Recognition of Vicarious Liability for the Wrongful Acts of a Police Officer
| Date | 01 July 1977 |
| DOI | 10.1177/0032258X7705000305 |
| Author | A. N. Khan |
| Published date | 01 July 1977 |
| Subject Matter | Article |
A. N.
KHAN,
M.M.,
M.Litt.,
LL.B.,
F.I.L.,
A.F.A.I.M.,
Dip.Ed.
Lecturer in Law, The University
of
Western Australia, Perth.
RECOGNITION OF
VICARIOUS
LIABILITY FOR THE
WRONGFUL
ACTS OF A POLICE OFFICER
It
is the aim of this article to trace the development
of
the notion
that
a police officer is
not
aservant of the police authority appointing
him; the consequent recognition
of
the principle
that
the police
authority is not vicariously liable - because it cannot be his master
- for his wrongful or tortious acts; and the inroads made in this
principle by the Police Act. The criminal liability
of
a police officer
is
not
discussed here;
but
it may be relevant to note
that
"in
England
and Wales it is exceptional for a constable who has been acquitted
to have his costs paid by his police authority". 1This is an added
deterrence to a constable to avoid misconduct, malpractice or illegal
activity.
Case Law
"It
has long been established law
of
this country
that
amaster is
liable to third persons for any injury or damage done through the
negligence or unskillfulness
of
aservant acting in his master's
employ. The reason for this is
that
every act which is done by a
servant in the course
of
his duty is regarded as done by his master's
orders, and consequently is the same as if it were the master's own
act, according to the maxim, Qui facit per alium facit per se".2This
principle
of
vicarious liability does
not
extend and apply, in common
law, to a police officer. There are two major reasons for this:
(I)
"When
the duty to be performed is imposed by law, and
not
by the will
of
the party employing the (servant), the employer is not
liable for the wrong done by the (servant) in such employment't.!
(2) Vicarious liability rests on the relationship inter alia
of
master
and servant. But a police officer is
not
aservant
of
the police
authority." This proposition has gradually been introduced and con-
1Royal Commission on Police, Final Report (1962) Cmnd. 1728; p. 197.
2Bartonshill Coal Co. v. R. (3 Macq. 3(0); per Lord Chelmsford.
3Per Erie, C.
J.;
Tobin v. R. (1864) CBNS 310.
4See Gillance and Khan,
"The
Constitutional Position of a Police Constable's
Independence in the Exercise of His
Duty",
The Police Journal (January, 1975);
240 July 1977
To continue reading
Request your trial