Examining the Midlands assault case through a torts perspective by Amanda Nutakor

According to many media sources such as Citinewsroom.com, Myjoyonline.com and Graphiconline.com, Patience Osafo was assaulted by a police officer at Midland Savings and Loans Limited on Thursday, July 19, 2018.

According to her, she went to the bank to withdraw her savings and for four days, she could not get her money. When she arrived at the bank on the fourth day, she vowed not to leave until the money was paid because she was broke. She said it was during her protestations that at about 4:30pm a police officer was invited to pull her out and that resulted in the scuffle. The bank officials had called him to sack the victim out of the banking hall.

The police officer got physical after the victim refused to leave the banking hall with her grandchild at her back. The incident was captured on video and went viral on social media. The police officer is seen in the video holding onto the woman. He punches and beats her as well as hits her multiple times with an umbrella, as she tries to wrestle away.He also attempts to violently drag her out of the building as she holds the baby in her arms.

The police officer, identified as Lance Corporal Amanor, was interdicted by the Police Administration. The accused was charged for criminal assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29). He was then discharged by a Circuit Court in Accra where he was facing trial.

From the information provided by the media, we know that criminal charges were brought against Lance Corporal Amanor. However, Patience Osafo (from henceforth, ‘the victim’) also had the opportunity, based on the facts, to bring a civil law suit in torts specifically battery and vicarious liability. In terms of vicarious liability, it is difficult to determine, without more information, whether the police officer was an employee of the police administration or an employee of Midland Savings and Loans Limited, thus both possibilities will be discussed.

The law under vicarious liability is that an employer is answerable to the victim(s) of his servant’s (employee’s) torts. This liability is based on the principle of “respondeat superior” — vicarious liability. Thus it is necessary to first establish a tort on the part of the alleged employee before we can ascribe his actions to his alleged employer.

From the video which shows what happened at the bank between the police officer and the victim, we can examine the tort of battery in relation to the actions of the officer directed at the victim. If the victim decided to bring an action in battery against the police officer, she (the victim) would be the plaintiff and the police officer would be the defendant.

The tort of battery according to Professor Kofi Kumado in ‘Introduction to the Law of Torts in Ghana is committed by the intentional application of force to another person by direct means or through an unwelcome physical contact, irrespective of whether hostility was involved.

This pertains to the conduct of the defendant and not the consequences of his actions and has a causal connection meaning a chain that should not be broken.

The first element of the tort of battery is that the act done by the defendant must be a direct act. From the video which showed the victim and the policeman, we observe that the police man’s actions towards the woman were direct rather than indirect. He hit her and dragged her himself directly and the effect of his acts on her were not as a consequence of his actions but rather as a result of his actions.

Next, the act must be voluntary. This refers to controllability, not whether the defendant acted willingly. The policeman, based on all the information provided, voluntarily applied force to Patience Osafo.

The plaintiff must also establish that the defendant acted either intentionally or negligently: intentionally here means deliberately; negligently refers to inadvertence or recklessness. It is evident from the video circulated that the policeman acted intentionally. He deliberately used force to try to get the victim to leave the banking hall.

There must also be physical contact with the person of plaintiff: this contact can be person to person or through an instrument. The police officer can clearly be seen in the video pulling and dragging the victim physically as well as hitting her with an umbrella which in this case would pass for an instrument.

Also, the plaintiff must prove that he or she did not consent to the contact. Consent can be proved in three ways: the first is if there was express consent. So there is no battery if the defendant proves that the plaintiff expressly agreed or submitted to the contact. Many events of everyday occurrence such as a haircut or an embrace will be battery but for the fact that consent operates as a defence to action in battery. Next, there is also the presumption of consent to all non-hostile contacts merely incidental to living in a community. An example is the contact with other people that is expected to occur when one in is in a crowded place such as public transportation or a market place. The third way to prove consent is through privileged contact. Privileged contact is allowed by law and is contact that is necessary in a particular situation depending on circumstances. Examples are contact necessary in emergency situations and contact necessary to attract a person’s attention.

Based on all the information gathered, the victim did not consent to the physical contact of the police officer. She did not expressly consent or submit to the contact, neither was the contact merely incidental to living in a community and the contact was far more hostile than necessary for it be privileged. The victim on the other hand fought back and tried to evade the policeman’s contact.

Finally, the last element of the tort of battery is that the act must be a positive act and not omission to act. In battery, liability depends on an act, not a failure/omission/refusal to act therefore the act must be a positive one. The policeman acted positively. The effect of his actions did not arise from him omitting, failing or refusing to act.

The tort of battery is actionable per se. This means once the tort is proven, damages are at large. Thus, since all the elements of battery can be proved in the circulated video, if the victim proceeded in an action for damages for battery caused to her person she would have probably succeeded and damages would have been at large.

As has already been stated, the law on vicarious liability is that an employer is answerable to the victim(s) of his servant’s torts.

In practice, the determination of whether two people have the employer and employee relationship will be the first point in the application of the vicarious liability principle.

So the real question we have to ask ourselves is who is a servant? There are three tests that can be used to determine whether or not a person is a servant- the integration or organization test, the entrepreneurial test and the control test.

