• In the case of Home Office v Dorset Yacht Co [1970] A.C. 1004, it was held that a government body owes a duty to take reasonable care in all the circumstances to prevent third parties under their control from causing damage to private poverty. Failure to do so will bring an action for negligence.

Facts of the Case

  • 7 Borstal boys were working on an island under the control and supervision of three officers of D.
  • 5 of them had known criminal records including convictions for breaking and entering, larceny, and taking away vehicles without the owner’s consent.
  • After the officers had retired, the boys left the island one night and boarded, cast adrift and damaged C’s yacht, which was moored offshore.
  • P brought an action for damages against the officers, arguing that they had failed to exercise effective control or supervision over the boys.
  • D denied that they or their servants or agents owed C any duty of care with respect to the detention of the boys or to the manner in which they were treated, employed, disciplined, controlled or supervised.
  • It was admitted that D would be vicariously liable if an action would lie against any of the officers.

Issues

  • Did D owe a duty to take reasonable care to avoid the Borstal boys causing damage to any property nearby?

Held by the House of Lords

  • Finding for C, that D had a common law duty to take all reasonable care to prevent the escape of those in their custody. As such, D is liable for damage to property inflicted by the escapees. Public policy did not require an immunity from such action.

Lord Reid

  • The facts 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 to Brownsea Island in the custody and  control of the three officers with instructions to keep them in custody and control. In breach of their instructions these officers simply went to bed leaving the trainees to their own devices. If they had obeyed instructions, they would have prevented these trainees from escaping.
  • 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 the ground of liability is not responsibility for the acts of the trainees; it is liability for damage caused by the officers’ carelessness and 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.
  • “Then there may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do that. The present case does not raise this issue because no discretion was given to these Borstal officers. They were given orders which they negligently failed to carry out [1031A]”.

Viscount Dilhorne

  • “In Smith v. Leurs, 70 C.L.R. 256 the parents of a boy of 13 were sued for negligence, it being alleged that they had failed to exercise *1046 reasonable care over the use of a catapult by the boy. It is to be observed that Dixon J. [in that case] did not suggest that there was any special relationship between a person in custody and his custodian which constituted an exception to the general rule enunciated by him” [1045H].

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