Masters v Chief Constable of Sussex

A jury verdict cannot stand where compelling and unchallenged expert evidence makes the claimant’s account of the mechanism of injury untenable. Where an arrest is lawful, injury caused accidentally during its execution is not an unlawful trespass to the person. Misfeasance in public office requires more than an improper procedure or knowledge that conduct may cause discomfort. The claimant must establish the relevant public power, an improper or ulterior motive, and resulting injury or loss. A routine exercise of police power should not ordinarily be pleaded as misfeasance without evidence capable of proving that mental element.

The Chief Constable appealed against a Brighton County Court judgment entered after a five-day jury trial in favour of Carl Ryan Masters for £5,500. The jury found that the claimant had been lawfully arrested but that excessive force had caused a fracture of his right arm. It also found misfeasance in public office in connection with the taking of his fingerprints. The judge entered judgment on those two torts and dismissed claims for wrongful arrest, false imprisonment and malicious prosecution. The appeal concerned the alleged perversity of the assault verdict, the ingredients and evidential basis of misfeasance, and costs.

1. Appeal allowed; no retrial. The jury’s verdicts for the claimant on assault and misfeasance in public office could not stand.
2. On the assault claim, the claimant’s case was that his arm was fractured when it was forcibly twisted behind his back. The independent orthopaedic evidence established that the fracture was a transverse mid-shaft fracture caused by a direct blow, and was not consistent with a pulling or twisting injury. Although a jury may reject expert evidence, there was no evidential basis for rejecting this evidence. A reasonable jury was therefore bound to reject the claimant’s account. If the fracture resulted from an accidental fall by an officer during a lawful arrest, it was not attributable to an unlawful act.
3. The judge’s summing-up failed adequately to analyse the medical evidence and the sequence of events. Nevertheless, neither party sought a retrial, and on any defensible view of the evidence a verdict for the appellant on trespass to the person was inevitable.
4. On misfeasance, the judge’s question to the jury was defective because it could treat the taking of fingerprints, with knowledge of a suspected fracture, as sufficient. The tort required consideration of an improper or ulterior motive, such as an intention to injure, and resulting injury or loss. The authorities, including Three Rivers District Council v Governor & Co of the Bank of England [2002] WLR 1220 and Northern Territory of Australia v Mengel 69 ALJR 527, supported that approach.
5. Even with properly framed questions, the evidence could not justify an inference that routine fingerprinting was undertaken with an intention to injure the claimant. The misfeasance allegation should have been withdrawn from the jury. The court deprecated the routine pleading of such a cause of action in cases of this kind.
6. The costs order was also set aside. There was no justification for requiring the appellant to pay any costs of the trial, and the status of the appellant as a public authority was not a proper factor increasing liability for costs.

• Court of Appeal (Civil Division): allowed the appeal from the Brighton County Court judgment entered after the jury trial. No retrial was ordered, and the costs order was set aside.
• Brighton County Court: following the jury trial, judgment was entered for the claimant for £5,500 and costs on assault and misfeasance in public office; the other pleaded torts failed.