Kalma & Ors v African Minerals Ltd & Ors

Accessory liability for a common tortious design requires substantial assistance which furthers the tort and a shared intention to do or secure the acts constituting it. Foreseeability that a third party might act tortiously does not establish actual or conditional intent. Assistance directed towards an activity capable of lawful performance is insufficient without a common design encompassing the tortious act.

A person is not ordinarily liable for failing to protect others from a third party’s criminal acts. Liability may arise where that person created the danger, but ordinary logistical support for an independent police force does not itself do so. Foreseeability alone also cannot establish a novel duty of care. Proximity and whether the duty is fair, just and reasonable remain essential.

The appellants were inhabitants of a mining district in Sierra Leone who suffered violence, detention and other mistreatment when the Sierra Leone Police responded disproportionately to local unrest in 2010 and 2012. The respondents owned and operated a nearby iron ore mine. They had requested police assistance and supplied the under-resourced police with money, vehicles, accommodation and other logistical support.

Following a 24-day trial, Turner J dismissed claims advanced on seven bases in [2018] EWHC 3506 (QB). The appeal was confined principally to accessory liability through a common tortious design and an alleged direct duty of care to protect the appellants from police violence. It also challenged contingent findings on breach and causation.

The central questions were whether assistance and a conditional intention to suppress protest by excessive force could be inferred; whether the respondents owed a direct duty in negligence; and whether four omissions found contingently by the judge caused the appellants’ losses when considered cumulatively.

1. Disposition. The appeal was dismissed unanimously. Coulson LJ gave the judgment, with which Irwin LJ and Dame Victoria Sharp P agreed.
2. Common design. Accessory liability required proof that the respondents acted in a way which substantially furthered the police torts and did so pursuant to a shared design to do or secure the acts constituting those torts. Mere facilitation or knowing assistance was insufficient. The trial judge had found both that the respondents supplied no legally sufficient assistance in committing the violence and that their personnel did not intend the police to act unlawfully. Those findings were supported by the evidence and could not be avoided by reframing the case on appeal: paras 71–108.
3. The new case wrongly equated foresight with intent. Foreseeing that an under-resourced police force might overreact did not show an intention, actual or conditional, that it should do so. The provision of money, vehicles and accommodation was equally, and on the findings more, consistent with restoring order and protecting life and property. Restoration of order was capable of being achieved lawfully. Accordingly, the assistance did not support an inference of a common design to commit trespass to the person: paras 83–108.
4. Duty of care. The negligence claim was properly analysed as one based on omissions and harm caused by an independent third party. Its substance was that the respondents failed to protect the appellants from the police. The only four contingent breaches found at trial were also omissions. The ordinary rule against liability for failing to prevent a third party’s criminal acts therefore applied: paras 118–129.
5. The creation-of-danger exception did not apply. The police created the danger through their fear, indiscipline, anger and excessive response. Supplying routine logistical assistance during civil unrest was not analogous to entrusting a firearm to an unstable officer and might have reduced rather than increased the danger: paras 130–135.
6. No freestanding duty arose under the Caparo criteria. Harm was foreseeable, but foreseeability alone was insufficient. The appellants formed an indeterminate class of inhabitants without the necessary proximity to the respondents. It was not fair, just or reasonable to transfer responsibility for the independent police force’s unlawful acts to a commercial operator whose assistance was reasonable, non-causative and unconnected with the violence: paras 136–152.
7. Breach and causation. Permission to add a late challenge to the finding that logistical support was not a breach was refused; the challenge would also have failed on its merits. The four omissions found contingently at trial each lacked causative effect. Combining several non-causative omissions did not establish causation, and the trial judge’s factual findings supplied no basis for a contrary cumulative conclusion: paras 153–169.

1. Court of Appeal (Civil Division): In [2020] EWCA Civ 144, the court unanimously dismissed the inhabitants’ appeal on common design, duty of care, breach and causation.
2. High Court of Justice, Queen’s Bench Division: Turner J dismissed all seven bases of claim following a 24-day trial: [2018] EWHC 3506 (QB).