International Shoe Co. v. State of Washington Office of Employment Compensation and Placement

The constitutional freedom to undertake interstate commerce and the inherent subjugation to State taxation, locked horns in a matter that at first blush, appeared somewhat unfair, yet with all the facts considered, revealed a carefully planned business strategy designed to deceive and undermine.

From 1937 through to 1940, the petitioners operated a shoe manufacturing enterprise in St. Louis, Missouri, while enabling a sales force to promote and sell its wares across a number of States including Washington; and so, in order to circumvent taxation under the Washington Unemployment Compensation Act of 1941, the petitioners subsequently structured its workforce in a way that allowed them to enter the State for product promotion and business transactions, yet prevented them from entering into any direct contracts with the purchasers. 

For clarity, upon completion of a sale, the buyer would receive a direct shipment from a dispatch center outside the Washington State, while the salesmen themselves would only occupy suitable premises on short-term leases, in order to showcase footwear samples to curious Washington residents.

Having discovered this strategy and serving notice of collection under § 14(c) of the Act, the petitioners appeared before the State Commissioner and the office of unemployment, only to contest the notice on grounds that it violated the Fourteenth Amendment to the U.S. Constitution, while claiming that as a Delaware registered corporation, the 1941 Act was null and void in effect.

In the first instance, the relevant appeal tribunal dismissed the petitioners’ argument and decreed that the Commissioner was legally entitled to recover the unpaid taxes, before the Superior Court of King County and Washington Supreme Court uniformly affirmed the judgment, with the latter court holding that:

“[W]here there is a systematic and regular solicitation of orders by an agent or agents of the corporation, resulting in a continuous shipment of goods into the state where the agents are operating, together with the maintenance of a permanent office in the state by the corporation, the corporation can be said to be doing business in that state so as to make it amenable to process by the courts of such state.

International Shoe Co. State

And so, appealing to the U.S. Supreme Court under writ of certiorari, the Court immediately drew reference to 26 U.S.C.A. § 1606, which explained that:

“No person required under a State law to make payments to an unemployment fund shall be relieved from compliance therewith on the ground that he is engaged in interstate or foreign commerce, or that the State law does not distinguish between employees engaged in interstate or foreign commerce and those engaged in intrastate commerce.”

26 U.S.C.A. § 1606

While further reminding the petitioners that in Kentucky Whip & Collar Co. v. Illinois Central R. Co., the Court held that:

“[I]n the exercise of its control over interstate commerce, the means employed by the Congress may have the quality of police regulations.”

Kentucky Whip & Collar Co. v. Illinois Central R. Co.

Before adding that in Hutchinson v. Chase & Gilbert, the Second Circuit Court of Appeals succinctly illustrated that:

“The shareholders, officers and agents are not individually the corporation, and do not carry it with them in all their legal transactions. It is only when engaged upon its affairs that they can be said to represent it, and we can see no qualitative distinction between one part of its doings and another, so they carry out the common plan.”

Hutchinson v. Chase & Gilbert

While in closing, the Court also relied upon Baldwin v. State of Missouri, where the presiding Holmes, J., held that:

“I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable.”

Baldwin v. State of Missouri

Hence, with these numerous compelling reasons, the Court upheld the previous judgment on grounds that there was no evidence suggesting that the collection of taxes from an entity in all but full occupation of the State, was in any way contrary to the Due Process clause of the Constitution, while reminding the parties that:

“[S]olicitation within a State by the agents of a foreign corporation plus some additional activities there are sufficient to render the corporation amenable to suit brought in the courts of the State to enforce an obligation arising out of its activities there.”

Taylor and Another v A (Novo) Uk Ltd

In a similar vein to McLoughlin v O’Brian, the boundaries of proximity, and the effects of secondary nervous shock are explored with deliberate force, so as to establish where two related events fall within the passing of time and space.

In the first event, the respondent’s mother was subject to a workplace accident involving a stack of racking boards that unexpectedly fell upon her.

While recovering at home, the victim unexpectedly collapsed as the result of a deep vein thrombosis and associated pulmonary embolism, which were caused by the accident itself. 

In the second event, the respondent daughter was visiting with her mother at the time of her death, and was subsequently witness to her sudden passing.

This left the respondent in a state of shock, resulting in Post-Traumatic Stress Disorder (PTSD), a psychiatric injury familiar to both the courts and the medical profession.

In the first hearing, the judge placed focus upon whether, as a secondary victim to an earlier event, the respondent was qualified to receive damages.

In order to conclude as to her entitlement, there were seven requirements set forth, namely that:

(1) The respondent’s injury was reasonably foreseeable 

(2) The relationship between the respondent and the primary victim was a close one

(3) There was a recognised psychiatric injury

(4) The injury was the result of the appellant’s negligence

(5) The injury was the result of shock from witnessing the primary victim’s death

(6) The respondent was either present at the time of death or the immediate aftermath

(7) The respondent perceived the death with her own senses

While the appellants accepted that all but one of the criteria (4) were satisfied, the judge awarded in favour of the respondent, before the matter came before the Court of Appeal.

