Una Morris and Camila Zapata Besso were instructed by Chun Wong of Hodge Jones and Allen for the Claimant.
Camila Zapata Besso, new tenant at Garden Court, and Steven Galliver-Andrew, current pupil, discuss the legal implications of the recent judgment in TPKN v Ministry of Defence  EWHC 1488 (QB).
For what is thought to be the first time, it has been held as arguable that the Ministry of Defence can be vicariously liable for rape and sexual assault committed by one member of the armed forces against another whilst stationed on a base, even when this occurs after a social event, where the individuals are not on active duty. Misfeasance in public office can arise on the same facts.
The Claimant was a long serving member of the Royal Navy, holding a rank equivalent to that of a Corporal. She was stationed in Gibraltar. TS was a Private serving with the British Army, who had been temporarily based in Gibraltar as part of a training exercise. The Claimant’s case is that after their attendance at a social event in May 2012, TS drugged and raped her, and the rape caused her to become pregnant. She gave birth to a daughter in February 2013. She did not initially report the incident because of a fear of how she might be treated.
In November 2013 – after developing PTSD – the Claimant reported the attack to Wiltshire Police. In February 2014, she made a Service Complaint to the Defendant, alleging that the Royal Navy had failed to support her, and had discriminated against her on account of her gender and pregnancy, her sexual orientation, her psychiatric symptoms and her ethnicity. She says she continued to receive ill-treatment from her superiors. In October 2014, she left the Royal Navy.
Wiltshire Police referred the investigation to the Service Prosecuting Authority, who accepted jurisdiction but declined to proceed with a criminal prosecution.
In May 2017, the Claimant opted to pursue a civil action against the Ministry of Defence on the basis of vicarious liability. She asserted that:
“…the Defendant, by reason of the conduct of TS in Gibraltar, is liable to the Claimant in assault and battery and misfeasance in public office”.
The Defendant denied liability, arguing that TS was not acting in the course of his employment, and that his actions could not be construed as giving rise to vicarious liability:
“Insofar as the Claimant proves that she was raped by TS on 16 May 2012, as to which the Defendant is unable to make admissions, TS was not acting in the course of his employment. There is no connection, or no sufficiently close connection, between the nature of TS’s employment and the alleged assault of the Claimant”.
On 16 March 2018, Master Thornett granted summary judgment to the Defendant and struck out aspects of the Claimant’s Amended Particulars of Claim for the following reasons:
- The Claimant had no real prospect of succeeding on her claim that the Defendant was vicariously liable.
- The Claimant had not disclosed any reasonable grounds for bringing a claim of misfeasance in public office.
Material to Master Thornett’s dismissal was his finding as to the power exercised by the Service Prosecution Authority in accepting jurisdiction over the Claimant’s complaint. Article 3(1) of the UK Forces (Jurisdiction of Colonial Courts) Order 1965, which was in force in the UK and Gibraltar, restricted the trial of members of UK forces and civilians subject to service discipline in the Gibraltarian courts, including where (a) the alleged offence arose out of and in the course of his duty as a member of HM Forces or a member of that civilian component; or (b) the alleged offence was an offence against the person and the person or, if more than one, each of the persons in relation to whom it was alleged to have been committed had at the time thereof a relevant association with HM Forces.
Master Thornett acknowledged that offences falling within Article 3(1)(a) of the 1965 Order would be likely to involve collateral vicarious liability. Nonetheless, he determined that the Service Prosecution Authority had exercised jurisdiction under Article 3(1)(b), pursuant to the Defendant’s submissions. This was notwithstanding that the matter was an issue of fact, on which no evidence had been available.
Permission to appeal was granted at an oral hearing in October 2018.
The decision in TPKN is the latest in a long line of decisions concerning when it will be fair, just and reasonable to impose vicarious liability.
In the seminal case of Lister v Hesley Hall Limited , a boarding house was held to be vicariously liable for the actions of a warden who abused children. Lord Clyde identified two stages of the analysis for establishing whether facts giving rise to vicarious liability exist:
- The relationship between the defendant and the individual who has committed the act or omission.
- The relationship between the act/omission and the nature of the employment, often referred to as the “close connection test” .
The Privy Council applied the principles of Lister in Bernard v AG of Jamaica . An off-duty police officer demanded to use a public phone, shot at the claimant’s head, arrested him, then brought spurious criminal charges. The following factual elements were key to the imposition of vicarious liability:
- The officer gave the impression that he was acting in the course of his duty.
