The Attorney-General v D Landless (M/W) (Appeal No. 1 of 1970) [1970] ZMCA 16 (23 December 1970)

THE ATTORNEY-GENERAL v D LANDLESS (M/W) (1970) ZR 1 (CA) COURT OF APPEAL PICKETT JA, HUGHES J, AND BRUCE - LYLE AGJ I 23RD DECEMBER 1970 5 Appeal No. 1 of 1970 Flynote Tort - Negligence - Duty of care - Whether army Commander owes a duty of care to a person injured by soldiers under his control. Headnote This was an appeal against the decision of the trial High Court Judge 10 awarding damages to the respondent against the appellant. The facts which were not disputed were that a company of soldiers were being moved from the place of their exercises to their barracks under the charge of an army officer Lieutenant Panda when they committed an assault on the respondent causing her serious injuries. In awarding the 15 respondent damages the judge held that Lieutenant Banda was negligent in failing to perform his duty with due care thus causing the soldiers to get out of control and cause damage to the respondent. The appellant was held vicariously liable for Lieutenant Banda's negligence. I On appeal it was argued inter alia that: 20 ■ ■ (i) Lieutenant Panda did all he could to prevent the incident and there was nothing more he could have done; (ii) Lieutenant Banda did not owe a duty of care to the respondent and that even if he did such duty ceased when the soldiers acted outside the scope of their authority and I employment; 25 (iii) Lieutenant Banda could not have foreseen the likelihood of the plaintiff's becoming injured. Held: (i) Negligence consists of doing something which a reasonable man would not have done in that situation or omitting to do 30 something which a reasonable man would have done in that situation. ■ (ii) Lieutenant Banda did owe a duty of care to the respondent and such duty did not cease to exist when his subordinates behaved in the manner in which they did. He had the power and authority to control the troops under his command and he was 35 negligent in not ordering the loyal soldiers to control the unruly ones. He could have foreseen the injury to the respondent from stone throwing by the rioting soldiers if they were not prevented from doing so. ■ Cases cited: I (1) Dorset Yacht Co. Ltd v The Home Office, [1969] 2 All ER 564. 40 (2) Donoghue v Stevenson, [1932] (Rep.) All ER 11. (3) Smith v Leurs ( 1945) 70 CLR 261. PICKETT JA (4) Geddis v Proprietors of Bann Reservoir (1878) App. cases 430. (5) Overseas Tankship v Mort Dock and Engineering Co. Ltd (The Wagon Mound), [1961] 1 All ER 404. I (6) King v Anthony (1946) SCR 569; (1946) 3 DLR 577. 5 (7) Davis Contractors Limited v Fareham Urban District Council, [1956] 2 All ER 145. (8) Hedley Byrne & Co. Ltd v Heller and Partners Ltd. [1963] 2 All ER 575. 1970 ZR p2 Judgment Pickett JA: delivered the judgment of the court. This is an appeal from a judgment of the High Court in which 10 damages of K 10,120 ■ and costs were awarded to the respondent against the appellant. The grounds of appeal are nine in number and are as follows: 1. The learned judge was wrong in drawing the inference from the agreed facts that Lieutenant Banda did more than make a 15 weak remonstrance and in drawing the ■ inference that he did not take all steps open to him to prevent his men from acting as they did. 2. Having found that the acts of the soldiers constituted mutiny, the learned judge erred in concluding that Lieutenant Banda 20 could have done any more than he did to control his men. ■ 3. The learned judge erred in drawing the inference from the agreed facts that lorries were due to arrive on the scene by the time of the incident or in time for their occupants to be of any assistance in controlling the soldiers or in preventing them from acting as 25they did. I 4. The learned Judge was wrong in drawing any parallel between the case of the Dorset Yacht Company Limited v The Home Office (1) and the present case. ■ 5. The learned judge erred in finding that Lieutenant Banda was 30 negligent in absenting himself and in drawing the inference that by being so absent Lieutenant Banda was not in command of his men. 6. The learned judge erred in finding that Lieutenant Banda had more than one N. C. O. ■ available for the purpose of instructing them 35 to take the offenders into custody. 7. The learned judge erred in concluding on the agreed facts that there was any evidence on which to find Lieutenant Banda guilty of negligence. 