Download Lord Reid's Controversial Shift in Tort Law: Dorset Yacht and the Limits of Foreseeability and more Schemes and Mind Maps Law in PDF only on Docsity!
THE DORSET YACHT CASE:
CAUSATION, CARE^ AND^ CRIMINALS
Ernest J. Weinrib*
I. INTRODUCTION
Is the state under any civil liability for the damage^ perpetrated^ by criminals who through the negligence of its officers have^ escaped^ custody? This novel question was recently canvassed by^ the^ House^ of^ Lords^ in^ Home Office v. Dorset Yacht Co. ' Seven youths from a borstal camp slipped^ away from their sleeping supervisors in the dead of^ night^ while^ on^ a^ training^ ex- cursion to Brownsea Island. During their^ attempted^ escape^ they^ caused^ a yacht to be cast adrift and to collide with the yacht^ owned by^ the^ plaintiff company. In a move almost^ unprecedented^ in^ British^ legal^ history,^ the aggrieved company sought to recover in tort from the Home Office. The immediate issue^ before^ the^ court^ was^ not^ the^ action^ itself^ but^ a^ pre- liminary question of law: did the Home Office owe the^ plaintiffs^ a^ duty^ of care regarding those undergoing^ sentence^ in^ borstal^ institutions?^ In^ a^ four to one decision (Viscount Dilhome dissenting), the court answered in the affirmative, thereby confirming the unanimous opinion of the Court of^ Ap- peal. Apart from the specific decision reached, however, the case is sig- nificant for two reasons. First, the court essayed several new^ and^ important formulations in the two classic areas of perplexity and contention^ in^ the^ tort field, duty of care and proximate cause. Secondly, the case raised for the first time in^ a^ higher^ court^ the^ problem^ of^ the^ civil^ relationship^ between con- victed criminals and^ the^ ordinary^ public^ under^ a^ liberal^ corrections^ regime.
II. PROXIMATE CAUSE
In his Court of Appeal decision in favour of the plaintiffs, Lord Den- ning remarked that in the past, suits^ of^ this^ sort^ may^ have^ been deterred^ by the difficulty in^ showing^ that^ the^ negligence^ of^ the^ state^ or^ its^ servants^ was^ the proximate cause of the injury suffered. ' It was open to the defendants to plead on the "last wrongdoer" doctrine that the absconder's behaviour^ in committing the wrong was a novus actus interveniens which interrupted^ the causal sequence between the injury and the original negligence. This point was taken up in the Houise of Lords by Lord Reid who bravely attempted
*B.A., 1965, University College,^ University^ of^ Toronto;^ Ph.D.,^ 1968,^ Harvard University. Assistant Professor of Classics, University College,^ University^ of^ Toronto. 1 [1970] 2 All E.R. 294 (H.T). [19691 2 All E.R.^ 564,^ at^566 (C.A.).
Ottawa Law Review
to define the circumstances under which the novus actus interveniens argu- ment would fail. ' Since the inquiry before the court was solely concerned with the duty of care, it might seem that any comments addressed to the causation issue are, strictly speaking, mere dicta. But it is not always easy to precisely demarcate the fuzzy boundary between causation and duty, and it is hardly surprising that the broadening of the duty concept in the decades since Donoghue v. Stevenson" should coincide with a more relaxed approach toward causation. Fleming has noted that, in some judicial decisions, one of the reasons that novus actus interveniens has lost its popularity is that it is being swallowed up by the emphasis on duty with its concomitant search for foreseeable risk. '
Stansbie v. Troman, ' which had been adduced by Lord Denning as suf- ficient to refute a plea of no causation, " is an apt illustration of the trend. There a decorator (^) left the plaintiff's house unlocked while he went to pur- chase wallpaper, and, in the interval of his absence, the unoccupied house was ransacked by a jewel thief. In that case the decorator argued that the theft by a third party snapped the chain of causation connecting him to the damage caused, but the court rejected this on the ground that "the act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that in fact happened. The reason why the decorator owed a duty to the householder to leave the premises in a reasonably secure state was because otherwise thieves or dishonest persons might gain access to them... ." " Duty and lack of intervening cause are inextricably inter- woven, and they should probably be looked upon as alternate ways of stating the same point.
