TPKN v The Ministry of Defence

Vicarious liability is fact sensitive and is rarely suitable for strike out or summary judgment. The court must assess the pleaded circumstances cumulatively and assume, for that purpose, that the pleaded facts are true. The modern inquiry asks what functions or field of activities were entrusted to the tortfeasor and whether there was sufficient connection between that position and the wrongful conduct. Service-law jurisdiction may be relevant evidence of that connection, even though it does not itself establish civil liability. A court should not determine a distinct tort issue without giving the parties a fair opportunity to address it. Misfeasance in public office is not confined to an improper exercise of an existing power; it may also encompass illegal acts beyond the scope of any power.

The claimant, a Royal Navy servicewoman, alleged that she had been raped and sexually assaulted at a military base in Gibraltar by a soldier serving in the British Army. She claimed that the Ministry of Defence was vicariously liable in assault and battery and misfeasance in public office.

The Master granted summary judgment for the defendant on vicarious liability and struck out the misfeasance allegations. The claimant appealed. The central issues were whether the pleaded facts gave her a real prospect of establishing vicarious liability, whether there were triable factual issues and compelling reasons for a trial, and whether the misfeasance allegations had been fairly and correctly struck out.

1. Misfeasance in public office. The Master had ruled on the scope of the tort without the issue having been argued and without giving the claimant a clear opportunity to make submissions. That was procedurally unfair. The summary from Halsbury’s did not encompass the full scope of the tort. The claimant could have relied on Three Rivers to argue that the tort includes illegal acts beyond the scope of any power. The striking-out order concerning paragraphs 55–58 was therefore set aside.
2. Vicarious liability. The assessment is fact sensitive, and claims of this kind are relatively rarely suitable for strike out. The questions identified in Mohamud v WM Morrison Supermarkets plc and adopted in Bellman v Northampton Recruitment Ltd provide the applicable framework: identify the employee’s functions or field of activities, then ask whether there is sufficient connection between the position entrusted to the employee and the wrongful conduct.
3. The Master was required to proceed on the basis that the pleaded facts were true and to consider the combined effect of the pleaded matters. He gave insufficient weight to that combination. The exercise of jurisdiction by the Service Police and Service Prosecuting Authority was plainly relevant to the civil issue, although it was not determinative. There were also triable issues concerning the parties’ roles, their duties of care, the basis on which service jurisdiction had been exercised, and the connection between the defendant’s position and the alleged conduct.
4. The Master had also been misled about the day of the week and had failed to consider whether there were other compelling reasons for disposal at trial. The appeal was allowed and an order was approved accordingly.

• High Court (Queen’s Bench Division): appeal from the judgment and order of Master Thornett dated 16 March 2018. The appeal was allowed.