Liability after third party intervention: is the victim of a car theft responsible for any resulting injuries?

By Douglas Brodie - Posted on 10 June 2024

Under the law of delict, there are occasions when the law requires an individual to pay damages to another party. This will often be the case where the second person has suffered an injury as a result of the first person’s negligent actions. 

By and large, none of us will be liable to pay damages where the person seeking to claim money from us has actually been injured by the act of a third party. 

There are exceptions to that proposition about third party involvement. Very significantly, employers will be liable should their employees cause harm while acting within the course of their employment. A further exception exists where a defender has carelessly created a risk of danger and third party interference causes that risk to materialise to the detriment of the claimant. It is this second exception that is the subject of this blog post 

In the Scottish case of Maloco v Littlewoods Organisation [1987] AC 241 Lord Goff provided a hypothetical example of when liability on that basis might arise: 

Suppose that a person is deputed to buy a substantial quantity of fireworks for a village fireworks display on Guy Fawkes night. He stores them, as usual, in an unlocked garden shed abutting onto a neighbouring house. It is well known that he does this. Mischievous boys from the village enter as trespassers and, playing with the fireworks, cause a serious fire which spreads to and burns down the neighbouring house. Liability might well be imposed in such a case; for, having regard to the dangerous and tempting nature of fireworks, interference by naughty children was the very thing which, in the circumstances, the purchaser of the fireworks ought to have guarded against. 

The decision of the Canadian Supreme Court in Rankin v J.J. [2018] 1 S.C.R. 587 (Rankin) provides an interesting illustration of the application of the law in this area in the context of a far more everyday occurrence: the theft of a car.  Such an incident might in the circumstances be readily foreseeable but determining the responsibility of the parties becomes more challenging should the use of the car lead to someone else being injured or their property being damaged. 

In Rankin, two friends (J and C, aged 15 and 16 respectively) had consumed alcohol and smoked marijuana. They entered the unsecured premises that someone was using as a commercial garage and found an unlocked car with the ignition key inside. Despite the fact that C did not have a driver’s licence and had never driven a car on the road before, he decided to steal the car. C drove the car from the garage and J accompanied him but C went on to crash the car. J suffered a catastrophic brain injury. 

The Supreme Court had to decide whether the owners of the garage owed a duty of care to J. A majority of the Court held that the owners did not. Crucial to the outcome was what was reasonably foreseeable; the theft of the car was but not injury through dangerous driving. The view was taken that the establishment of a duty would impose an unreasonable burden on the person using the garage. There was some evidence that more might have been done by way of security precautions against theft but that did not suffice to establish liability. 

What might this mean were a similar case to arise in Scotland? I think it would be very surprising if a Scottish court would take a different view from that of the Canadian Supreme Court in Rankin. It may be reasonably foreseeable that a car may be stolen, but it is much more difficult to maintain that it should have been anticipated that the theft would (to paraphrase Lord Goff in Maloco) cause damage to persons in the position of the injured party. 

In the case of Topp v London Country Bus [1993] EWCA Civ 15 (Topp) a minibus owner was held not to be under a duty to a person injured by the minibus after it had been stolen. It had been left unlocked outside a pub for nine hours, with the keys in the ignition. One might think it was foreseeable that the vehicle would be stolen but the court was not prepared to infer that it was likely that it would then be used dangerously. 

The outcomes in Maloco and Rankin would appear to offer little by way of encouragement for pursuers where a third party’s use of the defender’s asset causes harm. The judicial reticence to impose liability where harm would not have arisen but for the acts of a third party is understandable. It may be felt that the imposition of liability would run the risk of imposing an excessive sanction for momentary carelessness in leaving property unsecured. Again, many items which might be stolen could present a danger depending upon the use to which they are put by the third party. Rankin reminds us that the difficulties in the path of a pursuer might be eased (or at least their prospects in litigation clarified) to some extent by ensuring that the correct question is posed. 

What of statistical evidence? In an excellent note on Topp, Fleming (J.G. Fleming, "Injury caused by stolen motor vehicles" [1994] L.Q.R. 187, 190) pointed to a study in the United States “which revealed the accident rate of stolen cars to be 200 times that of the ordinary rate…”. Research of that nature would inform what the reasonable defender should have known, and it will be interesting to see whether there will be any attempts to advance a case on such a basis in Scotland. I would suggest that evidence of this sort would be a cogent tool in the hands of a claimant. 

The opinion of the majority in Rankin offers very useful guidance on responsibility in law for the acts of third parties where car theft is concerned. It might also be said that the facts of Rankin would have formed a better basis for Lord Goff’s hypothetical example than the one based around fireworks. After all, injury arising from the use of cars occurs all too often. Lord Goff’s example may also be somewhat lacking in terms of what it assumes will be required by way of knowledge. He appears to take the view that “the dangerous and tempting nature of fireworks” gives rise to a duty being owed by the owner. However, it is very much debateable whether that, of itself, is more of an allurement than an unsecured vehicle. 

Some of the issues under discussion in this blog post are analysed in more detail in a note published in the 2024 Juridical Review, entitled “Liability for the acts of third parties: in the aftermath of stolen cars and the Canadian case of Rankin v J.J”.