Kalma & Ors v African Minerals Ltd & Ors

A company is not generally vicariously liable for torts committed by police merely because it requested police assistance, supplied vehicles or equipment, or contributed financially to policing. A relationship akin to employment requires a materially closer connection with the defendant’s business and risk-creation activities, together with sufficient integration; public authority and operational autonomy remain important.

Accessory liability requires both more-than-minimal facilitation and a common tortious design. Procurement requires direction, procuring, direct request or encouragement of the tort. Negligence for third-party criminal acts remains subject to the established exceptions concerning creation of danger, supervision or control, and assumption of responsibility. The exceptional-hazardous-activity doctrine is confined to activities exceptionally dangerous whatever precautions are taken.

The claimants, villagers in Sierra Leone, alleged that police officers committed assaults, unlawful arrests, detention, property damage and other abuses during disturbances connected with the defendants’ mining operations in 2010 and 2012. They sought to hold the defendants liable on several bases, including employee and non-employee vicarious liability, accessory and procurement liability, malicious prosecution, negligence and breach of a non-delegable duty.

The parties agreed that Sierra Leonean liability law was, for practical purposes, the same as the law of England and Wales. The central questions were whether the defendants’ relationship with the Sierra Leone Police was akin to employment, whether the defendants shared a tortious design or procured the police conduct, whether a duty of care arose in respect of third-party criminal acts, and whether the police were independent contractors engaged in an exceptionally hazardous activity.

1. Employee vicarious liability. Applying Muhamud v Wm Morrison Supermarkets plc [2016] AC 677, the court accepted that the defendants would have been vicariously liable for torts committed by their employees sufficiently closely connected with their employment. The allegations that the relevant employees had themselves committed, encouraged or procured the pleaded torts were not proved.
2. Police relationship. The Sierra Leone Police were discharging public functions under their own constitutional authority. Their involvement was transient and unstructured, and the defendants did not exercise significant operational control. The relationship was therefore not akin to employment. Dual vicarious liability was not established.
3. Accessory and procurement liability. The provision of vehicles, drivers, money, food and accommodation facilitated police activity more than minimally. It did not, however, establish a common tortious design. The defendants intended a robust but lawful response to disorder. Nor was there evidence of direction, procuring, direct request or encouragement to commit torts.
4. Malicious prosecution. The prosecutions were set in motion by the police. The evidence did not show that the defendants had effectively initiated them, or that their lawyers materially usurped the prosecution’s role. The discontinuance of the proceedings would have been a determination in the claimants’ favour, but the other ingredients were not proved.
5. Negligence. Foreseeability alone did not create a duty to protect the claimants from police violence. The defendants had not created the institutional danger, exercised supervision or control over the police, or assumed responsibility to the local population. The claimants therefore failed on duty. In any event, the alleged failures were not shown to have caused the injuries or losses.
6. Non-delegable duty. The police were not, save possibly for officers stationed at the mine, independent contractors of the defendants. The activities were dangerous in execution but were not exceptionally dangerous whatever precautions were taken. The claimants failed on this basis also.
7. Outcome. None of the pleaded bases of liability was established. The claims therefore failed. The court declined to undertake a disproportionate hypothetical assessment of individual damages, but indicated that a 60 per cent discount from English-law awards would have been an appropriate general guide for Sierra Leonean damages.

First-instance judgment. No appellate history is stated in the judgment.