8. Lieutenant Banda owed no duty of care to the plaintiff and even 40 if he did, such duty ceased to exist when his subordinates acted outside the scope of their authority and/ or outside the course of their employment. ■ 9. Lieutenant Banda could not have foreseen the likelihood of the plaintiff becoming injured as a result of any failure on his part 45 to prevent his subordinates from acting as ■ they did. 1970 ZR p3 PICKETT JA Before the case was heard in the High Court the facts had been agreed by the parties and all the learned judge was asked to decide was what was the legal position arising out of these facts. In order that this judgment may be fully comprehensive, I think it is I necessary to recapitulate these facts which are as follows: 5 "On 29th June 1969, around 1700 hours 'A' Company of 1st Battalion Zambia Regiment (hereinafter called 'the Company') arrived at Landless Corner. Landless Corner is approximately 40 miles from Lusaka on the Great North Road. The Company was on its way from Kalabo in the Western Province, after 10 completion of its assignment, to its base to Ndola. ■ The Company was led by superior officers, one of whom was Lieutenant Banda. When the Company reached Landless Corner, some lorries belonging to it which had gone ahead stopped to wait for other lorries in the convoy lagging behind. Lieutenant Banda 15 was instructed to take charge of the Company while his immediate senior went ahead to Kabwe. ■ ■ While standing between two lorries, Lieutenant Banda heard a noise behind. He walked behind, then saw man, whom he later learnt to be Mr. Landless, and a soldier coming from a field towards 20 the convoy of lorries. Mr. Landless was carrying a BSA Air Rifle. The soldier had trespassed on to Mr. Landless's Farm. Mr. Landless had earlier seen the soldier aim to shoot at a bird sitting in the field. Mr. Landless went to investigate. He asked this soldier to go with him to the Police Station. The soldier replied that he could 25 not go without first obtaining the permission of his superior officer. Mr. Landless then agreed to go with the soldier to the soldier's superior officer. It was at this stage that Mr. Landless took the airgun from the soldier. When they reached the convoy of lorries, Mr. Landless asked to see the Officer - in - Charge. The Officer - in - 30 Charge was not there. Instead he saw an N. C. O., or sergeant. He told the sergeant that he was taking the man to the police station. The soldiers surrounded Mr. Landless. One of them standing on the right took the gun from Mr. Landless without a struggle. He pointed the gun and fired: in doing so he hit one of his fellow 35 soldiers in the cheek. The soldiers then accused Mr. Landless of shooting this man. Their anger was rising. One of them kicked Mr. Landless on the legs. He realised he must get away and ran down the Great North Road with them in pursuit. By this time, Mrs. Landless had come to look for her husband. When he 40 got to the vehicle he got in at the driver's seat and proceeded to reverse to Old Mumbwa Road turn - off. Once in the vehicle some of the soldiers began throwing stones at the vehicle. Lieutenant Banda tried without success to stop the soldiers pursuing and throwing stones at the vehicle. 45 ■ As the vehicle moved down Mumbwa Road and Mr. Landless changed into first gear, one of the stones came ■ ■ ■ ■ through the open PICKETT JA driver's window, past Mr. Landless and struck his wife in the right eye. Other stones hit the vehicle with no apparent damage. They drove to their parents' house for Mrs. Landless to receive temporary treatment. The plaintiff was before the injuries a stenographer 5 earning K300 per month. She is now unable to perform the same functions. I Mr. Landless borrowed his brother's car to go to Lusaka for fear that the soldiers might recognise the vanette. On passing the corner there were still a dozen soldiers standing there looking into vehicles 10 although the army vehicles had now moved off. ■ Mr. Landless took his wife to Dr. Glynn who recommended them to see Mr. Phillips, who operated at about 7.00 p.m. that evening. After surgery, Mr. Landless reported to the Officer - in - Charge, Zambia Regiment. 