In dealing with this issue Lord Reid ignored Stansbie v. Troman and asked himself directly what was the criterion sufficient to dispose of the novus actus interveniens argument: "Is it forseeability or is it such a degree of probability as warrants the conclusion that the intervening human conduct was the natural and probable result of what preceeded it? There is a world of difference between the two. If I buy a ticket in a lottery or enter a football pool it is foreseeable that I may win a very large prize--some competitor must win it. But, whatever hopes gamblers may entertain, no one could say that winning such a prize is a natural and probable result of entering such a competition."' After a lengthy discussion Lord Reid's answer was that "mere foreseeable possibility" was not enough: what was required was an intervening action which was "likely to happen."
1[1970] 2 All E.R. at 298. 4 [1932] (^) A.C. (^) 562. 5 Fleming, Remoteness and Duty: The Control Devices in Liability for Negligence, 31 CAN. B. REv. 471, at 494 (1953). 0 [1948]^2 K.B.^48 (C.A.). 7 [1969] 2 All E.R. at 566. 8 [1948] 2 K.B. at 52 (emphasis added). 9[1970] 2 All E.R. at 298. "Id. at 300.
[Vol. 4:3 89
Ottawa Law Review
consequence" had alone defined the scope of liability in Scott's Trustees v. Moss, a conclusion such as Lord Reid's would still have been questionable. As Viscount (^) Simonds explained in Overseas Tankship (U.K.) Ltd. v. Morts Dock & EngineeringCo. (The Wagon Mound), "9 the "probable consequences" test (^) has no force of its own: it derives its efficacy from the consideration that a probable consequence is always one that ought to have been foreseen. Why did Lord Reid formulate this test for the novus aclus interveniens? He himself offers the following explanation: " There is an obvious difference between a case where all the links between the carelessness and the damage are inanimate so that, looking back after the event, it can be seen that the damage was in fact the inevitable result of the careless act or omission, and a case where one of the links is some human action. In the former case the damage was in fact caused by the careless conduct, however unforeseeable it may have been at the time that anything (^) like this would happen. At one time the law was that un- foreseeability was no defence (Re Polemis and Furness, Whithy and Co. Ltd.). 21 But the law now is that there is no liability unless the damage was of a kind which was foreseeable (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering (^) Co. Ltd. (The Wagon Mound)). 22 On the other hand, if human action (other than an instinctive reaction) is one of the links in the chain, it cannot (^) be said that, looking back, the damage was the inevitable result of the careless conduct.
The passage is mystifying. First it is difficult to perceive how what is seen to (^) be inevitable through hindsight has any relation to the problem at all. Inevitability in itself has not been a concept (^) of any significance in re- cent tort law. And as for hindsight, (^) Viscount Simonds again has surely defined once and for all its role as a test for liability. "After the event even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the reasonable man which alone can determine responsibility." "
foreseen that the descent would be made in some field adjoining the recreation grounds and that the (^) natural and alnost inevitable consequence of that would be that the crowd would break into the field and destroy the crops. No doubt (^) it could not -easily be foreseen that the descent would be made in that particular field-but, on the other hand.. .it (^) could be very easily foreseen that the descent would (^) take place on some piece of cultivated ground in the immediate vicinity. Id. at 36 (emphasis added). Similarly, (^) Lord Shand said: "I think the principle which ought to receive effect is that if the collection of the crowd, and the actings of the crowd, are the natural and probable consequence of the action of the defender-a con- sequence which the defender ought to have foreseen-then the case is relevant .. Id. at 37 (emphasis added). 9 [19611 A.C. 388 (P.C.): "For, if it is asked why a man should be responsible for the natural or necessary (^) or probable consequences of his act (or any similar description of them), (^) the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man, that (^) he ought to have foreseen them." Id. at 423. 20 [19701 2 All E.R. at 298. 21 [1921] 3 KtB. 560 (C.A.). 2[19611 A.C. 388 (P.C.). " Id. at 414.