According to Professor Kumado, there are two categories of persons for whose torts a person may be vicariously liable: servants and independent contractors. The integration test which was laid down in Stevenson v. Macdonald per Lord Denning deals with these categories. Crucial to this test is the distinction between a contract of service and a contract for services. Under a contract of service, a person is employed as part of the business and his work is done as an integral part of the business. Whereas under a contract for services, his work, though done for the business, is not integrated into it but is only accessory to it. Here the worker is an independent contractor.

Mackenna J in Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions, also laid down three conditions for the existence of a contract of service of employment and provided another integration test. Per Mackenna J these conditions must be satisfied for there to be a master-servant relationship: the employee must agree to provide his work and skill to his employer in return for remuneration; the employee must agreeto be directed as to the performance of the work to such a degree as to make the other his employer; and the other terms of the contract must be consistent with there being a contract of employment.

The second test is the entrepreneurial test. In the Market Investigations Ltd v Minister for Social Security case, it was said that, for this test, there are three important questions:Whose business is it?; Is the party (the alleged servant) carrying on the business for himself or for a superior?; Is the party taking a financial risk with the chance of loss as well as profit?

The third test, the control test, considers the person who controls the workman as his employer and therefore the one who is vicariously answerable for his wrongs. Therefore this test is all about who controls the worker. In Kussasi v. Ghana Cargo Handling Co., it was said that the test is: “Does the alleged master have power of controlling his (the alleged servant’s) acts and dismissing him for disobedience”? Thissuggests that the control test is the one preferred in Ghana.

In terms of the Midland case in issue, it is possible that the police officer’s employer would be Midland Savings and Loans Limited. On the other hand, it is also possible that it is the Police Administration that would be the police officer’s employer. This all depends on which of the tests laid down above is used and what the answers to the relevant questions would be. As has already been stated, the control test seems to be the preferable test in Ghana which is used to determine an employer and employee relationship. Thus which entity has the power to control the policeman’s actions as well as dismiss him? This is the question that must be answered. It is submitted that either Midland Savings and Loans Limited or the Police Administration would prove to be the police officer’s employer after the necessary questions are answered.

Next, we have to identify whether the servant was acting in the course of his employment when the tort was committed. We can examine some instructive cases on this point. In the case of Century Insurance Co. Ltd .v. Northern Ireland Road Transport, Lord Salmond declared that a servant’s smoking was part of the course of business. In Beard v. London Omnibus Co. Romer C.J. stated that a bus conductor does not drive as part of the course of his employment and in Akyigina v. Adjei the Court of Appeal held that since the vehicle in question was owned by the appellant who employed the driver who drove the vehicle at the material time, a presumption was raised that the accident occurred at a time when the driver was driving in the course of his master’s business.

Based on the circumstances and all the information gathered by media sources as well as the video that went viral, the policeman was on duty at Midland Savings and Loans Limited when he committed a battery against the victim. He thus committed the tort in the course of his employment.

In general, there are two main tests of vicarious liability as stated by Professor Kumado. The first is: was the servant doing an act of a kind not authorised by the employer or just a wrongful performance of an authorised act? If the former, the employer is not liable; if the latter, then the employer is liable as stated per Lord Thankerton in Canadian Pacific Rly. Co. v. Lockhart.

The police officer, per the information provided, was doing an authorised act but in a wrongful manner. As a police officer stationed at bank he is generally in charge of peace and security in and around the premises. Thus, he had all the authority given by his employer and it was within his duties to see troublesome customers out of the bank. However, even if force must be applied in some circumstances, it is submitted that he exceeded the limit of force which might have been necessary in the circumstances. The victim carried a child at her back and could not fight back adequately. Moreover, the police officer hit her with an umbrella which seemed unnecessary considering the circumstances. Thus the result of the first test of vicarious liability is that the employer would be liable.

The second test of vicarious liability is: Was the servant acting within authorised limits of time? If a servant stays on for a few minutes after working hours to complete a given job, it is within the scope of his job. A servant on holidays, who calls at the office and injures another is personally liable.  If the servant makes a slight detour for his own purposes while performing the master’s duties, then he is within scope of his duties.

It is submitted that in relation to the second test, the police officer was acting within authorised limit of time. Although the bank had closed at 4pm and the torts was committed around 4.30 pm, the police officer was on duty that day and had stayed till after 4pm. Whether he was required to stay only till 4pm and then change shifts or not is not known but he immediately came to perform his duties once summoned by the bank officials. The second test of vicarious liability can thus be deemed to be satisfied.

From everything discussed, it is submitted that Patiece Osafo, the victim, could have sued as plaintiff either the Police Administration or Midland Savings and Loans Limited (the bank) in vicarious liability for the tort of battery committed by Lance Corporal Amanor, the police officer on duty at the bank when he committed the tort. If this civil law suit was filed it would have run concurrently with the criminal trial of the police officer.

According to certain media reports such as Joy News, it seems as though the bank was aware that a law suit could be filed against it thus its management compensated the victim with a new house and an undisclosed amount of cash. The Police Administration, it seems, however, did its part by identifying and interdicting the accused police officer. The Daily Graphic reported that the policeman was discharged due to lack of interest in the trial by the victim, Patience Osafo.