Saturday, January 27, 2007

Vicarious Liability and the Police

By Aidan Ellis

This article appeared in the Law Journal, January, 2007. Case references can be found there.

An off-duty policeman was sitting in his personal car outside the Sunrise Club. He was wearing a black jacket with his police uniform visible underneath. His warrant card was on show. A first aider came out of the club. He was having difficulties with the Claimant who was drunk. The first aider spotted the policeman and spoke to him. The policeman told the Claimant “I am the police”. He showed her his warrant card. He told the first aider that he would take the Claimant “to the police station”. Instead he took her to his home, where he raped and indecently assaulted her. On these facts, the High Court was asked to determine in N v Chief Constable of Merseyside whether the Chief Constable was vicariously liable for this assault.

The Law
The test for whether an employer is vicariously liable is: “was the employee’s tort so closely connected with his employment that it would be fair and just to hold his employer vicariously liable”. As a result, the courts have tended to resolve borderline cases by analysing the list of factors linking the tort with the employment. The weakness of this approach is that it hinges entirely on the detailed facts of a particular case: it is very difficult to offer useful general guidance. It also breeds uncertainty: there is scope for judges to disagree over whether the test is satisfied.

The Police Cases
Three recent police cases have been considered in the higher courts. The first was Weir v Bettison. In that case a police constable used a police van without authorisation to help his girlfriend move house. He told a local youth that he was a policeman. Later, he forcibly ejected the youth from the building, assaulted him and locked him in the police van. It was held by the Court of Appeal that from the moment he started to put the youth out of the building, the policeman was purporting to exercise police authority. Accordingly vicarious liability attached.
Two further cases were considered by the privy council on reference from the Caribbean. In Bernard v Attorney General of Jamaica, the Claimant was in the front of a queue to use a public telephone. A policeman demanded to use the phone. The Claimant declined. In the ensuing argument the policeman shot the Claimant and later arrested him for interfering with his duties as a policeman. Although the policeman was off duty vicarious liability was established because he purported to be on official business and this was evidenced by the subsequent arrest.
The opposite result was reached in Attorney General v Hartwell. In that case a policeman left his post, travelled some 27 miles to a bar where he spotted his ex-partner with another man. He fired four shots on a police revolver into the bar, injuring the Claimant who was simply a bystander. This was held to be a classic “frolic of his own”. The constable had consciously abandoned his police duties and embarked on a personal vendetta. Further he had never invoked his official authority.

In each of these cases the court undertook a detailed analysis of the facts and the factors connecting the tort to the employment. However, the touchstone for liability was whether the policeman was purporting to act in his official capacity at the time of the tort. In Bernard and Weir the policemen involved purported to be acting officially: both announced that they were police and purported to arrest the Claimants. By contrast in Hartwell the policeman did not invoke official authority.

This approach seems justified. Employing a person as a police officer invests them with power as authority figure. This creates a risk to the wider community that the officer will abuse that power. Therefore when the official power is abused, it is fair that the police should be liable. On the other hand, where the policeman simply acts as an ordinary person, there is no justification for the police to be liable.

N v Chief Constable of Merseyside
The result in N would therefore appear to be straightforward: the policeman purported to act in his official capacity (this is accepted at paragraph 33 of the judgement) therefore the police should be liable.

Nelson J thought differently. He concluded that the policeman was “on the prowl”. The evidence indicated that the assault was premeditated. In the circumstances, Nelson J held that he did not put himself on duty by offering to take the Claimant to the police station. The uniform and position of police officer merely offered him the opportunity to commit the tort. Therefore he ruled against the Claimant on vicarious liability.

Unfortunately the judgment raises difficult questions. Is there sufficient difference between the actions of the policemen in Weir and N to justify making the Chief Constable liable in one but not the other? Is it correct that planning and premeditation necessarily take an assault outside the scope of vicarious liability? Does it really matter that the police force does not generally owe a duty of care to members of the public?

The result for the present is this: it cannot be assumed that because a policeman purports to be acting in his official capacity, liability will necessarily follow. As in other areas of vicarious liability, one is left with the impression that general rules are unhelpful and it all depends on the facts.

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