On
Background
The claims were brought by inhabitants of Tonkolili, a district in the north of
The Court held that AML could not be held liable for the excessive use of force by the SLP. In particular,
The appeal was limited to (i) the alleged common design and (ii) the alleged duty of care owed by AML. By unanimous decision, the
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
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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr
Volterra Fietta
W1T 3JJ
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