Here, the mechanics of secondary nervous shock claims fell under discussion, in order to both understand the previous findings and reach an informed conclusion as to the limitations of such developing claims.

The categorisation of primary and secondary nervous shock victims was properly outlined by Oliver LJ in Alcock v Chief Constable of South Yorkshire Police, where he remarked:

“Broadly [the cases] divide into two categories, that is to say, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others.”

Alcock v Chief Constable of South Yorkshire Police

Before going further to explain that:

“What is more difficult to account for is why, when the law in general declines to extend the area of compensation to those whose injury arises only from the circumstances of their relationship to the primary victim, an exception has arisen in those cases in which the event of injury to the primary victim has been actually witnessed by the plaintiff and the injury claimed is established as stemming from that fact.”

Alcock v Chief Constable of South Yorkshire Police

While later posing that:

“[T]he concept of ‘proximity’ is an artificial one which depends more upon the court’s perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction.”

Alcock v Chief Constable of South Yorkshire Police

In Taylor v Somerset Health Authority, a widow was awarded damages when her husband died at hospital following a sudden heart attack at work.

Having arrived at the hospital an hour after his death, she waited twenty minutes before being informed by staff of his passing, whereupon she was taken to the mortuary to confirm his identity while still understandably distressed and shocked.

At the trial, it was revealed that the hospital had failed to diagnose the severity of his condition, while the widow was now diagnosed as having nervous shock from her experiences in the hospital.

On this occasion, the court held the local Health Authority liable for damages, through the months of misdiagnosis leading up to his passing.

In the previous hearing, Halbert J had explained that:

“[T]his was not a gradual decline leading to death, it was a sudden collapse. It was on any practicable view a new ‘event’ and a very traumatic one…The operative ‘event’ which traumatised the claimant was sudden and horrifying. She was present at the scene and witnessed it with her own senses. The fact that there was an earlier incident caused by the same negligent act is irrelevant.”

However, as had been stipulated by Wilberforce LJ in McLoughlin v O’Brian,it was important to remember that:

“As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant!s negligence that must be proved to have caused the ‘nervous shock’.”

McLoughlin v O’Brian

On this occasion, there had been a number of weeks between the first event and the second, therefore while the scope of secondary nervous shock was largely applicable to the core of the claim, there had since been a significant passage of time between both the accident and the death of the respondent’s mother.

This indisputable and distinguishing element, therefore left the Court with no other option than to allow the appeal on grounds of unreasonable proximity and proportionality of the doctrine, thus dismissing the claim outright, while reminding the parties that:

“In a secondary victim case, physical proximity to the event is a necessary, but not sufficient, condition of legal proximity.”


Proximity and the scope of special relationships, lie close to the heart of tortious principle, and although the direction taken in Anns v Merton London Borough Council was with hindsight, both unnecessary and damaging, it became important to relinquish those shackles through the examination of this case.

During the construction of a number of new homes, it was the decision of the consulting local authority to employ the services of professional and suitably qualified civil engineers, in order to ensure full compliance with the building regulations of the time.

Unfortunately, there were two properties that due to inconsistencies with the land, required very detailed and purpose-specific foundations in order to avoid subsidence or resulting damage of any kind.

The council themselves had no immediate employees instructed enough to challenge the opinions of the engineers; and so, when those same professional contractors failed to properly calculate the foundation integrity, the plans submitted were signed off without contest.

It was not until after a sale of one the two homes, that the purchaser, who after a period of growing concern, discovered there had been significant movement of the property due to a shift in the footings.

This unforeseen issue became the catalyst to a number of structural fractures, as well as utilities supply ruptures of a nature that could have proven dangerous, if not fatal, to the occupiers.

However, instead of using the home insurance proceeds to restore the property back to its correct state, the owner chose to sell the house at a grossly under market value, while issuing legal proceedings against the local authority on grounds of negligence arising from a statutory failure to prevent the faulty construction of the foundations, and thereby the overall property.

At the original trial, the judge awarded in favour of the claimant, awarding costs exceeding the value lost through the defects, with allowance for considerable outlay on furnishings and repairs while under the ownership of the original purchaser.

When the local authority appealed, it was ultimately dismissed, while the Court upheld that they had, through the course of their statutory duties, allowed the home in question to become victim to ‘physical damage,’ that by virtue of its construction, ran serious risk of causing injury and distress to those parties in occupancy at the time such an event happened.

This judgment was dependent upon the outcome of Dutton v Bognor Regis Urban District Council and in equal share, to that of Anns, which supported extension of public body liability to where private law remedy could hold them responsible beyond the reach inferred from existing statute.

