![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] |
|
United Kingdom House of Lords Decisions |
||
|
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Home Office v Dorset Yacht Co Ltd [1970] UKHL 2 (06 May 1970) URL: http://www.bailii.org/uk/cases/UKHL/1970/2.html Cite as: [1970] AC 1004, [1970] UKHL 2 |
||
[New search] [Help]
Parliamentary
Archives,
HL/PO/JU/4/3/1191
HOUSE OF LORDS
THE HOME OFFICE
v.
THE DORSET YACHT COMPANY
LIMITED
Lord Reid
Lord Morris of Borth-y-Gcst
Viscount Dilhorne
Lord Pearson
Lord Reid
my lords,
On 21st
September 1962 a party of Borstal trainees were working on
1
Brownsea Island in Poole Harbour under the supervision and control
of
three Borstal officers. During that night seven of them escaped
and went
aboard a yacht which they found nearby. They set this
yacht in motion
and collided with the Respondents' yacht which was
moored in the vicinity.
Then they boarded the Respondents' yacht.
Much damage was done to this
yacht by the collision and some by
the subsequent conduct of these trainees.
The Respondents sue the
Appellants, the Home Office, for the amount of
(his damage.
The case
comes before your Lordships on a preliminary issue whether the
Home
Office or these Borstal officers owed any duty of care to
the
Respondents capable of giving rise to a liability in damages.
So it must
he assumed that the Respondents can prove all that they
could prove on the
pleadings if the case goes to trial. The
question then is whether on that
assumption the Home Office would
be liable in damages. It is admitted
that the Home Office would be
vicariously liable if an action would lie
against any of these
Borstal officers.
The facts
which I think we must assume are that this party of trainees
were
in the lawful custody of the Governor of the Portland Borstal
Institution
and were sent by him to Brownsea Island on a training
exercise in the
custody and under the control of the three
officers with instructions to keep
them in custody and under
control. But in breach of their instructions these
officers simply
went to bed leaving the trainees to their own devices. If they
had
obeyed their instructions they could and would have prevented
these
trainees from escaping. They would therefore be guilty of
the disciplinary
offences of contributing by carelessness or
neglect to the escape of a prisoner
and to the occurrence of loss,
damage or injury to any person or property.
All the escaping
trainees had criminal records and five of them had a record
of
previous escapes from Borstal institutions. The three officers knew
or
ought to have known that these trainees would probably try to
escape during
the night, would take some vessel to make good their
escape and would
probably cause damage to it or some other vessel.
There were numerous
vessels moored in the harbour, and the
trainees could readily board one of
them. So it was a likely
consequence of their neglect of duty that the
Respondents' yacht
would suffer damage.
The case
for the Home Office is that under no circumstances can
Borstal
officers owe any duty to any member of the public to take
care to prevent
trainees under their control or supervision from
injuring him or his property.
If that is the law then enquiry into
the facts of this case would be a waste
of time and money because
whatever the facts may be the Respondents
must lose. That case is
based on three main arguments. First it is said
that there is
virtually no authority for imposing a duty of this kind. Secondly
it
is said that no person can be liable for a wrong done by another who
is
of full age and capacity and who is not the servant or acting
on behalf of
that person. And thirdly it is said that public
policy (or the policy of the
relevant legislation) requires that
these officers should be immune from any
such liability.
The first
would at one time have been a strong argument. About the
beginning
of this century most eminent lawyers thought that there were a
number
of separate torts involving negligence each with its own rules,
and
they were most unwilling to add more. They were of course aware
from
a number of leading cases that in the past the Courts had
from time to time
2
recognised
new duties and new grounds of action. But the heroic age was
over,
it was time to cultivate certainty and security in the law: the
categories
of negligence were virtually closed. The learned
Attorney-General invited
us to return to those halcyon days, but,
attractive though it may be, I cannot
accede to his invitation.
In later
years there has been a steady trend towards regarding the law
of
negligence as depending on principle so that, when a new point
emerges, one
should ask not whether it is covered by authority but
whether recognised
principles apply to it. Donoghue v.
Stevenson [1932] A.C. 562 may be
regarded as a milestone,
and the well-known passage in Lord Atkin's speech
should I think
be regarded as a statement of principle. It is not to be treated
as
if it were a statutory definition. It will require qualification in
new
circumstances. But I think that the time has come when we can
and should
say that it ought to apply unless there is some
justification or valid explan-
ation for its exclusion. For
example, causing economic loss is a different
matter: for one
thing it is often caused by deliberate action. Competition
involves
traders being entitled to damage their rivals' interests by
promoting
their own, and there is a long chapter of the law
determining in what circum-
stances owners of land can and in what
circumstances they may not use
their proprietary rights so as to
injure their neighbours. But where negligence
is involved the
tendency has been to apply principles analogous to those
stated by
Lord Atkin (cf. Hedley Byrne v. Heller [1964] A.C. 465). And
when a person has done nothing to put himself in any
relationship with
another person in distress or with his property
mere accidental propinquity
does not require him to go to that
person's assistance. There may be a
moral duty to do so, but it is
not practicable to make it a legal duty. And
then there are cases,
e.g. with regard to landlord and tenant, where the law
was settled
long ago and neither Parliament nor this House sitting judicially
has
made any move to alter it. But I can see nothing to prevent
our
approaching the present case with Lord Atkin's principles in
mind.
Even so it
is said that the Respondents must fail because there is a
general
principle that no person can be responsible for the acts
of another who is not
his servant or acting on his behalf. But
here the ground of liability is not
responsibility for the acts of
the escaping trainees: it is liability for damage
caused by the
carelessness of these officers in the knowledge that their
care-
lessness would probably result in the trainees causing
damage of this kind.
So the question is really one of remoteness
of damage. And I must consider
to what extent the law regards the
acts of another person as breaking the
chain of causation between
the defendants' carelessness and the damage to
the plaintiff.
There is
an obvious difference between a case where all the links between
the
carelessness and the damage are inanimate so that, looking back
after
the event, it can be seen that the damage was in fact the
inevitable result of
the careless act or omission, and a case
where one of the links is some
human action. In the former case
the damage was in fact caused by the
careless conduct however
unforeseeable it may have been at the time that
anything like this
would happen. At one time the law was that unforesee-
ability was
no defence (Polemis [1921] 3 K.B. 560). But the law now
is
that there is no liability unless the damage was of a kind
which was foresee-
able (Wagon Mound No. 1 [1961] A.C. 388).
On the
other hand, if human action (other than an instinctive reaction)
is
one of the links in the chain it cannot be said that looking back the
damage
was the inevitable result of the careless conduct. No one
in practice accepts
the possible philosophic view that everything
that happens was predeter-
mined. Yet it has never been the law
that the intervention of human action
always prevents the ultimate
damage from being regarded as having been
caused by the original
carelessness. The convenient phrase novus actus
interveniens
denotes those cases where such action is regarded as breaking
the
chain and preventing the damage from being held to be caused by
the
careless conduct. But every day there are many cases where,
although one
of the connecting links is deliberate human action,
the law has no difficulty
3
in holding
that the defendant's conduct caused the plaintiff loss. "There
"
are some propositions which are beyond question in connexion with
this
" class of case. One is that human action does not per
se sever the connected
" sequence of acts. The mere fact
that human action intervenes does not
" prevent the sufferer
from saying that injury which is due to that human
" action
as one of the elements in the sequence is recoverable from the
"
original wrongdoer" (per Lord Wright in The Oropesa [1943]
P. 32 at
page 37).
What then
is the dividing line? Is it foreseeability or is it such a degree
of
probability as warrants the conclusion that the intervening human
conduct
was the natural and probable result of what preceded it?
There is a world
of difference between the two. If I buy a ticket
in a lottery or enter a
football pool it is foreseeable that I may
win a very large prize—some
competitor must win it. But,
whatever hopes gamblers may entertain, no
one could say that
winning such a prize is a natural and probable result
of entering
such a competition.
In Haynes v. Harwood [1935] 1 K.B. 146 Greer L.J. said:
" If
what is relied upon as novus actus interveniens is the very
kind of
" thing which is likely to happen if the want of care
which is alleged takes
" place the principle embodied in the
maxim is no defence. The whole
" question is whether or not,
to use the words of the leading case Hadley
" v.
Baxendale 9 Ex. 341 the accident can be said to be the natural
and
" probable result of the breach of duty."
There is a
well known Scottish case Scotts Trustees v. Moss (1889)
17 R.36
which so far as I am aware has received no adverse comment
and which I
can cite as an authority because the Scots and English
law of negligence are
the same. The pursuers occupied land near a
place where the defender, a
promoter of entertainment, had
advertised that a balloon would descend.
