N v Chief Constable of Merseyside Police

In the early hours of the morning of 20 April 2003 the Claimant, who had had a considerable amount of alcohol and taken half an ecstasy tablet, was raped and indecently assaulted by Ian Tolmaer, a probationer police constable. He had been sitting in his own car, some two hours after he had come off duty, near the Sunrise Club, Mount Pleasant, Liverpool, when the Claimant was carried out of the club severely intoxicated. Ian Tolmaer was wearing his uniform and when the first aider employed by the club expressed his concern about the Claimant’s condition and her reluctance to go to hospital, Ian Tolmaer said he would take her to a police station. In fact he took her to his own home and, whilst she was unconscious, raped her and indecently assaulted her and filmed these assaults. The question which arises on the preliminary issue is whether the Chief Constable is vicariously liable for Ian Tolmaer’s assaults.

Ian Tolmaer had come off duty at about 2 a.m. that morning. At 4 a.m. he was sitting in his own car, parked near the club. He was still wearing his full police uniform including his numbered epaulettes, black tie, regulation shirt and trousers and a communications radio on his shirt with its wire protruding. He had his own black nylon jacket on and open over his uniform. In addition he had his warrant card on visible display on the outside of his chest pocket. Lawrence Dobie, the first aider engaged by the Sunrise Club, had tried unsuccessfully to persuade the Claimant to go to hospital but she refused, saying that she was going to get a taxi home. Mr Dobie returned to the club but kept an eye on the Claimant. He saw her run across the road into a kebab house and walked over to speak to her again. As they left the kebab house together Mr Dobie noticed the parked car with Ian Tolmaer sitting in it. He could see that the person in the driver’s seat was wearing a police officer’s uniform. The window was down on the driver’s side and the driver said to him, “Are you OK?” Mr Dobie then explained his concern about the girl and his inability to do anything about it as she would not go to hospital. Ian Tolmaer told him that he would “sort it”. He then drove his car to the other side of the road where the Claimant was, parking half on the pavement and half on the road. Mr Dobie walked over to the girl and the police officer leaned across the passenger seat, opened the door and shouted to the girl, “I am the police” and told her to come and have a seat in the car. Mr Dobie told the girl that the man in the car was going to help her. She got in and sat in the front passenger seat and Ian Tolmaer showed her his police badge and said again, “I am the police”. When Mr Dobie asked him if he needed him any more Ian Tolmaer said, “No, I’ll take her to the police station.” In fact what he did was to drive her straight to his home, passing close to at least three police stations en route.

Over a period of several hours Ian Tolmaer then raped and indecently assaulted the Claimant, making a video film and creating computer stills of the assaults. These recordings show that throughout the assaults the Claimant was deeply asleep or unconscious and Tolmaer took particular care to ensure that he did not wake her. At about 10.50 a.m. the Claimant woke up to find herself naked in a bed at Tolmaer’s house with Tolmaer also naked in the bed next to her. She could remember nothing about what had happened and said, as soon as she woke up, “Take me home, what have you done, you better not have touched me”. He said that he had seen her walking up Mount Pleasant so he picked her up. She got dressed and he drove near to her uncle’s house where she reported the rape to her uncle’s partner. The police investigated the matter and on 3 June 2003 Ian Tolmaer was arrested on suspicion of rape. When his home was searched a computer and digital camera were seized and the video and computer stills showing the assaults were revealed. In addition, when the hard drive on his computer was examined it was found that a Google search of ‘drugged women’ had been carried out on 28 December 2002, an Ask Jeeves search on ‘date rape drugs’ carried out on 15 March 2002 and searches on ‘rape’ on 24 March 2002 and 6 May 2002. A further search on 18 May 2003 was carried out in relation to ‘drugged’ and there were further text fragments of an unknown date of ‘drugged female’, and ‘shrine of unconscious women’ with ‘unconscious and sleeping pictures’.

Ian Tolmaer was charged with rape and indecent assaults and pleaded guilty to these offences on 16 September 2003. On 3 March 2004 he was sentenced to 12 years in respect of the rape with concurrent sentences in relation to the indecent assaults. He was also dismissed as a police constable with Merseyside Police, having breached the code of conduct, the charges being indecently assaulting an unconscious 18 year old woman and stealing a set of police issue handcuffs.

Section 88(1) of the Police Act 1996 holds a Chief Constable liable:-

“In respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in a like manner as a master is liable in respect of 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 tortfeasor.”

It is now clearly established that intentional torts, including deliberate sexual abuse, are not inconsistent with vicarious liability. Lister v Hesley Hall Limited [2002] 1 AC 215. As Lord Millett said at paragraph 79:-

“So it is no answer to say that the employee was guilty of intentional wrong doing, or that his act was not merely tortious but criminal or that he was acting exclusively for own his own benefit, or that he was acting contrary to express instructions, or that his conduct was the very negation of his employer’s duty.”

