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Cite as:  IRLR 398,  UKPC 47
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Bernard v. Attorney General of Jamaica (Jamaica)  UKPC 47 (07 October 2004)
Privy Council Appeal No.30 of 2003
Clinton Bernard Appellant
The Attorney General of Jamaica Respondent
THE COURT OF APPEAL OF JAMAICA
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 7th October 2004
Present at the hearing:-
Lord Bingham of Cornhill
Lord Scott of Foscote
[Delivered by Lord Steyn]
The shooting incident
"If there is an emergency situation and [an] officer needs to use the phone I would consider it normal for him to go to the head of the line and demand to use the phone as a matter of urgency."
In any event, the plaintiff was determined not to let go of the phone. The constable slapped the plaintiff on the hand and then shoved him in his chest. When the plaintiff still resisted the constable took two steps backwards, pulled out a service revolver, pointed it at the plaintiff, and fired at his head at point blank range. The bullet hit the plaintiff to the left side of his head, leaving entry and exit wounds in his skull.
"Subject to the provisions of this Act, the Crown shall be subject to all those liabilities to tort to which, if it were a private person of full age and capacity, it would be subject –
(a) in respect of torts committed by its servants or agents;
Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) in respect of any act or omission of a servant or agent of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action in tort against that servant or agent or his estate."
"the acts of [Constable Morgan] on February 11th 1990 at the Central Sorting Office, South Camp Road, Kingston, Jamaica were done entirely for [his] ... benefit ... and he was not acting in the course of his employment or for his employer's benefit."
"without favour or affection, malice or ill-will and that I will see and cause Her Majesty's Peace to be kept and preserved; and that I will prevent, to the utmost of my power, all offences against the same; and that while I shall continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully ..."
The duties of the police are set out in section 13 as follows:
"The duties of the Police under this Act shall be to keep watch by day and night, to preserve the peace, to detect crime, apprehend or summon before a Justice persons found committing any offence or whom they may reasonably suspect of having committed any offence, or who may be charged with having committed any offence, to serve and to execute all summonses, warrants, subpoenas, notices and criminal processes issued from any Court of Criminal Justice or by any Justice in a criminal matter and to do and perform all the duties appertaining to the office of a constable ..."
Section 30 provides:
"If any person shall assault, obstruct, hinder or resist, or use any threatening or abusive and calumnious language or aid or incite any other person to assault, obstruct, hinder, or resist any constable in the execution of his duty, every such offender shall be liable to a fine not exceeding two thousand dollars."
The Firearms Act contains detailed prohibitions on the carrying of firearms but section 52 provides in paragraph (e) that the Act shall not apply inter alia "to any constable". To this recitation of the applicable statute law it must be added that in practice, in Jamaica, a constable such as Constable Morgan, may take a loaded firearm issued to him home and he may carry that firearm while he is off duty. That was part of the context of the case before the judge.
The judgment of McCalla J
"The First Defendant demanded the use of the telephone by identifying himself as being a police officer albeit in a most crude and vulgar manner. The witness for the defence has admitted that it would be within the scope of a police officer's duty to demand the use of a telephone as a matter of urgency if the necessity arose.
Although no evidence has been adduced that at the relevant time the first defendant was on duty, in the absence of evidence to the contrary the reasonable inference to be drawn is that his demand was somehow connected to his duties. The act of shooting the plaintiff was unlawful and clearly did not fall within any of his prescribed duties but was nevertheless in furtherance of his demand. He subsequently arrested and charged the plaintiff for assaulting him and by that act he could only have been asserting that at the material time he was executing his duties as a police officer.
In these circumstances I find that the Attorney-General is vicariously liable for the action of the first defendant. The plaintiff has established his case on a balance of probabilities and the defence fails."
The judge awarded to the plaintiff damages against the Attorney-General for assault, false imprisonment and malicious prosecution in the sum of (1) general damages of $2,230,000 with interest on $2,000,000 at the rate of 6% per annum from 1st February 1991 to 9th June 2000; (2) special damages in the sum of $318,000.00 with interest at the rate of 6% per annum from 11 February 1990 to 9th June 2000.
The Court of Appeal judgment
"In the instant case, the constable was in possession of a service revolver issued to him by his superior officer which could be regarded as authorising him to be at large in carrying out his sworn duty to uphold the law. By his unlawful action in shooting and injuring the respondent the constable could not be seen as acting in the lawful execution of his duty. His conduct was of such a nature as fell outside the class of acts authorised by section 13 of the Constabulary Force Act, and did not render the state as his employer vicariously liable to the respondent."
Walker JA observed:
"... the trial judge laid great store on two pieces of evidence, namely:
(1) that in demanding the use of the telephone Morgan announced 'police'; and
(2) following the incident Morgan caused the plaintiff to be arrested on a charge of assaulting a police officer.
To my mind, whether taken singly or together, these segments of the evidence are incapable of providing a sufficient basis for such a finding. Firstly, as to (1) above, the action of Morgan is at best equivocal, the probability being that he was asserting his status as a policeman for the sole purpose of obtaining the desired advantage. It had nothing to do with the execution of his official duties. Secondly, as to (2) above, the probability seems to be that the prosecution of the plaintiff was contrived in an attempt to cover up, or justify, the wrongful shooting of the plaintiff. It was not a genuine prosecution for an offence committed against Morgan qua police officer."
