Vicarious Liability - TortWatch
- What would be the essence in the below problem - Duty of care? Primary/Secondary victim?
Grateful for any guidance on this.
The Axmoor police received a tip-off that two men, who had convictions for burglary, were planning a night raid on particular premise. Police officers were stationed in the vicinity of the premises and two police marksmen, Hutch and Bennett, were positioned inside the building. Two intruders were seen to enter the building and one of them was shot and fatally injured by Hutch. The victim turned out to be a fifteen year old boy, Samuel, who was carrying out a burglary with this seventeen year old brother Bert - neither of them had previous convictions and neither was armed. Bennett, who had already apprehended Bert without any resistance, was horrified when he saw the younger boy gunned down by Hutch. Hutch had wrongly assumed that Samuel was carrying a gun - in fact it was a large torch.
Bennett suffered a severe psychological illness as a result of the incident and had to retire from the police force. He claims that the whole police operation was "botched". The police officers outside the premises should have realised that the two boys were not the men the police were hoping to apprehend and the fatal shooting of an unarmed fifteen-year-old boy was completely unjustified. Bennett brought a claim against the Chief Constable of the Axmoor Police, seeking to hold him vicariously liable for the negligence of the police officers and, in particular, Hutch.
On a preliminary ruling as to whether Hutch (or other police officers) owed a duty of care to Bennett not to cause him injury through Shock, Williams J held that no such duty arose. He gave two reasons for his decision:
1. It was not reasonably foreseeable that a mere bystander would suffer nervous shock through witnessing the death of a fellow human being in the absence of a close relationship to the victim. It made no difference that the victim was only a child or that the death arose from an deliberate act.
2. Bennett was employed as a police marksman. He knew that circumstances might arise in which he or his colleague would have to use their guns. He was also aware that in these difficult situations there was always a possibility of a miscalculation being made. These were risks which Bennett could be taken to have voluntarily assumed. It was not, therefore, just and reasonable to hold that Bennett was owed a duty of care.
On appeal the Court of Appeal upheld William J's judgment. Bennett now appeals to the Supreme Court against each of the above rulings.
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