[Vol. 4:
Causation, Care and Criminals
Moreover, cases "where one of the links is some human action" will also include those where the intervening action is perfectly innocent. As Lord Reid says in a later passage, "if the intervening action was likely to happen, I do not think it can matter whether that action was innocent or tor- tious or criminal." " But even cases like Donoghue v. Stevenson ' involve intervening human action:^ the^ plaintiff^ drank^ the^ ginger-beer.^ Lord^ Reid's formulation would have far-reaching effects indeed. Since The Wagon Mound " of 1961, the House of Lords has enshrined the criterion of foreseeability as the most consonant with fairness and justice in the determination of liability for negligence. This was also the test applied to instances of novus actus interveniens. "' Why then did Lord Reid narrow the standard in Dorset Yacht? The answer may perhaps emerge from a com- parison with another recent opinion of Lord Reid on the same issue. In McKew v. Holland & Hannen & Cubitts (Scotland) Ltd. " the defendant's negligence had caused the plaintiff to lose the control of his leg. The plain- tiff tried to recover, not only for the original damage, but for a fractured ankle received in a fall when he tried to go unaided down a flight of stairs. In giving the opinion of the court Lord Reid admitted that the second injury was foreseeable by the defender but^ he^ explicitly^ denied^ that^ this^ was^ in^ itself a sufficient basis for recovery. " He declared that the plaintiff was un- reasonable in attempting to descend the stairs unaided, and therefore the fall was not a natural and^ probable^ result^ of^ the^ original carelessness of^ the^ de- fendant. The plaintiff had committed a novus actus interveniens which was the proximate cause of his own injury. Lord Reid thus applied the same test to the supposed novus actus inter- veniens in Dorset Yacht that he applied in McKew. But it might have been relevant to consider that these two cases typify different classes of inter- vening acts. In Dorset Yacht the intervening act caused the original damage, whereas in McKew it caused a second, new injury. In the second class, re- covery from the original tortfeasor should probably be more restricted. There may be little justification in holding the first wrongdoer liable when, for instance, the injured victim of his negligent driving has his wallet stolen while lying unconscious " or when the victim takes his own life although he has physically been cured of the cut he received on the head. " In these cases, although the subsequent damage^ is^ foreseeable,^ it^ is^ not this^ damage
24 [1970] 2 All E.R. at 300. " [1932] A.C. 562. 21 Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C.
- (^21) See (^) the comments of (^) Lord Denning (^) in the (^) Court of (^) Appeal judgment (^) in Dorset Yacht, [1969] 2 All. E.R. at 566-67. Compare also Iron & Steel Holding & Realisation Agency v. Compensation Appeal Tribunal, [1966] 1 W.LR. 480, at 492 (C.A.). [1969] 3 All E.R. 1621 (ILL.). "Id. at 1623. 30Patten v. Silberschein, [1936] 3 W.W.R. 169 (B.C. Sup. Ct.). 31 Pigney v. Pointers Transp. Servs. Ltd., [1957] 2 All E.R. 807 (Norwich As- sizes).