It descended in the
pursuers' field and a crowd who had gathered burst into
that field
and caused considerable damage. The defender being sued for
that
damage pleaded unsuccessfully that the pursuers' averments
were irrelevant.
Lord President Inglis said :
"
This was an exhibition of an entirely different character from an
"
ordinary balloon ascent, in which the balloon travels where the
wind
" carries it and makes its descent just where it is
possible for it to do so.
" Here the descent was to be at the
Hawkhill Recreation Grounds. A
" number of people were
assembled there, and were charged for admis-
" sion—and
that makes it all the more clear that the descent was to be
"
at or in the immediate vicinity of the Hawkhill Grounds. Otherwise,
"
those who had paid for admission to view the descent would not have
"
seen it—if the descent had taken place at a distance, or at a
spot which
" was uncertain. But in addition to the spectators
who were inside the
" grounds, the advertisement most
naturally attracted the attention of the
" populace
generally, and as a balloon can be seen to ascend, and also
"
the aeronaut to descend out of it, although the public are not within
a
" particular enclosure, of course a crowd of people came to
the neigh-
" bourhood. This was quite to be expected ;
nothing else could be
" expected ; and they stood in the
roads and other places adjoining the
" recreation grounds and
witnessed the descent. The descent took place
" in a field
upon the adjoining farm of Lochend, which was in the occu-
"
pation of the pursuers, and there was no doubt that the natural
conse-
" quence of the descent taking place there was that
all the crowds of
" people in the neighbourhood immediately
rushed to the field in order
" to see what had happened or
was going to happen.
" The
complaint made by the pursuers is that these people entered
"
the field and broke down the gates and fences and destroyed the
crops,
" and the case made against Mr. Moss is that he ought
to have foreseen
" that the descent would be made in some
field adjoining the recreation
" grounds, and that the
natural and almost inevitable consequence of
" that would be
that the crowd would break into the field and destroy
4
"
the crops. No doubt it could not easily be foreseen that the
descent
" would be made in that particular field—but,
on the other hand, the
" recreation grounds were surrounded
by cultivated land, and it could
" be very easily foreseen
that the descent would take place on some piece
" of
cultivated ground in the immediate vicinity."
Lord Shand said:
"
I agree that in the ordinary case the mere bringing of a crowd
"
together does not lead to the inference that the person who has
been
" instrumental in assembling the crowd is answerable for
its actings. I
" think the principle which ought to receive
effect is that if the collection
" of the crowd, and the
actings of the crowd, are the natural and probable
"
consequence of the action of the defender—a consequence which
the
" defender ought to have foreseen,—then the case is
relevant; for in
" that case the pursuer undertakes in effect
to shew that the defender's
" proceedings were the direct
cause of the damage done, and I think this
" record now
states a case of that class. No doubt, nice questions of
"
fact may arise in the inquiry which will take place. The defender
says
" that he did not desire the presence of the crowd ;
but, on the other hand,
" if the presence of the crowd was
the natural consequence of his adver-
" tisement, he cannot
disconnect himself from the gathering. Then the
" defender
may maintain that he did not anticipate that the descent would
"
take place in the pursuers' field. But the pursuers undertake to
shew
" that it was quite probable that the descent should
occur there. Again,
" the defender says that he cannot be
held answerable for the damage
" done by a crowd of
outsiders. But the reply is that it was only to be
" expected
that the crowd would rush into the field in which the descent
"
should occur, and that the result would be the damage of which he
"
complains. If it can be shewn on the evidence that the defender was
"
the proximate cause of the damage, that it was owing to his action
that
" the crowd assembled, and that the garden was invaded
and injury done,
" then the pursuers would be entitled to a
verdict upon the issue. If
" these results were not such as
should reasonably have been anticipated
" from the action of
the defender, then the verdict should be in his
" favour."
These
cases shew that, where human action forms one of the links
between
the original wrongdoing of the defendant and the loss
suffered by the plaintiff,
that action must at least have been
something very likely to happen if it is
not to be regarded as
novus actus interveniens breaking the chain of causation.
I
do not think that a mere foreseeable possibility is or should be
sufficient,
for then the intervening human action can more
properly be regarded as a
new cause than as a consequence of the
original wrongdoing. But if the
intervening action was likely to
happen I do not think it can matter whether
that action was
innocent or tortious or criminal. Unfortunately tortious or
criminal
action by a third party is often the " very kind of thing "
which is
likely to happen as a result of the wrongful or careless
act of the defendant.
And in the present case, on the facts which
we must assume at this stage,
I think that the taking of a boat by
the escaping trainees and their unskilful
navigation leading to
damage to another vessel were the very kind of thing
that these
Borstal officers ought to have seen to be likely.
There
was an attempt to draw a distinction between loss caused to
the
plaintiff by failure to control an adult of full capacity and
loss caused by
failure to control a child or mental defective. As
regards causation no doubt
it is easier to infer novus actus
interveniens in the case of an adult but that
seems to me to
be the only distinction. In the present case on the assumed
facts
there would in my view be no novus actus when the trainees
damaged
the Respondents' property and I would therefore hold that
damage to have
been caused by the Borstal officers' negligence.
If
the carelessness of the Borstal officers was the cause of the
plaintiffs'
loss what justification is there for holding that they
had no duty to take
care? The first argument was that their right
and power to control the
trainees was purely statutory and that
any duty to exercise that right and
5
power
was only a statutory duty owed to the Crown. I would agree but
there
is very good authority for the proposition that if a person performs
a
statutory duty carelessly so that he causes damage to a member
of the public
which would not have happened if he had performed
his duty properly he
may be liable. In Geddis v.
Proprietors of Bann Reservoir 3 App. Cas. 430
Lord
Blackburn said (at page 455):
"
For I take it without citing cases, that it is now thoroughly well
"
established that no action will lie for doing that which the
legislature
" has authorised if it be done without negligence
although it does
" occasion damage to anyone: but an action
does lie for doing that
" which the legislature has
authorised if it be done negligently."
The
reason for that is, I think, that Parliament deems it to be in
the
public interest that things otherwise unjustifiable should be
done, and that
those who do such things with due care should be
immune from liability to
persons who may suffer thereby. But
Parliament cannot reasonably be
supposed to have licensed those
who do such things to act negligently in
disregard of the
interests of others so as to cause them needless damage.
Where
Parliament confers a discretion the position is not the same.
Then
there may, and almost certainly will, be errors of judgment
in exercising such
a discretion and Parliament cannot have
intended that members of the public
should be entitled to sue in
respect of such errors. But there must come a
stage when the
discretion is exercised so carelessly or unreasonably that there
has
been no real exercise of the discretion which Parliament has
conferred.
The person purporting to exercise his discretion has
acted in abuse or
excess of his power. Parliament cannot be
supposed to have granted
immunity to persons who do that. The
present case does not raise that issue
because no discretion was
given to these Borstal officers. They were given
orders which they
negligently failed to carry out. But the County Court case
of
Greenwell v. Prison Commissioners was relied on and I
must deal with it.
Some
290 trainees were held in custody in an open Borstal
Institution.
During the previous year there had been no less than
172 escapes. Two
trainees escaped and took and damaged the
plaintiff's motor truck: one of
these trainees had escaped on
three previous occasions from this Institution.
For three months
since his past escape the question of his removal to a more
secure
institution had been under consideration but no decision had
been
reached. The learned judge held that the authorities there
had been negligent.
In my view, this decision could only be upheld
if it could be said that the
failure of those authorities to deal
with the situation was so unreasonable as
to show that they had
been guilty of a breach of their statutory duy and
that this had
caused the loss suffered by the plaintiff.
Governors
of these institutions and other responsible authorities have
a
difficult and delicate task. There was some argument as to
whether the
present system is fully authorised by the relevant
statutes, but I shall assume
that it is. That system is based on
the belief that it assists the rehabilitation
of trainees to give
them as much freedom and responsibility as possible. So
the
responsible authorities must weigh on the one hand the public
interest of
protecting neighbours and their property from the
depredations of escaping
trainees and on the other hand the public
interest of promoting rehabilitation.
Obviously there is much room
here for differences of opinion and errors of
judgment. In my view
there can be no liability if the discretion is exercised
with due
care. There could only be liability if the person entrusted
with
discretion either unreasonably failed to carry out his duty
to consider the
matter or reached a conclusion so unreasonable as
again to show failure to
do his duty .
It
was suggested that these trainees might have been deliberately
released
at the time when they escaped and then there could have
been no liability.
