Home Office v Dorset Yacht Co Ltd (1970)

After Donoghue v Stevenson the question remained how far Lord Atkin's neighbour principle could reach into new situations. Dorset Yacht took it into one that looked impossible. The damage was done by third parties, escaping Borstal trainees, and the defendant was a Government department that claimed immunity on grounds of public policy.

Lord Reid's speech treats the neighbour principle as a general rule of the law of negligence. It is not a list of fixed categories: the principle "ought to apply unless there is some justification or valid explanation for its exclusion". The case also settles two further points. First, a deliberate wrongful act of a third party does not automatically break the chain of causation. Second, public policy gave the Home Office no immunity.

On 21 September 1962 a party of Borstal trainees was working on Brownsea Island in Poole Harbour under the supervision and control of three Borstal officers. The officers had been instructed to keep the trainees in custody and under control. In breach of those instructions, they simply went to bed. During the night seven trainees escaped. They boarded a yacht, set it in motion, and collided with the respondents' yacht, which was moored nearby. They then boarded the respondents' yacht and did further damage.

All the escaping trainees had criminal records, and five had escaped from Borstal institutions before. The respondents sued the Home Office. It was admitted that the Home Office would be vicariously liable if an action lay against the officers.

The case came up on a preliminary issue of law: whether the Home Office or its officers owed the respondents any duty of care capable of giving rise to liability in damages. The facts pleaded therefore had to be assumed true. The Court of Appeal had decided against the Home Office, and it appealed.

1. Can Borstal officers owe a duty of care to members of the public to prevent trainees under their control from damaging their property?
2. Does the deliberate, wrongful act of the escaping trainees break the chain of causation (novus actus interveniens)?
3. Does public policy, or the statutory character of the officers' powers, give the Home Office immunity?

The appeal was dismissed (4:1). A duty of care was capable of arising, and the case could go to trial.

Lord Reid: the neighbour principle as principle

The Home Office argued, first, that there was virtually no authority for such a duty. Lord Reid rejected the idea that the categories of negligence were 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."

He went on: "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." Of Lord Atkin's passage he said: "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."

He noted exceptions. Economic loss is different. And there is no legal duty to rescue a stranger: "There may be a moral duty to do so, but it is not practicable to make it a legal duty."

Third-party acts and causation

The second argument was that no one is responsible for the acts of another adult who is not his servant. Lord Reid answered that the officers were not being made liable for the trainees' acts: "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." He treated the question as one of remoteness.

The test for an intervening human act was stricter than mere foreseeability. The act "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." If it was likely, it did not matter "whether that action was innocent or tortious or criminal." On the assumed facts, "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."

Statutory powers and discretion

Relying on Geddis v Proprietors of Bann Reservoir, Lord Reid held that a person who carries out a statutory duty carelessly and causes damage may be liable. Where Parliament confers a discretion, errors of judgment are not actionable. But liability can arise where the discretion is exercised so carelessly or unreasonably that there has been no real exercise of it. Here the question did not arise, because the officers had no discretion: "They were given orders which they negligently failed to carry out."

Public policy

Lord Reid rejected the argument that liability would deter prison authorities from experiments in rehabilitation: "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."

Lord Morris of Borth-y-Gest agreed: "I can see no possible reason for creating or recognising any such immunity."

Lord Pearson held that the needs of the Borstal system affected how much care was required, not whether a duty existed: "I am of opinion that it would affect only the content or standard and not the existence of the duty of care."

Lord Diplock: a limited duty

Lord Diplock also dismissed the appeal, but he framed the duty narrowly. He held that it was owed "only to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steel or to appropriate and damage in the course of eluding immediate pursuit and recapture." The escape was from an island, so the owner of a boat moored off it could fall within that category.

Lord Atkin's neighbour principle applies to a new situation unless there is some justification or valid explanation for excluding it. Custodians who carelessly allow detainees under their control to escape may owe a duty of care to those whose property is likely to be damaged by the escape. The deliberate or criminal act of the escaping detainee does not break the chain of causation if it was the very kind of thing likely to happen as a result of the custodian's carelessness. Public policy confers no general immunity on a Government department for such negligence.

• Duty of care: Trace the development of the duty of care after Donoghue v Stevenson. Use Lord Reid's statement that the neighbour principle ought to apply unless there is a justification for excluding it. Then set out the limits the judges themselves recognised: economic loss, and no duty to rescue.
• Liability for acts of third parties / novus actus: When does the intervening act of a third party break the chain of causation? Use Lord Reid's "very likely to happen" test and his contrast with mere foreseeability.
• Liability of the State / public authorities: use the rejection of the public-policy immunity argument, and the distinction between negligently carrying out orders and exercising a discretion.
• Problem question: an authority's officers carelessly let a person in their custody escape, and that person damages nearby property. Apply the duty (proximity of the property, likelihood of the damage), causation (very likely, not merely foreseeable), and no immunity.
• Remember: House of Lords, 1970, 4:1. It is not an Indian decision.