Key point
- A duty of care be owed by the defendant to the claimant in relation to intentional acts by a third party in certain circumstances – the various judgments differed on the factors taken into account (see commentary)
Facts
- Borstal trainees working at a harbour were left unsupervised by their borstal officers in breach of their instructions
- Trainees escaped and damaged C’s yacht
- C sued the Home Office, which employed the borstal officers
Held (House of Lords)
- C’s claim succeeded
- A duty of care was owed to C by the borstal officers and that duty was breached
Lord Diplock
- For there to be a duty of care for the acts of the borstal trainees, there must be some special relationship between the custodian and the person to whom the duty is owed, which distinguishes the particular risk owed to the general risk from criminal acts shared by the public
- Such a special relationship exists in the current case
- The borstal officers have a duty to recapture the escaped trainees
- There is added risk of stealing and property damage in the vicinity of place of detention caused by the escaping trainee
Lord Morris
- It was foreseeable that the boys would interfere with one of the yachts, the risk was obvious, hence there is a duty of care owed by officers to the yachts
Lord Pearson
- There was geographical proximity and it was foreseeable that the damage was likely to occur, however, something more is needed
- The liability for actions of third party can arise where a person is under a duty to control another due to special relations, such as between parent and child
- In this case, control of the borstal boys imports responsibility
Lord Reid
On remoteness
- For a cause not be too remote the act of a third party must be both reasonably foreseeable and very likely
- It did not matter if the act of the third party was tortious or not
Commentary
- In finding a duty of care, Lords Diplock and Morris focused on the proximity of the relationship between the borstal officers and the victims due to the particular risk caused by the borstal trainees in their care while Lord Pearson focused on the relationship of control of the borstal officers over the borstal trainees
- This case is an exception to the general rule that there is no duty of care for omissions
- Lord Reid’s remoteness test was rejected in Lamb v Camden – likelihood is irrelevant to remoteness