I do not agree. Presumably when trainees are
released either temporarily
or permanently some care is taken to
see that there is no need for them to
resort to crime to get food
or transport. I could not imagine any more
6
unreasonable
exercise of discretion than to release trainees on an island
in
the middle of the night without making any provision for their
future
welfare.
We were
also referred to Holgate v. Lancashire Mental Hospital
Board
[1937] 4 All E.R. 19 where the alleged fault was in
releasing a mental
patient. For similar reasons I think this
decision could only be supported
if it could be said that the
release was authorised so carelessly that there
had been no real
exercise of discretion.
If the
Appellants were right in saying that there can never be a right
in
a private individual to complain of negligent exercise of a duty to
keep
a prisoner under control, I do not see how Ellis v. Home
Office [1953]
2 All E.R. 149 can be correct. The plaintiff was
in prison and on one
occasion, as he alleged, owing to inadequate
control by warders another
prisoner assaulted and injured him. It
was assumed that he had a right
of action, and the learned
Attorney-General did not challenge this. But
when the other
prisoner assaulted Ellis he was not in fact under control
or he
would not have been permitted to carry out the assault. It would
be
very odd if the only persons entitled to complain of negligent
performance
of the statutory duty to control prisoners were other
prisoners. If the main
argument for the Appellants were right I
think it necessarily involves
holding that Ellis was wrong.
It was
suggested that a decision against the Home Office would have
very
far reaching effects : it was indeed suggested in the Court of
Appeal
that it would make the Home Office liable for the loss
occasioned by a
burglary committed by a trainee on parole or a
prisoner permitted to go out
to attend a funeral. But there are
two reasons why in the vast majority of
cases that would not be
so. In the first place it would have to be shewn
that the decision
to allow any such release was so unreasonable that it
could not be
regarded as a real exercise of discretion by the responsible
officer
who authorised the release. And secondly it would have to be
shewn
that the commission of the offence was the natural and
probable, as distinct
from merely a foreseeable, result of the
release—that there was no novus
actus interveniens.
Greenwell's case received a good deal of publicity
at the time
: it was commented on in the Law Quarterly Review vol. 68
page 18.
But it has not been followed by a series of claims. I think the
fears
of the Appellants are unfounded: I cannot believe that negligence
or
dereliction of duty is widespread among prison or Borstal
officers.
Finally I
must deal with public policy. It is argued that it would be
contrary
to public policy to hold the Home Office or its officers liable to
a
member of the public for this carelessness—or indeed any
failure of duty
on their part. The basic question is who shall
bear the loss caused by
that carelessness—the innocent
Respondents or the Home Office who are
vicariously liable for the
conduct of their careless officers. I do not think
that the
argument for the Home Office can be put better than it was put
by
the Court of Appeals of New York in Williams v. State of
New York
(1955) 127 N.E. 2d. 545 at page 550:
"...
public policy also requires that the State be not held liable.
"
To hold otherwise would impose a heavy responsibility upon the
"
State, or dissuade the wardens and principal keepers of our prison
"
system from continued experimentation with ' minimum security '
work
" details—which provide a means for encouraging
better-risk prisoners
" to exercise their senses of
responsibility and honor and so prepare
" themselves for
their eventual return to society. Since 1917, the Legis-
"
lature has expressly provided for out-of-prison work, Correction
Law,
" § 182, and its intention should be respected
without fostering the
" reluctance of prison officials to
assign eligible men to minimum security
" work, lest they
thereby give rise to costly claims against the State,
" or
indeed inducing the State itself to terminate this ' salutary
procedure '
" looking towards rehabilitation."
It may be
that public servants of the State of New York are so appre-
hensive,
easily dissuaded from doing their duty, and intent on
preserving
public funds from costly claims, that they could be
influenced in this way.
7
But my
experience leads me to believe that Her Majesty's servants are
made
of sterner stuff. So I have no hesitation in rejecting this
argument. I can
see no good ground in public policy for giving
this immunity to a Government
Department. I would dismiss this
appeal.
Lord Morris of Borth-y-Gest
my lords,
The claim
which the Company advanced in launching this litigation was
that
their property had been damaged by persons who were in charge
of
servants or agents of the Home Office and that the damage was
the result of
the negligence of those servants or agents in
permitting or in not preventing
the occurrence of the damage.
Apart from other defences it was pleaded
that in any event no duty
of care was owed to the Company. The facts
have not yet been
ascertained. It was thought fit, however, to direct that
there
should be a preliminary trial of a question of law. That was
presumably
on the basis that it would be of no advantage to
investigate the facts that
are alleged if, on the assumption that
they could all be established, and on
the further assumption that
if established they suggested careless conduct,
there could even
so in no circumstances be success in the litigation for the
reason
that no duty of care was owed to the Company.
It is
important to observe the precise point of law which has been
presented
for determination. Assuming that all the facts in the
Statement of Claim
are proved would there be owed to the Company "
any duty of care . . .
" capable of giving rise to a
liability in damages? ". The words " any "
and "
capable of " are to be noted. If it is held as a matter of law
that in
the circumstances there was a duty of care owed to the
Company it would
not follow that proof of the facts alleged in the
Statement of Claim would
necessarily result in victory for the
Company. Assuming that some duty of
care was owed to the Company
being a duty of care with respect to the
detention of those in
charge and to " the manner in which such persons were
"
treated, employed, disciplined, controlled or supervised " it
would not be
until all the relevant facts and circumstances had
been examined that it
could be determined (a) what was the
exact nature and quality and extent
of the duty that was owed and
(b) whether there was or was not a breach
of the duty as it
was found to be. Questions as to resulting or recoverable
damage
would of course further arise.
It is
therefore, in my view, important to remember that we are only
asked
to decide whether, on proof of the facts pleaded, there was some
duty
of care. We are not asked to say, and could not say, that if
the facts pleaded
are proved then breach of a duty owed would
automatically be proved. We
are not asked to say that the conduct
alleged must be held to have been
careless conduct. We are only
asked to say whether assuming the facts
to have been as pleaded
there was a duty of care owed to the Company
which could or might
result in their being able to recover some damages.
The
significant facts (i.e. the alleged facts) can shortly be
summarised.
Seven boys who had been sentenced to Borstal training
were (with probably
a few others) on an island in Poole Harbour.
They had been working there
under control and supervision. They
were boys whose records included
convictions for breaking and
entering premises, for larceny and for taking
away vehicles
without consent. Five of them had a record of previous
escapes
from Borstal institutions. Lying at moorings off the island was
a
yacht. There was another yacht nearby. There was no barrier
which was
effective to prevent the boys from gaining access to the
yachts. The boys
were in the charge of three officers.
On these
facts a normal or even modest measure of prescience and previ-
sion
must have lead any ordinary person, but rather specially an
officer
in charge, to realise that the boys might wish to escape
and might use a
yacht if one was near at hand to help them to do
so. That is exactly what
8
it is said
that seven boys did, In my view, the officers must have appre-
ciated
that either in an escape attempt or by reason of some other
prompting
the boys might interfere with one of the yachts with
consequent likelihood of
doing some injury to it. The risk of such
a happening was glaringly obvious.
The possibilities of damage
being done to one of the nearby yachts (assum-
ing that they were
nearby) were many and apparent. In that situation
and in those
circumstances I consider that a duty of care was owed by the
officers
to the owners of the nearby yachts. The principle expressed in
Lord
Atkin's classic words in his speech in Donoghue v.
Stevenson [1932] A.C. 562
would seem to be directly
applicable. If the principle applied, then it was
incumbent on the
officers to avoid acts or omissions which they could reason-
ably
foresee would be likely to injure the owners of yachts. They
were
persons so closely and directly affected by what the officers
did or failed to
do that they ought reasonably to have been in the
contemplation of the
officers.
It has
been generally recognised that Lord Atkin's statement of
principle
cannot be applied as though his words were contained in
a positive and
precise legislative enactment. It cannot be
therefore that in all circum-
stances where certain consequences
can reasonably be foreseen a duty of
care arises. A failure to
take some preventive action or rescue operation
does not of and by
itself necessarily betoken any breach of a legal duty of
care. It
has in consequence been suggested that in situations where
reason-
able foresight can be in operation the decision of a court
as to whether a
duty of care existed is in reality a policy
decision. So it was strongly urged
that in the circumstances of a
case such as the present there are reasons of
public policy which
should induce a court to hold that no duty of care
arises which is
separate from the duty owed by the officers to those by whom
they
were employed.
