Dorset Yacht Company Ltd v Home Office

JurisdictionEngland & Wales
Judgment Date10 March 1969
Judgment citation (vLex)[1969] EWCA Civ J0310-2
Date10 March 1969
CourtCourt of Appeal (Civil Division)
The Dorset Yacht Company Limited
Plaintiff, Respondent
The Home Office
Defendant, Appellant

[1969] EWCA Civ J0310-2


The Master of The Rolls (Lord Denning),

Lord Justice Edmund Davies and

Lore Justice Phillimore

In The Supreme Court of Judicature

Court of Appeal

Appeal of defendant from judgment of Mr. Justice Thesiger on 19th December, 1968,

THE ATTORNEY-GENERAL (The Rt. Hon. Sir Frederick Elwyn Jones, Q. C) Mr. GORDON SLYNN and Mr. L.J. BLOR-COOPER (instructed by the Treasury Solicitor) appeared on behalf of the Appellant Defendant.

Mr. W.A. MACPHERSON and Mr. MICHAEL HARRIS (instructed by Messrs. Ingledew Brown, Bennison & Garrett) appeared on behalf of the Respondent Plaintiff.


In September 1962, the motor yacht Silver Mist" was lying at moorings in Poole Harbour. No one was on her. But in the middle of the night seven Borstal boys got aboard her. They cast her adrift and did much damage. The cost of repairs was £1,303 18. 8d. Fortunately the owners of the yacht had insured her. The insurance company paid the damage. They now seek to recover the amount from the Home Office. They sue, of course, in the name of the owners of the yacht, The Dorset Yacht Company Limited: and the case must be determined Just as if the yacht was not insured. But, In point of fact, it is the insurance company who sock to be recouped for the expense.


Speaking in the name of the owners of the yacht, the insurance Company say that there was no proper supervision of the boys. They were all from the Borstal Institution at Portland. They were seven out of a party of ten boys. They had been taken out by three officers of the Institution to Brownssa Island in Poole Harbour. They were on a training exercise. They were quartered in an empty house. The three officers went to bed. So did the ten boys. But during the night seven of the boys got out and did this damage. As might be expected, being in Borstal, they had criminal convictions for breaking and entering premises, larceny, and taking away vehicles without the owners' consent. Five of them had previously escaped from Borstal but had been recaptured. The owners of the yacht say that in these circumstances the three officers ought to have taken precautions to prevent their escaping: and that they were negligent in not doing so: and the Homo Office, being responsible for these officers, ought to pay for the damage they did.


The case has not yet been tried. It comes before us on this preliminary issue of law: "Whether on the facts pleaded in the Statement of Claim, the Homo Office, their servants or agents owed any duty of care to the Dorset Yacht Company capable of giving rise to a liability in damages with respect to thedetention of persons undergoing sentences of Borstal training, or with respect to the manner in which such persons were treated, employed, disciplined, controlled or supervised whilst undergoing such sentences".


Although the issue is only stated in regard to Borstal training, it involves the wider question of whether the Homo Office are liable for damage done by prisoners who escape from custody or done by them whilst on parole. Strangely enough there is no authority upon it in any of our law books. Nor is there much light thrown upon it by the Judges of the great countries overseas which follow the common law. At any rate, none of particular value was drawn to our attention. There is only a case in the Ipswich County Court some eighteen years ago when the Prison Commissioners were hold liable for £26 worth of damages done by a Borstal boy ( Greenwell v. Prison Commissioners) Why is there no authority on it I believe that it is simply because, until recently, no lawyer over thought such an action would lie. Take a simple instance. Suppose a warden carelessly forgot to lock the door of a cell, and in consequence a prisoner escaped and broke into a neighbouring house. A lawyer in former times would have scouted the idea that an action lay. He would reject it on one of two grounds:


First, he would say that the damage was too remote. The chain of causation was snapped by the prisoner's own act. His breaking into the house was a novus actus interveniens, See ( Weld-Blundell v. Stevens 1920 A. C. 986) by Lord Sumner.


