In this blog, Christopher Fleming of 12 King’s Bench Walk considers the recent decision in Kalma & Ors v African Minerals Ltd & Ors  EWCA Civ 144. The Court of Appeal dismissed an appeal by the claimants, inhabitants of a mining town in Sierra Leone, against the dismissal of their claims against the owners and operators of the largest iron ore mine in the region for compensation for the violent acts of the local police force. It was agreed that the law of Sierra Leone could be treated as identical to that of England and Wales. The appeal dealt with such issues as the law of common design and the principles of ‘pure omissions’. The lengthy (and excellent) first instance judgment of Turner J can be found here.
The appellants were inhabitants of Tonkolili, a remote district in the north of Sierra Leone. The respondents were the owners and operators the largest iron ore mine in the region at that time. The claim arose from two incidents of civil unrest, one in 2010 and the other in 2012, during which the appellants were variously beaten, shot, gassed, robbed, sexually assaulted, incarcerated and in once case killed, by members of the Sierra Leone Police (‘SLP’). The appellants brought a claim against the respondents alleging they were liable for these wrongful acts on a number of grounds. These included, inter alia, liability, accessory liability, and vicarious liability for the torts committed by the SLP.
In November 2010, unrest broke out at the site of the respondents’ mines. Protesters set light to the mine and destroyed a drilling rig. As these events unfolded, the SLP were permitted to make use of vehicles belonging to the respondents. There was evidence of excessive violence being used by the SLP as well as arbitrary arrests. Following this incident, the respondents ramped up their financial and logistical support of the SLP in the region.
In April 2012, a workers’ strike led to further clashes with the SLP. The SLP were described by the judge at first instance as going on a “rampage […] shooting and beating people up, kicking doors and hurling insults at market women”, and perpetrating “entirely unwarranted violence upon random members of the population”.
Decision at first instance
All the claims were dismissed at first instance. The trial lasted 24 days, with 19 days of evidence, 67 witnesses, and closing submissions in writing amounting to 401 pages. The judgment was 92 pages long. In practical terms, what this meant was that due to the sheer volume of evidence that was before the trial judge, any challenge to a finding of fact would have to be treated with extreme caution. Despite this, the appellants were found to have skirted, and at times crossed, what can and cannot be argued in such an appeal.
The main points under appeal were as follows:
- The judge should have found the respondents to be liable on the basis of common tortious design;
- The judge had been wrong to approach the case as one of “pure omissions”. Based on the principles in Caparo, he should have found that the respondents owed a direct duty of care to the appellants.
- The judge ought to have dealt with the question of causation by reference to all the breaches cumulatively.
The law on common design
Under the law on common design, a party can be held jointly liable where a person acts with another to commit a tort in furtherance of a common design. In Fish & Fish Limited v Sea Shepherd UK and Others  UKSC 10,  AC 1229 it was summarised by the Supreme Court as follows:
- To establish accessory liability in tort it is not enough to show that D did acts which facilitated P’s commission of the tort. D will be jointly liable with P if they combined to do or secure the doing of acts which constituted a tort. This requires proof of two elements. D must have acted in a way which furthered the commission of the tort by P; and D must have done so in pursuance of a common design to do or secure the doing of the acts which constituted the tort. (Lord Toulson );
- To establish liability, it was necessary to show a shared intention that the lawful act would assist the tort (Lord Sumption at )
- The assistance had to be substantial (more than de minimis); there had to be a common design between D and P that the tortious act be carried out; (Lord Neuberger at  and ).
- It would not be enough to show that the activity was carried out tortuously if it could also be carried out without committing any tort (Lord Neuberger at ).
The appellants’ case on common design
The appellants’ case was that the respondents were jointly liable for the SLP’s violent acts on the basis that they had instigated the use of excessive violence with the common design of quelling the protests.
At first instance, the judge found that there had been no intention on the respondents’ part for the SLP to use excessive force or unlawful actions, and that the appellants’ case on common design failed on for lack of assistance and causation.
On appeal, the appellants advanced a new case on intention. They argued that even if the respondents had not instigated the tortious act, common design could still be made out through various forms of material assistance which had been provided to the police (such as money, vehicles, and accommodation) and the intent to quash the protest. It was argued that intent to carry out tortious acts could be inferred on the basis that the respondents could have foreseen the use of excessive force.
This was roundly rejected by the court for the following reasons:
- The case advanced on appeal was not the pleaded case;
- Foreseeability is not intent and does not, on its own, create a legal liability;
- The appellants’ argument went against the trial judge’s findings of fact, which could not be ignored or avoided.
- The judge had found that none of the acts of assistance could be said to amount to the respondent supporting the SLP in acting unlawfully. This was not a matter that could be re-litigated on appeal.
- There was no single act or unequivocal document setting out an intent to act tortiously. Instead, there was a “swirling mass of conflicting evidence through which the judge was required to steer a difficult course”.
- The respondents as a private entity were entitled to rely on the assistance of the SLP, who were the region’s police force responsible for maintaining law and order, and to support their proper functioning by providing resources. This could not lead to an inferred intent to quash the protest, if need be by violent means. The respondents had “no sensible option but to act as they did”.
The appellants’ case on duty of care: “an ambitious proposition”
The appellants appealed the judge’s findings with regards to duty on a number of grounds. The main thrust of their argument was that the judge had been wrong to treat the case as one of “pure omission” (i.e. as one in which a defendant is in breach for failing to warn against or take steps to protect a person from harm by a third party) and should have found that a duty of care existed.
The appellants argued that the provision of money, transport and accommodation to the SLP was a positive act and should not be treated as an omission. The Court of Appeal disagreed, finding that the appellants underlying case relied on an omission, namely that the respondent had failed to protect the appellants from the violent acts of the SLP. The court referred to Stovin v Wise  AC 923: to hold a defendant liable for an act, it is necessary to look in the most common-sense way at whether the damage complained of was caused by something the defendant did. The judge’s finding that the assistance provided was not causative of the loss meant that the appellants’ case was one of pure omission.
A duty may be imposed in pure omission cases where the acts complained of are “capable of creating a source of danger” or where they involve an assumption of responsibility (see Mitchell v Glasgow City Council  1 AC 874 and the recent string of Supreme Court decisions applying it). The judge had found at first instance that the danger had arisen as a result of “fear, ill-discipline, anger and testosterone”, and not the respondents’ support. Without the respondents’ support, the situation might have been worse. The respondents had not created the source of danger, nor by their actions in materially supporting the local police force’s proper functioning had they assumed responsibility for the force’s violent actions. This meant that no duty of care arose.
The court went on to find that, in any event, no freestanding duty arose per Caparo. The appellants case could not be made out on proximity: most of the appellants had no direct connection with the respondents. A finding of proximity would result in the respondents owing an indeterminate liability to an indeterminate class of people.
Breach and causation
At first instance the appellants alleged a number of different breaches. The judge found that none were causative of the damage. On appeal, the appellants argued that the judge had erred in dealing with each allegation separately and had failed to consider them altogether. This argument was roundly rejected on appeal: “nought plus nought plus nought usually equals nought”. Causation was not therefore made out.
The claimants are expected to seek permission to appeal.