Having then granted leave to appeal, the case was again presented to the House of Lords, where in many respects, the opportunity to reexamine the precedent established in Anns, could now encourage departure from the overextension of duty of care principles; particularly when relying upon Donoghue v Stevenson for relationship proximity and vicarious negligence where none existed.

After meticulously evaluating the chain of events that led to the purchaser’s claim, it became difficult to sustain that a third party to a transaction could be held against a duty of care to those suffering the results of poor construction design (as that incorporated into the overall product); which on this occasion, was the finished property.

This conflict then provoked a decision which allowed the local authority appeal and overturn the decision in Anns; a reversal that emphasised the differentiation of tortfeasor relationships, and the starkness between physical and pecuniary loss within tort law, while the court reminded the parties that:

“[A] third party cannot successfully sue in tort for the interference with his economic expectations or advantage resulting from injury to the person or property of another person with whom he has or is likely to have a contractual relationship.”


The tort of conspiracy, while certainly relevant to the world of commerce, is one that overlaps with criminal activity, due to the clandestine nature of the offence.

On this occasion, the unlawful collusion between corporate entities brought about a claim for damages by a party to a previous agreement, that had since been abandoned due to legislative sanctions by the United Kingdom.

In 1962, a number of petroleum companies came together to draft what was known as ‘the shippers agreement’; a contract allowing for the supply of unrefined oil to Mozambique (or Rhodesia as it was also known).

The appellants were a Portuguese organisation, while the respondents were both British petroleum companies; all of which, had constructed a refinery that while under Rhodesian ownership, was subject to shareholdings by the appellants, respondents and a number of other investors.

The appellants owned the pipeline itself, while the respondents used their shipping vessels to import the crude oil, before passing it through the pipeline to the refinery in Mozambique.

Less than a year after the operation became live, the Government of Southern Rhodesia declared unilateral independence, which prompted Parliament to draft and enact the Southern Rhodesia Act 1965; from which, the Southern Rhodesia (Petroleum) Order 1965 imposed prohibitive sanctions against the supply of oil or petroleum to Southern Rhodesia by British suppliers.

Section 2(2) of the 1965 Act expressed the powers to prevent supply, while section 1(1) of the 1965 Order restricted the supply of petroleum to Southern Rhodesia.

Section 1(2) also provided that any UK registered corporate body breaching the the restriction set down would be guilty of a criminal offence, and subject to fines or imprisonment or both, as explained in section 4(2) of the 1965 Order.

On this occasion, the respondents had acted together to circumvent the powers expressed by the Southern Rhodesia Act 1965, in order to continue supplying the Mozambique Government their own petroleum by other means.

This rendered the appellants pipeline useless, and after two years of neglect, the appellants sued for damages in excesses of £100m under the tort of conspiracy.

The definition of conspiracy was outlined in Crofter Hand Woven Harris Tweed Co Ltd v Veitch, when Viscount Simon LC expressed how the tort consists of:

“[T]he agreement of two or more persons to effect any unlawful purpose, whether as their ultimate aim, or only as a means to it, and the crime is complete if there is such agreement, even though nothing is done in pursuance of it.”

Crofter Hand Woven Harris Tweed Co Ltd v Veitch

While under the established facts of Cutler v Wandsworth Stadium Ltd, it was agreed that the failure to act, or to act in contravention of prohibitive statute, renders a party liable both to criminal charges and accountability under tort, where a third party has been proven to suffer.

The condition to this principle is that it must be shown that the defendant(s) acted in deliberate pursuance of that suffering, as opposed to one borne from self-interest.

In the first instance, the claim for damages were dismissed, and the Court of Appeal followed suit, before being given final consideration in the House of Lords.

It was then with deliberate evaluation of the statutory powers conferred, and the exacting nature of tort conspiracies, that the House wasted little time in holding that despite the obvious and unavoidable consequences felt by the appellants, there was no evidence to suggest that the breach of the Southern Rhodesia Act 1965 was anything more than a selfish pursuit by the respondents.

And so, without unnecessary expansion on the scope of tortious conspiracy, the court dismissed the appeal, while reminding the parties that:

“[I]njury to the plaintiff and not the self-interest of the defendants must be the predominant purpose of the agreement in execution of which the damage-causing acts were done.”


Vicarious liability and the systematic sexual abuse of children under the care of trained staff, becomes the nucleus of a collective suit against the abuser’s employer, in the wake of criminal allegations leading to a conviction.

Between 1979 and 1982, the respondents employed the services of a warden for the purposes of managing a boarding house designated the care of emotionally troubled and vulnerable children.

Of the eighteen boys resident to the property, a number of them were subjected to numerous forms of sexual abuse, achieved through careful grooming and insidious manipulations by the offender. 

While the acts themselves went unreported, a criminal investigation revealed the identity of the accused; and following summary conviction, he was sentenced to seven years imprisonment.

Almost fifteen years later, the appellants issued claims against the owners of the boarding house on grounds of vicarious liability and negligence.

