DWF successfully defends claims brought against its client, Tonkolili Iron Ore (SL) Limited, relating to the unfortunate events which led to the injuries of 142 individuals in Sierra Leone
Turner J confirmed in a judgment today that injured claimants had failed to establish liability in respect of any of the bases upon which they sought to bring their claims arising from injuries following events which unfolded in Tonkolili, a remote and inaccessible district in the North of Sierra Leone in West Africa.
Sierra Leone, with its position in West Africa, has suffered in recent years from a catalogue of disasters, including civil war, Ebola and catastrophic mudslides.
The population's life expectancy of around 51 years, is the lowest in the world.
Sierra Leone, however, houses vast and valuable mineral resources, not just diamonds and gold but also iron ore which was discovered in the Tonkolili region.
The defendant mining company set about constructing the mine and extracting the ore for onward transportation.
Turner J identified that the impact of the arrival of the defendant upon the local population was both profound and immediate.
"Rather like the industrial revolution with its contrast of good and ill effects, the promise of relatively well paid and steady employment was combined with the inevitable disruption to traditional ways of life with the tensions and resentments caused by irregularities between wage levels."
Both the claimants and the defendant had agreed that in respect of liability, the law of Sierra Leone could be treated, for all practicable purposes, as being identical to that of England and Wales, whereas the position on quantum was the subject of further debate.
In November 2010 and again in April 2012, disturbances amongst local communities prompted a significant overreaction from some members of the Sierra Leone Police ("SLP").
The disruptive protests soon became violent where many villagers were beaten, shot, gassed, robbed, sexually assaulted, incarcerated in poor conditions and in one case killed.
The defendant mining company secured the licence conferring upon it the mining rights for iron ore, and embarked on a project to build a mine and its associated infrastructure, including a railway to transport the ore to the coast. The claimants alleged that despite the SLP perpetrating the most violent crimes, the defendant was liable. Such liability, the claimants argued, meant that the defendant was responsible to compensate the claimants by the application of a broad range of distinct common law remedies.
In the first incident, on the morning of 25 November 2010, youths erected a road block at Yutinela Junction. Youths barricaded three vehicles, detaining four expatriate workers, three drivers, and two community liaison officers against their will. A number of arrests were made as the protesters started pelting vehicles with rocks. The police responded by firing live rounds into the air and discharging tear gas.
The claimants' case was predicated on the basis that employees of the defendant played an active role in the events that followed the arrests where the claimants were allegedly beaten and attacked.
The relevant events of the second incident, which occurred in 2012, were spread over three days.
On 16 April 2012 members of the defendant's workforce went on strike.
On the following day, some of the strikers attended a meeting point and erected a road-block on the road to the defendant's fuel farm. In the early afternoon, armed police arrived to remove the road-block and in order to do so deployed tear gas and fired live rounds.
On day three of the incident, the tense situation was becoming out of control.
During the course of this turmoil, a group of women made a bid to bring the violence to an end by performing a traditional Shekereh dance to bring peace and harmony in place of conflict.
The police, however, opened fire with live rounds. One man was shot dead, eight other villagers received gunshot wounds and others were arrested and beaten.
In a six week trial which was conducted partially in Freetown, in Sierra Leone, the claimants sought to argue on the strength of seven legal grounds that the defendant should be held liable.
- vicarious liability of the defendant for torts alleged to have been committed by its employees;
- vicarious liability of the defendant for torts committed by the SLP;
- accessory liability acting in furtherance of a common tortious design with the SLP;
- liability in respect of tortious acts carried out by the SLP in response to some direction or procuring or direct request or encouragement on the party of the defendant;
- liability for malicious prosecution;
- negligence for failing to take adequate steps to prevent the SLP from committing torts against the claimants; and
- breach of a non-delegable duty in respect of an extra hazardous activity carried out negligently by the SLP as a contractor of the defendant.
In his judgment, Turner J held that at all levels, the defendant was aware that the continuing disruptions caused by local protests were capable, if not promptly resolved, of threatening the economic viability of the mining project as a whole.
Turner J was not satisfied that those in positions of power in the defendant's organisation were pursuing a policy intending that the SLP should deploy excessive force against the local population. He found that the defendant exercised no supervision nor control over the SLP.
Individual employees did not give directions to the police and the responses of the police to the incidents which they were called upon to deal with were operationally entirely of the SLP's own choosing.
Whilst there is no dispute that the defendant would be vicariously liable for the acts of its employees, carried out in attempts to respond to the challenges generated by unrest, even if such acts were seriously criminal, Turner J concluded that the claimants had not made out that the employees against whom such allegations had been raised were themselves guilty of free standing tortious conduct.
The contention that the defendant was vicariously liable for the torts of the SLP was held to be unsustainable. Save for the six officers permanently stationed at the mine, in respect of whom there is no evidence of wrongdoing, the officers involved were performing duties which extended far beyond the narrow parameters of the business activity of the defendant. Effectively the police were discharging a public duty in responding to the criminal conduct of protesters, and the defendant did not exercise any significant degree of control over the SLP. Turner J was not satisfied that the defendant intended the police to act tortiously at any stage.
Payments to the Police
The claimants contended that payments which the defendant made to the SLP were unlawful.
The defendant accepted that it provided support to the police. Its requirement for police involvement was not limited to times of unrest.
Contemporaneous documentation revealed that there were major and continuing problems involving theft. The goods taken included railway tracks, sleepers and fuel.
Turner J referred to a number of common law authorities which demonstrate when it is appropriate to pay the police. The House of Lords held in Glasbrook Bros v Glamorgan County Council (1925) AC 270 that the police authority was bound to provide sufficient protection to life and property without payment. If however upon request they provided a special form of protection outside the scope of their public duty, they could lawfully agree to accept payment for it.Turner J then identified that payments had been made to the police.
There was no evidence in this case to reveal that the defendant could or did exercise an improper or decisive degree of control over the actions of the police with respect to the handling of the 2010 and 2012 incidents.
This case is significant in its treatment of the liability for third party acts. Turner J acknowledged that the defendant had indicated during trial that any action for damages should have been brought against the perpetrators of the violence, the police rather than against the defendant. Whilst it was recognised the claimants' case may fall squarely within the parameters of recognised legal territory, the consequences of the application of established principle differed from the claimants' position. Specifically in relation to the allegations of negligence, with reference to the decisions in Caparo v Dickman  2 AC 605 and Darnley v Croydon Health Services NHS Trust  3 WLR 1153, Turner J concluded that no duty of care existed between the defendant and the claimants. Where there is no duty there can be no breach and in any event, Turner J found that the defendant could not have prevented the episodes of unrest in 2010 or 2012 and ultimately the loss and damage sustained by the claimants.
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