Cox v Ministry of Justice PDF

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Detailed case brief, including paragraphs and page references
Topic: Negligence...

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Cox v Ministry of Justice Area of law concerned:

Vicarious Liability

Court:

UK Supreme Court

Date:

2016

Judge:

Lord Reed

Counsel: Summary of Facts:

The respondent, Mrs Cox worked as catering manager at a prison in Swansea. She was in charge of all aspects of catering, including operation of the kitchen and was in charge of four members of staff, and about 20 prisoners who worked in the kitchen. One of the prisoners one day dropped a sack of rice onto her back. It is accepted that this was an act of negligence.

Relief sought: Issues:

Relevant Statute(s): Procedural History:

At trial, it was found that the accident occurred because Mr Inder had failed to take reasonable care for Mrs Cox’s safety. He dismissed the claim on the basis that the prison service was not vicariously liable for Mr Inder’s negligence. [13]

He focused on the question whether the relationship between the prison service and Mr Inder was akin to that between an employer and an employee. He concluded that it was not. [13]

The crucial difference for him was that employment was a voluntary relationship, in which each party acted for its own advantage. In this case, the prison authorities were legally required to offer work to the prisoners, and to make payment. This was not voluntary enterprise but penal policy. It was for the public good. [13]

Court of Appeal It was observed that the work performed by prisoners in the kitchen was essential to the functioning of the prison, and if not done by prisoners would have to be done by someone else. It was therefore done on behalf of the prison service for its benefit. It was part of the enterprise or business of the prison service in running the prison. In short, the prison service took the benefit of this work, and there was no reason why it should not take its burdens. Although the relationship differed from a normal employment relationship, those differences rendered the relationship if anything closer than one of employment. [14]

Plaintiff/Appellant’s

arguments Defendant/Respondent’s arguments: Result: Judge’s reasoning:

It is common practice for prisons to employ its prisoners, and they are required to offer jobs and nominal wages. It has been long recognised that a relationship can give rise to vicarious liability even in the absence of a contract of employment. For example, where an employer lends his employee to a third party, the third party may be treated as the employer for the purposes of vicarious liability. Vicarious liability is not necessarily only from employment contracts. [16]

Christian Brothers Case The question of this cas was whether the Institute of the Brothers of the Christian Schools, an international unincorporated association, was vicariously liable for the sexual abuse of children by members of the institute, otherwise known as brothers, who taught at an approved school. Another organisation managed the school and employed the brothers as teachers. Facts of the case [18]

The issue was whether the institute was also vicariously liable. The Supreme Court held that it was. Vicarious liability was thus imposed on a body which did not employ the wrongdoers, in circumstances where another body did employ them and was also vicariously liable for the same tort. Vicarious liability without employment contract. [18]

Why is the employer vicarious liable in employer-employee cases? (Lord Phillips) i.) The employer is more likely to have the means to compensate the victim, and can have 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 employer’s control. Justification of vicarious liability in employer-employee relationships [19]

“Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground

that it is ‘akin to that between an employer and an employee’ Doesn’t HAVE to be a employee relationship [19]

Lord Reed’s assessment of the five factors:  The first is not likely to be of independent significance in most cases.  The fifth no lnger has the significance that it was sometimes considered to have in the past, as often there is no direct control  Factor (ii) has been reflected historically in explanations of the vicarious liability of employers based on deemed authorisation or delegation.  (iii) has long been regarded as a justification for imposition of vicarious liability on employers, as the employee’s activities are undertaken for the employer and for its benefit.  (iv) is closely related to (iii). Anyone who employs others to carry out activities is likely to create risk of their behaving tortuously… Lord Reed’s assessment [23]

The result of Lord Phillips’ approach is that a relationship other than one of employment is capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in person. Lord Phillips’ point. [24]

Viasystems The question was whether the second defendant as well as the third, was vicariously liable for the negligence of the employees, (who were supplied by the third defendant and under the supervision of a selfemployed person working for the second) in the course of their employment. Lol get your head around this one [25]

The Court of Appeal agreed that it was, for various reasons including:  Who had the right to control the employees’ activities  Integration to business enterprise [25]

Accordingly, what one was looking for was a ‘situation where the employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence. Endorsed by Lord Phillips [25]

E v English Province of Our Lady of Charity.

Diocesan trust was held to be vicariously liable for sexual abuse committed by priests, on the basis that the relationship between priest and church was akin to employment. [26]

In Christian Brothers, the relationship between the brothers and the institute differed from that of employment in that:  Brothers were bound by vows, not a contract  Brothers were obliged to transfer their earnings to the institute. [27]

Neither of these differences was material. Indeed, they rendered the relationship closer than an employment contract, and thus capable of giving rise to vicarious liability. [27]

Lord Phillips’ approach is intended to provide a basis for identifying the circumstances in which vicarious liability may in principle be imposed outside relationships of employment. It directs attention to the issues which are likely to be relevant in the context of modern workplaces, where workers may in reality be part of the workforce of an organisation without having a contract of employment. Extension of the law and scope of vicarious liability [29]

The defendant need not be carrying on activities of a commercial nature (Christian Brothers). It need not therefore be a business enterprise in any ordinary sense. Nor need the benefit which it derives from the tortfeasor’s activities take the form of a profit. [30]

It is sufficient that there is a defendant which is carrying on activities in the furtherance of its own interests. The individual for whose conduct it may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit the defendant must, by assigning those activities to him, have created a risk of his committing the tort. Boundaries within which there may be vicarious liability [30]

On this Case: The requirements laid down in the Christian Brothers case are met:  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, are not bars to the imposition of vicarious liability.  Prisoners working in the prison kitchens are integrated into the operation of the prison, so that the activities assigned to them form an intergral part of the activities it carries on in furtherance of its aims…  They are placed by the prison service in a position where there is a risk that they may commit a negligent act. [32]

Answers to the Ministry’s arguments: [1] the fact that the prisoner is required to serve part of his sentence in prison, and to undertake useful work there for nominal wages, binds him into a closer relationship than employment… it strengthens, rather than weakens the case for imposing vicarious liability. [35]

[2] there was little choice of workers for the prison. Furthermore, the prisoner’s pay was not a commercial wage, but a nominal one. But these do not make any differences to the conclusion that vicarious liability should not be imposed. In Christian Brothers there wasn’t even a wage. [37]

[3] It is not even a major development of the common law. [4] it is not always necessary to ask the broader question of whether it would be fair for the imposition of vicarious liability. That was the whole point of seeking to align the criteria with various policy justifications for its imposition. However, at the same time, the criteria should not be applied mechanically or slavishly. [42]

There is an intelligible distinction between taking part in activities of that kind and working as an integral part of the operation of the prison and for its benefit. The risk of fraudulent claims is a risk inherent in the law. I’d dismiss the appeal. What can be learned from this case....