In the first instance, the claim for negligence was dismissed, while the accusation of liability for the abuse fell victim to the existing position as determined by the verdict in Trotman v North Yorkshire County Council; in which, a disabled pupil had been sexually abused by the deputy headmaster while on a school trip abroad.

When assessing the culpability of the local authority, Butler-Sloss LJ concluded that:

“[I]n the field of serious sexual misconduct, I find it difficult to visualise circumstances in which an act of the teacher can be an unauthorised mode of carrying out an authorised act, although I would not wish to close the door on the possibility.”

Trotman v North Yorkshire County Council

Subsequently holding that the employers in question, could not be held liable for the individual actions of a sick mind, despite having harmed the child while under the employment of the authority at the time of the abuse.

When heard by the Court of Appeal, who themselves adhered to the principles ascribed in Trotman, the decision was taken to award damages based on the wardens failure to report his actions to his employer.

This was expressed by Waller LJ, who explained:

“The simple point in this case is that if wrongful conduct is outside the course of employment, a failure to prevent or report that wrong conduct cannot be within the scope of employment so as to make the employer vicariously liable for that failure when the employer was not vicariously liable for the wrongful conduct itself.”

Granted leave to appeal, the case was presented again to the House of Lords, who took issue with the decision in Trotman, while clarifying the very principles of vicarious liability.

The essence of vicarious liability rests upon the timeless principles espoused in academic text; which state that a wrongful act undertaken by an employee in the course of his employment is recognised where:

‘it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master’.

This is further supported by the principle that:

‘a master…is liable even for acts which he has authorised, provided they are so connected with acts which he has authorised, that they may rightly be regarded as modes-although improper modes-of doing them’.

In Lloyd v Grace, Smith & Co, a firm of solicitors were held liable for the manipulation of their client by a manager who used the acquired property for his own benefit, while in Williams v A & W Hemphill Ltd,  it was expressed  by Lord President Clyde that:

“[W]here the workman does some work which he is appointed to do, but does it in a way which his master has not authorised and would not have authorised had he known of it, the master is nevertheless still responsible, for the servant’s act is still within the scope of his employment. On the other hand…if the servant is employed only to do a particular work or a particular class of work, and he does something outside the scope of that work, the master is not responsible for any mischief the servant may do to a third party.”

Williams v A & W Hemphill Ltd

However, in Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co, Cullen LJ argued that:

“The question is not to be answered merely by applying the test whether the act in itself is one which the servant was employed or ordered or forbidden to do. The employer has to shoulder responsibility on a wider basis; and he may, and often does, become responsible to third parties for acts which he has expressly or impliedly forbidden the servant to do.”

Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co

While further remarking that:

“An honest master does not employ or authorise his servant to commit crimes of dishonesty towards third parties; but nevertheless he may incur liability for a crime of dishonesty committed by the servant if it was committed by him within the field of activities which the employment assigned to him, and that although the crime was committed by the servant solely in pursuance of his own private advantage.”

In a more recent Canadian case Bazley v Curry, involving the sexual abuse of children by an employee of a children’s foundation who had been assigned a parental/ carer role, the court found the employers vicariously liable and awarded damages accordingly.

In ‘Vicarious Liability in the Law of Torts’ it was also suggested that:

‘The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carries on’

While in Dyer v Munday, the court agreed that there was no reason why the doctrine of vicarious liability ought not operate where a tort becomes a crime.

It was for these reasons, as well as the ignorance shown in Trotman, that the House agreed the judgment was to be overruled, and that in this matter, the appeal was to be upheld on grounds that the proximity between the wardens actions, his duty to his employers and conversely theirs to the appellants, left no doubt as to where liability lay, while the court reminded the parties that:

“Vicarious liability is a species of strict liability. It is not premised on any culpable act or omission on the part of the employer; an employer who is not personally at fault is made legally answerable for the fault of his employee.”


The tortious claim for nuisance, and the rights of those in occupation of land have for many years, been exclusively limited in the preservation of common law sensibility.

On this occasion, a collective suit for both nuisance and negligence by local residents against that of corporate rights, produced an unexpected outcome.

After the demise of dockland trading in London, the areas once frequented by countless importers and exporters, fell foul of disuse and neglect.

After lengthy consideration, both immediate and future plans for the site were subject to the Secretary of State who, recognising the need for both housing and commercial exploitation, took advantage of sections 134(1) and 135(1) of the Local Government, Planning and Land Act 1980, in order to commission urban regeneration of the London docklands area under the formation of the London Docklands Development Corporation (LDDC).

In line with the need for such redevelopment, the 1980 Act allowed the Minister to override typical planning permission requirements, as laid down in the Town and Country Planning Act 1971.

This resulted in the construction of the 800ft tall Canary Wharf Tower by nominated contractors Olympia and York Canary Wharf Ltd, along with interlinking roads to the surrounding city over a four-year period.

