N V CHIEF CONSTABLE OF MERSEYSIDE POLICE [2006] EWHC 3041 (QB)
FACTS:-
On the 20th April 2003, the Claimant was sexually assaulted by a probationer police constable. She had come out of a night club intoxicated having taken ecstasy. The police constable was off duty, but was wearing his uniform and sitting in a private car. He approached the Claimant and offered to take her to hospital. However he proceeded to take her to his home, where he assaulted her and took films and photographs of her. The police constable was convicted of these offences and imprisoned.
JUDGMENT:-
Mr Justice Neilson referred to Section 88(1) of the Police Act 1996 which held a Chief Constable liable for the performance or purported performance of the functions of constables in a like manner as a master was liable in respect of torts committed by his servants.
It was now clearly established that intentional torts, including deliberate sexual abuse were not inconsistent with vicarious liability. Neilson J referred to the following cases.
In Attorney General of British Virgin Islands v Hartwell [2004] 1 WLR 1273 the Privy Council held that a police officer who had abandoned his post and embarked on a vendetta of his won, was not acting in the course of his employment when he fired his police revolver in a bar. It was held that he had used the firearm for his own purposes, and his activities had nothing to do with police duties.
However in Weir v Chief Constable of Merseyside Police [2003] ICR 708 an off duty policeman assisting his girlfriend to move house ejected a youth from the girlfriend’s new flat, threw him down the stairs and locked him up in a van. In that case the Chief Constable was held to be liable, because the policeman was acting in the course of his duties.
In Bernard, a police constable demanded that the Claimant give up a telephone and when he did not do so, he shot him. He then proceeded to arrest the Claimant in a hospital bed, and charges (later dismissed) were brought against the Claimant. The Privy Council said that it was of prime importance that the police officer asserted his authority as a police officer throughout, and furthermore that the police authority created a risk by permitting constables to take loaded service revolvers home and carry them whilst off duty.
In Makanjuola v Commissioner of Police for the Metropolis [1989] Admin LR 214 the court considered the case of a police officer who threatened an immigrant woman with arrest unless she gave him sexual favours. This was a clear case of private independent action, even though the opportunity to commit those actions was obtained by misuse of the warrant card. Neilson J said that in the light of Lister, it might be said that too much focus was placed on the tort complained of rather than looking at the context and full circumstances in which it had occurred.
Neilson J said that when considering the vicarious liability of a chief constable the principles set out in Lister were applicable. As was said in Hartwell, the test was whether the police officer's act was so closely connected with the acts he was authorised to do that, for the purposes of liability, his wrongful act might fairly and properly be regarded as made by him whilst acting in the ordinary course of his employment as a police officer. Whether he was acting apparently or ostensibly as a police officer at the time was an important factor to be considered but was not in itself decisive.
Neilson J said that when all the facts were taken into account, the police constable was merely using his uniform and position as a police officer as the opportunity to commit the assaults on the Claimant. Unlike the ward in Lister he did not have a specific duty to care for the Claimant entrusted to him by an employer who had such a duty. Nor was he purporting to perform a police function such as arrest or enforcing police authority, as the officers were doing in Weir and Bernard. The Defendant owed no specific duty to the Claimant. The police constable was, to use a classic phrase, on a frolic of his own.
The torts were not so closely connected with his employment that it would be fair and just to hold the Chief Constable liable. The misuse of a warrant card by a rogue police constable, when he formed the intention to assault, was not sufficient to impose vicarious liability in itself.
FACTS:-
On the 20th April 2003, the Claimant was sexually assaulted by a probationer police constable. She had come out of a night club intoxicated having taken ecstasy. The police constable was off duty, but was wearing his uniform and sitting in a private car. He approached the Claimant and offered to take her to hospital. However he proceeded to take her to his home, where he assaulted her and took films and photographs of her. The police constable was convicted of these offences and imprisoned.
JUDGMENT:-
Mr Justice Neilson referred to Section 88(1) of the Police Act 1996 which held a Chief Constable liable for the performance or purported performance of the functions of constables in a like manner as a master was liable in respect of torts committed by his servants.
It was now clearly established that intentional torts, including deliberate sexual abuse were not inconsistent with vicarious liability. Neilson J referred to the following cases.
- Lister v Hesley Hall [2001] UKHL 22
- Dubai Aluminium Co. Limited v Salaam [2002] UKHL 48
- Mattis v Pollock [2003] EWCA Civ 887
- Bernard v Attorney General of Jamaica [2004] UKPC 47
In Attorney General of British Virgin Islands v Hartwell [2004] 1 WLR 1273 the Privy Council held that a police officer who had abandoned his post and embarked on a vendetta of his won, was not acting in the course of his employment when he fired his police revolver in a bar. It was held that he had used the firearm for his own purposes, and his activities had nothing to do with police duties.
However in Weir v Chief Constable of Merseyside Police [2003] ICR 708 an off duty policeman assisting his girlfriend to move house ejected a youth from the girlfriend’s new flat, threw him down the stairs and locked him up in a van. In that case the Chief Constable was held to be liable, because the policeman was acting in the course of his duties.
In Bernard, a police constable demanded that the Claimant give up a telephone and when he did not do so, he shot him. He then proceeded to arrest the Claimant in a hospital bed, and charges (later dismissed) were brought against the Claimant. The Privy Council said that it was of prime importance that the police officer asserted his authority as a police officer throughout, and furthermore that the police authority created a risk by permitting constables to take loaded service revolvers home and carry them whilst off duty.
In Makanjuola v Commissioner of Police for the Metropolis [1989] Admin LR 214 the court considered the case of a police officer who threatened an immigrant woman with arrest unless she gave him sexual favours. This was a clear case of private independent action, even though the opportunity to commit those actions was obtained by misuse of the warrant card. Neilson J said that in the light of Lister, it might be said that too much focus was placed on the tort complained of rather than looking at the context and full circumstances in which it had occurred.
Neilson J said that when considering the vicarious liability of a chief constable the principles set out in Lister were applicable. As was said in Hartwell, the test was whether the police officer's act was so closely connected with the acts he was authorised to do that, for the purposes of liability, his wrongful act might fairly and properly be regarded as made by him whilst acting in the ordinary course of his employment as a police officer. Whether he was acting apparently or ostensibly as a police officer at the time was an important factor to be considered but was not in itself decisive.
Neilson J said that when all the facts were taken into account, the police constable was merely using his uniform and position as a police officer as the opportunity to commit the assaults on the Claimant. Unlike the ward in Lister he did not have a specific duty to care for the Claimant entrusted to him by an employer who had such a duty. Nor was he purporting to perform a police function such as arrest or enforcing police authority, as the officers were doing in Weir and Bernard. The Defendant owed no specific duty to the Claimant. The police constable was, to use a classic phrase, on a frolic of his own.
The torts were not so closely connected with his employment that it would be fair and just to hold the Chief Constable liable. The misuse of a warrant card by a rogue police constable, when he formed the intention to assault, was not sufficient to impose vicarious liability in itself.