Neutral Citation Number: [2012] EWHC 575 (QB)
Case No: HQ10X00148  and  HQ10X01150
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/03/2012

Before:

THE HONOURABLE MR JUSTICE MACKAY
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Between:

	XVW & YZA	Claimants	
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	Gravesend Grammar Schools for Girls	1st Defendant	
Adventure Life Signs Ltd				2nd Defendant
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 Ms E.A.Gumbel QC and Mr N.Baldock (instructed by Rix & Kay) for the Claimants
Mr J. Norman (instructed by Clyde & Co) for the 1st Defendant
Mr M.Chapman instructed by Hill Dickinson LLP for the 2nd Defendant
Hearing dates: 27-29 February and 1 March 2012
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Judgment

Mr Justice Mackay: 

1.	The two claimants have been granted anonymity by order of the court.  To humanise them rather than refer to them through the trial by a mere system of initials, now a feature of so many cases, it was agreed that they would be referred to by the pseudonyms Mary and Jane respectively.
2.	Both were students at the first defendant school and set off on 16 July 2005 in a party of twelve for what should have been the trip of a lifetime.  On 1 August at a remote camp in Belize the claimants and another girl were raped by a local man who was the apparent joint owner of the farm/resort where they were staying.  I am sure to the criminal standard that these rapes took place.  The fact that they had been so assaulted was not challenged by either defendant in cross examination, albeit each sought to explore aspects of the claimants’ evidence as to what went on before the events and their reaction to them thereafter.   I am in no doubt that both claimants have told me the truth, that they were indeed raped and for that reason I need not dwell on the precise circumstances, which were grave in the highest degree. 
3.	Subject to liability being proved it is agreed that each claimant should recover damages including general damages, special damage and interest of £100,000. Much of the evidence relating to the aftermath is no longer relevant to my task given the agreement as to quantum.
4.	The claimants have not taken any action against the man who did this to them.  They claim that the school and the second defendant (“ALS”), a specialist company who assisted in the organisation of this expedition, were to blame. The perpetrator was charged with rape in Belize, but the charges were dismissed as none of the victims, for reasons which I find entirely understandable, felt able to go back to give evidence at his trial. 
5.	The third victim is not a claimant in these or any other proceedings but did give evidence for the defendants under the pseudonym L. She was the oldest member of the party and is highly intelligent. Her opinion is that the defendants were not responsible for what happened that night, and she has since travelled on another such expedition run by ALS.  Her method of coping with what happened is, she said, not to talk about it; as she put it if you do that then it didn’t happen.
6.	I must therefore make certain findings of fact before considering the legal responsibility if any of either of these defendants.
7.	The planning for this expedition had taken place over a period of nearly two years.  Each of the participants had to accumulate some £2,650, through her own exertions and not parental contribution, to cover the cost of the trip.  There were two training sessions each lasting two days where all the aspects of an expedition of this nature were explained and taught, and no sensible criticism has been levelled at that aspect of the trip, with one possible exception with which I will deal below.
8.	It was a key feature of this expedition that the girls (I adopt this way of describing them as it was used by their own counsel), who were aged between 15 and 17, were all intelligent well educated young women, who were given a high degree of responsibility for the planning and execution of the trip, the itinerary, budgeting and expenditure from their pooled savings on such items as accommodation, food, excursions and so forth.  This was not a holiday but was intended to be an educational exercise.  Each day one of the girls was the student leader, appointed to speak for the others.
9.	Present on the trip was a teacher from the school Miss Pina.   Two representatives of ALS also accompanied the group at all times, Ian Forbes and “Blue” Cole, both former regular soldiers of Warrant Officer rank who had very substantial experience of this kind of expedition.  Two of the girls had responsibility for the allocation of the communally owned funds.
10.	The trip got off to a difficult start. On arrival in Cancun in Mexico it was apparent that there was a hurricane imminent and the original agreed itinerary would have to be revised.  The group tackled this problem in conjunction with the expedition leaders and formed a second plan of travel, the details of which I do not need to set out here.  By 26 July, having finished a trek of three or four days in the Cockscomb area of Belize,  the group found itself in San Ignacio where it needed to form a new plan for the next stage of the expedition. 
