Facts: A catering manager at HM Prison Swansea suffered an accident as a result of a prisoner’s negligence. She injured her back when the prisoner dropped two sacks of rice he had been carrying in the course of working under the terms of the Prison Rules 1999 SI No 728 (which provide for work to be done as a matter of discipline and rehabilitation). A county court judge held that the prison was not vicariously liable for the prisoner’s negligence on the basis that their relationship was not akin to that of employer and employee.
The Court of Appeal allowed an appeal. It concluded that although the relationship differed from a normal employment relationship, in that the prisoners were bound to the Prison Service not by contract but by their sentences and also in that the prisoners’ wages were nominal, those differences rendered the relationship if anything closer than one of employment. The relationship was founded not on mutuality, but on compulsion. Applying the principles laid down in Catholic Child Welfare Society and others v Various claimants and Institute of the Brothers of the Christian Schools and others [2012] UKSC 56; [2013] 2 AC 1, the Supreme Court upheld that decision.
This case illustrates perfectly the continually evolving concept of vicarious liabilit
Decision: The Supreme Court emphasised that the scope of vicarious liability depends on the answers to two questions. First, what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual? Second, in what manner does the conduct of that individual have to be related to the relationship in order for vicarious liability to be imposed on the defendant? The answers to those questions are interconnected, although the Cox appeal was concerned with the first question, and approached it principally in the light of the judgment in Catholic Child Welfare Society and others (above), where the same issue was considered.
A companion appeal in Mohamud (in substitution for Mr A Mohamud (deceased)) v WM Morrison Supermarkets plc [2016] UKSC 11, focused on the second question. The judgment in Cox sought to relate the approach adopted towards the first question to ideas which have long been present in the law, and was intended to be complementary to that in Mohamud.*
The Supreme Court focused on three inter-related issues: first, that the tort occurred through activity taken by the tortfeasor on behalf of the defendant; second, that such activity was likely to be part of the defendant’s activities; and, third, that the defendant, by engaging the tortfeasor to carry on the activity, created the risk of the tort being committed. Applying those tests, the prison was liable for the prisoner’s negligence.
Comment: This case illustrates perfectly the continually evolving concept of vicarious liability. The defendant argued that a finding of vicarious liability would give rise to fraudulent claims by prisoners, and that it would cause the Prison Service to adopt an unduly cautious approach to the nature of tasks given to prisoners. However, the Supreme Court gave these arguments short shrift.
* A case report on Mohamud will appear in (2016) May CILExJ.