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Cite as: [1970] AC 1004, [1970] UKHL 2

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JISCBAILII_CASE_CONSTITUTIONAL
JISCBAILII_CASE_TORT

    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.