11.	The owner of the hotel in which they were staying Mr De Paz, a local Justice of the Peace, suggested they could pay for their accommodation at his hotel by helping with the demolition of a property he owned.  This was considered by the leaders and soon rejected as an unduly hazardous project.
12.	The girls then met up with another English school expedition at a local restaurant; this was led by a British company World Challenge and they were told that the group had recently undertaken a project for a company called Maya Walks, run by a man called Jimmy Juan and his son Aaron, who was a guide.  The group had built a bridge at the farm owned by the company, and its members spoke favourably of the company and of Aaron as an individual.
13.	The ALS leaders spoke to Mr De Paz about Maya Walks. He said the family was of very good standing in the community, they were nice and well respected and he recommended them.  They also spoke to their opposite numbers in World Challenge who recommended both the company and Aaron.
14.	They contacted the ALS Managing Director Alistair Cole in their London office who checked with Trekforce, a company for which he had formerly worked in Belize, which knew of and had no concerns about the company.  He was not given the name of Aaron at this stage therefore his checks did not extend to him.
15.	They visited Maya Walks’ office and met Jimmy, looked at the company’s vehicles (road accidents were the most common cause of injury on such expeditions according to Mr Forbes’ experience of central America), checked their insurance, and read testimonials exhibited from past clients.  The company was recommended in the Lonely Planet Guide. They were offered free accommodation at “Las Ceibas”, a farm/jungle resort owned by Jimmy and Aaron, in return for some free labour by the group members in completing the construction of the buildings at the resort. 
16.	The two representatives of ALS went with Aaron to the farm together with G, the student representative for that day, and inspected what was available.  They were all impressed with what they saw, and the ALS team carried out a written risk assessment of the particular risks posed by the site and the means of dealing with them.  They reported back to the group and the decision was taken to accept Aaron’s offer.  The girls spent the 28th, 29th and 30th July working in groups on various tasks to complete the resort namely varnishing and waterproofing the cabanas in which visitors to the resort were to stay, liming trees, clearing the surrounding areas of vegetation and weeds and cleaning out a snake pool (a less ominous task than it sounds as the snakes involved were not venomous).
17.	This was no doubt hot, humid and hard work which the students seem to have tackled with a will.  They were divided into three groups for working purposes and each day would begin with Aaron telling each group what he wanted it to do.  He would provide equipment such as machetes, brushes and the like and would demonstrate what he wanted done and how it was to be done.  He would then leave them to do the work and return to his day job which was the running of tours for tourists in the area.  He would return at night to see how they had got on and would then comment on the quality of the work where appropriate.
18.	On 31 July as a “treat” in return for this work he took the party to a local swimming pool where they were joined by his young son (Aaron was a man in his mid twenties and his son was about 7); his friend Andrew (also known as Passy) and all three of the leaders were also present.  The girls spent the afternoon in the pool which the group had to itself.  It is said that the behaviour of Aaron that afternoon should have put the leaders on notice of what was to come. I should therefore consider the evidence about this in some detail
Aaron’s behaviour on 31 July
19.	Mary described the trip to the pool as a fun day and said that he seemed like “just a friendly nice guy” albeit he appeared to focus on her sub group saying “you girls are all cool”.  She thought that one of the girls was flirting with Aaron but not overly, just in a friendly manner.  Miss Pina was at the poolside but never went into the water.  Aaron encouraged the girls to perform a Mexican wave in the pool jumping up and down and as some wore bikinis there were the expected difficulties with the support that these provided for such a manoeuvre.  Aaron was bombing them by jumping into the pool she said. 
20.	Jane said that she saw Aaron place a ball down the front of his trunks and heard him ask the girls to remove it.  She took this as a joke rather than a sexual advance and thought it was weird but did not report the incident.  She though that some of his behaviour was inappropriate and juvenile. E saw this incident but   Mary did not.  L said in her witness statement that saw it but it was all done under water and would not have been visible to the leaders at the poolside. In evidence she said she could not remember seeing it, but heard about it from others almost immediately after it happened.
