Vicarious liability litigation duties

Abstract

This article reviews a recent decision of the United Kingdom Supreme Court, where the court was called upon to consider but firmly rejected an argument that an employer owed a duty to an employee. The duty argued for was that the employer should take reasonable care to protect the employee from economic and reputational harm when defending a claim asserting vicarious liability on the part of the employer for the acts of an employee.

Introduction

As most recently recognised by the High Court in Prince Alfred College Inc v ADC1in some circumstances an employer may be vicariously liable for the intentional criminal acts of an employee. That matter concerned allegations of sexual abuse, but such liability may also arise in relation to the acts of security personnel and of police officers.

This article addresses the argument that, in conducting the defence of such a claim, the employer may owe a duty to the employee to take reasonable care to protect them from economic and reputational harm. That argument was recently addressed by the United Kingdom Supreme Court in James-Bowen v Commissioner of Police of the Metropolis.2

Background and basis of the claim

A suspected terrorist, BA, issued civil proceedings against the Commissioner in which he alleged that the Commissioner was vicariously liable for the serious assaults which he alleged certain police officers had inflicted on him in the course of his arrest. The officers were not defendants in the action nor were contribution proceedings brought against them by the Commissioner. The defence filed by the Commissioner denied liability.

On the third day of the trial, the Commissioner settled the claim on the basis of agreed damages of £60,000 and agreed costs of £240,000 with an admission of liability and an apology for "gratuitous violence" to which BA had been subjected by the officers.

The officers later commenced the present proceedings against the Commissioner alleging breach of contract, negligence and misfeasance in public office arising from the manner in which the Commissioner had defended BA's claim. They alleged that a press release issued by the Commissioner following settlement of the claim was tantamount to endorsing their culpability. They sought compensation for reputational, economic and psychiatric damage.

The claim by the officers was put on three bases, however of particular interest was the allegation that:

(3) The Commissioner owed the officers a duty of care in tort...