Winter 1971)
Causation, Care and Criminals
which often are unforeseeable or demand an extraordinary amount of pre- vision. ' Conversely, even when the damage is readily foreseeable liability cannot always be imposed, especially in cases of first impression. " Dorset Yacht falls into the latter category. It was unprecedented that a member of the public should be able to recover from the Home Office for damage committed by escaping criminals even though such damage could have been anticipated as a result of the carelessness of custodians. This in itself was deemed by Viscount Dilhorne to be a sufficient ground for finding no duty of care. As he wrote in his dissent: "[W]e are concerned not with what the law should be but with what it is. The absence of authority shows that no such duty now exists." " This approach, if applied rigorously, would of course, stunt the ability of the law to develop, and the great cases of recent tort law have been very much concerned with the justifications for postulating a duty of care in such situations. Lord Diplock " indeed went so far as to bracket Dorset Yacht with Donoghue v. Stevenson "' and Hedley Byrne & Co. v. Heller & Partners Ltd., ' and his unusually theoretical disquisition on the subject of duty of care underlined the importance he attached to the case. Two techniques are available to the court in resolving the duty issue in any particular case, and both were employed by the House of Lords here. The first is to concentrate on the elucidation of overreaching (^) principles of public policy. Both the courts and academic writers have been aware that at the heart of the duty issue lie outright judgments of value as to the social desirability of certain kinds of conduct. " When Dorset Yacht was before the Court of Appeal, Lord Denning had been characteristically forthright about the need to grasp boldly the nettle of public policy: "It is I think, at bottom, a matter of public policy which we as judges must resolve. This talk of 'duty' or 'no duty' is simply a way of limiting the range of liability." '
Outstanding examples are the rescue cases. See Fleming, Remoteness and Duty: The Control Devices in Liability for Negligence, 31 CAN. B. REv. 471, at 486 (1953). " Deyong v. Shenburn, [1946] K.B. 227, at 233 (C.A.). 40 [1970] 2 All E.R. at 313. Viscount Dilhorne dismisses^ Lord^ Atkin's^ neighbour test as irrelevant on the ground that it only determines to whom a duty is owed and not whether a duty exists to begin with. Id. at 311. But surely negligence cannot be fragmented in this way. As was pointed out in Bourhill v. Young, [1943] (^) A.C. 92, a duty of care cannot exist in the abstract but only with reference to each person to whom a duty is owed. 41[1970] (^2) All E.R. at (^) 324. [1932] A.C. 562. "[1964] A.C. 465, [1963] 2 All E.R. 575. "Fleming, supra note 38, at 486: "Recognition of a duty of care is the outcome of a value judgment that the plaintiff's interest, which has been invaded, is deemed worthy of legal protection against negligent interference by conduct of the kind alleged against the defendant. Thus stated in terms of a theory of interests, the basic policy question arising in negligence cases is brought to the surface." And see Nova Mink v. Trans-Canada Airlines, [1951] 2 D.LR. 241, at 256 (N.S. Sup. Ct.); Hedley Byrne & Co. v. Heller & Partners Ltd., [1964] A.C. at 536, [19631 2 All E.R. at 615. "[1969] 2 All E.R. at 567.
Winter 1971]
Ottawa Law Review
The second technique is to search for previous decisions, the facts of which are analogous to the facts in the case at bar. ' By winnowing out circumstances in the previous decisions which he deems inessential, the judge of the new situation will be able to reformulate the rationes of the old cases so as to cover the circumstances confronting him. Theoretically this method is not completely distinct from the first, since the very process (^) of deciding which situations are analogous and which circumstances are inessential will be based on the judge's conception of public policy and the desirability of punishing or condoning certain types of behaviour. But the practical dif- ferences are vast. With the first approach the argument will usually flow from the broad principle perceived by the judge to the facts in the case at bar as embodying an example of that principle, and the conclusions will be correspondingly sweeping. Under the second technique the argument will usually flow from the individual cases to the conclusion, and the principle, if stated explicitly at all, will be stated in extremely restricted terms. Lord Reid's notable opinion in Dorset Yacht illustrates the first ap- proach. The crucial passage is worth quoting in full: In later years there has been a steady trend toward regarding the law of negligence as depending on principle so that, when a new point emerges, one should not ask whether it is covered by authority but whether recog- nized principles apply to it. Donoghue v. Stevenson 47 may be regarded as a milestone, and the well-known passage in Lord Atkin's speech' 4 should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new cir- cumstances. But I think the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.^49 These welcome words, if applied in the (^) future, will mark almost the final apotheosis of Lord Atkin's "neighbour test" as the background principle against which, in the absence of any countervailing consideration, the law of negligence should be applied. In cases such as Dorset Yacht where the facts do not seem to present a duty situation which has been adjudicated on before but which nevertheless fall within Lord Atkin's words, the side disclaiming liability will face a more difficult task. No longer will the lack of previous decisions in itself be a sufficient ground for the courts' refusing (^) to impose liability. And one can anticipate that even when adequate considerations are adduced for not applying Lord Atkin's aphorism, the conflicting aspects of public policy which are in issue will emerge more clearly than they have in the past. The other approach to the duty issue, through the analysis of decisions
'4Aptly called "duty situations" in Morison, A Re-examination of Duty of Care, 11 MODERN L. REv. 9 (1948). The term is taken up by Lord Morris of Borth-y-Gcst in Dorset Yacht, [19701 2 All E.R. at 307. 47 [1932] (^) A.C. 562. 48 Id. at 580. 4' [1970] 2 All E.R. at 297. Lord Reid's approach was also accepted by Lord Pearson, id. at 321.