This ambitious project resulted in two tortious claims by 500-700 local residents; the first of which, centred around the interruption and in some cases, total disruption of television broadcast signals after the completion of the tower, and excessive amounts of materials dust invading the homes of the claimants throughout the construction period.

The case itself drew mixed, and yet keen attention of the the courts, primarily because the history of nuisance and negligence were to some extents, intertwined, and thus dependant on the principles found within property law.

In the first matter, the rights of those wishing to build upon their land stem from the long-standing principle that in the exception of easements or restrictive covenants, every man has the freedom to build as he pleases, as was stressed by Hardwicke LC in Attorney-General v Doughty, when he said:

“I know no general rule of common law, which warrants that, or says, that building so as to stop another’s prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town . . .”

Attorney-General v Doughty

Furthermore, in a recent German case G v City of Hamburg, the Supreme Court had ruled unequivocally that where a resident had suffered diminished television broadcast signals following the construction of a nine-storey hospital, such effects were not subject to the powers of their Civil Code; and so, no claim for nuisance could stand.

This reflected the stance of the English courts; therefore, support for such a claim would not be found, despite the large numbers of complaints.

Turning to the issue of dust, the principles of property law were again invoked, inasmuch as established academic precedent argued that:

“In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty.”

However, this definite founding for claim had seen its critics, when in Foster v Warblington Urban District Council, the Court of Appeal had ruled that a person in exclusive possession of land could sue, despite no evidence of title.

This principle was further promoted in Khorasandjian v Bush; in which, a young girl had been subjected to continuous phone calls from a spurned former partner while living with her parents; and where, Dillon LJ had also remarked that it was:

“[R]idiculous if in this present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or a leasehold proprietary interest in the premises in which he or she has received the calls.”

Khorasandijian v Bush

Here, the court followed Canadian case Motherwell v Motherwell, where it was held by the Appellate Court, that not only was the legal owner entitled to remedy for nuisance, but the wife too, despite her having nothing more than occupational rights.

Unfortunately, the problems facing the claimants was that a large majority of them were spouses, children and in some instances, extended family.

This placed the courts in a difficult position when recognising the need to consider expanding upon private claimant rights in nuisance cases beyond that of land owners, especially with similar changes to spousal rights in both the Matrimonial Homes Act 1983 and the Family Law Act 1996.

When first heard, the court held that television signal interference was a claimable right under nuisance, and that exclusive possession of land was the qualifying criteria for claim in both instances.

However, the Court of Appeal reversed the decision; and so, the original defendants appealed to the House of Lords, while the claimants cross-appealed.

With forbearance of the seemingly inextricable limitations of both tort and property laws, it was (after lengthy discussion) unanimously held that the despite the changes in modern society and the family units, the strict rule of exclusive possession remained steadfast; not on grounds of unreasonableness, but in the prevention of arbitrary awards for complainants having little to no proprietary rights.

Hence the House reversed the Court of Appeal’s findings, while reminding the parties that:

“Nuisance is a tort against land, including interests in land such as easements and profits. A plaintiff must therefore have an interest in the land affected by the nuisance.”


The perversion of justice through miscalculation of the jury, is a difficult case to prove when the reliability of both witnesses and the courts complicate matters further.

On this occasion, a respected footballer is left with his professional integrity in tatters, after entrapment by a tabloid newspaper exposes his questionable conduct both on and off the pitch.

In late 1994, ‘The Sun newspaper’ ran a series of damning articles around the supposed match fixing activities of a reputable premier division goalkeeper.

As part of their campaign, the now respondents went to great lengths so as to not only expose the clandestine dealings of the appellant, but to further ridicule his character and dismantle his popular public persona.

In order to achieve this, the respondents colluded with the appellant’s former business partner, on the understanding that secret video taping of their conversations would provide sufficient evidence to seal a conviction for corruption.

Over a number of meetings, the agent successfully recorded several oral agreements made by the appellant to participate in providing match forecasts, which later transformed into regular meetings with foreign bookmakers, and the receipt of several cash payments for undisclosed reasons. 

When the article was published, the appellant issued an immediate writ for defamation, which followed only after he had faced criminal charges under action taken by the respondents.

Having been acquitted before the courts, the civil action commenced with use of evidence used in the trial.

In the first hearing, the court opted for jury opinion so as to avoid overlooking the subjective nature of the case, and while it was admitted by the appellant that he had received money from unscrupulous individuals, he argued that his only intention was to establish the source of the racketeering, before revealing their identities to the authorities.

Admitted by both parties within the litigation, the appellant was accused of dishonestly taking bribes before fixing or attempting to fix, the result of matches in which he played, and dishonestly taking bribes with a view to fixing the result of matches in which he would be playing.

Here it was left to the jury to determine if, based upon his testimony and the recordings presented, the appellant was by virtue of his claim, innocent of any corrupt behaviour, and that in light of the respondent’s article, owed compensation for the pain and distress cased to both himself and his family.

