Kadie Kalma & Others v African Minerals Ltd
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp P.,Lord Justice Irwin,Lord Justice Coulson |
| Judgment Date | 17 February 2020 |
| Neutral Citation | [2020] EWCA Civ 144 |
| Date | 17 February 2020 |
| Docket Number | Case No: B3/2019/0682 |
| Court | Court of Appeal (Civil Division) |
and
and
[2020] EWCA Civ 144
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(The Rt. Hon. Dame Victoria Sharp)
Lord Justice Irwin
and
Lord Justice Coulson
Case No: B3/2019/0682
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE QUEENS BENCH DIVISION
MR JUSTICE TURNER
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Hermer QC, Chris Buttler & Eleanor Mitchell (instructed by Leigh Day) for the Appellants
Neil Moody QC, Robert Cumming & Andrew Bershadski (instructed by Lipman Karas LLP) for the Respondents
Hearing dates: 10 th and 11 th December 2019
Approved Judgment
INTRODUCTION
All references in square brackets are to the first-instance judgment of Turner J (“the judge”) [2018] EWHC 3506 (QB).
The appellants are a group of inhabitants of Tonkolili, a remote and inaccessible district in the north of Sierra Leone in West Africa. The respondents were the owners and operators of what was at the relevant time the largest iron ore mine in that region. It is unnecessary for the purposes of this appeal to differentiate between the different companies. The impact of the mine on the inhabitants of the region led to unrest and, in November 2010 (“the 2010 incident”) and April 2012 (“the 2012 incident”) local disturbances prompted a significant overreaction from some members of the Sierra Leone Police (“SLP” 1). This led on both occasions to what the judge described as “violent chaos during the course of which many villagers were variously beaten, shot, gassed, robbed, sexually assaulted, squalidly incarcerated and, in one case, killed” [4].
The appellants brought proceedings against the respondents alleging that the respondents were liable to them for the wrongful acts of the SLP on seven different legal grounds, summarised by the judge at [11] and explained in greater detail at [12]–[60]. These were: (i) vicarious liability for torts alleged to have been directly committed by the respondents' employees and officials; (ii) vicarious liability for torts committed by the SLP; (iii) accessory liability of the respondents acting in furtherance of a common tortious design with the SLP; (iv) liability for the tortious acts of the SLP as a result of “some direction or procuring or direct request or encouragement” on the part of the respondents; (v) malicious prosecution; (vi) breach of the respondents' direct duty in failing to take adequate steps to prevent the SLP from committing torts; and (vii) breach of a non-delegable duty in respect of an extra hazardous activity carried out negligently by the SLP and an independent contractor.
Of these seven ways in which the claim was pleaded, (i) and (iv) comprised the main thrust of the claimants' case at trial, because they were said to arise out of the direct involvement of the respondents' employees in the tortious acts (trespass to the person) committed by the SLP. Following a long trial and a detailed judgment, all the claims were rejected by the judge. The arguments on appeal have been limited, not to the main claims advanced at trial, but to the claims at (iii) above, namely the alleged common tortious design, and (vi) above, the alleged duty owed by the respondents directly to the appellants. This second element of the appeal also seeks to open up one of the judge's findings as to breach and takes a further, narrow point about his findings on causation.
THE FACTUAL BACKGROUND
General Observations
It is impossible in a judgment of this kind to do anything other than outline the factual background against which the claims are said to arise. I take the chronology from the
judge's judgment and would wish at the outset to pay tribute to its clarity and organisationThe Context
This was dealt with by the judge at [86] – [88].
Sierra Leone is a relatively small country in West Africa where poverty is endemic. It has the lowest average life expectancy of any nation in the world. But it is rich in material resources, including diamonds and iron ore.
The vast reserves of iron ore in Tonkolili in the north east of the country were discovered at the beginning of this century. The respondents constructed the large opencast mine at the centre of this case and built the necessary infrastructure to transport the ore to the coast. This necessitated the refurbishment of 31 miles of existing railway and the construction of 51 miles of new railway. We were told that, even in the dry season, the unpaved tracks which comprise the bulk of the road system in Sierra Leone meant that it takes five hours to drive from Freetown, the capital on the coast, to the mine.
