This case is one of the leading cases with regard to Novus actus interveniens. The defence rests upon the definition: that the actions of a third party will produce an outcome that few would have expected: making the plaintiff’s claim too remote.

Facts of the Case.

Borstal Officers, supervising Borstal inmates who were working outside the borstal premises on Brownsea Island in Poole Harbour. The Officers went to sleep, against instructions [orders] allowing the inmates to escape. A number of the inmates had previous histories of escape and all [most] had criminal records.

In the escape, damage was done to private property, yachts. The claim for damages against the Home Office was for the value of the damage.

The Home Office claimed that they owed no duty of care to the plaintiffs or any member of the public. The Home Office advanced its defence on two primary points: [i] that there is [virtually] no authority for imposing a duty of this kind and [ii] it is said that no person can be liable for a wrong done by another who is of full age and capacity and who is not the servant or acting on behalf of that person.

The negligence however is not owed by the borstal detainees, rather by the borstal Officers. The detainees were the mechanism of the damage, albeit, and this is the point of contention, human intervention via action. The Home Office claims “novus actus interveniens” as their defence. This is a question of “remoteness”.

“Remoteness” is decided in law rather than in fact. Which in reality means the arbitrary decision of the Judge, although he may well consider the precedent cases, ultimately, “policy” seems to be a major factor. Of course if there is a jury, the jury supposedly only finding on the facts, may well find on the law, confusing the two issues.

What about the “but for” test? The “but for” test is apparently a test for factual causation. Therefore for deciding in law it would not be employed. The “but for” test would clearly make the Officers liable and vicariously the Home Office.

The two tests therefore form the basis of proceeding in tort: first, determination is made whether “but for” in respect to all and any that may stand in the tortfeasor’s shoes, whether there is any liability.

If it found that there is liability, then the second leg of the test is applied. This is that on one hand the claimant would not be worse off as a result, nor any better off as a result.

The Court found that the Home Office was negligent. That the state owed a duty of care to the respondents. As such, the Justices extended the category of negligence to include the State, which prior to this case was held to be “above the law” based on policy considerations.