Law Report: Home Office not liable for prison officers' acts: Racz v The Home Office. Court of Appeal (Lord Justice Neill, Lord Justice Beldam and Lord Justice Kennedy), 4 December 1992

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The Home Office cannot be vicariously liable for the tort of misfeasance in public office by a prison officer who acted outside the scope of his authority.

The Court of Appeal dismissed an appeal by the plaintiff, Steven Racz, from Mrs Justice Ebsworth's decisions to strike out his claim of misfeasance in public office against the Home Office and to order that the action be tried by ajudge alone.

The plaintiff was a remand prisoner at Armley Prison in Leeds and was lodged in the hospital building. When he refused to perform cleaning duties, he was moved to a strip cell by a hospital officer.

The plaintiff issued a writ against the Home Office alleging assault by prison officers before and during his detention in the strip cell and interference with his food.

He claimed damages, including exemplary damages, for assault, negligence and misfeasance by holders of public office. He claimed that the Home Office was vicariously liable for the officers who, motivated by malice, moved him to the strip cell knowing they had no power under the Prison Rules to do so. The Home Office denied liability.

On the Home Office's application, Mrs Justice Ebsworth struck out the claim for damages for misfeasance in public office and ordered trial without a jury.

David Harris QC and Timothy Owen (BM Birnberg & Co) for the plaintiff; Guy Sankey QC and Neil Garnham (Treasury Solicitor) for the Home Office.

LORD JUSTICE NEILL said that the deliberate abuse of power by a person holding a public office was tortious. In order to establish an actionable tort it was necessary to prove either (a) that the officer or authority knew that it did not possess the power to take the action in question; or (b) that the officer or the authority was actuated by malice, for example, by personal spite or a desire to injury for improper reasons.

None of the cases considered the circumstances, if any, in which a superior officer or authority might be vicariously liable for the act of the tortfeasor.

The Crown was vicariously liable for the torts of prison officers as if it were private person of full age and capacity. An employer was vicariously liable for torts committed by the employee in the course of his employment and would be liable even for acts which he had not authorised, provided that they were so connected with acts which he had authorised that they might be rightly regarded as modes, although improper modes, of doing them.

However, if the unauthorised and wrongful act of the employee was not so connected with the authorised act as to be a mode of doing it, but was an independent act, the employer was not responsible.

The plaintiff argued that the officers' conduct, such as their treatment of his food, was an improper mode of carrying out their task of looking after the plaintiff and alternatively, it was necessary to establish the facts before the court could decide whether the conduct alleged was a wrongful mode of carrying out the officers duties or independent and the application to strike out was premature.

It was unnecessary for the court to reach a concluded opinion on whether the tort of misfeasance in public office could attract vicarious liability since the matter was considered by the House of Lords in Weldon v Home Office (1992) 1 AC 58. If the matter had been free from any House of Lords guidance, his Lordship might have been disposed to accept that the application to strike out was premature.

Although the tort of misfeasance in a public office did not arise for direct consideration in Weldon, Lord Bridge, when dealing with the claim for damages for false imprisonment, expressed the clear opinion that the Home Office could not be liable in law for the tort of misfeasance committed by prison officers.

Lord Bridge said that a prison officer who acted in bad faith by subjecting a prisoner to a restraint which he knew he had no authority to impose might render himself personally liable to an act for the tort of misfeasance in public office, but if the officer deliberately acted outside the scope of his authority, he could not render the Home Office vicariously liable for his tortious conduct.

The House of Lords must have adopted Lord Bridge's analysis that the Home Office would not be liable when the officers acted outside the scope of their authority because in that event no vicarious liability would attach to the officers' acts.

Therefore, the Home Office would not be liable for misfeasance by the officers because such misfeasance would involve either acts which were known to be unauthorised or acts which were committed for some malicious purpose.

Although Lord Bridge's reference to the tort of misfeasance was obiter, it was sufficiently authoritative for the purpose of this appeal.

Turning to the mode of trial, prima facie under section 69 of the Supreme Court Act 1981 the action, a Queen's Bench action, should be tried without a jury.

Although there was a claim for exemplary damages, the action did not raise matters of constitutional importance or involve the actions of senior officials and the injuries alleged, though unpleasant, were not grave. This was therefore not a case where trial by jury should be ordered.

The appeal would be dismissed.

LORD JUSTICE BELDAM, concurring, said that it was unnecessary to decide whether a department of state was answerable for acts done by one of its officers within the scope of his powers but with the improper motive of causing damage to another.

LORD JUSTICE KENNEDY also gave a concurring judgment.