21.	E said he told her he was like Hugh Hefner and had lots of girl friends, which she treated as a joke.  No other girl heard this, or the other comment E attributed to Aaron that Belizean men were better at sex than British men. Nor did anyone hear the more serious remark she attributed to him, that he wanted to have sex with her.  If this was said she did not report it to any of the leaders, or even consult one of her friends about it.
22.	L remembers him saying that he liked to give a little bit extra to attractive students and tour groups, and the local police never got anything on him.  She also recalls him commenting on the chest of one of the girls.
23.	Nobody made any complaints to Aaron, Miss Pina or the ALS leaders about what was said or happened at the pool.  I suspect it was an enjoyable occasion where this hard working group let off steam as one would expect in the circumstances. Certainly it would have seemed that way to the eye of any of the leadership team.
24.	Following the afternoon at the pool it was agreed that the party would go to a nearby bar where the “one beer only” rule was applied and there was some dancing.  As Mary put it she saw nothing untoward.  He was a very friendly bloke, she said, and very flirtatious and was asking a couple of the girls about their boyfriends but everyone trusted him.  He did buy two rum and cokes and brought them to our table she said, asking us not to tell the leaders.  She had half a glass of rum and coke.  No doubt it would have looked to the leaders as if she was drinking Coca Cola.  She thought that there was no real reason for concern at the bar and that he was just being overly friendly.  “I was naive and thought it was all OK”, she said.  Reggae music was played and what Jane described as “silly dancing” was the theme with fast music to a dance or reggae beat.  One of the girls L did quite an intimate dance with Aaron she thought.  Having seen and heard L as a witness I very much doubt this. The party did not stay long at the bar.
25.	It was decided that they should leave at about 10.30 because they had an early start the following morning which was to be the day of a trip to some caves, with Aaron as guide.  Aaron drove them all back to the farm.  Both Ian and Blue were in the large minibus and there was singing and shouting as they went.  No one expressed concern about Aaron’s driving though he had been drinking at the bar. Forbes, an ex-REME man, was particularly keen on road safety issues and I am sure would not have let Aaron drive if he was visibly affected by drink.
Aaron’s Attack
26.	Ms Gumbel QC argues, I believe correctly, that Aaron had been grooming a sub group of members of this party in preparation for the events which followed.  In my judgment he did so with care and skill, was at all times at pains to conceal his real intentions from the adults responsible for their care and succeeded in doing so.
27.	As to what happened that night, the party arrived back at the farm probably at about or just before 11pm at which stage the farm was in pitch darkness.  Aaron had a torch and led the occupants of cabana 1, as it is labelled on the plan used in this case, to their door where he left them.  This cabana housed Mary, Jane, E, L and R.  It was the first of the three completed cabanas. Beyond it lay numbers 2 and 3, each of which held either two or three girls.  There were also two girls who chose to sleep in the open in what was called the hammock area, as did Miss Pina.  The distances between each cabana, as can be best judged from the photographs, was probably about 20-25 metres and there was a dead end path which led past them.
28.	The hammock area was near the toilet block towards the entrance/exit to the farm and was probably a similar distance away from cabana 1.
29.	The party was due to make an early start the following morning and Aaron, plausibly, said he proposed to stay at the farm that night (contrary to his previous habits) to facilitate that.  In the event he said he would sleep in cabana number 4 which was at the far end of the farm from cabanas 1-3 and probably lay between 50 or more metres away from them.  Number 4 in which he was proposing to sleep was not entirely completed and he said he would pitch his tent in it.
30.	At some stage he left a bottle of rum and some lemonade in cabana number 1.  This was probably shortly after he had led the girls to the cabana.
31.	At about midnight L and R wanted to visit the toilet block, and in accordance with expedition rules went there together, following the “buddy” principle that the girls should not venture anywhere alone.  I find that by that time Miss Pina and the two girls were asleep in their hammocks next to the toilet block and the two ALS leaders were asleep on the balcony of cabana number 2.