[Vol. 4:
Ottawa Law Review
But conceding this, it is difficult to see how this distinction is a relevant one. There have been enough cases involving the novus actus interveniens doctrine where the original tortfeasor has been held liable for the forseeable acts of intervening third parties who could have been held liable themselves. The fact that children and lunatics purportedly lack responsibility goes to the question of their liability, not to that of their guardians. Lord Diplock's singling out of the presence or absence of responsibility would have been ger- mane in the old days of the "last wrongdoer" doctrine, when the idea pre- vailed that "the law fulfilled its function as long as it offered one legally responsible defendant to the plaintiff". "' There is no reason why this should be a significant factor today.
The problem with Lord Diplock's opinion is that he has not completely adhered to his own acknowledged methodology. He has outlined the fac- tual differences between escaping borstal boys and escaping lunatics or child- ren, but he has failed to state the considerations of public policy which make those differences essential or even relevant. There is no need to speculate whether a more policy-centred approach to previous decisions would have led to a broader conclusion. However that may be, it would certainly have made his argument seem less capricious.
IV. TORT AND LIBERAL PENOLOGY
There are few observers who would disapprove of the result of Dorset Yacht, or who would uphold the overriding need for corrections officers to be left free to commit negligent acts. But the history of tort law is full of decisions which, while harmonizing with notions of justice current at the time, have had a stultifying effect on the long-range development of tortious liability. The basic issue at stake in Dorset Yacht, the relationship between compensa- tion in tort and the corrections system, is of no small importance. The last decades have witnessed a gigantic shift in attitudes regarding the nature ot criminal sanctions, and a growing tendency to discount the desirability of exacting simple retribution from the criminal offender. At present it is fashionable to think in terms of rehabilitation with the ultimate goal being that the convict should resume a productive and responsible position in society. Minimum security institutions, probation, parole, and the English borstals have been typical manifestations of this enlightened spirit. In Canada, the recent Report of the Canadian Committee on Corrections 5 has imaginatively recommended several devices whereby convicted offenders will be able to serve their sentences while almost fully integrated into normal society. The impetus for penal reform has of course come from those concerned with the operation of the criminal law, and it is a tribute to their energy that far-reaching reforms continue to^ be proposed.^ But^ from^ one^ point^ of^ view 7 J. FLEMrNO, THE LAW OF ToRTS 205 (3d ed. 1965). 38 REPORT OF THE CANADIAN COMMITTEE ON CORRECTIONS 201-04 (The Ouimet Report, 1969).
(^398) [Vol. 4:
Causation, Care and Criminals
there has been a regrettable by-product. No one has yet attempted to deal in a systematic fashion with the ordinary tort liability that will accrue when the enlightened experiments in the use of the criminal sanction break down. The results are (^) to a certain extent evident in the reasoning of Dorset Yacht. When assessing the responsibility of the administrators of the borstal system for damage done by absconding youths the court mentioned an Australian case of a prisoner (^) escaping from custody, ' an American case of a convict escaping from a minimum security (^) farm, 6 an unreported lower court de- cision dealing with borstal boys, 61 and the two cases (^) already noted concern- ing a lunatic " and a nursery school child. ' Is there really, or should (^) there be, a single formula that can be adjusted like a Procustean bed to fit all these situations? One factor which may motivate the courts in dealing with cases in- volving escapes from liberal penal institutions has been the desire not to im- pede laudable experiments by the imposition (^) of liability. An instructive case where an American court vindicated progressive penal principles at the cost of producing (^) rather contorted reasoning is Williams v. New York. " In that case a man convicted of attempting a robbery with the aid of a toy pistol escaped from a minimum security camp (^) through the carelessness of the cus- todial officers. He commandeered a truck driven by a local farmer, but when he threatened the farmer with a knife the frightened farmer (^) suffered a brain haemorrhage and died. The New (^) York Court of Appeal denied re- covery to the estate on two grounds. Firstly, it was not foreseeable on the basis of the convict's record that he would use violence on the farmer. Therefore the farmer as an unforeseeable plaintiff (^) was excluded from re- covery