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K v The Secretary of State for the Home Department, Court of Appeal, 31 May 2002

1 October 2003
The issues

Dorset Yacht -v- Home Office – proximity – liability for act of third party.

The facts

Rashid Musa entered the UK from Kenya in 1992 and was given leave to remain until October 1994. In July 1994, he was arrested and charged with a serious sexual offence. He was sentenced to 18 months detention and released in May 1995. In July 1995, he was arrested again for burglary. He was sentenced for 18 months imprisonment and the Court recommended his deportation under Section 6 of the Immigration Act 1971. He made an Application for Leave to Appeal against the recommendation for deportation, which the Criminal Division of the Court of Appeal refused. In May 1997 a Deportation Order was made by the Secretary of State. However, he was not deported. He applied for a Writ of Habeas Corpus but before that was determined, the Secretary of State released him from detention. In February 1998, he raped the Claimant. The Following day he committed another rape of a boy on a train. The Claimant made a claim against the Home Office, alleging negligence in respect of the decision to release Musa and in respect of the failure to deport him. The Particulars of Claim included an allegation that the acts and omissions were “manifestly unreasonable to the point of being irrational”. The Secretary of State successfully applied for the claim to be struck out. The Claimant appealed to the Court of Appeal.

The decision

1.It was an elementary proposition following Caparo Industries -v- Dickman that for a claim in negligence to succeed, three requirements had to be met, namely:-

(i) Foreseeability of damage;
(ii) A relationship of proximity between Claimant and Defendant and;
(iii) That the situation should be one in which the Court considers it fair, just and reasonable that a duty should be imposed.

2.Dorset Yacht Company Limited -v- The Home Office was a particular case in which liability in negligence was considered in respect of the consequences of the acts or omissions of a third person.

3.In situations where the acts of a third party or agency are the immediate cause of the damage, liability is the exception and not the rule. Otherwise, in the words of Chief Justice Cardozo in Ultramares Corporation -v- Touche, it would expose a Defendant to “liability in an indeterminate amount for an indeterminate time to an indeterminate class”.

4. The law had therefore restricted the circumstances in which a party might be liable for the acts of a third party. For liability to attach in such circumstances, the law looks for a “special relationship” between Claimant and Defendant. A public authority owing duties to the public at large or a section of it, is particularly likely to find itself exposed to situations in which it may be an instrument of damage through a third agency; and there may be important policy considerations which will militate against the finding of such a relationship as would generate a duty of care. All of these factors were bound under the “loose and interlocking nature of the three elements of foreseeability, proximity and fairness” as described in Caparo.

5.There was no rule of law that where the risk which the third agency or party poses is (in the knowledge of the Defendant) particularly grave that that is in itself enough to create a duty of care. “A Defendant does not become the world’s insurer against the grave danger (where the danger is general) posed by a third agency, which he might control but does not, by virtue only of the fact that he appreciates that the danger exists”. There had to be a special relationship or nexus between Claimant and Defendant, which was absent here.

6.There was nothing in Barrett -v- Enfield preventing the striking out of a claim in negligence without it proceeding to Trial in these circumstances. In Barrett, there was on the facts no argument as to foreseeability or proximity and everything turned on what might be shown to be “fair and reasonable”. In such a case, the Court’s reluctance to decide the matter on a strike out Application was understandable. Here, the case was different. The whole burden of the Defendant’s submissions was that there was no proximity and no nexus or special relationship between Claimant and Defendant. Appeal dismissed.

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