On 17 February 2020, the Court of Appeal of England and Wales unanimously dismissed a challenge to the High Court’s decision in the case of Kadie Kalma & Others v. African Minerals Limited, African Mineral (SL) Limited and Tonkolili Iron Ore (SL) Limited [2020] EWCA Civ 144. The case concerns two instances of police brutality by the Sierra Leonean Police (“SLP”) in 2010 and 2012 following unrests in connection with the operation of Sierra Leone’s largest iron ore mine. The judgment confirms that companies operating in challenging environments abroad are entitled to seek protection from state security forces without necessarily assuming liability for their actions.
Background
The claims were brought by inhabitants of Tonkolili, a district in the north of Sierra Leone, against African Minerals Ltd (“AML”) and other entities, which operated the largest iron ore mine in the area. Local protests over the impact of that mine prompted two instances of excessive force from members of the SLP in 2010 and 2012. The Claimants alleged that they suffered injuries at the hands of the SLP. AML had engaged the SLP to deal with the protests and supplied them with payments, accommodations and vehicles. The Claimants contended that AML was directly involved in the violence and should be held liable for the acts of the SLP.
The High Court Decision
The Court held that AML could not be held liable for the excessive use of force by the SLP. In particular, Justice Turner rejected the argument that AML was vicariously liable for the SLP’s actions. Although the relationship between AML and the police was “far removed from what would be considered appropriate in England and Wales”, Justice Turner found that it was not akin to a “quasi-employment relationship”. The fact that AML was the main potential beneficiary of the SLP’s public duties in the Tonkolili area did not affect this.
Justice Turner also rejected that AML was liable because it had acted in furtherance of a common tortious design with the SLP. He found that AML had not given instructions to the SLP to deploy unlawful means and that there was no such intention on the part of AML. Finally, the Court found that AML had not created a source of danger that could entail a duty of care.
Justice Turner did find that AML had failed to follow international minimum standards, such as the Voluntary Principles on Security and Human Right, namely to carry out risk assessments and put in place control measures with respect to the collaboration with local security forces. However, Justice Turner considered that this was not a duty owed to the local population at large.
The Court of Appeal Decision
The appeal was limited to (i) the alleged common design and (ii) the alleged duty of care owed by AML. By unanimous decision, the Court of Appeal dismissed the appeal in its entirety.
The Court found that AML had not acted in pursuance of a common design to suppress protests against the mine through unlawful means. The Appellants had argued that a case of common design could be made based on AML’s provision of assistance to the SLP (money, vehicle and accommodation) and the AML’s “intent to quash the protest, if need be by the use of excessive violence”. The Court found that AML’s purpose was to restore law and order in and around the mine. It upheld Justice Turner’s finding that the provision of resources was necessary for the seriously under-resourced SLP to be able to provide the necessary services. Further, although it may have been foreseeable that the SLP could use excessive force, this was not sufficient to establish AML’s intent.
The Court went on to find that AML did not have a duty to prevent damage caused by the SLP. It was the actions of the SLP and its members’ ill-discipline, fear and anger that had caused harm not the provision of money, vehicles and accommodation by AML. Because AML had not carried out any activity that caused the loss, this was a case of “pure omissions”. For the same reasons, the Court considered that AML’s assistance to the SLP had not created a source of danger which could give rise to a duty of care. As there was no liability in negligence for the criminal acts of thirds parties, AML could not be held responsible for not preventing the SLP’s harmful actions.
The Court also dismissed the Appellants’ position that there was a freestanding duty of care. It applied the three stage test from Caparo v Dickman [1990] 2 AC 605 and considered that while the damage had been foreseeable, the two other requirements were not met. Namely, it could not be established that there had been a proximate relationship between AML and the Appellants and that it would be fair, just and reasonable to impose a duty of care.
Counsel for the Appellants stated that they would seek leave to appeal to the Supreme Court.
Commentary
The decision confirms the limits of a company’s obligation to prevent harm by third parties, even if that harm is foreseeable. It may provide some comfort to companies that operate in volatile countries and require the protection of public security forces for their assets and employees but realistically have a limited impact on the way security forces will conduct their interventions. However, the case does not categorically rule out that a company could be held liable for unlawful acts of security forces. Although the decision in this case was not influenced by AML’s failure to implement international business and human rights standards, companies are advised to establish mitigation and remediation actions in line with these standards to prevent and address adverse impacts of their engagement with local security forces. Failure to do so may not only expose a company to litigation but bears additional risks to its reputation and social licence to operate.