on the principle of Palsgraf v. Long Island Ry. ' (^) But it is by no means obvious why it should be (^) unforeseeable that a man who had used a toy pistol in attempting a robbery would try to effect (^) his escape by intimidat- ing a neighbour with a knife. Secondly, and more strangely, the court held that with respect to those who were incarcerated but not insane or criminally dangerous the state had only a duty to punish and no duty to restrain, and thus there (^) was no breach of duty when the convict was allowed to escape. By having recourse to this weird and artificial distinction the court was at- tempting to avoid fettering the liberal penal (^) apparatus with liability but was paradoxically (^) using an archaic justification in treating punishment as the only purpose for confining those (^) guilty of less serious offences. Since such prisoners are purposely being kept under restraint (^) by the state, how can the
(^59) Thorne v. Western Australia, [1964] W. Austi. L.R. 147 (Sup. Ct.). (^60) Williams v. New York, 127 N.E.2d 545 (1955). 61 Greenwell v. Prison Comm'rs, 101 LJ. Newspaper 486 (1951) (summary). The case is known to me only from CLERK & L DSELL, ON ToRrs 1483 n. 26 (13th ed. A. Armitage 1969), the case notes in (^68) L.Q.R. 18 (1952) and 85 L.Q.R. 322 (1969) and comments in Dorset Yacht. [19371 (^4) All E.R. 19 (Liverpool Summer Assizes). 61 [1955] A.C. 549. 127 N.E.2d at 548-49. 162 N.E. 99 (N.Y. 1928).
Winter 1971]
Causation, Care and Criminals
vised integration (^) into society. " This will require the balancing of com- plicated and conflicting social interests, the study of statistical and (^) sociological evidence, and the introduction of innovations (^) on a large scale-asks which are more appropriate to the legislator than to the judge. (^) As a model for legislative action, there already exists in many common law jurisdictions, (^) in- cluding England and Ontario, machinery whereby the innocent victims of violent crimes can be compensated for personal injuries. " But even in the absence of legislation the courts may not be completely helpless. One might reach (^) the desired conclusion either by invoking the principle of Rylands v. Fletcher "1 by which strict liability is imposed for the escape of harmful (^) things as a consequence of non-natural user of land, or by exploiting the analogy of the related (^) rules governing scienter actions to re- cover (^) for harm done by dangerous animals. Such an approach was ap- parently essayed in the unreported (^) lower court decision of Greenwell v. Prison Commissioners," a case which, like Dorset Yacht, dealt with damage caused by absconding (^) borstal boys. The judge there held that Rylands v. Fletcher did not apply on the ground that since borstal camps are authorized by statute they do not constitute a non-natural user of land. But the pertinent sections of the statutes (^) concerned, the Criminal Justice Act " and the Prisons Act"' do not specify the locality in which (^) the camps are to be situated nor do they make their creation mandatory. These factors should suffice to defeat the argument of statutory (^) immunity and to throw the parties back to their positions in common law. "
Relevant also is Attorney-General v. Corke " which supplies an instance of (^) a court's willingness to extend Rylands v. Fletcher to cover a dangerous collection of people. In that case the defendant licensed a vacant lot to be used as a camp-site by trailer dwellers whose loathsome habits outside the camp were a source of complaint by the neighbours. The rule in Rylands v. Fletcher was invoked to justify an injunction against the defendant. (^) The decision has been acidly criticized, " and this might make one reluctant to use it as a precedent for applying (^) Rylands v. Fletcher to the Dorset Yacht situ-
(^6 1) In the Court of Appeal, Lord Denning was willing to consider parole and bor-
stals in the same breath, [1969] 2 All E.R. at 567. 70 In England, the English Crimes of Violence Compensation Board has been in existence since 1964. The governing Ontario statute is The Law Enforcement Com- pensation Act, Ont. Stat. 1967 c. 45, as amended Ont. Stat. 1968-69 c. 59. Similar schemes exist in New Zealand. (^) New South Wales. Northern Ireland, Saskatchewan. and several states in the United States. IL.R. 1 Ex. 265 (1866), aff'd L.R. 3 H.L. 330 (1868). "Greenwell v. Prison Comm'rs, 101 LJ. Newspaper 486 (1951) (summary). 11 & 12 Geo. 6, c. 58, § 48(c) (1948). '15 & 16 Geo. 6 & I Eliz. 2, c. 52, § 4 3(c) (1952). Managers of the Metropolitan Asylum Dist. v. Hill, 6 App. Cas. 193 (H.L. 1881); C.P.R. v. Parke, [1899] A.C. 535 (P.C.); cf. 1. FLEMING, THE LAw or ToRas 314 (3d ed. 1965). (^16) 77 (^) [1932] All E.R. Reprint 711 (Ch.). SALMOND, ON THE (^) LAw OF TORTS 453 (14th ed. R. (^) Heuston 1965); Ctnmut & LINDSELL, ON ToRTs 1484 n. (^26) (13th ed. A. Armitage 1969); Note, 49 LQ.R. 158 (1933); Kennedy, Note, 11 CAN. B. REV. 693 (1933).
