing surgeon, the potential for the syndrome remained equally viable. This translated that a lack of absolute disclosure by the appellant, while disconcerting in the immediate sense, could not be held as contributory to the injurious outcome experienced by the respondent.

However, the division between the House was such that enough case material had amassed to instigate a reconsideration of the logic of causality; and that when embracing the autonomous rights of the patient, it was simply unethical to allow minimal disclosure and a weakness of causative proximity to remove access to knowledge, which on this occasion might have led to alternative solutions to pain and discomfort. By then mindfully broadening the duty of care principle, the judges found (by a similarly narrow margin) in favour of the respondent and awarded accordingly, while holding that:

“In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.”

 

R (C) v Berkshire Primary Care Trust (2011)

English Medical Law

R(C) v Berkshire Primary Care Trust
‘The Danish Girl’ by Gerda Wegener

Psychological dependence upon a surgical procedure to establish a definite sense of identity, lies within the heart of this matter when a transgender patient experiences disappointment with the outcome of hormone treatment and seeks remedy from the National Health Service (NHS).

Having experienced a life of emotional turmoil and unrelenting conflict with the gender nature afforded him, a man takes the steps required to adjust his gender to that of a woman, inasmuch as reassignment procedures will allow. While not yet at the point of invasive surgery, the appellant elected to follow course of therapy that by its own methodology, would increase his existing breast tissue to that of an average woman; thereby removing any fears that members of society would, on a superficial level, ever confuse him with a man.

At the conclusion of the programme, the appellant was left with only a minimal increase in tissue growth, and the inadequacy felt lingered to the point of mild depression and disillusionment with both himself and the future. Following consultation with his consultant psychiatrist, his case was put forward to the relevant Primary Care Trust, in the hope that both the poor outcome of the biological intervention and the circumstantial criteria of the Gender Dysphoria and Cosmetic Breast Surgery Policies would allow funding for breast augmentation (augmentation mammoplasty) to redress the balance.

Having had prior experience of transgender applications for the mammoplasty, and in the knowledge that current policy considers the procedure to be low priority, the Primary Care Trust conducted independent research to establish if there was sufficient data to support the claim that breast augmentation was important enough to have a positive impact upon a patient’s life and mental health, in claims where such surgical adjustments are compellingly argued.

Despite previous case discussions around the subject, the results of the investigative report concluded that there remained insufficient justification to amend the policy, and so unless in the case of extreme symptoms, the funding could not be provided, and that the patients would need to seek their own source of revenue. When first refused, and in consideration of two complaints to the Health Commission, the second application failed again, before a request for judicial review was presented. On this occasion, the application for review was dismissed, before the appellant moved to argue for funding on grounds of human rights violations and discrimination.

Citing art.8 of the Human Rights Act 1998 (right to respect for private and family life) and art.14 (prohibition of discrimination), it was contested that denial of surgery was a breach of that right, and constituted excessive demands for an emotionally distressed transgender to suffer beyond that of an equally unhappy natural woman when determining eligibility for funding; and that such distinction resulted in nothing less than discrimination between the two types of patient.

Having evaluated the history behind the matter, and the recent investigatory methods used by the NHS, it was concluded that great attention had been placed upon the equality of a patients emotional well-being, and that unilateral guidelines were exacting enough to determine when funding was appropriate. This decision was supported in the decisory notes, which read that any patient seeking to obtain funding for policy procedures must demonstrate (i) that the patient’s case constitutes exceptional circumstances, (ii) that there is evidence of significant health benefit from the requested treatment, and (iii) there is evidence of the intervention improving health status.

On this occasion, the court quickly agreed that despite evidence of ‘chronic mild to moderate distress’ conveyed by the patient’s doctor, there was simply nothing to suggest that his situation was any more exceptional than a patient denied the resources, or that his symptoms were similar to those qualifying, transgender or otherwise, thus the court upheld the claim dismissal while also holding that:

“[G]ender and clinical needs are both relevant characteristics. Their aetiology is relevant diagnostically, but what are more critically relevant are the ethical and clinical judgments of the PCT, provided these do not transgress the law.”

Blackwell v Blackwell (1929)

English Equity & Trusts

Blackwell v Blackwell
‘The Artist’s Mistress’ by Charles Sims

Verbal instructions that are then attested and complied with by the named trustees before the death of a testator, fall neatly between the rules of wills and probate and the equitable field of trust law. On this occasion, the wish of a dying man was such that a large sum of money was to be held upon trust for a party outside of his marriage while unknown to his widow.

Having long agonised over his duty to make provisions for a mother and a child borne out of wedlock, it was decided by the testator to set aside several thousand pounds in the wish that five of his closest friends would act as trustees with the express purpose of investing the funds for the benefit of the two named parties, until such time that the trustees elected to provide them with two thirds of the initial sum, before placing the remaining third back into the residuary estate of his final will.

Upon his death, his widow discovered the bequest, and looked to dismiss its validity upon grounds of fraud and contradiction to the terms of the will where his widow and their son were to benefit from his entire estate. As was common to domestic legislation, s.9 of the Wills Act 1837 read that no will (or codicil) shall be valid unless set in writing and signed by the testator in accordance with statute. On this occasion, the instructions given by the deceased were initially verbal, and only put to writing by means of a memorandum drafted by his solicitor, who himself signed as a trustee and submitted it in support of the codicil.