After listening to the direction of the judge, and allowing for the small number of the appellant’s innocuous yet significant lies, the jury returned a verdict in favour of the appellant and awarded a reduced amount of £85,000 in damages.

Taken straight to the Court of Appeal, the Court reversed the decision on grounds of perversion by the jury, when in the summing up of the case, Brown LJ remarked:

“[O]ne is left with an inescapable core of fact and circumstance which to my mind leads inexorably to the view that Mr Grobbelaar’s story is, quite simply, incredible. All logic, common sense and reason compel one to that conclusion.”

It was then presented to the House of Lords for final evaluation, where the respondents challenged the rights of the House to question a forgone Appeal Court decision.

Here it was explained that under section 4 of the Appellate Jurisdictions Act 1876, the House of Lords (being the highest court in the land) was bestowed the power to “determine what of right, and according to the law and custom of this realm, ought to be done in the subject matter of such appeal”.

With that sentiment in mind, the House concluded by a majority, that under circumstances where the defamed party had been shown to lie, it would be a perversion of justice to award, or allow to be awarded, damages arsing from alleged defamatory remarks.

An act, which if unproven in the case of newspapers, is granted qualified privilege, as provided in Reynolds v Times Newspapers Ltd; and one where the claimant is shown to be less than deserving of financial remedy when their own behaviour is itself, questionable and unreliable.

This is known as the ‘Pamplinprinciple, as laid down in Pamplin v Express Newspapers Ltd,in which:

“[A] plaintiff is entitled to a verdict in his favour on the justification issue but the evidence properly before the jury on the issue of justification has disclosed that the reputation to which he is entitled is so depreciated that the damages which he should be awarded for the damage to his reputation by the (ex hypothesi) defamatory publication should be reduced below the level that would be appropriate for a plaintiff with an impeccable reputation, maybe even to a nominal figure…”

Pamplin v Express Newspapers Ltd

It was for the reasons given, that the House held that the appeal should be allowed, but on the condition that the award was reduced to a nominal sum of £1.

And that despite the argument that jury decisions were beyond review, the lower courts had allowed judge and jury roles to overlap, and so in order for justice to be done, the intervention of the House was merely academic, while the House reminded the parties that:

“The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection.”


When the victim of a large-scale train crash becomes subject to a manslaughter charge, the latent need for compensatory remedy is awoken with claims for damages stemming from the punishment dispensed by the courts.

Public policy, pain and suffering, diminished responsibility and the intricacies of criminal sentencing, are all brought to bear in a case broaching tortious claims and unlawful actions.

In 1999, the now cross-appellant, was one of a number of survivors travelling on the Thames Trains Turbo Train when it collided with a First Great Western High Speed Train near Paddington Station.

Known as the ‘Ladbroke Grove Train Crash’, the aftermath left thirty-one people dead and another five hundred injured.

Fortunate enough to sustain only minor injuries, the appellant later attempted to return to normality, despite suffering from panic attacks, mood swings, flashbacks, nightmares and grief symptoms; although within a number of months, he found himself unable to cope with work, travel, social interaction and even close relationships. 

After unsuccessfully attempting to hold down a number of jobs, the appellant wound up unemployed and a semi-functioning alcoholic, while it was during this period that he was attacked by a drunken stranger while driving his car.

After leaving the car to defend himself, the appellant was further subjected to hostile behaviour by a passing group; after which, he drove away in state of heightened fear.

Shortly afterwards, the appellant stole a knife from his partner’s parents, before finding the man and stabbing him repeatedly.

After the victim later died of his injuries, the appellant turned himself in, and was summarily convicted of manslaughter on grounds of diminished responsibility.

In passing sentence, the court chose to detain him using a section 37 hospital order and section 41 restriction order under the Mental Health Act 1983.

Such decisions were typical in instances where a defendant is found guilty of a criminal act while suffering from a recognised psychological abnormality; which in this case, had been established as Post-Traumatic Stress Disorder (PTSD) by a psychiatrist during the trial.

Roughly five years after his conviction, the appellant initiated proceedings against the respondents Thames Trains and Network Rail, for lost earnings arising from the PTSD during the period between the accident and his incarceration.

However, the claim was then extended to include lost future earnings as well as those during the period before and after the trial.

Relying upon the maxim ‘ex dolo malo non oritur actio’, meaning:

“No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted.”

The respondents made clear that while they admitted full liability for the period between the accident and the unlawful act, they were protected by public policy not to compensate a party who relied upon their own misdeeds when laying claim.

While there had been numerous cases touching upon the indivisible nature of tort and criminal matters, strong argument for the ‘novus actus interveniens’ principle suggested that tortious claims preceding criminal acts were by virtue of the unlawful event, separable and therefore distinct.

This gave rise to the notion that liability could extend only so far as the symptoms directly appropriate to, and displayed by the claimant, in relation to the cause of the tort.