Winter 1971]
Ottawa Law Review
ation. But it should be noticed that the criticisms are much less suitable to Dorset Yacht than they were to Corke itself. Although trailer dwellers are not "things," and presumably neither are borstal boys, an American court has been prepared to argue that there is an analogy between a dangerous criminal and a dangerous animal, "8 and the fact that such reasoning is distasteful on humanis- tic grounds should not blind one to its analytic force. Moreover, it was suggested by Corke's critics that, whereas Rylands v. Fletcher imposes a duty not to allow the dangerous thing to escape, the application of this to adult human beings such as caravan dwellers would constitute a false imprison- ment. But again this argument, cogent (^) as it is, has no force with regard to the borstal boys of Dorset Yacht, since custodial officers cannot be liable for false imprisonment in detaining the convicts whom they have an obligation to detain. Rylands v. Fletcher may provide a convenient category under which to find strict liability for the Dorset Yacht situation. Admittedly this solution has its difficulties from a purely technical point of view. But even if Ry- lands v. Fletcher itself is not strictly applicable, one should recall that that case itself ultimately represented a policy decision that the risk of keeping on one's property that which is inherently dangerous should not be borne by the innocent victim. Presumably the situations giving rise to that sort of
policy decision have not been closed and crystallized forever. " A decision
by analogy, based on considerations similar to those of Rylands v. Fletcher, might be the easiest way of attaining the desired end of strict liability in the operation of borstals. It would be presumptuous to criticize the House of Lords in Dorset Yacht for arriving at a decision which is obviously just on the facts of that case. Moreover, since the question referred to the court was one of duty of care in a negligence suit, one could not really expect the court to pro- nounce on strict liability. But there is a danger that the form of reasoning in Dorset Yacht may preclude approaching the problem from different pre- mises and may, almost inadvertently, establish an exclusive frame of refer- ence for the discussion of the issues. As liberal penal institutions proliferate, the need to find a viable and fair solution to the conflicts of interest posed by the Dorset Yacht type of problem will become more acute. At some future time it (^) may become feasible to consider the merits of the imposition of strict liability.
" State ex rel. Davis Trust Co. v. Sims, 46 S.E.2d 90, at 95 (W. Va. 1947): "Though this Court recognizes the fundamental natural differences between the reason- ably anticipated acts of a human being and those of a domestic animal, the undisputed facts of this case suggest a close analogy to cases in which the owner or the keepor of a dog or a horse, known to be of a vicious nature or to possess a particular propensity to cause injury, has been held liable for'failure to anticipate and to guard against the conduct of such animal which causes injury or damage to another person." 79 Goodhart, The Third Man or Novus Actus Intervenens, 4 Cuui. LEO. PROD. 177, at 178 (1951), has complained that the rule in Rylands v. Fletcher has been inter- preted and applied too narrowly so that in some cases it no longer conforms to the principle of allocation of risk which is the cornerstone of strict liability.
(^402) [Vol. 4:
