3 Borstal boys were left unsupervised and damaged a boat. The owner sued the home office for negligence. HL held that the borstal officers, for whom the Home Office (HO) was vicariously liable, owed a duty to take such care as was reasonable in the circumstances to prevent the boys damaging property, provided there was a manifest risk of that occurring if they did not take such care. Since the risk was manifest (they knew of the boys’ criminal records etc), HO was liable. Public policy was also in favour of making HO liable.
Lord Pearson: There was a duty of care to the boat owners under the definition of “neighbourhood” by Lord Atkin in Donoghue v Stevenson. NB Pearson says that this is not a universal test but is a general test, to be applied except where it would produce injustice: the test is to be applied unless there is a reason for not applying it. He dismisses each claimed reason for not applying the test. There IS sufficient proximity here because there isn’t only physical proximity but the harm was also foreseeable. HO WAS responsible for the boys due to the special relationship between them, despite the boys being legal adults. Although borstal training sometimes requires giving boys greater freedom, this may only diminish but not eradicate the duty and it is therefore not against public policy interests to make HO liable for borstal boys’ actions.
Lord Reid: he takes a different approach to Pearson. He says that where there is a NAI between R’s carelessness and the ultimate damage, it is still possible to sue R provided that the damage was highly probable, and NOT mere foreseeability, as in cases where the damage is direct (the “very probable” requirement emphasises that the NAI is a consequence of R’s carelessness. “Mere foreseeability” could allow R to be liable even where the damage comes from a new, separate cause, with little connection to the original carelessness).
Lord Diplock: Lord Atkin’s dictum, as he himself said, was not to be applied universally but merely “generally” (i.e. not always) since this would unduly restrict the law. If it can be established (1) that the officers were acting in breach of their instructions (and not acting in pursuance of discretion granted to them, in which case they, and thus the HO would not be liable) and (2) that in breaching the instructions the harm was reasonably foreseeable, a duty of care to the boat owners existed. (3) He says the key point is that the criminal has been negligently allowed to escape. Therefore the police would NOT be liable if the criminal escaped and committed crimes out of habit, as opposed to crimes used to facilitate the escape itself. Nor would police be liable if they released a prisoner who then committed crimes.
Foreseeability, vicarious liability, proximity and public policy are all considered in deciding whether the duty existed.