15 ■ Four of the soldiers were sentenced by the Magistrate at Kabwe and given sentences of six months 1970 ZR p4 imprisonment with hard labour." The first three grounds of appeal, in my opinion, can all be taken together, because the essence of these grounds is the same, namely, that Lieutenant Banda did everything in his power to prevent the happening 20 of this disgraceful incident and there was nothing more he could have done. Mr Williams referred us to paragraph 710 on p. 381 of Clerk and Lindsell on Torts. "Standard of a reasonable and prudent man." I do not propose to quote in this judgment the whole of this paragraph, but will content myself with quoting the concluding lines thereof wherein it is 25 stated: ■ "The question whether the defendant has acted reasonably in the circumstances or not is a question of fact. It ■ ■ • would be undesirable to crystalize into rules of law what constitutes 'reasonableness' tendencies in that direction have met with scant encouragement. 30 All that the law does is to prescribe reasonableness as the standard and to leave it there, for the value of the concept of reasonableness lies in its flexibility. Decisions in individual cases as to what amounts to reasonable or unreasonable conduct are useful as guides but no more. 'The basic rule', said Pearson J in Hazell v B. T. C. 35 (2) at p. 171, 'is that negligence consists in doing something which a reasonable man would not have done in that situation, or omitting to do something which a reasonable man would have done in that situation', and I approach with scepticism any suggestion that there is any other rule of law properly so called, in any of these cases. 40 But, of course, one can look at decisions in other cases, especially Court of Appeal decisions, to see how that basic rule can properly be applied to situations of a particular class." On a careful consideration of this matter it seems to me that Lieutenant Banda could have done a great deal more to prevent this occurrence 45 than he did. He was the officer in charge of what has to be considered a disciplined body of soldiers. Surely the greater number of these soldiers would have been amenable to his orders, and surely he could have ordered those loyal soldiers to stop this rioting by taking physical action to arrest ■ ■ PICKETT JA these dissidents. Applying the principle of res ipsa loquitur to the agreed facts it is clear that he did not take any such action, and in my opinion the first three grounds of appeal must fail. We now come to the fourth ground of appeal which is set out ante. I The brief facts of the Dorset Yacht case (1) were as follows: 5 "Ten borstal trainees were working on an island in a harbour in the custody and under the control of three 1970 ZR p5 ■ officers. During the night seven of them escaped. It was claimed that at the time of the escape the officers had retired to bed leaving the trainees to their own devices. The seven got on board a yacht moored off the island 10 and set it in motion. They collided with another yacht, the property of the respondents, and damaged it. The respondents sued the Home Office for the amount of the damage. A preliminary issue was ordered to be tried whether on the facts pleaded in the statement of claim the Home Office, its servants or agents owed any duty 15 of care to the respondents capable of giving rise to a liability in damages with respect to the detention of persons undergoing sentences of borstal training, or with respect to the manner in which such persons were treated, employed, disciplined, controlled or supervised whilst undergoing such sentences. It was admitted 20 that the Home Office would be vicariously liable if an action would lie against any of the borstal officers. ■ ■ On appeal against the decision of the preliminary point in favour of the respondents it was held (Viscount Dilhorne dissenting) the appeal would be dismissed because - 25 ■ (i) (per Lord Reid, Lord Morris of Borth - y - Gest and Lord Pearson) (a) the taking by the trainees of the nearby yacht and the causing of damage to the other yacht which belonged to the respondents ought to have been foreseen by the 30 borstal officers as likely to occur if they failed to ■ exercise proper control or supervision; in the particular circumstances the officers prima facie owed a duty of care to the respondents (dictum of Lord Atkin in Donoghue (or M'Alister) v Stevenson (2) at 11 applied); 35 ■ (b) the fact that the immediate damage to the property of the respondents was caused by the acts of third persons, the trainees, did not prevent the existence of a duty on the part of the officers towards the respondents because (per Lord Reid) the taking of the yacht and the damage 40 to the other was the very kind of thing which the officers ought to have seen to be likely, or (per Lord Morris of Borth - y - Gest and Lord Pearson) the ■ right of the officers to control the