Using the terms contained within the 1837 Act, it was argued that while the trust memorandum was written, the execution of the codicil was oral, and therefore fell outside the powers granted beneficiaries, unless it was in effect, designed to stand for the sole benefit of the widow through the residual estate; in which case the trustees would be acting in fraud should they look to enforce the terms of the codicil.

While decided twice in favour of the trustees, it was later put before the House of Lords, where the rules of equity were scrutinised in conjunction with proven case law. Having examined the principle that ‘equity will not permit statute to be used as a cloak for fraud’, it was found that where a testator propounds a desire to execute a trust, and then proceeds to provide explicit instruction as to its use, any argument that seeks to undermine the intentions of that person through the use of legislation, must then find themselves party to fraud if they would instead stand to benefit from the funds expressly requested for the enjoyment of another.

In circumstances such as these, it was historically preferred that equity imputes the same responsibility as that agreed to by the original trustee, so that they would then act under the same instructions so as to permit the objective of the deceased to be realised, while this transference effectively circumvents the fraud and makes right, that which is prima facie claimed wrong.

Resting upon this proven application of jurisprudence, the presiding Lords established that far from looking to dissect the flaws proposed by the appellants, it was clear that any conflict arising from a lack of signatory validation, was insufficient when looking to overrule the will of the testator against a trust that by all accounts, left no illusions as to its purpose and means of delivery, and so awarded for the trustees while holding that:

“[V]erbal or written instructions communicated by a testator to a legatee and assented to by him create an enforceable trust…”

Milroy v Lord (1862)

English Equity & Trusts

Milroy v Lord
‘Louisiana Bayou’ by Joseph Rusling Meeker

When a man of standing sought to create a trust for the purposes of a relative’s benefit, he was careful enough to provide specific instructions to his trustee, but unfortunately erred in putting them into action.

A number of years after his death, the beneficiary challenged the assigned executor on grounds that his written desire for her to gain lawful receipt was sufficient enough to constitute an enforceable covenant and that the courts were inter alia wrong to deny it.

In 1852 the settlor drafted a deed-poll that enabled fifty shares of his stock held in the Louisiana Bank to be transferred to his associate (who had become his appointed trustee) on the proviso that under a number of specific conditions he was to hold the shares upon trust for the benefit of his beloved niece.

He also stipulated that during the time between his grant and the date of her marriage or his death, the trustee was to manage the trust and pay any profits arising from the dividend interest to the beneficiary.

During this period the settlor also granted the trustee power of attorney over all of his financial matters, and so while it was possible for the trustee to complete the request, he never managed to fully execute transferral under the banking practice policy, which required the participation of either the settlor himself or a qualified solicitor, and where neither was found, that the power of attorney rested not with the trustee but the bank.

In the first instance the presiding judge awarded that by virtue of the deed construction, a valid trust had existed, and that the fifty shares were to be reissued by the executor to the existing trustee, where they would be again held upon trust for the niece (as had been the case before the settlor’s death).

However under appeal the Court took the equitable view that a legally incomplete gesture cannot be enforced (equity will not perfect an imperfect gift), and so held that it was impossible for the settlor to become a self-appointed trustee for the shares discussed.

Rather it was declared that the funds were to be held upon trust by the executor until amendments could be made to the deed that provided for redistribution in the manner first intended, or until the trustee and beneficiary chose to take individual action against him, while the court reminded both parties that:

“[I]n order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him.”

Attorney-General for Hong Kong v Reid (1993)

English Equity & Trusts

Attorney-General for Hong Kong v Reid
‘Hong Kong Skyline’ by Bri Buckley

The phrase ‘two wrongs do not make a right’ is virtuous to the truth that misdeeds can never amount to anything more than loss, yet when adopted for equitable purposes, the exact opposite can be found.

After rising through the ranks of Hong Kong administration, a solicitor turned Director of Public Prosecutions positioned himself whereby he was able to accept sporadic bribes in exchange for his obstruction of justice through the failed convictions of known criminals. Having taken over HK $12m in payments, the respondent in this matter invested the funds into three properties, two of which were in title to himself and his wife and the third to his solicitor.

The discovery of his fraudulent behaviour and subsequent criminal prosecution, raised the question of whether by his breach of fiduciary duty as a servant of the Crown, the sums paid were now held upon constructive trust for his former employers, and that any monetary gain following the purchase of the homes was composite to that trust.

Common law principles surrounding fiduciary breach and profit from such breaches have been long held to apply in favour of the trust beneficiary, despite the illegality on the part of the fiduciary when in receipt of bribes from third parties. This is because when acting beyond the remit of the trustee, and in a manner that is dishonest, the action itself becomes legitimate, if only for the benefit of those the fiduciary/trustee was appointed to serve.

This translates that although the respondent allowed himself to selfishly receive bribes in exchange for personal profit, equity would ascribe that his deceit was immediately converted into a positive gesture conferring direct gain to his employers, as no fiduciary can be seen to profit from his breach as previously mentioned. This, by virtue of the fact of those principles, altered the manner in which the respondent not only executed his plans, but provided the Crown with privilege to acquire beneficial interest in the properties purchased, along with any increase their value since initial conveyance.

When considered by the Privy Council, it was quickly agreed that any conditions imputed by the respondents upon the entitlement of his employers to seek recovery of the debts through the homes, failed to override the fundamental obligations owed to him while serving and acting under fiduciary capacity, despite any notion of separateness or mixed investment on his part.