4.2. England

A prominent element of the constitutional arrangements in England is that public servants are personally accountable for their public duties in civil actions before the courts.¹⁵¹ A public officer who commits a tort is thus open to be sued by the injured party.¹⁵²

When an individual is liable in tort then the public body for which he or she is acting may also be vicariously liable for the tort of its employee. The general position is that public bodies are vicariously liable for torts committed by their employees during the course of their employment.¹⁵³ This now also applies to the Crown. At common law, the courts were reluctant to apply the doctrine of vicarious liability to the Crown.¹⁵⁴ We have seen that this was changed by the Crown Proceedings Act 1947,¹⁵⁵ under which the Crown can be vicariously liable for the torts committed by its servants or agents.¹⁵⁶ Equally, Crown servants may be personally liable for torts they commit in the course of their employment.

(p.24) Whether an employee has committed a tort ‘in the course of employment’ is a complex question and the case law is notoriously difficult to summarize.¹⁵⁷ Guidelines have nonetheless been given by the courts, and the following academic formulation is commonly cited. The act is deemed to be in the course of employment ‘if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorized by the master’.¹⁵⁸ However, in a recent case of intentional wrongdoing, the House of Lords expressed preference for the ‘close connection’ test, according to which the question is whether there is a sufficiently close connection between what the employee was employed to do and the tort committed.¹⁵⁹

A generally wide conception of ‘acting in the course of employment’ has prevailed for the acts of public servants.¹⁶⁰ From a comparative perspective, it is interesting to note that similar issues have occupied the time of the courts. Both jurisdictions have had to decide whether public sector employers should be liable for the deliberate wrongdoing of their servants. This has been a particularly sensitive question for acts of the forces of law and order, where the courts have generally tried to protect the victims of wrongdoing.¹⁶¹ But there is a limit to this protection. As in French law, the English courts are less likely to impose liability upon the state for assaults which are motivated by retaliation or vengeance.¹⁶²

Another common theme is found in the detour cases, where the courts have had to decide whether employers are liable for accidents caused by drivers of vehicles who have departed from authorized routes.¹⁶³ In England, it has been suggested that deviations from, or interruptions of, a journey will take the employee out of the course of employment, unless the deviation is merely incidental to the journey.¹⁶⁴ This certainly would seem to be more restrictive than the French test of ‘not entirely disconnected (p.25) with the public service’. However, some individual cases do show that similar results may be reached in practice.¹⁶⁵