It is also
always to be remembered that Lord Atkin's speech was made
in the
affirmation of the proposition that a manufacturer of products
which
he sells in such a form as to show that he intends them to
reach the ultimate
consumer in the form in which they left him
with no reasonable possibility
of intermediate examination and
with the knowledge that the absence of
reasonable care in the
preparation or putting up of the products will lead to
an injury
to the consumer's life or property owes a duty to the consumer
to
take that reasonable care.
It is to
be remembered that it is a notable and laudable feature of the
system
of Borstal training that it aims to achieve all-round development
of
character and capacities. " It is based on progressive
trust demanding in-
" creasing personal decision,
responsibility and self-control": it "is not
"
compatible with the maintenance of ' safe custody' as an overriding
"
consideration ". In keeping with the policy which has been most
carefully
and constructively evolved it is inevitable that close
and constant supervision
of each person under training is neither
planned nor desirable. The aim is
to train to educate and to
direct. The hope is to bring about the result that
those under
training will return as honest and useful members of society.
All
this is relevant when considering the measure of any duty of care
which
the officers might owe to the Company and whether they
failed to do what in
the circumstances they ought to have done:
but it in no way determines the
question whether the officers did
owe some duty of care.
The
conclusion that I have reached is that the officers owed a duty to
the
Company to take such care as in all the circumstances was
reasonable with
a view of preventing the boys in their charge and
under their control from
causing damage to the nearby property of
the Company if that was a happen-
ing of which there was a
manifest and obvious risk. If in the day time the
officers saw
that the boys in their charge and under their control
were
deliberately setting out to damage a nearby yacht or were in
the act of
damaging it and if the officers could readily have
caused the boys to desist
the facts would warrant a conclusion
that there was a failure to take reason-
able care. In other
circumstances and having regard in particular to the
fact that the
officers were operating a system which was legitimately designed
to
give a measure of freedom to those undergoing training it might well
9
be that
the happening of events such as escapes or the causing of
damage
would not suffice to prove that there had been a failure to
exercise due and
reasonable care. If the point of law now raised
is decided in favour of the
Company it does not involve that proof
of an escape would necessarily be
proof of want of care amounting
to a breach of duty towards a neighbour.
Nor does the point of law
involve that any duty of care owed to the Company
need be defined
or limited (when the facts ultimately are ascertained) by
reference
to preventing the escape of boys in training. The concern of
the
Company is for their property. There might be escapes which
would be of
no concern whatsoever to the Company. There might be
damage to their
property which was unrelated to any escape. In the
present case the alleged
damage to property is said to have been
in connection with or following
upon escapes. But the duty which
the Company in this case claim was
owed to them was a duty to take
reasonable care in the exercise of powers
of control over the boys
so as to prevent loss and damage being sustained
by the Company.
It has not
been contended that the Company had any right of action on the
basis
of any breach of statutory duty imposed either on the Home Office
or
on the Borstal officers. The duty of care which was owed to the
Company
was a duty which arose from the facts and which was quite
independent of
any statutory obligations. There are statutory
powers which authorise
detention in Borstal institutions. But the
fact that something is done in
pursuance of statutory authority
does not warrant its being done unreasonably
so that avoidable
damage is negligently caused. See Geddis v. Bann
Reservoir
3 App. Cas. 430, at page 455.
The duty
of care now being considered will to a large extent be conditioned
by
the duty owed by the officers to their employers and by the
instructions
given by the employers. Provided instructions are
lawful ones they must
be obeyed by the officers to whom they are
issued. It could not be held
that a duty of care owed by the
officers to the Company required an exercise
of control over the
boys which was more stringent than or which ran counter
to the
instructions issued to the officers as to the way in which their
duties
were to be discharged. But the duty of care which is owed
to the Company
is a separate duty from that owed by the officers
to their employers. The
Company sue in their own right and for a
wrong done to them and not
do use a phrase of Cardozo J. in
the Palsgraf case 248 N.Y. 339) "as the
"
vicarious beneficiary of a breach of duty to another ".
The
allegations of fact which are made in the Statement of Claim are
such
that if there is any liability in the Home Office it is on
the basis of vicarious
liability for the acts or omissions of the
officers as their servants or agents.
F or the reasons which I
have given I consider that the officers could not be
held to have
been under any duty to the Company to control the boys in
some way
which conflicted with the directives of the Home Office. In so
far
as the Statement of Claim may allege liability other than on the
basis of
vicarious liability different considerations arise. Thus
there is an allegation
that there was a failure to give any or any
adequate instructions to the officers
for maintaining effective
watch and control over the boys at night. That
may mean that it is
proposed at the trial to express criticism of the system
which was
in operation. That, however, was a matter which was in the
discretion
of those who had to decide how best to regulate the conditions
under
which Borstal training should take place. We are not in the
present
case concerned with a decision to release a boy from
training. It might well
happen that unfortunate consequences
followed a release. A boy might
commit crimes shortly afterwards.
But the decision would be one made in
the exercise of a discretion
by someone acting within his powers. Nor is
the present case to be
compared with the case of Greenwell v. The
Prison
Commissioners which was decided in 1951. It is not said
in the present case
that the boys never ought to have been where
they were. In Greenwell's
case two boys went away from an "
open " Borstal institution to which they
had been sent. It
was held that in regard to one of the boys there was
liability for
damage locally done. The basis appears to have been that
having
regard to the record of that particular boy it was not reasonable to
10
have him
and to keep him in an " open " institution where he would
be
under no restraint. While I would agree with the general
statement of the
learned Judge in that case to the effect that a
duty was owed to a nearby
resident to take reasonable care to
prevent injury being done to his property
by the boys at the
Institution, the judgment is not precise as to where the
breach of
duty lay. The particular institution was a completely open one.
There
were no physical barriers of any kind to prevent escape. It
was
accepted that it would have been very difficult to take steps
to prevent
" escapes ". It does not appear from the
judgment that there was any
finding of carelessness or neglect on
the part of the officers in their care of
the boys at the
Institution. But the boy who did damage in respect of
which it was
held that there was liability had a bad record. He had three
times
previously gone away from this Institution. I prefer so to
describe
his movements because where effective steps to limit
movements can be ruled
out as being impracticable the word "
escape " does not seem to be the
appropriate word. After the
last time when the boy had gone away or
"escaped " from
the Institution (which was in the month of October, 1949,
some
three months before the "escape" in January, 1950, which
gave rise
to the claim) it is recorded in the judgment that "
the question of his removal
" had arisen ". The basis of
the judgment seems to have been expressed
in the following words:
"
Having regard to the great number of escapes taking place to the
"
crimes being committed, and particularly to Lawrence's record of
"
previous escapes, I cannot think it was reasonable to have this boy
"
in this Institution, under no restraint whatever so that he could
as
" easily escape for the fourth time on January 31 1950 as
he had done
" on previous occasions. Moveover the question of
his removal had
" been outstanding for a long time, indeed
ever since his previous escape
" in October 1949 and yet he
was still there. . . . The plain fact is,
" I think, that the
Defendants and their Governor found Lawrence such
" a
challenge to their sincere desire to reform him that they forgot or
"
overlooked, perhaps temporarily, their duty to their neighbours
such
" as the Plaintiff."
Who then
was negligent? It is rather vague. The view that there was a
failure
to give consideration to the case was a surmise. It may be
that
someone made a decision that Lawrence was for the time being
to remain
at the Institution but that the matter was later to be
reconsidered.
Whatever
was the right result in that particular case I think that it
is
important to point out that liability should not be held to
result from what
might be an error of judgment on the part of
someone making a decision
which it is within his powers and his
discretion to make. The evidence in
the Greenwell case was
that from a reformatory point of view the results
have been
considerably better where training has been in open
institutions,
rather than in closed institutions. As the whole
system of Borstal training
aims at reform and rehabilitation it is
clear that decisions of policy will
have to be made on a weighing
up of the balance of competing considerations,
as to the
appropriate course to be followed in a particular case. There
should
not be liability merely because unfortunate consequences
have
followed upon a decision which someone has in his discretion
made while
acting within his powers.
If A can
reasonably foresee that some act or omission of his may have
the
result that loss or damage may be suffered by B who is someone
who
would be closely and directly affected by the act or omission
there will be
some circumstances in which a legal duty will be
owed by A to B and some
in which it will not. The question arises
as to what is the dividing line and
on which side does the present
case fall. The fact that the immediate damage
suffered by B may
have been caused by C does not affect the question whether
A owed
a duty to B: such fact would only relate to a question whether
the
act or omission of A did result in damage to B. Some act on the
part
of C might be the very kind of thing which would be likely to
happen if
there was a breach of duty by A.
