GB v Home Office

A public authority may owe a non-delegable duty of care to a person detained under its control. The relevant inquiry is whether the claimant is especially vulnerable; whether an antecedent relationship places the claimant in the defendant’s custody, charge or care; whether the claimant lacks control over how the duty is performed; whether an integral protective function has been delegated; and whether the alleged negligence occurred in performing that function. Control over the claimant, rather than control over the place of injury, is the essential feature. Outsourcing does not remove the duty. The Crown Proceedings Act 1947 does not prevent liability where an independent contractor is an agent within the statutory definition.

The claimant, a protected party detained at Yarl’s Wood Immigration Removal Centre, alleged that negligent prescription of an anti-malarial drug caused a psychotic reaction. The Home Office had contracted with Serco to run the centre and medical care was provided through contractors. Master Leslie directed a preliminary determination of whether the defendant owed a non-delegable duty of care, alternatively whether it was vicariously liable. The central issue was whether the principles in Woodland v Swimming Teachers Association applied to medical treatment provided to an immigration detainee, and whether the Crown Proceedings Act 1947 barred liability.

1. The non-delegable duty issue was answered affirmatively. The court applied the five features identified by Lord Sumption in Woodland v Swimming Teachers Association: special vulnerability; an antecedent relationship involving custody, charge or care and an assumed positive duty; lack of control over how the duty is performed; delegation of an integral function; and negligence in performing that function.
2. An immigration detainee was not meaningfully distinguishable from a prisoner. Detention against the claimant’s will placed her in the defendant’s custody and made her dependent on its protection. The statutory powers to monitor and intervene, together with the detailed Detention Centre Rules and Immigration Directorate’s Instructions, demonstrated a positive protective duty.
3. The claimant had no free choice over the medical treatment provided. Medical care was an integral part of the defendant’s protective duty. In any event, the prescription of anti-malarial medication was specifically connected with the defendant’s responsibility to prepare her for possible removal to Nigeria. Any negligence in that function would therefore be negligence in performing the core function delegated to Serco.
4. Control over the claimant, rather than control over the environment in which injury occurred, was essential. The court declined to follow the contrary emphasis on environmental control in A (A Child) v Ministry of Defence, relying on the clarification in Woodland.
5. The imposition of the duty was fair, just and reasonable. Outsourcing could not extinguish responsibilities arising from detention, and the claimant should not have to identify which contractor or doctor was responsible before pursuing the detaining authority.
6. The Crown Proceedings Act 1947 did not bar the claim. Section 2(1)(a), read with section 38, extended Crown liability to torts involving independent contractors employed by the Crown. The court declined to follow Christina Morgan v Ministry of Defence to the contrary extent. The alternative vicarious-liability issue therefore did not require determination. Costs and consequential matters were reserved.