32.	On their return from the toilet block L noticed that Aaron was lurking in the trees on the opposite side of the pathway by cabana 1.  He followed L and R back towards the cabana.  L, speaking in a whisper, tried to discourage him but without success, and he entered the cabana at the same time as they did.  He was not positively invited in by the girls, but they did not actively protest. They all knew that he had no business to be in their cabana at all, let alone at midnight, and that they had no business to be drinking rum as some of them were.
33.	Aaron spent a substantial period of time in that cabana before committing the acts of rape.  Probably it was nearer two hours than one.  Throughout that time the girls or some of them were drinking the rum and lemonade he had provided and talking but were at pains to do so sotto voce because they quite plainly knew that what they were doing was wrong.
34.	After an amount of harmless socialising Aaron then progressed his plan by initiating a game of “spin the bottle”, in which the girl to whom the bottle pointed had to kiss him.  At least three of the girls acquiesced in this.  E and R remained on the large bed and took no part.
35.	Aaron increased the strength and forcefulness of his actions and it is enough to say that he then raped Mary, Jane and L and having done so left the cabana.
36.	In addition to the appalling insult he inflicted upon them the claimants and L went through a humiliating and unpleasant series of experiences thereafter.  It is not now contended that any of what happened thereafter was the result of actionable fault on the part of any defendant, but their treatment at the hands of the Belize police was at best unenlightened and at times downright hostile.  These matters are covered by the agreed quantification of this claim and need no further exploration in this judgment.
37.	The plain fact is that no other member of the party, including the three adult leaders, was disturbed from sleep by what went on inside cabana 1 that night.  The explanation for that is that prior to the actual assaults both the girls and Aaron were at pains to keep noise to a minimum to conceal his presence in the hut, and that during and after the rapes the girls were too terrified of him, and of the prospect of his return to do more than keep together and wait for the dawn, frozen in fear as I find.
Vicarious Liability
38.	This is one route to liability relied on by the claimant.  Though it is accepted that Aaron never was an employee of either defendant it is argued by Ms Gumbel that he was “recruited or enlisted as part of the leadership team and entrusted with the supervision and care of the girls”.  Therefore it is said a relationship existed such that the principles of vicarious liability should attach to his actions.
39.	In Lister v Hesley Hall Limited [2002] 1 AC 215 the House of Lords considered a case of admitted employment, where the employee had committed  criminal acts, namely sexual abuse of children in a boarding house of which he was the warden. Their Lordships found that there was a sufficient connection between his acts and the work he had been employed to do such as to make the employer liable for them and they therefore had to be regarded as having been committed within the scope of his employment.  If I find that there is indeed in this case a relationship attracting the principle of vicarious liability for Aaron’s actions Lister provides the claimants with a route to recovery.  As Lord Steyn said at paragraph 28:
“The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.  On the facts of the case the answer is yes.  After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties…Matters of degree arise.  But the present cases clearly fall on the side of vicarious liability”.
40.	As to whether the vicarious liability principle applies to the relationship between these defendants and Aaron the facts are all important and have first to be closely considered. 
41.	Miss Pina said that it was his farm, he was supervising the work done by the girls and she trusted him in the supervision of the work.  As to rules about drinking she told him what these were and she thought he would “be on our side”.  She said she was happy for him to be on our side as he could help.
42.	Much emphasis is laid by Miss Gumbel on the work the girls did at the farm.  Mary, when it was put to her that they had never been told that Aaron was one of the leaders, said they “made it clear we had to be grateful for staying at the farm and do the tasks he wanted us to do well”.  Jane said that Blue and Forbes when at the farm did not describe Aaron as the girls’ leader but “he was allowed to lead us” in that he allocated tasks, although he was not there all the time.
43.	E said that Aaron was on the farm for some of the days in which they worked and at certain points she worked with him but he was not a constant presence.  On one occasion she cleared weeds with him out of sight of the others but he made no inappropriate remarks that time.  “The school had taught me to show respect to leaders in general”, she said.  She considered Aaron was part of the management team in that he had the same responsibility and “we were expected to show him respect.”
