Kalma v African Minerals Ltd and others [2018] EWHC 3506 (QB) is an interesting recent decision involving transnational tort claims against a UK company in respect of events at and around its mine in Sierra Leone. It is, I believe, the first of these type of claims brought by London solicitors, Leigh Day, to go to trial.
The claims arose out of violent police suppression of protests in 2010 and 2012 by a local community in Sierra Leone against a mine created and operated by the defendant, a UK company, and its two Sierra Leonean subsidiaries. The protests prompted a significant overreaction from some members of the Sierra Leone Police (“SLP”) whose response to disruptive protests and threats against the personnel, property and business of AML soon degenerated into violent chaos during the course of which many villagers were variously beaten, shot, gassed, robbed, sexually assaulted, squalidly incarcerated and, in one case, killed.
The claimants alleged that they were among the victims of these abuses and contend that, although the SLP perpetrated the worst of these excesses, the defendants were nevertheless liable to compensate them by the application of a broad range of distinct common law remedies to the facts of this case.
It was accepted that the law of Sierra Leone applied to the issues both of liability and quantum. In respect of liability, it was agreed that the law of Sierra Leone could be treated, for all practical purposes, as being identical to that of England and Wales. Turner J dismissed the claims having considered seven possible grounds on which the defendants might incur liability for the acts of the Sierra Leone police towards the claimants.
- EMPLOYEE VICARIOUS LIABILITY
It was alleged, for example, that one employee of the defendant directly and violently assaulted some of the claimants and that others encouraged members of the SLP to use excessive force. Two criteria are involved.
(i) as regards the sort of relationship which must be found to exist between an individual and a defendant before the defendant can be found to be vicariously liable in tort for the conduct of that individual; That was clearly satisfied here as the individuals concerned were employees
(ii) as regards concerns the scope of the conduct of such an individual in respect of which vicarious liability is to be imposed on the defendant.
Applying Muhamud v Wm Morrison Supermarkets plc [2016] AC 677 if any claimants could prove that they were the victims of torts perpetrated directly upon them by an employee or employees of the defendant then the means deployed, even if seriously criminal, remain sufficiently closely connected to their employment to give rise to vicarious liability on the part of the defendant. However on the facts the claimants had not made out that the employees against whom such allegations have been raised were, themselves, guilty of free-standing tortious conduct.
- NON-EMPLOYEE VICARIOUS LIABILITY
The claimants contended that the defendant was vicariously liable for the torts of the SLP. Various Claimants v Catholic Welfare Society [2013] 2 AC 1 established that the relevant test is whether or not the non-employment relationship is, upon analysis, one that is “akin to that between an employer and employee”. The most important factors tending to establish a relationship akin to that between employer and employee in this context arise in the following circumstances:
(i) the tort will have been committed as a result of activity being undertaken by the tortfeasor on behalf of the defendant;
(ii) the tortfeasor’s activity is likely to have been part of the business activity of the defendant; and
(iii) the defendant, by engaging the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor.
This claim was unsustainable. Save for the six officers permanently stationed at the mine, in respect of whom there is no evidence of wrongdoing, the officers involved were performing duties which extended far beyond the narrow parameters of the business activity of the defendant. The defendant did not exercise any significant degree of control over the SLP. The communications between employees and the police did not amount to orders or direction but comprised, at their highest, encouragement to do a robust and thorough job.
- ACCESSORY LIABILITY
It was alleged that the SLP’s use of unlawful force on the protesters was part of a common plan between the defendant and the SLP the execution of which rendered the defendant liable for the entirety of the injuries and harm caused. The principle of accessory liability was reviewed and clarified by the Supreme Court in Fish & Fish v Sea Shepherd UK [2015] AC 1229 in which Lord Toulson observed at paragraph 21:
“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.”
The central issue was whether or not the defendant was at the material times assisting the police in their tortious conduct to a more than minimal degree in pursuance of a common design. Where the parties to an alleged common design include corporate bodies, the requisite design must be common to individuals whose acts and knowledge are legally attributable to such bodies by the application of the approach of Lord Hoffmann in the Privy Council decision of Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 AC 500.
Here the defendant’s provision of vehicles and drivers to the SLP was sufficient to facilitate the tortious conduct of the SLP to an extent that was more than de minimis. However, it was not the case that the defendant intended the police to act tortiously at any stage. Those in authority in the defendant’s organisation were understandably concerned that the disruptions to their undertaking were potentially extremely damaging to their prospects of commercial success. However, at all relevant times the solutions they proposed were directed at conciliation and not at the deployment of unlawful means. In particular, it would have been perfectly possible for the SLP to deploy the defendants’ vehicles lawfully and it was no part of the defendant’s plans that they should do otherwise. Similarly, the provision of cash, food, accommodation and drink although alien to what would be expected in the UK were pragmatic incentives and not bribes to achieve tortious ends.
- PROCUREMENT LIABILITY
Procurement liability is a further manifestation of joint liability whereby a defendant might incur liability by procuring the commission of a tort by, for example, “inducement, incitement or persuasion” of the primary tortfeasor. If the torts, including battery and false arrest, perpetrated by the SLP were pursuant to “some direction, or procuring or direct request, or direct encouragement” from the defendant then the defendant would be liable as a joint tortfeasor for the loss and damage sustained as a result.
