From: Steve
Hedley
Sent: Monday 15
June 2026 10:07
To: obligations
Subject: RE: Privy
Council on Vicarious Liability
But
the Privy Council's reasoning doesn't seem to depend on the unlawfulness of the
detention. Suppose the facts are slightly different: that there was initially
reasonable suspicion of Mrs Bethel (which was only dispelled after enquiries
that couldn't have been made quickly); Bastian's motives were initially lawful,
and it was only later that he decided to rape her. Different result?
From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: Monday 15 June 2026 09:45
To: James Lee <james.lee@kcl.ac.uk>;
obligations <obligations@uwo.ca>
Subject: RE: Privy Council on Vicarious Liability
The initial detention was an unauthorised form of what the officer was
authorised to do.
That initial wrong enabled the subsequent rape.
So, the employer is liable for both.
We re inching back to the correct position.
R
From: James Lee <james.lee@kcl.ac.uk>
Sent: 15 June 2026 09:39
To: obligations <obligations@uwo.ca>
Subject: Privy Council on Vicarious Liability
Dear Colleagues,
Last week's Privy Council decision in Bethel v
Attorney General of The Bahamas will be of interest to members as the latest
development on the close connection test in vicarious liability - https://jcpc.uk/uploads/jcpc_2024_0085_judgment_a133457ee0.pdf.
(It was accepted that the law in The Bahamas is the same as English law on this
point).
The case concerned the false imprisonment, assault and
battery of the late claimant. She was a Jamaican national detained by police
during an immigration raid, but she was in possession of a spousal permit as
the wife of a Bahamian. She was interviewed and held at a detention centre and
then transferred into the custody of an immigration officer, Bastian, in order
to verify her address. He took her in his car with one of his female friends on
a variety of errands and then ultimately to his home, where he detained her.
She had repeatedly asked if she could go home to her children and she was told
'not yet'. Bastian continued to detain her and raped her twice. He then
returned her home the following day.
There were two questions for the Board, first whether
Mrs Bethel had been falsely imprisoned, and second whether the defendants
(various government departments, but it was held nothing turned on which was to
be liable) were vicariously liable for Bastian's wrongdoing. This required
examination of the facts in the light of the reasoning of the Supreme Court in
BXB v Barry Congregation of Jehovah's Witnesses.
In a joint opinion by Lord Burrows (who gave the
judgment in BXB) and Lady Justice Yip, the Board found that the close
connection test was 'clearly satisfied' here (at [40]).
This was because Bastian was purportedly exercising
his lawful authority for the whole period while he detained her; she was under
his control; he owed her a duty of care while detaining her. The Court revisits
phrases from previous cases in noting that there was a 'seamless sequence of
events' from his initial taking over her custody until he returned her home,
and that 'Mr Bastian never took off his "metaphorical uniform" as an
immigration officer'.
Of most interest is perhaps the consideration at
[47]-[48] where the Board distinguishes the outcome in BXB, where the close
connection test was not satisfied, and draws parallels instead with recent
cases on vicarious liability for the sexual abuse of children.
Kind regards,
James
--
James Lee
Professor of English Law and Vice-Dean (People
& Culture)
The Dickson Poon School of Law
Somerset House East Wing
King's College London
Strand
London WC2R 2LS
E-mail: james.lee@kcl.ac.uk
Forthcoming Articles: 'Scottish Storytelling and
Law Reform' Edinburgh Law Review
With Man Yip, 'Wheeling and Dealing: Fiduciaries
and the Commercial Context After Hopcraft' Journal of Business Law
Watch my Inaugural Lecture, 'Pure
Imagination: Stories, Institutions and Law Reform' https://youtu.be/cSZR4Wycuzg