The nearest town to the mine was Bumbuna, to the north west. Many of those employed at the mine lived in Bumbuna and travelled to the mine for work. There were three villages closer to the mine: New Ferengbeya (the new site of the village of Old Ferengbeya which was subsumed by the area of the mine itself), to the west; Kegbema to the north; and Kemedugu to the north east.
The mine employed approximately 7,000 people at the time of the 2012 incident. It has since closed.
The 2010 Incident
There were several causes of contention in 2010, summarised by the judge at [89] – [92]. As the judge noted at [93], in order to maintain smooth relations with the surrounding villages, the respondents employed locally recruited Community Liaison Officers (“CLOs”) to act as go-betweens. The judge identified one particular CLO, known as “Yallan”, because he was at the centre of the claimants' allegations that the respondents were directly involved in the overreaction by the SLP during the 2010 incident. The judge was to reject all of those allegations as a matter of fact.
The developing unrest in the area of the mine in 2010 was sufficiently serious to attract the attention of the Government of Sierra Leone which then became directly involved in the attempts to prevent the situation running out of control [95]. In one incident in August 2010 [96], it was felt that the presence of the SLP had calmed the situation. At about the same time the respondents agreed to make modest monthly payments to the SLP on the coast: as the judge said at [97]:
“The defendant relied on the police to provide support not only at the mine but at key transport locations. Police posts were set up in strategic positions across the project with the particular aim of deterring fuel theft which was a chronic and pressing problem.”
Dissatisfaction in the local communities continued, even though the Paramount Chief warned the villagers not to disrupt the operations of the respondents and, in particular, not to set up roadblocks by way of protest [98]. Despite this, there were continuing and serious disputes, and the local inhabitants blocked various roads in and around Bumbuna. The roadblocks led to at least one fight between employees of one of the respondents' contractors and local youths [100]. At some point (it is not clear precisely when) the SLP called in the armed response unit, the OSD. Any subsequent decision to shoot was the responsibility of the OSD.
Despite the involvement of the Local Unit Commander (“LUC”) and his express warnings about the construction of roadblocks, the situation continued to degenerate. At [107] – [113] the judge dealt with a lengthy meeting in the village of Kemedugu and the sad fact that, despite the fact that the meeting went on for five hours and appeared to have ended in agreement, it was to transpire that the respondents and the community left with completely different and irreconcilable views as to what that agreement entailed.
On 25 November 2010, local youths erected a roadblock at Yutinela Junction. This was a junction of two tracks in an area in which the respondents were interested as the potential location of a dam necessary for their future operation of the mine [114]. In the area was a team of 4 expatriate geotechnical personnel with their drivers and a CLO. They stopped and parked up but were threatened by a group of local youths and went on to a second destination [116]. The two vehicles were halted by the youths at the junction of the lane to Yutinela where Yallan and his driver were also being held [118]. The youths barricaded the three vehicles in place and detained the 4 expatriates, the 3 drivers, and the two CLOs (including Yallan), against their will [118].
Negotiations eventually led to the release of the 4 expatriates, but the youths refused to release the vehicles, the drivers or the two CLOs. The negotiations were conducted by Mr Kim Gordon, the Health, Safety and Security manager at the mine. As he returned to the scene of the unrest for a second time, he met about 25 members of the SLP. They began to make arrests. The protesters started pelting the vehicles with rocks and the OSD responded by firing live rounds into the air and discharging tear gas [124]. There was a good deal of evidence about the manner of the subsequent arrests ([129] – [146]).
The SLP transported a number of those whom they had arrested to the respondents' mine camp. It seems clear that, both during the arrests and in particular at the camp, there was some violence. The judge expressly rejected the allegations that Yallan was involved in beating the detainees at the mine [148] – [153].
In the meantime, the unrest continued. A group of youths congregated, intending to attack the mine and damage property [154]. Some gathered at the perimeter and pelted the mine with rocks. The mine was locked down. Later that evening protesters set light to and destroyed a drilling rig worth £500,000. As these events unfolded, the SLP asked (and were permitted) to use some of the...
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