- The arrest and prosecution of the claimant had a close connection to the legitimate duties of a police officer.
- The police authorities permitted officers to take loaded service revolvers home and carry them while off-duty, creating a risk which could have been mitigated [25-27].
However, no vicarious liability attached to an off-duty police officer’s conduct in N v Chief Constable of Merseyside . The constable spotted the severely intoxicated claimant being carried out of a nightclub. He identified himself as a police officer and offered to drive her to the nearest police station. Instead, he took her to his home and raped her. The Court found that he had abandoned his post and duties and engaged on a “frolic of his own” . Consequently, there was little that the Defendant could do to manage or mitigate the risk to the claimant. The fact that he claimed to be acting in the course of his duty was important, but not determinative.
In Ministry of Defence v Radclyffe  a group of off-duty soldiers were swimming in a reservoir. The claimant’s captain insisted that he jump 20 metres off a bridge into the water. The claimant jumped the following day and was seriously injured. The Court of Appeal found that the commanding officer retained authority and responsibility for soldiers under his command even though they were off-duty. He did not have authority to order the men to jump. However, he did have authority to order them not to jump. The Captain also had a duty to raise the issue of a potential hazard.
Various Claimants v Catholic Child Welfare Society & Ors  followed Lister in finding an employer to be vicariously liable for sexual abuse at a residential school. The same principles applied in JGE v the Trustees of the Portsmouth Roman Catholic Diocesan Trust , involving a claimant who was abused by a priest in a children’s home run by nuns.
The Supreme Court refined the Lister test in Mohamud v Morrisons , where the Defendant was vicariously liable for a petrol station attendant who attacked a motorist over an argument involving receipts. Two issues should now be analysed when considering whether or not to impose vicarious liability:
- What was the field of activity entrusted by the employer to the employee, i.e. what was the nature of the job?
- Was there a sufficient connection between the employee’s position and the wrongful conduct which would make it right for the employer to be held liable to the claimant under the principle of social justice?
As to the second question posed, Lord Toulson observed (at  in Mohamud):
“...The cases in which the necessary connection has been found for Holt’s principle to be applied are cases in which the employee used or misused the position entrusted to him in a way which injured the third party...”
In Bellman v Northampton Recruitment Ltd  the Court of Appeal applied the refined test in Mohamud when imposing vicarious liability for a brain injury the claimant sustained after being punched by his managing director at a private gathering which occurred after a staff Christmas party. This was because the assailant was able to “assert his authority over the staff who were present and to re-assert that authority when he thought it necessary” . This overturned the pre-Mohamud decision of the High Court, which found the director to be a mere reveller on a frolic of his own.
The question of what amounts to misfeasance in public office was considered by the House of Lords in Three Rivers District Council and Others v Bank of England (No 3) :
- the conduct must be that of a public officer, exercising power in that capacity;
- the officer must either intend to injure the claimant or knowingly/recklessly act beyond his or her powers, causing damage;
- in circumstances where they knew or were recklessly indifferent to whether the act would probably cause such damage.
The present case involved detailed discussion regarding the above authorities.
It was accepted by the Defendant that the court was required to proceed upon the basis that the facts pleaded by the Claimant were true. It was also accepted that the relationship between the Ministry of Defence and TS, namely one of employment, was capable of giving rise to vicarious liability.
The dispute hinged wholly on whether or not the Defendant could be held vicariously liable for the conduct that occurred.
The arguments on behalf of the Claimant
The Claimant outlined how Bellman – which featured in the original hearing of the Defendant’s application for strike out/summary judgment – had been overturned by the Court of Appeal. Previous caselaw needed to be viewed through the prism of Mohamud.
The cumulative effect of the facts as pleaded by the Claimant meant that vicarious liability was capable of arising in this particular case.
N could be distinguished. That case concerned an off-duty officer pretending to be on duty in order to commit assault, truly on a frolic of his own. There was no such deception in the present case. Although TS was not directly engaged in training at the material time, he could not be said to be off-duty in that he:
- was required to be at the base;
- was in receipt of continuous renumeration; and
- would be liable to the service authorities for any unlawful acts or omissions carried out on base – including those which would not be an offence in other employment contexts – by virtue of his position in the armed forces.
