The Case of A v B: Does property matter more than people?
By Douglas Brodie - Posted on 7 November 2022
The recent Outer House decision in A v B  CSOH 34 is the focus of this blog post, but first it makes sense to revisit one of the best-known cases in the law of negligence: Dorset Yacht v Home Office  AC 1004. Some fifty years later it remains a decision of great significance in both Scotland and England.
The colourful facts may have helped render it more memorable. A group of Borstal trainees were working on an island in Poole Harbour under the supervision and control of three Borstal officers. It should be explained that a Borstal was a form of youth detention centre. During the night seven of them escaped and went aboard a yacht which was nearby. They attempted to sail the yacht but collided with the claimant’s yacht and damaged it. The claimant sued the Home Office for the losses caused by the damage.
The claimant faced a considerable challenge given the legal basis of their claim; precedent suggested that a duty of care would not arise in respect of the acts of a third party who was an adult of full capacity. The House of Lords was prepared to depart from this position given the degree of control exercised by the defendant over the wrongdoer. As a result, a duty of care was held to be owed, to prevent the escape of a Borstal trainee from custody, by the Home Office to persons whose property would be likely to be damaged by the tortious acts of the trainee if he escaped.
The scope of the duty was though defined in narrow terms and was owed "only to persons whom…[an officer]…could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and recapture". It should be said that the members of the House of Lords dealt with the issue of limitation on liability in rather different ways. Lord Reid considered the examples of a burglary committed by a trainee on parole or when permitted to attend a funeral. It was suggested that the law on remoteness would be likely to prevent a claim being successful. The nature of the harm suffered was noteworthy; damage to property rather than the person.
The broad proposition established has been reaffirmed over the years and in Mitchell v Glasgow CC  1 AC 874 it was acknowledged that where a third party causing damage was under the "supervision or control" of the defender a duty may arise. In the years since Dorset Yacht the courts have been reluctant to countenance recovery where the harm was caused by a wrongdoer who has escaped or been released from institutional custody. Lord Diplock’s speech in Dorset Yacht has proved to be particularly influential in promoting a very restrictive approach to recovery. He took the view that a duty was only owed where a claimant had been exposed "to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts of others which he shares with all members of the public". Lord Diplock’s emphasis on "particular risk" as key to the establishment of proximity was not reflected in the speeches of the other judges in the majority.
It is important to appreciate that the significance accorded to this factor is in large part due to its endorsement by Lord Keith in Hill v Chief Constable  AC 53 (with whose speech the other members of the majority agreed). Against that backdrop, it is not surprising to find that the defender was successful in Thomson v Scottish Ministers 2013 SC 628 where a claim arose after a member of the general public was killed by a prisoner on temporary release. The Lord Ordinary held that the claim was irrelevant; the victim had not been at a "particular risk of damage". On appeal it was argued that "the deceased belonged to a group of people which, although difficult to define, was at a greater risk than members of the public in general. She was within that group of persons that Mr Campbell was likely to ‘have dealings’ with during his weekend leave". The pursuer’s appeal was unsuccessful. The victim had not been exposed to the requisite degree of risk: "The averment that he posed a danger to persons with whom he would ‘have dealings’ during his weekend leave says little more than that any person with whom he came into contact, from the moment of stepping off the bus in central Glasgow, could potentially be at risk from him because of his underlying recidivism".
The fact that the prospects for pursuers are not all they might be in a case of this nature did not prevent an attempt at recovery being made in the recent case of A v B. The first defenders operated a residential care home and the second defenders were the local authority. Notwithstanding a report which assessed him as high risk, the first defenders allowed a 16-year-old resident, X, unsupervised leave. During that leave, X raped and sexually assaulted a child. The issue was whether the defenders were liable in negligence for the criminal acts of X.
It was said by the pursuer that a duty of care arose as the requirements of foreseeability and proximity were both met. Foreseeability of harm arose from X’s history of sexualised behaviour, violence and absconding. With regard to proximity it was said that arose because "the victim was (i) physically or geographically proximate to X and (ii) in a special class or category of persons (i.e. young boys) who were at particular risk from X’s actions". This allowed the victim to maintain that Dorset Yacht did not stand in the way of a claim. The defenders submitted that no duty of care existed and, in particular, that residing in the vicinity of the residential home did not allow a finding of proximity to be made. The victim was at no greater risk than the public at large. Thomson was said to be closely analogous and supportive of the defenders’ position. It was held that no duty of care arose: "the current case cannot be distinguished from Thomson and the action falls to be dismissed for the reasons set out in Thomson".
Pursuers who have been injured by someone who has escaped or been released from an institution face an uphill struggle. Unless they were at a special or particular risk of harm, they will be unable to demonstrate that they are in a proximate relationship to the defender. Dorset Yacht itself did not compel such a conclusion; Lord Keith’s analysis did. The position reached is one that is highly protective of the position of defenders. It might be said that it should be open to a pursuer to demonstrate that proximity exists on other grounds. In any event, there appears to be a reluctance to allow pursuers to lead evidence that they were at special risk. In A v B it was said that the defenders knew or ought to have known that X posed a real and immediate risk to young boys whom he would encounter while on unsupervised leave. X was said to pose a distinct risk to the victim due to both physical proximity and class of victim, with the result that the requirement for proximity was satisfied. I would suggest though that, had the case gone to proof, the position might have looked very different and I am far from convinced that it was correct to arrive at judgment without evidence being led.
In Dorset Yacht the owner of a yacht (presumably insured) was able to recover for damage to property but in A v B the victim of a very serious sexual assault is denied a remedy in negligence. It is over 50 years since Dorset Yacht was decided but there is nothing to suggest that a situation which was factually analogous would not be decided in the same way. One therefore presumes that if X had stolen a Porsche 911 which was parked opposite the residential school the owner would have been able to recover if the car was damaged. Conferring stronger protection in respect of property damage seems, at least intuitively, incorrect.
In Dorset Yacht the defendant’s obligation was narrowly circumscribed by being owed only to those in the immediate geographical area whose property was at risk from escaping prisoners. A’s case did share the same element of close geographical area but it was said that it "makes no difference that the victim attended a primary school close to the residential home and the offence took place near the school". Propinquity was material in Dorset Yacht but seems to count for less where bodily injury is concerned.
The current position seems less than satisfactory. It is of course true that a duty of care arises in respect of the acts of third parties in a very limited number of occasions. Concerns over indeterminate liability play their part though, as we have seen, it is arguable that they can be met by the application of the law on remoteness. The requirement that there be a "particular distinctive risk" is highly restrictive and advantageous for defenders. This is even more the case should an action be dismissed without proof being heard.
It is perhaps worth bearing in mind that Dorset Yacht was decided during an expansionist phase in the evolution of the law of negligence. The law might have taken on a very different shape if that decision had concerned personal injury caused by the acts of a sex offender who had escaped. It is perfectly conceivable, given trends at the time, that a duty of care would have been held to be owed. Had that happened, I think it decidedly possible that proximity would have been framed very differently and possibly in terms much more favourable to claimants