On the facts here, the defendant neither incited or procured the SLP to act tortiously. Its employees on the ground were anxious that the police should deal with the protesters robustly and not tolerate the construction and manning of unlawful roadblocks or any other form of unlawful protest. However, they had not exhorted them to unlawful behaviour including false arrest, battery or tortious damage to property.
- MALICIOUS PROSECUTION
The ingredients of the tort of malicious prosecution are set out in Clerk and Lindsell on Torts 22 nd Ed. (2018) at paragraph 16-12:
“In an action for malicious prosecution the claimant must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him by the defendant on a criminal charge..; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the claimant. Evidence of malice of whatever degree cannot be invoked to dispense with or diminish the need to establish separately each of the first three elements of the tort.”
Following the incident in 2010, members of the local population were rounded up and later prosecuted for various criminal offences alleged to have been committed during the disturbances. The claimants in this case fell at the first hurdle as those who were prosecuted in the aftermath of the 2010 incident faced charges which were set in motion by the police.
- NEGLIGENCE
The claimants alleged the defendant owed them a duty of care in three ways.
(i) There was an obligation on the Defendants when operating in a country such as Sierra Leone to ensure clear protocols and procedures were adopted and implemented so as to ensure the use of public and private security forces did not lead to abuses of the rights of those affected by the Defendants’ operations;
(ii) Further or alternatively, there was an assumption of responsibility by the Defendants towards the Claimants via their commitments to abide by the international standards and in the course of their use and control of the Claimants’ land and their coordinated response to the protests;
(iii) Alternatively, if and in so far as the Defendants were operating as a separate entities, in the case of the First Defendant, there was an assumption of responsibility towards the Claimants via its commitments to abide by the international standards and its full effective control over the subsidiaries in respect of operational risk management and health and safety, to advise and direct its subsidiaries to take steps to prevent human rights abuses by their servants, agents and/or the police did not lead to abuses of the rights of those affected by the Defendants’ operations.
Turner J found that no duty of care arose on any of these pleaded grounds.
The defendant at senior management level was aware both in 2010 and 2012 that there was a risk that the police might react to protest with disproportionate violence. The generic danger of the police causing injury and loss was not, however, one which was “created” by the defendant. The proclivities of the police were, unhappily, an institutional fact long before the arrival of the defendant and, although not mitigated by the defendant’s failures to follow the active steps advocated by the relevant international standards, were not thereby exacerbated.
Nor could it be said that the defendant created the danger simply by calling the police. In both 2010 and 2012, dangerous situations were already developing which called for an effective response. In particular, the defendant undoubtedly owed a duty of care to its own employees to take reasonable care for their safety. The only sense in which it could realistically be argued that the defendant created the danger is with respect to the provision of vehicles, food, and financial or other support to the police. But the defendant was providing no more than that which the Sierra Leonean state, itself, ought to have provided to maintain an efficient police force in the first place. Suitable vehicles, proper remuneration, food and water are prerequisites to the proper functioning of any force.
The defendant exercised no supervision or control over the SLP. Individual employees did not give directions to the police and the responses of the police to the incidents which they were called upon to deal with were operationally entirely of its own choosing.
The claimants were members of the general public who lived near the mine and were policed by officers who, for the most part, would not have been there but for the activities of the defendant. This fell far short of establishing that the defendant had assumed a responsibility for the actions of the police. The circumstances in which the police are to be held to have assumed responsibilities for the acts of third parties is heavily circumscribed. The circumstances in which a party ought reasonably to be found to have assumed a responsibility for the police could hardly be less so. A finding to the contrary would open up the defendant to almost unlimited liability to a broad swathe of potential claimants within a class almost impossible to define or circumscribe with any clarity.
- BREACH OF A NON-DELEGABLE DUTY
The claimants sought to amend their pleadings to allege that if the SLP were operating, not in a relationship akin to employment but as independent contractors to the defendant, then they were engaged in an extra-hazardous activity the negligent performance of which exposed the defendant to liability As a general rule, liability does not generally attach to a defendant in respect of the tortious conduct of his independent contractors, although there is an exception which concerns extra-hazardous activities. In Honeywill & Stein Ltd v Larkin Bros (London’s Commercial Photographers) Ltd [1934] 1 KB 191. The scope of this exception was severely restricted by the Court of Appeal in Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2009] QB 725.
The claimants needed to prove (i) that the police officers who caused them injury, loss and damage were acting as independent contractors for the defendant and (ii) that the activities they were undertaking were exceptionally dangerous whatever precautions were taken.
They failed on both elements. First, with the possible exception of the officers stationed at the mine itself, the police were acting at any time as independent contractors of the defendant. The payments made to the police did not provide the defendant, either in form or substance, with any degree of significant control over what the police did or in what numbers. Similarly, the provision of vehicles, food and water was on an ad hoc basis and brought with it no corresponding contractual obligation on the part of the police to carry out its duties in a particular way which departed from those which they owed to the public at large to maintain the peace.
Second, although what many officers did was dangerous in both 2010 and 2012 the task in hand was not inherently and exceptionally dangerous if proper precautions had been taken. Honeywill liability arises where the work is extra-hazardous in itself not where the contractor’s performance makes it so.