TS was also under the direction and control of his supervisors on the base. Furthermore, as part of his duties, he was entrusted with the welfare and safety of others at the base. This was in direct contrast to the commission of rape.
The line of authorities did not suggest that TS and the Claimant needed to share any sort of command structure for vicarious liability to be imposed. The fact that they were from different forces was not relevant. It so happened that such a relationship was present in Radclyffe, but this was not determinative.
There was a triable issue of fact as to what article of the 1965 Order the Service Prosecuting Authority had exercised jurisdiction under, which could not be determined on a summary judgment/strike out application.
Finally, there were other compelling reasons why the case should be disposed of at trial, including the serious and significant impact on the Claimant, and that the fact-sensitive issue of vicarious liability should be litigated at trial .
As regards misfeasance in public office, Master Thornett had wrongly applied a summarised version of the relevant test, found in Halsbury’s Laws of England. The full test in Three Rivers makes it clear that an ‘act’ for the purpose of misfeasance in public office is not confined to acts that constituted an improper exercise of a power, but also includes illegal acts, beyond the scope of any power. Therefore, it was wrong in law to conclude that because rape could never be considered an exercise of power in accordance with a person’s duties it could never found a claim for misfeasance in public office .
The arguments on behalf of the Defendant
The Defendant recognised that the assessment of vicarious liability is fact sensitive, and that it is relatively rare for claims of vicarious liability to be struck out.
However, the Defendant asserted that vicarious liability could not arise on the facts as pleaded. The meeting between the Claimant and TS had been coincidental. TS had not used his role or rank to spend time with the Claimant. Both had been off base drinking. In reality, they had been off-duty. In any event, an application of vicarious liability in the circumstances risked opening the floodgates, with vicarious liability for all service personnel who committed sexual offences .
TS owed no pastoral responsibility to the Claimant at the time, which would have brought him within the confines of Lister, JGE, and Catholic Child Welfare Society. The test in Mohamud reflected a seamless transaction. The Defendant suggested that there was no comparable connection between TS’s employment and the rape. An analogy was drawn between TS and N in that both cases involved abusers said to have been off-duty, so TS was on a frolic of his own .
In order to prove that TS was acting in a public office, for the purposes of the tort of misfeasance, it would be necessary to establish the same as was required to establish vicarious liability. Given the ultimate finding in relation to vicarious liability, the question of misfeasance in public office was academic.
Mr Justice Sweeney found for the Claimant, for the reasons given by Ms Morris. Against the background of the accepted facts, Mr Justice Sweeney held the Master erred in:
- Failing to give appropriate weight to the combination of all the matters relied upon by the Claimant which did give rise to a real prospect of establishing vicarious liability.
- Concluding that the argument that the exercise of jurisdiction by the SPA could be taken as at least relevant to the question of vicarious liability had no prospect of success, when it was plainly so relevant and had a sufficient prospect of success.
- Concluding that there were not triable issues of fact when there plainly were – in relation, for example, to the nature of, and interconnections between the jobs of the Claimant and TS, the duty of care, the exercise of jurisdiction by the SPA, and the extent of the connection between the position in which TS was employed and his wrongful conduct.
The issue of misfeasance in public office was linked to that of vicarious liability, and was similarly arguable, applying the full test in Three Rivers.
The decision constitutes an important application of the principles in Mohamud.
On the facts of this particular case, vicarious liability and misfeasance in public office were held as capable of attaching to the actions of a rapist. However, the caveat given by Irwin LJ in Bellman at  still applies, namely that this combination of circumstances will rarely arise, and the Court’s decision is not authority for the general proposition that employers become insurers for sexual violence committed by their employees.
Following the recent arrest of six soldiers over the alleged sexual assault of a teenage female soldier, the Ministry of Defence launched an inquiry into sexual harassment in the armed services in April 2019. It has since promised that its newly constituted ‘Defence Authority’ will take measures to encourage victims of sexual harassment, bullying and discrimination to come forward; a problem which it recognises has disproportionately affected women and BAME people in the armed services.
The judgment is a welcome development in this wider context. It has significant implications for the Claimant, who has been seriously affected by the actions of TS, and is finally able to pursue her claim for compensation against the Ministry of Defence. Hopefully, it will encourage other service personnel who have suffered similar torts in the course of their employment to (at least) consider pursuing a civil action against their employer.