In
answering the question which I have posed help will sometimes
be
derived by considering the way in which claims arising in
particular cases
11
have been
dealt with by the Courts. Particular decisions in relation to
claims
arising from sets of facts comparable to those being investigated
may
if approved give guidance. But precedents do not fix the
limits of what
may be called duty situations: they illustrate
them. If there are no clear
cut precedents the Court may have to
reach decision whether once the facts
and circumstances of a
situation are ascertained it can be said that it was
a " duty
situation ". What should be the basis for a decision? Lord
Atkin
in his speech in Donoghue v. Stevenson said
(at page 580):
" At
present I content myself with pointing out that in English law
"
there must be, and is, some general conception of relations giving
"
rise to a duty of care, of which the particular cases found in the
books
" are but instances. The liability for negligence,
whether you style it
" such or treat it as in other systems
as a species of ' culpa ', is no
" doubt based upon a general
public sentiment of moral wrongdoing
" for which the offender
must pay. But acts or omissions which any
" moral code would
censure cannot in a practical world be treated so
" as to
give a right to every person injured by them to demand relief.
"
In this way rules of law arise which limit the range of
complainants
" and the extent of their remedy."
At the
conclusion of his speech Lord Atkin said that it is advantageous
if
the law " is in accordance with sound commonsense ".
I consider
that the feature in. the present case that there was a right
to
exercise control over the boys makes the present case
sufficiently analogous
with cases in which it has been held that
there was a duty situation as to
make it reasonable so to hold
here. In his judgment in Smith v. Leurs 70
C.L.R.
256 Dixon J. (at page 261) said:
" But
apart from vicarious responsibility one man may be responsible
"
to another for the harm done to the latter by a third person ; he
may
" be responsible on the ground that the act of the third
person could
" not have taken place but for his own fault or
breach of duty. There
" is more than one description of duty
the breach of which may produce
" this consequence. For
instance it may be a duty of care in reference
" to things
involving special danger. It may even be a duty of care
"
with reference to the control of actions or conduct of the third
person.
" It is however exceptional to find in the law a duty
to control another's
" actions to prevent harm to strangers.
The general rule is that one
" man is under no duty of
controlling another man to prevent his
" doing damage to a
third. There are however special relations which
" are the
source of a duty of this nature."
In the present case there was, I think, a special relation of this nature.
There was
a special relation in that the officers were entitled to
exercise
control over boys who to the knowledge of the officers
might wish to take
their departure and who might well do some
damage to property near at
hand. The events that are said to have
happened could reasonably have
been foreseen. The possibility that
the property of the Company might
be damaged was not a remote one.
A duty arose. It was a duty owed
to the Company. It was not a duty
to prevent the boys from escaping or
from doing damage but it was
a duty to take such care as in all the circum-
stances was
reasonable in the hope of preventing the occurrence of events
likely
to cause damage to the Company.
Apart
from this I would conclude that in the situation stipulated in
the
present case it would not only be fair and reasonable that a
duty of care
should exist but that it would be contrary to the
fitness of things were
it not so. I doubt whether it is necessary
to say, in cases where the Court is
asked whether in a particular
situation a duty existed, that the Court is called
upon to make a
decision as to policy. Policy need not be invoked where
reason and
good sense will at once point the way. If the test as to whether
in
some particular situation a duty of care arises may in some cases
have
to be whether it is fair and reasonable that it should so
arise the Court
must not shrink from being the arbiter. As Lord
Radcliffe said in his speech
in Davis Contractors Ltd. v.
Fareham Urban District Council [1956] A.C.
696, 728, the
Court is " the spokesman of the fair and reasonable man ".
12
If someone
chooses to keep a wild animal it would, by common assent,
be
assumed that he is under a duty to prevent its escape. If a person
who
is in lawful custody has made a threat, accepted as seriously
intended, that
if he can escape he will injure X, is it
unreasonable to assert that in
those circumstances a duty is owed
to X to take reasonable care to prevent
escape? Other situations
will present lesser perils. It will be universally
known that the
movements and activities of young children may lead to
perils not
only for them but for others. Consequently there may be a
duty of
care which may be owed to any one of a class of persons: it could
be
owed to all persons who could reasonably be foreseen as being
liable
to be injured by a failure to exercise reasonable care.
That was the position
in Carmarthenshire County Council v.
Lewis [1955] A.C. 549. The duty
owed by the nursery school who
had a four-year old boy in their care was
held to include a duty
to users of a nearby highway. The lorry driver who,
swerving to
avoid the boy, was killed when his lorry struck a telegraph post
was,
prior to that time, an unidentified member of a class of persons
to
whom a duty of care was owed. In that case it was argued that
though
the education authority owed a duty to the child they owed
no duty to other
users of the highway. In rejecting that
contention Lord Reid said in his
speech (at page 565):
" If
the Appellants are right it means that no matter how careless the
"
person in charge of a young child may be and no matter how obvious
"
it may be that the child may stray into a busy street and cause an
"
accident, yet that person is under no liability for damage to
others
" caused solely by the action of the child because his
only duty is towards
" the child under his care.''
A similar
consideration would arise in the present case. If the Appellants
are
right in the present case it would mean that however careless the
officers
in charge might be and however obvious it might be that
the boys in their
charge might do damage to some nearby property
which by reasonable care
the officers could prevent, there could
in no circumstances be liability to the
owners of that property
because the only duty owed by the officers would be
to their
employers and to the boys.
In his
speech in Bourhill v. Young [1943] A.C. 92 at page 107
Lord Wright
considered whether the general concept of reasonable
foresight as the criterion
of negligence or breach of duty may be
thought to be too vague. He said,
however, that negligence is a
fluid principle which has to be applied to the
most diverse
conditions and problems of human life. " It is a concrete, not
"
an abstract idea. It has to be fitted to the facts of the particular
case".
In that case it was held that the motor cyclist (who
had driven negligently)
had owed no duty to a lady who suffered
fright and nervous shock because
she was not within the area which
he ought reasonably to have contemplated
as the area of potential
danger. Lord Thankerton quoted words used by
Lord Johnston in Kemp
& Dougall v. Darngavil Coal Co. Ltd. [1909] S.C.
1314,
1319 in reference to the proposition that a man cannot be charged
with
negligence if he has no obligation to exercise diligence,
viz. " the obligee in
" such a duty must be a person or
of a class definitely ascertained, and so
" related by the
circumstances to the obligor that the obligor is bound, in the
"
exercise of ordinary sense, to regard his interest and his safety.
Only the
" relation must not be too remote for remoteness
must be held as a general
" limitation of the doctrine ".
Those who
use the highway must clearly take reasonable care for the safety
of
all other users of the highway. Someone who by negligence created
a
dangerous situation by leaving horses unattended in a busy
street where
mischievous children might cause the horses to run
away was held to have
owed a duty to a police officer who suffered
injury in stopping the horses when
they did run away: it ought to
have been contemplated that in such a situation
there would be an
attempt to stop the horses. (Haynes v. Harwood [1935]
1
K.B. 146). These and other cases are but illustrations of the range
and
extent of what ought reasonably to have been contemplated:
other cases
illustrate the variety of situations in which a duty
of care may be owed. If
someone is serving a sentence of
imprisonment and consequently is not free
13
to order
his own movements I would think it eminently reasonable to hold
that
those in charge of the prison owed him a duty to take reasonable care
to
protect him from being assaulted by a fellow prisoner who might
have shown
himself to be one who might cause harm (Ellis v.
Home Office [1953] 2
All.E.R. 149: D'Arcy v. Prison
Commissioners, The Times, 17th November,
1955). In each of
those two cases the defendants had the power to control the
persons
who caused injury to the respective plaintiffs. The defendants
were
not under a duty to ensure that no prisoner would be hurt by
a fellow prisoner
and the mere occurrence of such an event did not
by itself prove that there
had been a failure of duty. The
circumstances under which the injuries were
caused were, however,
such as to make it eminently appropriate to hold that a
duty of
care arose. Without expressing any view as to the facts in the case
of
Holgate v. Lancashire Mental Hospital Board [1937] 4
All.E.R. I consider
that in a comparable situation a duty of
reasonable care would be owed to
those whose safety, as reasonable
foresight would show, might be in jeopardy.
in so far
as any submission involved that if on principle a duty of care
was
owed to the Company there should be immunity from liability
because of the
problems and difficulties which face the Home
Office (and all those for whom
they are liable) in connection with
the administration of the system of Borstal
training I can see no
possible reason for creating or recognising any such
immunity.
For the reasons that I have given I would dismiss the appeal.