44.	Miss Pina said she was on site all the time the work went on and was not at all concerned because the girls were under the leaders’ care at all times.  It was his farm and he knew what needed to be done and maybe he gave demonstrations of the work.  Ian Forbes said they discussed the work with Aaron but they supervised it and he did some machete work himself.  Aaron did no supervision but showed the girls what to do.  There was never a time when anybody was a great distance away and he thought they never left him on his own to supervise any group.
45.	Significantly when he and Blue were initially discussing with Aaron the tasks that Aaron wanted done Aaron suggested some work to the paths within the jungle area itself.  Forbes and Blue vetoed this on the grounds that it was too far away from the farm for supervision purposes, and it was therefore not included in the tasks to be done.
46.	Because the doctrine imposes strict liability without proof of fault by the defendant there is high authority for the proposition that, although it can apply to  relationships other than that of employment or  “servant or agent”, where it is classically and most commonly  found, it is a principle which has to be kept within bounds and is not “infinitely extendable”,  as Lord Steyn said in Bernard v AG of Jamaica [2004] UKPC 47 at 23, albeit that was a case concerned with the second stage of the enquiry namely whether the act came within the scope of admitted employment. One important feature of the type of relationship to which vicarious liability can attach to a non employee is the issue of control, for the reasons which Rix LJ explained in Viasystems v Thermal Transfer (Northern) Ltd [2006] QB 510.
47.	I have had the advantage of reading two very recent first instance decisions on this issue, namely JGE v The English Province of Our Lady of Charity and another [2011] EWHC 2871 QB, a decision of MacDuff J, and EL v The Children’s Society [2012] EWHC 365 QB, a decision of Haddon-Cave J handed down on 24 February 2012. Both are examples of the highly fact-sensitive nature of such an enquiry, especially at the first of the two stages involved, namely whether the nature of the relationship is such that it is just and fair to hold these defendants vicariously liable for the torts committed by the perpetrator.  
48.	So far as the labouring work on the farm is concerned the status of Aaron was as owner or joint owner of the land, the person who had the power to licence the girls to stay on the farm, but who having allocated the work and explained what was to be done and how left it to the girls to carry it out under the direct and continuous unbroken supervision of the defendant leaders. I regard the action of the two ALS leaders in rejecting his suggestion that jungle paths works should be included in the girls working tasks as a good indicator of where true control lay.
49.	As to other matters, he was the facilitator of the visit that the party paid to the swimming pool on the afternoon before the assaults, he drove them to and from that pool and to the Puccini Bar that evening.  Again for all of those periods the girls were continuously under the direct supervision of the three leaders, and the connection between Aaron and the defendants was no more or less than I have set out above.
50.	In my judgment these facts fall short of describing a situation where it would be just and fair to call Aaron a person for whose actions the defendants should be vicariously liable.
Direct Liability of the First Defendant 
51.	In one respect only the liability of the first defendant is said to depend on their own breach of their duty of care in deciding the organisation and structure of this expedition, namely the fact that only one teacher was allotted to it.  Kent County Council had written to the school on 9 June 2005 raising a query as to what would happen if the single teacher proposed was sick.  It was not entirely clear from the documents, nor was it within the memory of Miss Pina how this concern was allayed, but at all events on 11 June 2005 the support officer of Kent County Council signed the proposed trip off with his approval on the basis that there would be one female teacher with this group.  That of course does not of itself answer this criticism.
52.	The claimant relied on the expert evidence of Mr David Cox in this context.  He has considerable academic qualifications and nearly 20 years’ experience as head teacher of a large comprehensive school.  Over his teaching life he has led innumerable residential expeditions all over the UK and has led groups on “school to school” visits in the USSR, the USA and China.  As a headmaster he would have been responsible for approving a very large number of school trips.  He did not himself have any experience of expeditions to Belize. 
53.	He pointed to the 1998 good practice guide issued by the Department for Education and Employment entitled Health and Safety of Pupils on Educational Visits (“HASPEV”).  This is a very substantial 45 page document with a wealth of detailed advice.  It is right to say (though Mr Cox’s report did not disclose this fact) that since 12 December 2011 there is now a very different approach to advice from Government on this topic, which now aims to reduce the burden on schools undertaking such trips, to simplify health and safety requirements and explain them better, and make it easier for schools to take pupils on trips by removing paperwork and taking steps to reducing teachers’ fears of legal action.  It says “Teachers’ should be confident that they know best how to look after pupils and keep them safe”.  But it is right to say that this was not the guidance in place in 2005 when this trip was being planned, and HASPEV was.
