Vicarious liability – when relationships get too close for comfort

pichris_rafferty Chris Rafferty

Here I look at a recent decision which examines how the interpretation of relationships in vicarious liability might have expanded.

  • A standard employer/employee will usually always satisfy the first test in vicarious liability, that being whether the relationship was sufficiently close to be able to give rise to a finding of vicarious liability.
  • However the interpretation of what constitutes such a relationship may have evolved to include less conventional relationships.

As discussed in the previous post the interpretation of what might be considered sufficiently close in terms of relationship has its limits. What about the interpretation of employment?

The case of Susan Elaine Cox -v- Ministry of Justice [2014] EWCA Civ 132 centred on a catering manager at HMP Swansea. Ms Cox was in the service of the Crown but not strictly an employee.

A delivery of food supplies arrived at the prison, overseen by Ms Cox, who instructed six prisoners to attend with her to unload the shipment. The foodstuffs were contained in sacks weighing approximately 25kg each. One of the prisoners attempted to carry three sacks, rather than the recommended one or two, and spilled one sack onto the floor. As Ms Cox was bending down to prop up the damaged sack, another prisoner, walking past her whilst carrying sacks, dropped one of them onto her back.

That the prisoner had acted negligently was not in dispute, and he was paid at the rate of £11.55 per week. Clearly the prisoner was not in the strictest sense an employee of anybody.

In judgment McCombe LJ considered the approach adopted by Ward LJ in the case of E v English Province of Our Lady of Charity[2013] QB 722 at paragraph 73:

“I can conclude that the time has come emphatically to announce that the law of vicarious liability has moved beyond the confines of a contract of service. The test that I have set myself is whether the relationship… [in question] …is so close in character to one of employer and employee that it is just and fair to hold the employer vicariously liable.”

The question then became whether the relationship between the prisoner and the Respondent was akin to that of employment. McCombe LJ made extensive reference to the analysis of Lord Phillips in Various Claimants v Catholic Child Welfare Society & ors. [2013] 2 AC 1, where it is stated that:

“there is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:

        i.            the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability

      ii.            the tort will have been committed as a result of activity being taken by the employee on behalf of the employer

    iii.            the employee’s activity is likely to be part of the business activity of the employer;

     iv.            the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee

       v.            the employee will, to a greater or lesser degree, have been under the control of the employer”

Following the above it was concluded that despite there being no traditional service contract between the negligent individual and the Respondent, there was a sufficiently close relationship from which liability could be drawn.

Link to the case of Cox here:

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