In Lister the warden of a boarding house at a school owned and managed by his employer systematically sexually abused two of the boys under his care. The House of Lords held that as the nature of the warden’s job as house parent for the boys under his charge involved close contact with the boys with the inherent risks that that involved, there was a sufficient connection between the work he had been employed to do and the acts of abuse that he had committed for those acts to be regarded as having been committed within the scope of his employment. The school was responsible for the care and welfare of the boys and entrusted that responsibility to the warden. “He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys.” (Lord Millett paragraph 82).

Lord Steyn said that the 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. It was necessary to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort (paragraphs 24 and 28).

In Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 (para 93) Lord Nicolls said that in considering whether a ‘close connection’ existed the Court had to make an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions.

When considering the scope of employment and the task with which the employers and their employee to whom they had entrusted it should perform, a broad approach should be adopted. An act considered in isolation may appear to be wholly unconnected with an employee’s work but when the context and the circumstances in which it occurred are taken into account it may be seen as incidental to and within the scope of the employee’s employment. The fact that the employment provides the employee with the opportunity to perform the act does not necessarily mean that that act was within the scope of the employment. There must be some greater connection between the tortious act of the employee and the circumstances of employment than the mere opportunity to commit the act which has been provided by the access to the premises which the employment afforded. (Lord Clyde paragraph 42, 43 and 45 in Lister)

It was emphasised by Lord Steyn in Bernard v Attorney General of Jamaica [2005] IRLR paragraph 23 that the policy rationale on which vicarious liability is founded is not a vague notion of justice between man and man but has clear limits. This was well expressed in the Canadian case of Bazley v Curry [1999] 174 DLR (4^th) where Mr Justice McLachlin said:-

“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 minimisation). 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 deterrents.”

Thus Lord Steyn said the principle of vicarious liability is not infinitely extendable.

The test may sometimes be easier to state than it is to apply. Lord Justice Judge in Mattis v Pollock [2003] 1 WLR 2158 described the question to be answered as ‘deceptively simple’. In that case a doorman at a nightclub ejected various people from the club and was later struck several times and hit with a bottle. He went back to his flat, reappeared armed with a knife and stabbed the claimant in the back severing his spinal cord and rendering him paraplegic. The doorman was employed to keep order and discipline at the nightclub and was encouraged and expected by his employer to perform his duties in an aggressive and intimidatory manner, including physical manhandling of customers. The Court of Appeal considered that this latter fact demonstrated the nature of the task which the doorman was expected to perform and concluded that although there were several opportunities at which the incident might have petered out, the stabbing represented the unfortunate and virtual culmination of the unpleasant incident which had started within the club and could not fairly and justly be treated in isolation from earlier events or as a separate and distinct incident. Approaching the matter broadly, at the moment of the stabbing the responsibility of the employer for the acts of his aggressive doorman was not extinguished. Hence vicarious liability was established.

Several police cases have been considered recently. 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 own, was not acting in the course of his employment when, in a jealous fit of rage, he fired his police revolver in a bar injuring a tourist. Lord Nicolls said that this was not a case where a police officer had used a service revolver incompetently or ill-advisedly in furtherance of police duties. He used the revolver, to which he had access for police purposes, in pursuit of his own misguided personal aims. Although he was on duty before he had left his post he had improperly helped himself to the police revolver and from first to last, from deciding to leave his post to the use of the firearm, his activities had nothing whatsoever to do with police duties, either actually or ostensibly. He had deliberately and consciously abandoned his post and his duties and put aside his role as a police constable. That could properly be regarded as a ‘frolic of his own’. Vicarious liability was rejected.

In Weir v Chief Constable of Merseyside Police [2003] ICR 708 an off duty policeman assisting his girlfriend to move house was told by her that youths, including the claimant, were rummaging amongst her belongings outside her new flat. The police constable, who was off duty at the time, went up to the claimant and told him leave. When he did not do so the police officer escorted him from the premises, assaulted him, threw him down the stairs at the block of flats and locked him in the police van he had borrowed to effect his girlfriend’s move. In holding the defendant vicariously liable Sir Denis Henry, giving the judgment of the Court of Appeal, said that the claimant had to show more than the mere fact that the tortfeasor was a police officer. He had 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’. As the police officer had been apparently exercising his authority as a constable, had confirmed to the claimant that he was a police officer and had when assaulting him throwing him down the stairs and locking him in the police van said that he was taking him to the police station, it was right to conclude that he was at the time apparently acting as a constable, albeit one who was behaving very badly.

