BERNARD V ATTORNEY GENERAL OF JAMAICA [2004] UKPC 47
FACTS:-
The Claimant was waiting in a queue to use a pay telephone in the Central Sorting Office in Kingston when suddenly a policeman intervened announcing himself as “police.” The Claimant refused and was shot in the head by the policeman. When he recovered consciousness in hospital, he found himself arrested by the same policeman for allegedly assaulting a police officer. The charges were later dropped and the policeman dismissed from the force. No criminal charges were brought against him and he later disappeared. The Claimant sued the Attorney General of Jamaica on the grounds that he was vicariously liable for the policeman’s actions. The trial judge concluded that the Attorney General was vicariously liable, but the Court of Appeal set aside this decision. However they expressed concern about the actions of agents of the Jamaican government and referred to a United Nations report on the issue of summary executions and disappearances on the island. The Court of Appeal recommended an ex gratia payment be made, which the Jamaican government duly did. The Claimant appealed to the Privy Council.
HELD:-
Lord Steyn considered Section 3(1) of the Crown Proceedings Act, which stated that an action might lie against the Crown for torts committed by its servants or agents. It was not disputed that the shooting incident took place and it was common ground that a police constable was a servant of the Crown. Lord Steyn also considered the provisions of the Constabulary Force Act, which set out the duties of the police. Furthermore the Firearms Act permitted any constable to carry a firearm whilst off duty.
Lord Steyn referred to the following cases:-
In Lister the warden of a boarding school had sexually abused resident children. The single ultimate question was 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. The House of Lords decided that the answer to this question was “yes”. In Dubai the issue was whether a solicitors’ firm was vicariously liable for the fraudulent acts of one of its partners, who had defrauded the Claimant company. Again vicarious liability was established. In Minister of Police the case concerned a police officer who had maliciously, in pursuit of a private vendetta, assaulted and arrested an individual. The South African Appellate Division found that vicarious liability was established. The reasoning adopted in that case was that a master who did his work by the hand of a servant created a risk of harm to others if the servant should prove to be negligent or inefficient or untrustworthy. Therefore that master is under a duty to ensure that no-one was injured by the servant’s improper conduct or negligence.
The reasoning in Minister of Police was criticised in later South African Court of Appeal decisions. However Lord Steyn said that it did not follow that in the overall assessment as to whether vicarious liability was established on the facts of a particular case, the creation of special risks might not be a relevant factor to be considered.
Lord Steyn considered the concept of vicarious liability. It had been said by the House of Lords in Lister that it was by itself no answer to say that the employee was guilty of intentional wrongdoing, or that his act was merely tortuous but criminal, or that he was acting exclusively for his own benefit, contrary to express instructions or that his conduct was the very negation of the employer’s duty. On the other hand, as was said in the Canadian case of Bazley v Curry (1999) 174 DLR (4th) the principle of vicarious liability was not infinitely extendable. The wrong had to be closely connected with the employment.
There were three features in this case, which were of prime importance:-
Therefore vicarious liability would be established.
FACTS:-
The Claimant was waiting in a queue to use a pay telephone in the Central Sorting Office in Kingston when suddenly a policeman intervened announcing himself as “police.” The Claimant refused and was shot in the head by the policeman. When he recovered consciousness in hospital, he found himself arrested by the same policeman for allegedly assaulting a police officer. The charges were later dropped and the policeman dismissed from the force. No criminal charges were brought against him and he later disappeared. The Claimant sued the Attorney General of Jamaica on the grounds that he was vicariously liable for the policeman’s actions. The trial judge concluded that the Attorney General was vicariously liable, but the Court of Appeal set aside this decision. However they expressed concern about the actions of agents of the Jamaican government and referred to a United Nations report on the issue of summary executions and disappearances on the island. The Court of Appeal recommended an ex gratia payment be made, which the Jamaican government duly did. The Claimant appealed to the Privy Council.
HELD:-
Lord Steyn considered Section 3(1) of the Crown Proceedings Act, which stated that an action might lie against the Crown for torts committed by its servants or agents. It was not disputed that the shooting incident took place and it was common ground that a police constable was a servant of the Crown. Lord Steyn also considered the provisions of the Constabulary Force Act, which set out the duties of the police. Furthermore the Firearms Act permitted any constable to carry a firearm whilst off duty.
Lord Steyn referred to the following cases:-
- Lister v Hesley Hall Ltd [2002] 1 AC 215
- Dubai Aluminium Company Limited v Salaam [2003] 2 AC 366
- Minister of Police v Rabie 1986 (1) SA 117 (A South African case)
In Lister the warden of a boarding school had sexually abused resident children. The single ultimate question was 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. The House of Lords decided that the answer to this question was “yes”. In Dubai the issue was whether a solicitors’ firm was vicariously liable for the fraudulent acts of one of its partners, who had defrauded the Claimant company. Again vicarious liability was established. In Minister of Police the case concerned a police officer who had maliciously, in pursuit of a private vendetta, assaulted and arrested an individual. The South African Appellate Division found that vicarious liability was established. The reasoning adopted in that case was that a master who did his work by the hand of a servant created a risk of harm to others if the servant should prove to be negligent or inefficient or untrustworthy. Therefore that master is under a duty to ensure that no-one was injured by the servant’s improper conduct or negligence.
The reasoning in Minister of Police was criticised in later South African Court of Appeal decisions. However Lord Steyn said that it did not follow that in the overall assessment as to whether vicarious liability was established on the facts of a particular case, the creation of special risks might not be a relevant factor to be considered.
Lord Steyn considered the concept of vicarious liability. It had been said by the House of Lords in Lister that it was by itself no answer to say that the employee was guilty of intentional wrongdoing, or that his act was merely tortuous but criminal, or that he was acting exclusively for his own benefit, contrary to express instructions or that his conduct was the very negation of the employer’s duty. On the other hand, as was said in the Canadian case of Bazley v Curry (1999) 174 DLR (4th) the principle of vicarious liability was not infinitely extendable. The wrong had to be closely connected with the employment.
There were three features in this case, which were of prime importance:-
- The shooting incident followed immediately upon the constable’s announcement that he was a policeman.
- The constable’s subsequent act in arresting the Claimant in the hospital was explicable on the basis that the constable alleged that the Claimant had interfered with his execution of his duties as a policeman
- The risk that the police authorities created in allowed constables to take home firearms was relevant. That risk on its own did not create vicarious liability but it reinforced the first two features, viz that the constable at all material times purported to act as a policeman.
Therefore vicarious liability would be established.