trainees constituted a special relation which gave rise to an exception to the general rule that one 45 person is under no duty to control another to prevent his doing damage to a third, (dictum of Dixon J in Smith v Leurs (3) at 261, 262, applied); ■ PICKETT JA (c) the fact that something was done in pursuance of statutory authority did not warrant its being done unreasonably so that avoidable damage was negligently caused (dictum of Lord Blackburn in Geddis v Proprietors 5 of Bann Reservoir (4) at 455 applied); I (d) there was no ground in public policy for granting complete immunity from liability in negligence to the Home Office or its officers, (ii) (per Lord Diplock) there was material, fit for consideration 10 at the trial, for holding both that the officers were acting in breach of instructions and ultra vires and that they owed a duty of care to the respondents. ■ Decision of the Court of Appeal sub nom Dorset Yacht Co. Ltd v Home Office (1) affirmed." 1970 ZR p6 In particular, Mr Williams for the appellant has referred me to certain 15 portions of the judgment in the Dorset Yacht case of Lord Reid where referring to the borstal officers His Lordship observed "the three officers knew, or ought to have known, that these trainees would probably try to escape during the night, would take some vessel to make good their 20 escape, and would probably cause damage to it or some other vessel. There were numerous vessels moored in the harbour, and the trainees could readily board one of them. So it was a likely consequence of their neglect of duty that the respondent's yacht would suffer damage.". In the second quotation from Lord Reid's speech quoted by Mr 25 Williams he stated: "But the law now is that there is no liability unless the damage was of a kind which was foreseeable (Overseas ■ ■ ■ Tankship v Mort Dock and Engineering Co. Ltd (The Wagon Mound )) (5)." Mr Williams' contention is that it was completely wrong and completely 30 unwarranted to have drawn a comparison between the Dorset Yacht case and the present case, because he maintains that the circumstances are completely different; the characters and actors are completely different and the circumstances involving the officers in charge are completely different. I do not agree with this contention at all. I am of the opinion that there was ample 35 justification for the learned trial judge drawing this comparison and I am fortified in my conclusion by a passage in the judgment of Lord Morris of Borth - y - Gest I on p. 304 of the record of that judgment which states: 40 ■ ■ "The conclusion that I have reached is that the officers owed a duty to the respondents to take such care as in all the circumstances was reasonable with a view of preventing the boys in their charge, and under their control, from causing damage to the nearby property of the respondents, if that was a happening of which 45 there was a manifest and obvious risk. If in the daytime the ■ 1970 ZR p7 PICKETT JA officers saw that the boys in their charge and under their control were deliberately setting out to damage a ■ nearby yacht, or were in the act of damaging it and if the officers could readily have caused the boys to desist, the facts would warrant a conclusion that there was a failure to take reasonable care." I In the present case, Lieutenant Banda saw the recalcitrant soldiers throwing stones 5 at the vehicle in which were the respondent and her husband. Obviously this very action of throwing stones was most likely to cause damage to the respondent and certainly could have been foreseen by Lieutenant Banda. According to the agreed statement of facts which I 10 have before quoted, Lieutenant Banda tried, without success, to stop the soldiers pursuing and throwing stones at the vehicle. As I have said before in this judgment only a small number of soldiers were involved in this incident. By far the greater number of soldiers would still have been amenable to discipline and to carrying out the orders of Lieutenant Banda. 