THE LAW OF VICARIOUS LIABILITY IS ON THE MOVE… AND HASN’T FINISHED MOVING YET.

pichris_rafferty By Chris Rafferty

The law of vicarious liability is on the move”, so began Lord Reed in his judgment in Cox -v- Ministry of Justice [2016] UKSC 10.

One can forgive the lack of originality in quoting from the judgment of Lord Phillips in his last ever judgment as President of the Supreme Court.[1] It also seems that both were indeed correct; as Ward LJ confirmed three years ago:

“…the time has come emphatically to announce that the law of vicarious liability has moved beyond the confines of a contract of service”.[2]

The factual background in the case of Cox can be addressed simply enough. The claim revolved around a catering manager at HMP Swansea:

  • A delivery of food supplies arrived at the prison; six prisoners unloaded the shipment.
  • The foodstuffs were contained in 25kg sacks.
  • One of the prisoners attempted to carry three sacks; the inevitable occurred and a sack spilled onto the floor.
  • As Ms Cox was bending down to prop up the damaged sack, another prisoner dropped a sack onto her back.

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

Having failed to persuade HHJ Keyser QC at first instance that the MOJ was vicariously liable, in the Court of Appeal McCombe LJ considered more closely the judgment of Ward LJ[3] and in particular 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 Court of Appeal 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.

McCombe LJ relied upon an analysis of the judgment of Lord Philips[4], noting that the presence of the following criteria would usually impose vicarious liability:

  • 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
  • the tort will have been committed as a result of activity being taken by the employee on behalf of the employer
  • the employee’s activity is likely to be part of the business activity of the employer;
  • the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee
  • the employee will, to a greater or lesser degree, have been under the control of the employer

The Court of Appeal agreed that as the prison was reaping the benefits of such work, there was no reason not to also bear its burdens.

The Supreme Court gave judgment on 02 March 2016 and unanimously dismissed the MOJ’s appeal.

The MOJ submitted that the relationship between prisoner and prison service was fundamentally different to that of employer and employee, however the Court was unable to accept that argument, citing the aims of penal policy set out most in a 1991 White Paper[5] that:

“…convicted prisoners contribute to the cost of their upkeep by helping with the running and maintenance of the prison and by providing goods and services in prison industries and on prison farms.”

Further differences were dismissed; that the prisoners were compelled to work, that they were paid a nominal sum for work, and that the prison service had no choice in who to ‘employ’ were insufficient discrepancies to avoid a finding of vicarious liability.

Nor was the Court persuaded that it would be acting with temerity to develop the law in such a way, that the justice system was ill-prepared for fraudulent claims or that a finding of vicarious liability was unfair, unjust or unreasonable.

After consideration of the criteria set down by Lord Phillips[6], the Court found that they had been met. At paragraph 32 Lord Reed reiterated:

“The prison service carries on activities in furtherance of its aims. The fact that those aims are not commercially motivated, but serve the public interest, is no bar to the imposition of vicarious liability.”

To the joy of law students across the country the law on vicarious liability adds a new chapter to its already extensive reading list.

 

 

 

[1] Various Claimants -v- Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1

[2] E v English Province of Our Lady of Charity [2013] QB 722

[3] ibid

[4] Various Claimants -v- Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1

[5] ‘Custody, Care and Justice: The Way Ahead for the Prison Service in England and Wales” (1991) (Cm 1647), para 7.22

[6] ibid

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