Panton JA agreed. In the result the Court of Appeal set aside the judgment entered for the plaintiff in its entirety, i.e. also in respect of false imprisonment and malicious prosecution.
"That I find it necessary to express myself in such extreme undertones, is due in no small measure to the state of the law as it relates to vicarious liability which, on the uncontroverted facts in this case, now appears to be occurring with the most alarming regularity and cries out for justice to be done. Such a cry can only be answered by the state instituting some measure of reform aimed at assisting the many innocent victims of the barbarous conduct of agents of the state."
He urged the state to make an ex gratia payment by way of compensation "to redress a grievous wrong done to one of its citizens while going about his lawful business" Walker JA also recommended "a meaningful ex gratia payment". The background to which Bingham JA referred is reviewed in a report dated 26 September 2003 by the Special Rapporteur, Asma Jahangir, of the United Nations Commission on Human Rights published under the title Civil and Political Rights, including the Question of Disappearances and Summary Executions: Addendum: Mission to Jamaica: E/CN.4.2004/7/Add.2., para 61 et seq.
Gaps in the evidence
The decisions in Lister and Dubai
"... 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 four substantial opinions delivered in Lister revealed that all the Law Lords agreed that this was the right question. On the facts the members of the House unanimously took the view that the answer was "yes" because the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in the boarding house. This decision did not come out of the blue. On the contrary, it was a development based on a line of decisions of high authority dating from Lloyd v Grace, Smith & Co  AC 716 where vicarious liability was found established in cases of intentional wrongs. Lister is, however, important for a number of reasons. It emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeasor's employment. It stressed the need to avoid terminological issues and to adopt a broad approach to the context of the tortious conduct and the employment. It was held that the traditional test of posing, in accordance with Salmond's well-known formula, the question whether the act is "a wrongful and unauthorised mode of doing some act authorised by the master" is not entirely apt in cases of intentional wrongs: Salmond, The Law of Torts, 1907, 83, now contained in the current edition of Salmond and Heuston, The Law of Torts, 21st ed., 1996, 443. This test may invite a negative answer, with a terminological quibble, even where there is a very close connection between the tort and the functions of the employee making it fair and just to impose vicarious liability. The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether looking at the matter in the round it is just and reasonable to hold the employers vicariously liable. In deciding this question a relevant factor is the risks to others created by an employer who entrusts duties, tasks and functions to an employee. This strand in the reasoning in Lister was perhaps best expressed by Lord Millett who observed (para 83, at 250D):
"... Experience shows that in the case of boarding schools, prisons, nursing homes, old people's homes, geriatric wards, and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust."
While the facts of Lister are very different from the circumstances of the present case, the principles enunciated in Lister are of general application to intentional torts.
"... Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment."
Throughout the judgments there is an emphasis on the proposition that an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business he carried on.
"In my view a more apposite approach to the present case would proceed from the basis for vicarious liability mentioned by Watermeyer CJ in Feldman (Pty) Ltd v Mall [1945 AD 733, at 741]:
'... a master who does his work by the hand of a servant creates a risk of harm to others if the servant should prove to be negligent or inefficient or untrustworthy; that, because he has created this risk for his own ends he is under a duty to ensure that no one is injured by the servant's improper conduct or negligence in carrying on his work ...'
By approaching the problem whether Van der Westhuizen's acts were done 'within the course or scope of his employment' from the angle of creation of risk, the emphasis is shifted from the precise nature of his intention and the precise nature of the link between his acts and police work, to the dominant question whether those acts fall within the risk created by the State. By appointing Van der Westhuizen as a member of the Force, and thus clothing him with all the powers involved, the State created a risk of harm to others, viz the risk that Van der Westhuizen could be untrustworthy and could abuse or misuse those powers for his own purposes or otherwise, by way of unjustified arrest, excess of force constituting assault and unfounded prosecution. Van der Westhuizen's acts fall within this purview and in the light of the actual events it is evident that his appointment was conducive to the wrongs he committed.
It is not necessary in the present case to define the limits of liability based on the creation of risk in this context. Suffice it to say that in the particular circumstances of the present case and in the light of the aforegoing the State, in view of the risk it created should be held liable for Van der Westhuizen's wrongs."
Since the oral hearing in the present appeal the Board has become aware that in subsequent decisions the reasoning in Rabie has not survived unscathed. While the dictum of Watermeyer CJ, which Jansen JA quoted, has remained authoritative, the South African Court of Appeal has three times rejected the reasoning of Jansen JA in Rabie: Minister of Law and Order v Ngobo 1992 (4) SA 822; Ess Kay Electronics v FNB 2001 (1) SA 1214 (SCA), at 1219; Bezuidenhout N.O. v Eskom 2003 (3) SA 83 (SCA), at 92. The view which prevailed is that Jansen JA elevated the reason for the principle of vicarious liability into a way of stating the rule. That may be a correct analysis. But it does not follow that in the overall assessment whether vicarious liability is established on the facts of a particular case the creation of special risks may not be a relevant factor to be considered.
"The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence."
The principle of vicarious liability is not infinitely extendable.