Viscount Dilhorne
MY LORDS,
In this
appeal we have to decide as a preliminary issue whether on the
facts
alleged in the Statement of Claim any duty capable of giving rise to
a
liability in damages was owed by the Appellants, the Home
Office, to the
Respondent, the Dorset Yacht Co. Ltd.
It appears
that ten youths who had been sentenced to Borstal training and
who
had been detained in the Portland Borstal Institution, a
"closed"
Borstal, were in September, 1962, on Brownsea
Island in the custody of
three officers. They all slept in an
empty house on the Island and it is alleged
that on the night of
the 21st or 22nd September, 1962, seven of them escaped
while the
three officers were asleep. All seven had criminal records
includ-
ing convictions for breaking and entering premises,
larceny and taking away
vehicles without the owner's consent. Five
of the seven had a record of
previous escapes from a Borstal
Institution. There were yachts moored off
[he Island. The seven
got on board one and then there was a collision with
another, the
property of the Respondents. The youths boarded that yacht
and
cast her adrift. The Respondent's claim is for the cost of
repairing
ihe damage done to their yacht, most, if not all, of
which was caused by the
collision,
It cannot,
in my view, be disputed that if the three officers and
their
superiors had directed their minds to the likely
consequences of an escape
from the Island by any of the youths who
were there in custody, they would
have foreseen the probability
that those escaping would endeavour to seize
a vessel to get to
the mainland and the likelihood that damage would be
done to the
vessel seized.
In these
circumstances the Respondents allege that there was a duty of
care
owed to them by the three officers, that there was a breach of it
and
consequently that the Home Office, the successors of the
Prison Commis-
sioners, are vicariously liable to them for the
damage done by the youths
to their yacht.
The
Respondents also allege that there was negligence on the part of
the
Prison Commissioners in failing to exercise any effective
control or super-
vision over the youths and in permitting them to
escape, in failing to make
14
any or any
effective arrangements for keeping the boys under control at
night,
in failing to give any or any adequate instructions to the
three officers for
maintaining effective watch or control over the
boys at night and in failing to
take any or any adequate steps to
check the movements of the boys when
they knew that there were
vessels moored offshore and that there was no
effective barrier in
the way of the boys to prevent them from gaining access
to them.
If there
was a duty of care owned to the Respondents by the Prison
Com-
missioners or by the three officers, breach of which would
give rise to liability
to pay damages in the circumstances of this
case, then I can see no reason
for concluding that a similar duty
of care is not owed in respect of those
detained in prisons,
detention centres and approved schools who escape
therefrom and do
damage which is reasonably foreseeable.
Apart from
one decision in the Ipswich County Court in 1951 to which
I shall
refer later, among the thousands of reported cases not a single
case
can be found where a claim similar to that in this case has
been put forward.
No case in this country has been found to
support the contention that such a
duty of care exists under the
common law.
Reliance
was placed by the Respondents on the classic passage in Lord
Atkin's
speech in Donoghue v. Stevenson [1932] A.C. 562. It
should be
remembered that the question for decision in that case
was not so much as
to the existence of a duty of care but to whom
it was owed. The question
was whether a duty was owed by the
manufacturer of ginger beer to the
ultimate consumer. Lord Atkin,
after pointing out at p. 579 how difficult
it was to find in the
English authorities statements of general application,
said at p.
580:
" And
yet the duty which is common to all cases where liability is
"
established must logically be based upon some element common to
"
the cases where it is found to exist. To seek a complete logical
"
definition of the general principle is probably to go beyond the
func-
" tion of the judge, for the more general the
definition the more likely
" it is to omit essentials or to
introduce non-essentials . . .",
" At
present I content myself with pointing out that in English law
"
there must be, and is, some general conception of relations giving
rise
" to a duty of care of which the particular cases found
in the books are
" but instances . . .".
" The
rule that you are to love your neighbour becomes in law, you
"
must not injure your neighbour: and the lawyer's question, Who is
"
my neighbour? receives a restricted reply. You must take reasonable
"
care to avoid acts or omissions which you can reasonably foresee
"
would be likely to injure your neighbour. Who, then, in law is my
"
neighbour? The answer seems to be—persons who are so closely
"
and directly affected by my act that I ought reasonably to have
them
" in contemplation when I am directing my mind to the
acts or omis-
" sions called in question."
Lord Atkin
in defining the elements common to all cases where a breach
of a
duty of care gives rise to liability cannot have intended his words
to mean
that in every case failure to take reasonable care to
avoid acts or omissions
which could reasonably be foreseen as
likely to injure one's neighbour as
defined by him was actionable.
He cannot, for instance, have meant that a
person is liable in
negligence if he fails to warn a person nearby whom he sees
about
to step off the pavement into the path of an oncoming vehicle or
if
he fails to attempt to rescue a child in difficulties in a
pond. In both these
instances—and they could be
multiplied—it can be said that he could reason-
ably have
foreseen that they would be likely to suffer injury by his
omission
to take action and that they were so closely and directly
affected by his
omission to do so that he ought to have had them
in contemplation.
If,
applying Lord Atkin's test, it be held that a duty of care existed
in
this case, I do not think that such a duty can be limited to
being owed only
to those in the immediate proximity of the place
from which the escape
is made. In Donoghue v. Stevenson
(supra) the duty was held to be owed to
consumers wherever
they might be. If there be such a duty, it must, in my
15
view, be
owed to all those who it can reasonably be foreseen are likely
to
suffer damage as a result of the escape. Surely it is
reasonably foreseeable
that those who escape may take a succession
of vehicles, perhaps many miles
from the place from which they
escaped, to make their get away. Surely it
is reasonably
foreseeable that those who escape from prisons, Borstals and
other
places of confinement will, while they are on the run, seek to
steal
food for their sustenance and money and are likely to break
into premises
for that purpose.
If the
foreseeability test is applied to determine to whom the duty is
owed,
I am at a loss to perceive any logical ground for excluding
liability to
persons who suffer injury or loss, no matter how far
they or their property
may be from the place of escape if the loss
or injury was of a character
reasonably foreseeable as the
consequence of failure to take proper care to
prevent the escape.
Lord
Atkin's answer to the question " Who, then, in law is my
neighbour? "
while very relevant to determine to whom a duty
of care is owed, cannot
determine, in my opinion, the question
whether a duty of care exists.
I find
support for this view in the observations of Du Parcq L.J. as he
then
was in Deyong v. Shenburn [1946] I K.B. 227. There the
plaintiff had
been employed in a theatre by the defendant. Some of
his clothing had been
stolen from his dressing room due, it was
alleged, to the negligence of the
defendant.
Du Parcq L.J. said at p. 233: —
"It
is said that this is a case of tort and we were reminded of
"
observations which are very familiar to lawyers in Heaven v.
Pender
"(1883)
11 Q.B.D. 503 and Donoghue v. Stevenson. I do not think
that
" I need cite them in terms. There are well
known words of Lord
" Atkin in Donoghue v. Stevenson
as to the duty towards one's neigh-
" hour and the method
of ascertaining who is one's neighbour. It has
" been
pointed out (and this only shows the difficulty of stating a
"
general proposition which is not too wide) that, unless one
somewhat
" narrows the terms of the proposition as it has
been stated, one would
" be including in it something which
the law does not support. It is
" not true to say that
whenever a man finds himself in such a position
" that unless
he does a certain act another person may suffer or that if
"
he does something another person will suffer, then it is his duty
in
" the one case to be careful to do the act and in the
other case to be
" careful not to do the act. Any such
proposition is much too wide.
" There has to be a breach of a
duty which the law recognises and to
" ascertain what the law
recognises regard must be had to the decisions
" of the
courts. There has never been a decision that a master must,
"
merely because of the relationship which exists between master and
"
servant, take reasonable care for the safety of the servant's
belongings
" in the sense that he must take steps to ensure,
so far as he can, that
" no wicked person shall have an
opportunity of stealing the servant's
" goods. That is the
duty contended for here and there is not a shred of
"
authority to suggest that any such duty exists or has existed."
This was
cited and followed by my learned and noble friends, Lord
Hudson
and Lord Morris of Borth-y-Gest, in Edmunds v. West Herts
Group
Hospital Board [1957] 1 W.L.R. 415 at pp. 420 and 422.
In
Commissioners of Railways v. Quintan [1964] A.C. 1054
the question
was considered whether on the facts of that case and
on the principle of
donoghue v. Stevenson a general
duty of care and liability for negligence
for its breach existed
in relation to a trespasser. Viscount Radcliffe, delivering
the
judgment of the Board said at p. 1070:-
"
Such a duty it was suggested might be founded on a general
"
principle derived from the House of Lords decision in Donoghue
v.