54.	At paragraph 207 of HASPEV the question of staffing of visits is addressed.  It reads as follows:
“Staffing ratios for visits abroad are difficult to prescribe as they will vary according to the activity the pupils’ age and sex, the location, and the efficient use of resources.  A minimum ratio of one adult to ten pupils is a general rule of thumb but at least two of the adults should be teachers.  There should be enough adults in the group to cover an emergency…”
This group of 12 of course had three adults attached to it but only one of them was a teacher.
55.	Mr Cox’s approach in his evidence was to say “ideally” he would have wanted a second teacher, though he acknowledged there were two groups from Gravesend Grammar in the same vicinity each with a female teacher attached.  He thought a second teacher on this group would have been “of considerable help” if for example the teacher became unwell or had difficulties in getting on with some of the members of the group.  He thought that under HASPEV two teachers and no more would be enough.
56.	Miss Pina had considerable experience of foreign trips with girls of this age and in her belief a second teacher would not always be better.  Her clear preference was to have two technical leaders and not two pastoral leaders.  She pointed out that another teacher was very close and the evidence of the second defendants was that no part of Belize is more than three hours from any other part.  As she put it “the other two supported me brilliantly”.  A single reference in her diary to being left on her own by them on one occasion was not, I am satisfied,  intended as a significant complaint or  problem recorded by her.
57.	Alistair Cole, the managing director of ALS, who had been closely involved in the preparation of this expedition and who knew Belize well having worked there for another expedition company, said that their usual practice was to have one teacher per ten pupils and one leader per eight.  His company was the first to introduce a second technical leader, and his firm view was that in Belize he would prefer more technical staff than pastoral. He was conscious that the ethos of such expeditions was to let the students to the greatest extent run the expedition and for there not to be too many adults.
58.	In my judgment Mr Cox’s suggestion of two teachers is not a realistic one and certainly the omission of a second teacher cannot be described as a breach of the school’s duty of care.  There was no occasion on this expedition when difficulties were caused by the absence of a second teacher; the presence of two technical experts, who between them had 50 years of military service and a large number of years of experience of expeditions in all environments, was a positive bonus.
59.	Otherwise no complaint is made as to the approach to this expedition its organisation, training, equipment or any other feature of it.  The question of liability therefore seems to me to depend on whether the leadership team of three were in breach of their duty to exercise reasonable skill and care to keep the complainants free from foreseeable harm at the hands of Aaron Juan and specifically to respond appropriately to indications by him that he posed a risk to the girls by virtue of inappropriate behaviour towards them, particularly on the day preceding the eventual attack.
The Existence and Scope of the Duty of Care
60.	Both defendants agree that they owed a duty of care in tort to these claimants, and in the case of ALS in contract, all of which can be best expressed as an obligation to take such reasonable care to ensure the safety of the pupils on this trip as would be taken by a reasonably careful parent, in whose place they stood.
61.	The scope of that duty and its application to particular facts is less easy to express and, of course, causation also falls to be considered if a breach is shown.
62.	The defendants unsurprisingly place reliance on the case of Dickinson v Cornwall County Council (unreported; Steel J) 10 December 1999.  It bears superficial factual similarities to the present case, as the claimant there sought to impose liability on those organising a school trip for the criminal acts of a third party who gained access to the party’s sleeping quarters, raped and murdered a girl.
63.	Steel J cited the remarks of Lord Reid in Dorset Yacht v Home Office [1970] AC 1004 at 1030 to the effect that for a breach to be found where the damage is caused by the criminal act of a third party :-
“…that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation.  I do not think that mere foreseeable possibility is or should be sufficient…”
Steel J concluded that an affirmative duty to prevent deliberate wrongdoing by a third party would therefore only arise where the action is not merely foreseeable but that it had to be the very thing likely to happen.
