Dorset Yacht Company Ltd v Home Office

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid,Lord Morris of Borth-y-Gest,Viscount Dilhorne,Lord Pearson,Lord Diplock
Judgment Date06 May 1970
Judgment citation (vLex)[1970] UKHL J0506-1

[1970] UKHL J0506-1

House of Lords

Lord Reid

Lord Morris of Borth-y-Gest

Viscount Dilhorne

Lord Pearson

Lord Diplock

The Home Office
The Dorset Yacht Company Limited

Upon Report from the Appellate Committee, to whom was referred the Cause Home Office against Dorset Yacht Company Limited, that the Committee had heard Counsel, as well on Monday the 23d, Tuesday the 24th, Wednesday the 25th and Thursday the 26th, days of February last, as on Monday the 2d day of March last, upon the Petition and Appeal of the Home Office, Whitehall, London, S.W.1, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 10th of March 1969, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Dorset Yacht Company Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 10th day of March 1969, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Reid

My Lords,


On 21st September 1962 a party of Borstal trainees were working on 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 this 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 be 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 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 explanation 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 circumstances 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 carelessness 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 unforeseeability 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 foreseeable ( 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 predetermined. 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 in holding that the...

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