" Stevenson. Their Lordships think this view
mistaken. They cannot
" see that there is any general
principle to be deduced from that
16
"
decision which throws any particular light upon the legal rights
and
" duties that arise when a trespasser is injured on a
railway level crossing
" where he has no right to be."
Later he said at p. 1080:-
"...
passages occur in one or two of the judgments that suggest that
"
a trespasser can somehow become the occupier's ' neighbour' within
"
the meaning of the somewhat overworked shorthand of Donoghue v.
"
Stevenson"
In the
light of these passages I think that it is clear that the Donoghue
v.
Stevenson principle cannot be regarded as an
infallible test of the existence
of a duty of care; nor do I think
that if that test is satisfied, there arises any
presumption of
the existence of such a duty.
The County
Court case to which I have referred is Greenwell v.
Prison
Commissioners (1951) 101 L.J. 486. Two boys escaped
from the "open"
Hollesley Bay Borstal Institution and
damaged the plaintiff's truck. It was
the fourth escape of one of
the two boys. Despite his record he had not been
kept under any
restraint and was as free to abscond as he had been on the
three
previous occasions. The judge based his decision in favour of
the
plaintiff on Lord Atkin's words cited above. He held that a
duty of care
was owed by the Prison Commissioners to the
plaintiff, a duty to take reason-
able precautions to prevent him
being injured by the depredations of boys
escaping. He found that
they had been negligent with regard to the escape
of the boy who
had previously escaped but not with regard to that of the
other
boy.
If there
was a duty to take reasonable precautions to prevent the
plaintiff
being injured by the depredations of boys escaping, it
is not easy to see why
he held that the Prison Commissioners were
not negligent in relation to the
escape of the other boy. Both had
criminal records. One, it is true had
escaped before. It was an "
open " Borstal from which many escapes had
been made. Nor is
it clear from the report of the case in what respects
the judge
found that the Prison Commissioners had failed in their duty,
but
it would seem to have been in keeping the boy who had
previously
escaped in this institution and without taking any
steps to prevent him
escaping again. It was for the Prison
Commissioners to decide to which
Borstal Institution a boy
sentenced to Borstal training should be sent and to
decide whether
he should be moved from one institution to another. The
judge
appears to have held that it was negligence on their part to
have
allowed him to remain at Hollesley Bay.
Apart from
that case in which Donoghue v. Stevenson was applied,
no
shred of authority can be found to support the view that a duty
of care,
breach of which gives rise to liability in damages, is
under the common law
owed by the custodians of persons lawfully in
custody to anyone who suffers
damage or loss at the hands of
persons who have escaped from custody.
Lord
Denning M.R. in the course of his judgment in this case said that
he
thought that the absence of authority was
"
because until recently no lawyer ever thought such an action
would
lie"
on one of
two grounds, first that the damage was far too remote, the chain
of
causation being broken by the act of the person who had escaped:
and,
secondly, on the ground that the only duty owed was to the
Crown.
Whatever
be the reasons for the absence of authority, the significant fact
is
its absence and that leads me to the conclusion, despite the
disclaimer of
Mr. Fox-Andrews for the Respondents of any such
intention, that we are
being asked to create, in reliance on Lord
Atkin's words, an entirely new and
novel duty and one which does
not arise out any novel situation.
I, of
course, recognise that the common law develops by the application
of
well established principles to new circumstances but I cannot accept
that
the application of Lord Atkin's words, which, though they
applied in Deyong
17
v.
Shenburn (supra) and might have applied in Commissioners of
Railways
v. Quinlan (supra), were not held to impose a
new duty on a master to his
servant or on an occupier to a
trespasser, suffices to impose a new duty
on the Home Office and
on others in charge of persons in lawful custody of
the kind
suggested.
No doubt
very powerful arguments can be advanced that there should be
such
a duty. It can be argued that it is wrong that those who suffer loss
or
damage at the hands of those who have escaped from custody as a
result of
negligence on the part of the custodians should have no
redress save against
the persons who inflicted the loss or damage
who are unlikely to be able to
pay; that they should not have to
bear the loss themselves whereas if there is
such a duty,
liability might fall on the Home Office and the burden on the
general
body of taxpayers.
However
this may be, we are concerned not with what the law should
he but
with what it is. The absence of authority shows that no such duty
now
exists. If there should be one, that is, in my view, a matter for
the
Legislature and not for the Courts.
A
considerable number of cases were referred to in the course of
the
argument, and to some of them I must refer.
In Smith
v. Leurs (1945) 70 C.L.R. 256 the parents of a boy of
thirteen
were sued for negligence, it being alleged that they had
failed to exercise
reasonable care over the use of a catapult by
the boy. Dixon J. (as he then
was) said at p. 261 :-
"
Apart from vicarious responsibility, one man may be responsible
to
"another for the harm done to the latter by a third
person: he may
" be responsible on the ground that the act of
the third person could not
" have taken place but for his own
fault or breach of duty. There is
" more than one description
of duty the breach of which may produce
" this consequence.
For instance, it may be a duty of care with refer-
" ence to
things involving special danger. It may even be a duty of care
"
with reference to the control of actions or conduct of the third
person.
" It is, however, exceptional to find in the law a
duty to control
" another's actions to prevent harm to
strangers. The general rule is
" that one man is under no
duty of controlling another to prevent his
" doing damage to
a third. There arc, however, special relations which
" are
the source of a duty of this nature. It appears now to be
"
recognised that it is incumbent on a parent who maintains control
"
over a young child to take reasonable care so to exercise that
control
" as to avoid conduct on his part exposing the person
or property of
" others to unreasonable danger."
It is to
be observed that Dixon J. did not suggest that there was any
special
relationship between a person in custody and his custodian
which
constituted an exception to the general rule enunciated by
him.
In
Carmarthenshire County Council v. Lewis [1955] A.C. 549
the County
Council was held liable in negligence for damages
arising out of an accident
caused by a young child who had escaped
from a school adjoining a highway.
He was when at the school under
the care and control of the County Council.
The duty owed by the
County Council appears to me analogous to that owed
by a parent to
which Dixon J. referred.
An
instance where the act of a third person could not have taken
place
hut for another's fault or breach of duty is to be found in
Stansbie v. Troman,
[1948] 2 K.B. 48 where the duty
arose out of contract.
The facts in Thome v. State of Western Australia 1964 WAR. 147. more nearly resemble those of this case. Mrs. Thorne claimed damages in respect of injuries she had sustained as a result of an assault by her husband after his escape from prison. He had been convicted of a number of offences arising out of an incident in which his wife was involved. On his way to prison he had said that he would "get out and fix her". She and another alleged negligence in allowing him to escape.
18
In the course of his judgment Negus J. said at p. 151: —
" I
emphasise that a mere breach of their duty to the Crown to keep
"
prisoners in safe custody could not give the plaintiffs a right of
action.
" The plaintiffs must establish they had a special
duty to Mrs. Thome
" and failed in that duty. The existence
of such a special duty, assuming
" that the facts of this
case provide an exception to the general rule
" that one man
is under no duty of controlling another to prevent his
"
doing damage to a third (per Dixon J. as he then was, in Smith v.
"
Leurs (supra)) depends on their knowledge that Thorne had a
propensity
" and intention or was likely to attack his wife."
He held
that though the warders knew of the threat, it could not be
inferred
from the fact of the threat that Thorne had that propensity
and
intention.
Negus J.
did not suggest that there was any common law duty of care
to
prevent the escape of prisoners when it was reasonably foreseeable
that
damage might ensue. He decided the case on the assumption
that there
was a special duty of care owed to Mrs. Thorne if
Thome's propensity and
intention was known to the warders, and
holding that it was not known it was
not necessary for him to
decide that such a special duty of care existed.
This case
is no authority for the proposition that there is a common law
duty
of care owed by custodians where it is reasonably foreseeable
that
damage is likely to follow if through negligence persons are
allowed to
escape ; nor, indeed, is it any authority for saying
that such a duty arises
if the custodians have knowledge of a
prisoner's particular propensities.
There are
two English cases in which the Home Office and the
Prison
Commissioners respectively have been held liable in damages
for injuries
suffered by a prisoner at the hands of fellow
prisoners. In Ellis v. Home
Office [1953] 2 All E.R.
149 the plaintiff when a prisoner in Winchester
prison suffered
injuries as a result of an assault by another prisoner. He
sued
the Home Office for damages for negligence. In the course of
his
judgment Singleton L.J. said :—
" The
duty on those responsible for one of Her Majesty's prisons
"
is to take reasonable care for the safety of those within, and that
"
includes those who are within against their wish or will of whom
the
" plaintiff was one."