However, it was equally held that whatever separating act took place, it must be of such magnitude that it ‘obliterates’ the wrong doing of the defendant’.

On this occasion, it was held by the appellant that without the accident and concluding PTSD, there would have been no loss of earnings, and no act of manslaughter, and so without sufficient evidence to the contrary, the respondents were still liable for the compensation claimed.

In the first instance, the judge awarded in favour of the appellant, while the Court of Appeal reversed the decision and allowed the respondents’ appeal.

Taken to the House of Lords, the appellant then cross-appealed, while the respondents pursued the same ends as before.

Having examined the position taken by the Court of Appeal, the House gave consideration to the manner of sentencing, and the rights of those convicted to claim for loss of earnings.

In R v Birch, Mustill LJ examined the principles behind section 37 hospital orders before explaining that:

“A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of inpatient treatment.”

R v Birch

However, when coupled with a section 41 restriction order, it was further noted that:

“A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal. Nevertheless, it fundamentally affects the circumstances in which the patient is detained. No longer is the offender regarded simply as a patient whose interests are paramount. No longer is the control of him handed over unconditionally to the hospital authorities. Instead the interests of public safety are regarded by transferring the responsibility for discharge from the responsible medical officer and the hospital to the Secretary of State alone (before 30 September 1983) and now to the Secretary of State and the Mental Health Review Tribunal.”

This meant that instead of proving an exception to the rule of unlawful conduct, the appellant was instead denied his right to earnings while detained, as was illustrated in British Columbia v Zastowny, where the Supreme Court held that:

“When a person receives a criminal sanction, he or she is subject to a criminal penalty as well as the civil consequences that are the natural result of the criminal sanction. The consequences of imprisonment include wage loss.”

British Columbia v Zastowny

This line or argument was bolstered by the outcome of Clunis v Camden and Islington Health Authority; in which, a former patient stabbed an innocent stranger within days of their release, before claiming diminished responsibility and suing the local authority for negligence.

There, it was held that:

“A plea of diminished responsibility accepts that the accused’s mental responsibility is substantially impaired but it does not remove liability for his criminal act . . . The court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the plaintiff’s own criminal act…”

Clunis v Camden and Islington Health Authority

This decision had been given full support of the Law Commission in its consultation paper ‘The Illegality of Defence in Tort’; and so, it was for these reasons that the House reversed the decision of the Court of Appeal in lieu of the original judgment, and allowed the respondents’ appeal, while reminding the parties that:

“[A] civil court will not award damages to compensate a claimant for an injury or disadvantage which the criminal courts of the same jurisdiction have imposed on him by way of punishment for a criminal act for which he was responsible.”


Foreseeability within the tort of negligence and nuisance has over time, become an integral element of the decision making process; yet, there was a period when mere acts were suffice to claim damages.

In this matter, the actions of a manufacturer that while deemed harmless at the time, became key to a claim for substantial costs, and one in which existing precedent was brought into question on the principles of natural justice.

Founded in 1879, the appellant company Eastern Counties Leather (ECL), were a leather goods manufacturer that relied upon particular treatment processes in order to soften the pelts used.

Since the early 1950s, the firm used trichloroethene (TCE), until around 1973, when they switched to perchloroethene (PCE), as was then considered the industry standard. 

Around 1976, the respondent company Cambridge Water Company (CWC), purchased an industrial site containing a borehole, situated roughly one to three miles north west of the village in which the ECL operated, and began using the hole as a source of public drinking water.

Prior to its implementation within the regional water supply, a number of test were carried out to ensure contamination levels were below the prescribed limits set under the Water Resources Act 1963.

In 1980, both the World Health Organisation and Council of the European Communities drafted Directive 80/778/EEC in relation to the safe human consumption of drinking water, which was later transposed into the Water Industry Act 1991 under secondary legislation.

Under this Act, it was stated that the maximum admissible concentration of PCE was 10µg per litre of water.

Subsequent borehole tests carried out in the early 1980s showed PCE concentration levels of between 70 and 170µ per litre, which prompted investigation by the respondents as to the source of the contaminant.

As was evident, ECL had continued to use PCE until 1991, while it was common for the appellants to store roughly 25,000 litres in drums at any one time.

During the application stage, these drums were driven by forklift to the degreasing machines, whereupon the PCE was poured directly into their reservoirs.

It was not uncommon for spillages to occur; after which, the PCE would be quickly cleaned up, so as to avoid accidents or inhalation of fumes; and as the floors themselves were concrete, it would not have seemed possible that any residual liquid could seep into the soil below.

After commissioning independent research into the presence of PCE in the borehole, it was established that trace elements of PCE had in fact, passed through the sub-structure of ECL over a course of nearly twenty years, eventually joining the water supply used by the appellants.

And while the individual amounts were insufficient to cause harm, they had amassed over time so as to push the levels found far beyond that allowed; which in turn, led to the decommissioning of the borehole and inevitable litigation.