15 It seems to me that he was thoroughly negligent in not at once ordering the loyal portion of his soldiers to stop the rioters by taking physical action in arresting these trouble - makers. In my opinion what I have said above also adequately disposes of the points raised by Mr Williams in grounds 6, 7 and 9. This leaves only 20 ground 8. In support of his argument on this ground, Mr Williams quoted the case of King v Anthony (6) in which case a soldier had wrongfully procured live ammunition which he began firing while being transported by truck from one station to another. Other soldiers were firing blank 25 ammunition. It was contrary to orders for any man to have or fire ■ ■ ■ ■ any ammunition. The officer in charge of the party knew the men were firing live and blank ammunition but took no steps to stop it. The soldier with the live ammunition fired an incendiary bullet at plaintiff's barn and the contents were destroyed. Plaintiff brought action against the Crown under 30 s. 19 (1) (c) of the Exchequer Court Act. Under s. 50A of that Act (enacted 1943 - 44 (Can). c. 25) a member of the armed forces is deemed to be a servant of the Crown. The trial judge gave judgment for the plaintiff on the ground that the failure of the officer in charge to stop the firing was negligent and the damages were such as should have been 35 foreseen. The Supreme Court of Canada, by a majority (3 - 2), reversed this and gave judgment for the Crown. Rand, J., writing for the majority, held that the officer had merely failed to perform a duty to the Crown, not a duty to the injured person. "Where the injured person is not the one with whom the undertaking is made, then it must appear at least that he is 40 within the intended range of benefit . . . In other circumstances, reliance by him on the undertaken conduct may be necessary to establish the link of legal duty. I see nothing of those elements in the duty of an officer under military discipline in relation to acts of subordinates." In his dissenting judgment, Estey, J, said the duty of the officer in charge was 45 based on the general doctrines of negligence explained in Donaghue v Stevenson. These were contained in the judgment of Lord Atkin in that case where he stated: ■ ■ ■ PICKETT JA "at present I content myself with pointing out that in English law there must be, and is, some general 1970 ZR p8 conception of relations giving rise to a duty of care, of which the particular cases found in the books are but I instances. The liability for negligence, whether you 5 style it such or treat it as in other systems as a species of 'culpa' , is no doubt based upon a general public sentiment of moral wrong doing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them 10 to demand relief. In this way rules of law arise which limit ■ the range of complaints and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question; 'Who is my neighbour?' receives a restricted reply. You must take reasonable care to avoid 15 acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to 20 the acts or omissions which are called in question." ■ Precedents do not fix the limits of what may be described as duty situations, they merely illustrate them. In all the circumstances of this present case, I would concur with the dissenting judgment of Estey, J. Lord Morris of Borth - y - Gest observed in his speech in the Dorset 25 Yacht case at p. 308: ■ ■ "If the test whether in some particular situation a duty of care arises may in some cases have to be whether it is fair and reasonable that it should so arise the court must not shrink from being the arbiter. As Lord Radcliffe said in his speech in Davis Contractors 30 Limited v Fareham Urban District Council (7), the court is 'the spokesman of the fair and reasonable man'." I am also impressed with the words of Lord Diplock in his speech also in the Dorset Yacht case (1) at p. 324 where he says: • "It will be apparent that I agree with Lord Denning M. R that 35 what we are concerned with in this appeal 'is . . . at bottom a matter of public policy which we, as judges, must resolve'." He cited in support Lord Pearce's dictum in Hedley Byrne &, Co. Ltd v Heller and Partners Limited (9): ■ "How wide the sphere of the duty of care in negligence is to be 40 laid depends ultimately on the courts' assessment of the demands of society for protection from the carelessness of others." I would hold in this case that Lieutenant Banda did owe a duty of care to the respondent and that such duty did not cease to exist when his subordinates behaved in the manner in which they did. He had the power 45 and authority to control the troops under his command and he was negligent in not at once taking the action I have outlined earlier in this ■ PICKETT JA judgment and the likelihood of injury to the respondent was one which should have been foreseen by him if the stone throwing of the rioting soldiers was not prevented. Accordingly I would dismiss this appeal. I Appeal dismissed 5 1970 ZR p9 1970 ZR p9 ■