In D'Arcy
v. Prison Commissioners (The Times 15th and 16th November,
1965)
the plaintiff while in prison in Parkhurst suffered injuries at the
hands
of fellow prisoners. He alleged negligence and the Prison
Commissioners
did not deny that they were under a duty to take
reasonable care. The jury
found for the plaintiff.
The
Attorney-General did not seek to challenge that a duty of care
for
their safety and welfare was owed by the Home Office to
prisoners in a
prison. He was not prepared to concede that such a
duty was owed to
visitors to the prison though it is not easy to
see why it is not.
But "
matters happening within one's own bounds are one thing and
"
matters happening outside those bounds are an entirely different
thing "
as Lord Uthwatt said in Read v. Lyons
[1947] A.C. 177. The duties owed
by the occupiers of premises
to those lawfully upon them are well established.
The fact that a
duty of care is owed by prison authorities to prisoners within
a
prison to protect them from injury at the hands of fellow prisoners
who
are under their control does not lead to the inference that
there is a similar
duty of care owed by prison and Borstal
authorities to prevent injury or
loss being suffered by persons
outside the prison or Borstal institution at the
hands of those
who have ceased to be under the control of the authorities.
If in
the latter case there is no such duty, I do not think it follows that
Ellis
and D'Arcy were wrongly decided.
The
Attorney-General contended that public policy demanded that
the
Borstal authorities should be immune from actions of the kind
brought by
19
the
Respondents in this case. He drew attention to the following
paragraphs
in the booklet " Prisons and Borstals "
issued by the Home Office in 1960 :—
" 20.
The system of training in each borstal seeks the all round
"
development of character and capacities .... It is based on pro-
"
gressive trust demanding increasing personal decision,
responsibility
" and self control .... The conditions of a
borstal must then be as
" unlike those of a prison as is
compatible with compulsory detention,
" but they must be
various and elastic to suit different stages of develop-
"
ment . . . .
" 21.
Borstal training in the sense above described is not compatible
"
with the maintenance of ' safe-custody ' as an over-riding
consideration
" and it is inevitable that a proportion of
those under training of this
" sort find that it makes too
great demands of them and seek to solve
" their problems by
escaping. Nevertheless the proportion, given the
" nature of
these restless adolescents, is not high, amounting on an
"
average to less than one in five of the whole. This absconding is,
too
" often, a serious nuisance to the police in the
neighbourhood of the
" borstals and where offences are
committed by the absconders, to the
" public also: its
reduction is therefore a matter of constant care and
" effort
by the administration . . . ."
and
contended that if such actions lay, it would have an inhibiting
effect
on those responsible for the training and reformation of
those sentenced to
borstal training.
While I
would not wish to question that the methods now used are
in
accordance with public policy, it does not follow that public
policy requires
that losses suffered by individuals at the hands
of absconders should be
borne by those individuals. If there is
such a duty under the common law,
the creation of such an immunity
is a matter for Parliament.
It has
been suggested that a duty of care if owed by those responsible
for
the administration of the borstal system may be reduced in
extent or indeed
extinguished if it conflicts with the exercise of
powers or of discretion vested
by Parliament in those responsible
for the administration. If, for instance,
the three officers in
this case had been told not to take any steps to prevent
the
youths escaping in order to test their responsibility, it is, I
gather,
suggested that that would negative the existence of a duty
of care in this
case. If, for instance, the Home Office decided
that a boy who had previously
escaped from a borstal institution
should remain in an " open" Borstal
where no steps were
taken to prevent his escape, there would be no liability
for
foreseeable damage done by him after his escape. If this is right,
and
the decision to leave the boy who had escaped in the Hollesley
Bay Institution
was a deliberate decision of the Prison
Commissioners, it would seem to
follow that Greenwell v.
Prison Commissioners (supra) was wrongly decided.
The
Respondents do not claim to be entitled to damages for breach of
a
statutory duly. If Parliament has authorised a particular course
of action,
no action at common law can succeed if the damage
suffered follows from
the pursuit of that course. Similarly if
Parliament has vested a discretion
in the authorities, no action
will lie in respect of the consequences of the
exercise of the
discretion. If such a duty of care can be owed, it would be
open
to the courts to conclude that a particular exercise of discretion
was
so unreasonable and so careless as not to constitute any real
exercise of
discretion. If such a duty of care can be owed, and
its existence and extent
depends on what has been done in the
administration of the borstal system,
the way in which the
authorities have exercised their powers and discretion
would be
called into question in the courts and I agree with the
Attorney-
General in thinking that this might well have an
inhibiting effect.
The
statute which now governs Borstal institutions and Borstal training
is
the Prisons Act, 1952, amended in certain respects by the
Criminal Justice
Act, 1961. S. 43 of the Act gives the Secretary
of State power to provide
" (c) Borstal institutions, that is
to say, places in which offenders . . .
" may be detained and
given such training and instruction as will
" conduce to
their reformation and the prevention of crime."
20
S. 44 enacts: —
" (1)
A person sentenced to Borstal training shall be detained in a
"
Borstal institution . . .
" (2)
A person sentenced to Borstal training shall be detained in a
"
Borstal institution for such period ... as the Prison Commissioners
"
may determine and shall then be released . . ."
S. 46
expressly provides for temporary detention until arrangements can
be
made to take a person so sentenced to an institution and s. 22
(applied
to those sentenced to Borstal training by s. 43(3)(b))
inter alia gives the
Secretary of State power to order such
a person to be taken in certain
circumstances to a place e.g. for
medical treatment and provides that, unless
the Secretary of State
otherwise directs, he is to be kept in custody while
he is being
taken there, while he is there and
"
while being taken back to the prison " (Borstal institution) "
in which
" he is required in accordance with law to be
detained."
S. 47(5)
gives power to make rules for the temporary release of
persons
sentenced to Borstal training.
From these
provisions it would appear to be the case that the Prisons
Act
requires that persons sentenced to Borstal training be
detained, while they
are serving their sentences, in Borstal
institutions until they are released
or taken temporarily away
therefrom under s. 22.
If this be
so, one wonders what statutory authority there was for the ten
youths
residing on Brownsea Island.
A Borstal
institution is a place in which a person sentenced to
Borstal
training " may be detained and given such training
and instruction as will
" conduce to " his "
reformation ". This appears to imply that the training
and
instruction will take place within the institution.
S. 13(2)
(which applies to those sentenced to Borstal training by virtue of
s.
14(3)(c)) reads as follows: —
" A
prisoner" (Borstal detainee) " shall be deemed to be in
legal
" custody while he is con lined in or being taken to or
from any prison "
(Borstal institution) " and while he
is working, or is for any other reason
" outside the prison"
(Borstal institution) "in custody or under the
" control
of an officer of the prison " (Borstal institution).
This
implies that a Borstal detainee may be required to do work outside
an
institution but it i.s one thing to do work outside it and another to
be
allowed to reside outside it.
Under s.
47 the Secretary of State may make rules for the regulation
and
management of Borstal institutions " and for the classification,
treatment,
" employment, discipline and control " of
persons required to be detained
in Borstal and rules providing for
the training of particular classes of persons
and their allocation
to Borstal institutions. Rules so made cannot amend
the provisions
of the Act or reduce or limit the mandatory provisions
requiring
detention in a Borstal institution.
Whether or
not there was statutory power sanctioning the detention of
the ten
youths on Brownsea Island, they were by virtue of s. 13 (2) to
be
deemed to be in custody while there.
If it be
the case that a duty of care such as that alleged in this case
can
exist, then it would seem very desirable that the powers and
discretion to be
exercised by those responsible for the Borstal
system should be defined more
specifically and with more precision
than at present.
In Geddis
v. Bann Reservoir (1878) 3 App. Cas. 430 Lord
Blackburn
said at p. 455 : —
" For
I take it, without citing cases, that it is now thoroughly well
"
established that no action will lie for doing that which the
legislature
" has authorised if it be done without
negligence, although it does
" occasion damage to anyone; but
an action does lie for doing that
" which the legislature has
authorised if it be done negligently. And I
" think that if a
reasonable exercise of the powers either given by
21
"
statute to the promoters or which they have at common law, the
"
damage could be prevented, it is within this rule ' negligence' not
to
" make such reasonable exercise of their powers."
In that
case it could not in my view be disputed that the defendants owed
a
duty to the plaintiff to take care to prevent the flooding of his
land.
They had statutory powers the exercise of which would have
prevented that.
Their failure to exercise them was held to be
negligence.