In the first hearing, the respondents claimed for substantial damages of around £1m for the cost of a new pumping station, following the borehole closure and cited negligence, nuisance and non-natural use of the land provided under the principles espoused in Rylands v Fletcher; upon which, the claim was summarily dismissed.

Presented to the Court of Appeal, the respondents argued that the judge had erred in law, while the appellants contended that they were not liable for the lost PCE on grounds of foreseeability and that the burden of proof was that of the respondents and not the appellants, and the evidence submitted was inadequate.

Turning to the outcome in Ballard and Tomlinson, the Court held that Pearson J, who remarked:

“[I]t seems to me that although nobody has any property in the common source, yet everybody has a right to appropriate it, and to appropriate it in its natural state, and no one of those who have a right to appropriate it has a right to contaminate that source so as to prevent his neighbour from having the full value of his right of appropriation. . . . Neither does it matter whether the parties are or not contiguous neighbours. If it can be shown in fact that the defendants have adulterated or fouled the common source, it signifies not how far the plaintiffs land is from their land.”

Ballard and Tomlinson

Encapsulated the very essence of nuisance; and that in failing apply the principle, the previous judge had overlooked the strictness of the nuisance doctrine and thus denied the right to damages.

Thus for that fundamental reason, the appeal was upheld and almost £1.7m awarded in favour of the respondents.

Presented before the House of Lords, the dicta of Blackburn J in Rylands explained well that:

We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”

Rylands v Fletcher

Yet, the House held that while nuisance in its singular use brings certainty to the liability of those found answerable, it precludes the necessary factor of foreseeability; which on this occasion, was starkly evident, inasmuch as it had taken almost twenty years for the PCE levels to reach significant risk, and that there was insufficient knowledge on the part of the appellants to even begin to appreciate that liquids could permeate concrete before navigating through numerous other substratum, prior to joining a stream more than thirty metres below ground.

For this reason, it was held that the previous decisions were unsustainable; and that rather than a matter for negligence or nuisance, it was at best, an example of historic pollution which was not subject to legislative effects at the time, thus the appeal was allowed, while the House reminded the parties that:

“[f]oreseeability of damages is a prerequisite of the recovery of damages under the rule. ”


Medical negligence and the values of medical community views, run counter to one another unless such disparity can be reasonably justified.

On this occasion, the rather outlandish practice of electro-convulsive therapy (ECT) resulted in serious injury, when the patient was left partially restrained and therefore vulnerable to harm.

Having attended the Friern Mental Hospital as a voluntary patient, the claimant was left suffering a double fracture of the Acetabulum (pelvic cup) resulting from impact of the head of the femur, when the use of full restraints had been spared.

The use of ECT had been around for a number of years, and while accidents were rare, they were not without incident.

Yet, it was contended by the defendants that in over 50,000 applications, there had only been one case of acetabular fracture reported.

At the point of litigation, the claimant argued that when discussing the procedure with his consultant, there had been no explanation of the risks attached, no mention given as to the possible use of muscle relaxants, and little the use of restraint; aside from two nurses holding his chin and shoulders to avoid him falling from the sofa used; hence a claim for negligence.

In their defence, the defendants contended that the nature of ECT was one that both divided the medical industry, while allowing a discretionary approach to the use of restraints and relaxants.

Both of these drew strong argument to the contrary, as with those who conversely promoted them, while it was also argued that depending on the circumstances, many practitioners elected to withhold any discussion of risk, as it could exacerbate the patient’s fears, thereby discouraging any opportunity to undergo the treatment.

Relying upon expert evidence from a consultant psychiatrist, the court had agreed that in most negligence cases, the objective view of the everyday man was sufficient to establish negligence.

However, in matters such these, the test required greater professional knowledge to mirror the complexities of ECT, while in Hunter v Hanley, it had recently been remarked by Lord President Clyde that:

“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.”

Hunter v Hanley

It was then explained by the expert witness that while the avoidance of risk disclosure was one subject to the individual requirements of the case, there was little to endorse withholding the information when the risks were considered so small, and that the use of relaxants was a virtual prerequisite. 

Where restraint was used, there had been instances where the patients were placed into a made bed to avoid excessive limb flailing; however, general medical consensus was that restraint of the feet could result in serious injury when the body was treated like a ‘rigid stick’; and so, the approach used by the defendants was not considered unusual nor frowned upon.

With the facts explained to a discerning jury, the point was made that mere negligence was not one of simple black-and-white thinking, but a cumulative process that began with ignorance of the patient and the attached dangers, and ended with even less  consideration of the outcome, or the injuries sustained.

It was also stressed that the incident itself had occurred nearly four years prior to the hearing; and so, knowledge of ECT had grown beyond that which was known at the time; after which, a lengthy deliberation found the jury returning a verdict in favour of the defendants, while the court reminded the parties that:

“[I]n the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time.”

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