In Bernard the claimant was making an international telephone call at the central sorting office in Kingston, Jamaica, when a man identifying himself as a police officer demanded the phone from him so that he could use it. That man was Police Constable Morgan. The claimant, Mr Bernard, was determined not to let go of the phone and in the altercation which followed the constable pulled out his service revolver and fired at Mr Bernard rendering him unconscious for a short period. When he awoke in the casualty department of a nearby hospital he was placed under arrest by PC Morgan for allegedly assaulting a police officer, and handcuffed to his bed. Criminal charges were brought against Mr Bernard but were later withdrawn. He then sued the police constable and the Attorney-General whom he alleged was vicariously liable for the police constable’s acts, for assault, false imprisonment and malicious prosecution.

The trial judge found that there was vicarious liability but that decision was overturned in the Court of Appeal of Jamaica. The Privy Council held that on the application of Lister, vicarious liability was established. They assumed that the constable was not on duty at the time, that the shooting did not take place within his area and that he had said that he was ‘police’ as a pretext to persuade the plaintiff to allow him precedence. It was of prime importance that the shooting incident followed immediately upon the police constable’s announcement that he was a policeman, which in context was probably calculated to create the impression that he was on police business. Whilst others in the phone queue may have regarded that with some scepticism, that purported assertion of police authority was the event which immediately preceded the shooting incident, and it was the fact that the plaintiff was not prepared to yield to the assertion of police authority that led to the shooting. The arrest of the claimant in hospital was explicable upon the basis that the constable alleged that the claimant had interfered with his execution of his duties as a policeman. That was retrospectant evidence suggesting that the constable had purported to act as a policeman immediately before the shooting.

Furthermore, Lord Steyn said, the police authority created a risk by permitting constables to take loaded service revolvers home and carry them whilst off duty. It did not follow that the using of a service revolver by a policeman would, without more, make the police authority vicariously liable but, on the facts of Bernard, the risks created by the police authorities reinforced the conclusion that, as the constable at all times purported to act as a policeman, vicarious liability was established.

In Makanjuola v Commissioner of Police for the Metropolis [1989] Admin LR 214 Mr Justice Henry held that the defendant was not vicariously liable for the act of an off duty member of the Metropolitan Police who used his warrant card in order to gain admission to certain premises and then indecently assaulted the plaintiff, having told her that unless she gave him sexual favours he would report her for breach of her conditions as an immigrant, which would lead to her deportation.

Mr Justice Henry said that as a matter of policy he could see nothing unreasonable in the Commissioner being vicariously liable for torts committed from a foundation based on the opportunities given by the misuse of a warrant card by rogue policemen. Nevertheless he had to decide the case not on the basis of policy but by construction of section 48(1) of the Police Act 1964 (which is in the same terms as section 88(1) of the Police Act 1996). He considered that the demands for sexual favours had to be considered separately from the entry into the premises with the use of the warrant card and held that no one making the demand for sexual favours could be acting as a police officer or be in purported performance of a police officer’s function. It was a clear case of a private independent action, acting on a squalid adventure of his own even though the opportunity to commit those actions was obtained by misuse of the warrant card. In the light of the decision in Lister it may be said that too much focus was placed upon the act complained of rather than looking at the context and full circumstances in which had occurred. The nature and extent of the connection between the employment and the tort committed was not examined.

The question arises as to whether the test for establishing liability against a chief constable is different from that which is applicable to other employers. Does the use of the words “performance or purported performance of their functions” in section 88(1) of the Police Act 1996 mean that a chief constable is vicariously liable whenever a police officer is apparently or ostensibly acting in his capacity as a constable, whatever the nature of the acts and the circumstances in which they are committed? I do not believe this to be so. The chief constable’s vicarious liability arises under section 88(1) “..in a like manner as a master is liable in respect of torts committed by his servants in the course of their employment”. In Bernard, where the Crown Proceedings Act was under consideration rather than the terms of the Police Act, the Privy Council applied the test in Lister and considered the police constable’s purported assertion of police authority. It is correct that chief constables may more often be found liable for wilful acts by their officers as their officers are more likely to commit acts amounting to intentional torts such as assault, false imprisonment or malicious prosecution during the course of their work, but it is only in this sense that the liability of a chief constable for wilful acts by police officers may be more extensive than the vicarious liability of an employer. (See Winfield & Jolowitz 16^th Edition paragraph 20.14 and Weir paragraph 11.)

Thus when considering the vicarious liability of a chief constable the principles set out in Lister are applicable. As was said in Hartwell, the test is 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 may 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 is an important factor to be considered but is not in itself, in my judgment, decisive.

In Brooks v Commissioner of Police [2005] 1 WLR 1495 Lord Steyn said that the prime function of the police is the preservation of the Queen’s peace. They must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence. (Paragraph 30). As a matter of public policy, however, the House of Lords held that the police generally owed no duty of care to victims or witnesses in respect of their activities when investigating suspected crimes. A duty of care to take reasonable steps to assess whether an individual was a victim of crime and then to accord him reasonably appropriate protection, support, assistance and treatment was inextricably bound up with the investigation of crime and no such duty of care was owed. Hill v Chief Constable of West Yorkshire [1989] AC 53 was therefore applied.