England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H. JUDGE MACKAY
(Liverpool County Court)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Wednesday 29th January 2003

The Rt Hon Sir Denis Henry:

1. On October 1 1999 police constable Dudley of the Merseyside force came off duty soon after 5 p.m. He had promised his girlfriend, Ms Joanne Billingham that he would help her and her two small children move house that night when he was off duty. The move required a van to hold all her belongings and furniture. Surprisingly, PC Dudley "borrowed" a police van for this purpose despite the fact that he had neither sought nor obtained permission for taking and using the police van in his off duty hours. He simply took it. As the move was not for police purposes, this use of the van (which had police markings) was not covered by insurance.
2. On arrival at the block of flats, at Stanton Court, Kirkby, which was their destination, PC Dudley and his van attracted the attention of two of the local youth, one of whom was Mr Andrew Weir who was then 16. Andrew Weir was there with a friend who lived locally. Neither he nor his friend knew PC Dudley socially, nor he they. But Weir asked Dudley if he was the policeman who was about to move to the neighbourhood, and Dudley confirmed that he was.
3. By unhappy coincidence, friends of Andrew Weir and his companion had a flat which shared the communal landing on the first floor where PC Dudley and Ms Billingham had put her belongings, which were mainly stored in bin liners. PC Dudley's witness statement records that Ms Billingham was complaining that the youths were "rummaging" amongst her belongings so he went there and told Weir to leave. Weir did not do so, so PC Dudley decided to "escort him from the premises" and recorded that "the lad had a smirk". According to Dudley, Weir's left hand went back and Dudley anticipated the blow by a slap with his right hand. He then manhandled Weir down the stairs and ultimately into the restraining cage in the van where the last phase of the incident took place. But, as Weir appeared to be contrite, and Ms Billingham was satisfied that nothing of hers had been stolen so PC Dudley released Weir.
4. Weir's account of the same events was that PC Dudley had shouted at him, and thereafter made an entirely unprovoked attack on him. PC Dudley had manhandled him down the stairs, ordered him into the van, stating that he was going to take him to the police station, and assaulted him in the van. He went to the local hospital that night after he had been released, complaining of bruises around his neck, tenderness above the left and the right eyes, bruising to his left eye and face and bruising above his right eye. Medical examination confirmed those injuries. That evening he also went to the police station with his father in order to lodge a formal complaint.
5. In addition to lodging that complaint, he through his father brought proceedings against the Chief Constable of the Merseyside force under the Police Act 1996, s.88, which lays down that the Chief Constable is vicariously liable out of the police fund:-

"In respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of the torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tort feasor."

6. The historical background to that legislation is useful:-

"Until 1964 no person or body stood in the position of 'master' to a police officer, and accordingly anyone injured by the tortious conduct of the police could have redress only against the individual officers concerned. Now, however, it is provided by s.88 of the Police Act 1996, replacing earlier legislation [Police Act 1964] that the chief officer of police for any police area shall be liable for torts committed by constables under his direction and control in the performance or purported performance of their functions. This statutory liability is equated with the liability of an employer for the torts of his servants committed in the course of their employment, but the Act does not create a relationship of employer and servant, nor one of principal and agent." (Winfield and Jolowicz on Tort 16^th edition at para. 20.7).

It will be noted that this section applies to all torts, and therefore represents the rule rather than the exception.

7. The procedural route to the hearing before His Honour Judge Mackay was not entirely straightforward. As has been recounted, Andrew Weir and his father made a formal complaint on the same evening as the incident, and the police held a long interview with PC Dudley in connection with that complaint a month later. Weir's father, as his next friend, started these proceedings a month after that (3 February 2000). At some time thereafter PC Dudley was charged in criminal proceedings in relation to the assault, as it was thought desirable that the criminal proceedings be heard before any civil proceedings. At those criminal proceedings, PC Dudley was acquitted. We are not told anything else about those proceedings, nor whether they impinge on any findings of fact subsequently made. For those reasons we ignore that acquittal. After it took place, a preliminary issue was ordered to determine whether or not the defendant (the Chief Constable) was vicariously liable for the actions of PC Dudley on the evening of 1 October 1999. It was agreed between the parties that the issue should be tried on the documents, including the witness statements, with no oral evidence being called.
8. The judge's principal findings were:-

At 2B:-

"Thereafter the police officer assaulted the claimant and threw him downstairs and locked him in the van which was in fact a police van and assaulted him in the police van but let him go."

