N v Chief Constable of Merseyside Police
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NELSON,Mr Justice Nelson |
| Judgment Date | 29 November 2006 |
| Neutral Citation | [2006] EWHC 3041 (QB) |
| Docket Number | Case No: 5LV16024 |
| Court | Queen's Bench Division |
| Date | 29 November 2006 |
[2006] EWHC 3041 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
QE II Law Courts
Derby Square, Liverpool, L2 1XA
Mr Justice Nelson
Case No: 5LV16024
Andrew Howe (instructed by E Rex Makin & Co) for the Claimant
Graham Wells (instructed by Weightmans) for the Defendant
Hearing dates: Thursday 16th November 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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.
The facts.
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.
Vicarious liability.
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...
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