Second, he would say that the warder owed no duty of care to the house-holder. His duty lay only to the Crown. The lawyer would reinforce this argument by reference to the old action for an "escape" from prison. It was in the days when there was imprisonment for debt. If the sheriff allowed the debtor to escape from prison, the creditor could at common law sue the sheriff for the amount of the debt, see ( Jones v. Pope (1680) 1 Williams Saunders 91) and afterwards, by statute for damages sustained by reason of the escape, see ( Macvae v. Clarke (1866) L.R. 1. C.P. 403).But the action lay only by the creditor: for it was only to him that the sheriff owed a duty: and not to anyone else.


But those two answers have been rudely shaken by recent developments. First, so far as remoteness is concerned, the wicked act of a criminal no longer snaps the chain of causation. If it could reasonably have been foreseen, it is not regarded as a novus actus interveniens. Thus in ( Stansbie v. Troman 1948 2 K.B. 48) a decorator left the house unlocked, with the result that a thief walked in and stole jewellery. The decorator was held liable because damage of that kind could reasonably be foreseen. Likewise it seems to follow that, if a warden has charge of a notorious house-breaker, and carelessly forgets to lock the cell-doer, it can reasonably be foreseen that he will escape and break into neighbouring houses. So the damage is not too remote.


Second, so far as duty is concerned, the duty of care is owed not only to the Crown. It is owed to others as well. There have been cases where a violent prisoner has attacked another prisoner within the prison walls. It has been held that, if the prison authorities have not taken proper care to control or supervise the violent prisoner, so as to prevent him doing damage, they are liable to the one who is injured. In Ellis v. Home Office (1953 2 A.E.R. 149), (1953 2 Q.B. 135) in the hospital wing of Winchester Prison, a warder opened the door of a cubicle, and went off. A violent prisoner oalled Hammill, who was a mental defective, walked out of his cubicle and brutally assaulted Ellis, another prisoner. It was accepted by Mr. Justice Devlin and by this Court that the prison authorities owed a duty of care to Ellis. Mr. Justice Devlin said: "This case turns entirely upon the cardinal fact of whether the prison doctor had any reason to believe that Hammill, a mental defective, was lively to commit violence". In short, upon foresee ability of damage. Similarly in ( D'Arcy v. Prison Commissioners Times Newspaper, 15th and 16th November, 1965),Those oases were accepted by the Attorney-General as being correct. But, if so, I do not see where he can stop. Suppose the violent prisoner had struck, not a fellow prisoner, but a visiting magistrate. Surely the magistrate could recover. And why should it be confined to violence within the prison walls? Suppose a party of prisoners is taken out to work on a farm alongside farm-workers, but they are not properly supervised. A violent prisoner strikes first another prisoner and next a farm worker. If the other prisoner has a cause of action against the prison authorities, surely the farm-worker has also. And why should it stop there? If the violent prisoner makes his way to the nearest village, and breaks in and assaults a householder, or steals his goods, surely the householder too can recover.


These recent developments compel us to examine the whole question. It is, I think, at bottom a matter of public policy which we, as Judges, must resolve. This talk of "duty" or "no duty" is simply a way of limiting the range of liability for negligence. Lord Pearce made that clear in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., ( 1964 A. C. 534, 531) when he said: "The law of negligence has been deliberately limited in its range by the Court's insistence that there can be no actionable negligence in vacuo without the existence of some duty to the plaintiff. For It would be impracticable to grant relief to everybody who suffers damage through the carelessness of another…… How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the Court's assessment of the demands of society for protection from the carelessness of others".


What then is the right policy for the Judges to adopt? On whom should the risk of negligence fall? Up till now it has fallen on the Innocent victim. Many, many a time has a prisoner escaped - or been let out on parole - and done damage. But there is never a case in our law books when the prison authorities havebeen liable for it. No householder who has been burgled, no person who has been wounded by a criminal, has ever recovered damages from the prison authorities: such as to find a place in the Reports, The householder has claimed on his insurance company. The injured man can now claim on the Compensation Fund. None has claimed against the prison authorities.


Should we alter all this? I should be reluctant to do so if, by so doing, we should hamper all the good work being done by our prison authorities. "Open" prisons are the order of the day. So is the parole system. The men are allowed their freedom as much as possible. It helps to fit them bettor for their return to society. This is especially the case with Borstal Institutions. The Attorney-General, speaking for the Home Office, said: "We want to train these boys to become good citizens. We put them under no restraint quite deliberately. We trust them. We leave them free to escape. It is the way in which they learn responsibility". The Attorney-General went so far as to...

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