64.	As it seems to me even, or perhaps especially where the issue as here is the scope rather than the existence of a duty of care the well-known tripartite test in Caparo v Dickman [1992] AC 605 is applicable, though of course it must not be used in an over -formulaic way.  Its use was considered by the House of Lords in Mitchell v Glasgow City Council [2009] 1 AC 874, in which the defender was said to have failed to warn the victim of the action it was proposing to take against the perpetrator which would foreseeably cause him to carry out the fatal attack on the victim, as in the event he did.
65.	Lord Hope considered the passage in Dorset Yacht cited above and also the decision of the House in Smith v Littlewoods Organisation [1987] AC 241 and specifically Lord Goff’s remarks at page 280 where he observed:-
“It is very tempting to try to solve all problems with negligence by reference to an all embracing criterion of foreseeability, thereby effectively reducing all decisions in this field to questions of fact.  But this comfortable solution is, alas, not open to us.  The law has to accommodate all the untidy complexity of life; and there are circumstances where considerations of practical justice impel us to reject a general imposition of liability for foreseeable damage…”
66.	Both Lord Hope and Lord Rodger in  Mitchell  were therefore rejecting the approach of Lord Mackay of Clashfern in Smith to the effect that the unlawful conduct of the third party must be more than a mere possibility, but something which was “highly probable or very likely”. 
67.	The resolution of this problem by their Lordships in Mitchell was therefore, as summarised by Sir Anthony Clarke MR in X and Y v LB Hounslow [2009] EWCA Civ 286, namely that for the defendant to be held responsible for the criminal acts of another it must be the case that “… the situation is one where it is readily understandable that the law should regard the defendant as under a responsibility to take care to protect the claimant from the risk”.  I understand that to be no different from a statement that the imposition of a duty of that scope on that defendant in those circumstances must be fair just and reasonable in the Caparo sense, no more and no less.
Discussion on breach of duty of care
68.	Ms Gumbel in her submissions argues that the prior behaviour of Aaron was such as to put the leaders on notice that he was grooming these girls as potential victims.  I am satisfied that none of the comments he made at the pool were heard by Miss Pina or the two men, who would have taken action had they heard them.  This was because the ethos of the expedition was not to crowd the girls with adult supervision, to do so from a discreet but reasonable distance, and because Aaron would have taken care not to alert the eyes or ears of the leaders. Nor were they reported to her or any other leader.  Had they been put on notice they would I am satisfied have opposed his suggestion that he stay at the farm that night.
69.	She also argues that in any event, even if they were not on notice, there was a foreseeable risk against which the defendants failed to take precautions, namely the risk of a sexual assault of some kind, not necessarily of the seriousness which happened, by Aaron against one of the girls.  The checks they carried out were inadequate and ought not to have satisfied them that he did not pose such a risk, which ought therefore to have been assumed to exist.
70.	I have set out above the checks that I am satisfied were carried out.  It is not alleged that Aaron had any criminal record which went undiscovered, or that Belize operates a system on the line of the UK’s CRB to check persons likely to be in close contact with children and young persons. Had the police been consulted prior to these events the probability is they would have given him a good reference.  It is most unlikely they would have asserted that a young man who was openly working as a tour guide for parties which included or comprised teenage girls was a threat to such persons. Indeed even after the allegations were made against him and he had gone on the run a female police officer maintained in effect that she thought Aaron was the type of young man she would be happy to see her daughter associating with.
71.	This party was continuously supervised by three highly responsible and experienced adults.  Short of posting a guard on the door of each cabana, or instituting some system of watch-keeping, there would have been no way of defeating Aaron’s assault on these girls, which he and up to a point they were at pains to keep from the leaders. It would not be fair, just and reasonable to define the scope of their duties so as to require them to have taken those or any other precautions that night.
72.	I find that the checks made were reasonable and proportionate and that the leaders of this expedition were not given any reason to foresee this terrible event.   The defendants did not breach their respective duties of care to these claimants who were the victims of an unscrupulous, determined and skilful attacker.  I regret I must therefore dismiss these claims.