Then at 3B:-

"it seems clear enough that Dudley, for reasons of his own, picked on the claimant, who probably he did not like, and assaulted him with the probable intention of scaring him away and giving Dudley some satisfaction in bullying him. Certainly it seems beyond doubt that an assault took place in the block of flats on the stairs and in the police van, a van to which Dudley had no right."

And at 4D:-

"When he was interviewed by the investigating officers the officer Dudley said to them that the claimant had been interfering with the contents of the bin liners and that he therefore was justified in taking hold of the claimant, and that he punched the claimant but not too severely, and this was because of the claimant's attitude."

The judge did not make his findings clear on this last passage. However it is perfectly clear from the documents that the injuries deposed to by the doctors were inflicted on Weir by PC Dudley. There were no injuries to PC Dudley, who was 19 years older than Weir, and a powerful man, weighing nearly 16 stone, to Weir's 10. Additionally, he was protected by being a police constable.

9. Then at 9D the judge concluded:-

"Therefore we have to look at this particular case. On the landing there was an assault. The claimant knew [Dudley] was a police officer but in fact the assault had nothing to do with the police. Being pushed downstairs had nothing to do with the police. Weir was put in the police vehicle and words were said to him threatening him with his arrest or his being taken to the police station but those words do not themselves in my view provide the court with the justification for holding that he was acting in the purported performance of his duties. The court must be quick to punish police officers who act in excess of their duties and in appropriate cases establish vicarious liability in clear cases where the man is acting as a policeman, but the court must not be quick to hold the Chief Constable liable merely because the person doing the unlawful act uses certain words which in fact never carried out a real threat [of arrest] which actually happens but are in fact abandoned."

10. The defence put forward on behalf of the police was that the torts committed by PC Dudley against Andrew Weir in the course of his allegedly unprovoked and sustained attack on Weir was an attack by Dudley in his private capacity, on a frolic of his own and, as will be seen from the litany above, was "nothing to do with the police", so it was submitted that his torts were not committed within the scope of his employment. Accordingly the judge held that Weir could not recover the damages he suffered at the hands of this policeman, and this appeal is brought.
11. Actions are frequently brought against chief constables in respect of the acts of police officers amounting to intentional torts such as those we have to deal with here. The powers of a police officer are conferred on him by law, by virtue of his office, so there is no necessity for any authorisation given by his superiors. That authority gives the constable ample powers, and in practice "the liability of a chief constable for wilful acts by police officers is more extensive than the vicarious liability of an employer but it is not without limit." (Winfield & Jolowicz 16^th Ed. Para 20-14). Here, the force involved in the assaults was not so excessive as to take the act out of the class of actionable acts.
12. To establish liability the claimant has to show more than the mere fact that the tortfeasor was a police officer. He has to show that the tort he alleges was committed at a time when the police officer was apparently acting in his capacity as a constable. It seems to me that from the moment PC Dudley started to put Weir out of the building he was apparently exercising his authority as a constable. He had just confirmed to, and Weir understood, that he was a police officer. When taking hold of Weir, throwing him down the stairs, assaulting and locking him in the police van saying he was taking him to the police station, I think the judge should have concluded that PC Dudley was apparently acting as a Constable, albeit one who was behaving very badly. It is clearly fair that Weir should recover for the assault and the injuries caused, and for the time when he was forcibly confined in the van. There is no reason in law for attributing any of the blame for what happened to him.
13. Accordingly, I would allow this appeal, quash the previous order, and give judgment for the claimant on the preliminary issue.

Lord Justice Latham: I agree.

Lord Justice Tuckey: I also agree.

Order: Orders as para 13 of judgment; agreed draft minute or order submitted to court. (Order does not form part of the approved judgment)