• Robert Spicer

Vicarious liability: landmark Supreme Court judgment: Cox v Ministry of Justice

VICARIOUS LIABILITY

Relationship between an individual and a defendant

Case Cox v Ministry of Justice [2016] UKSC 10

Facts Mrs Cox ( C ) was employed by the MOJ as the catering manager at Swansea Prison. She was responsible for all aspects of catering including the operation of the prison kitchen. She supervised prisoners who worked in the kitchen alongside civilian staff. In September she told some prisoners to take supplies to the kitchen stores. On prisoner ( I ) accidentally dropped a sack of rice onto C’s back, injuring her. She brought a claim against the MOJ. At first instance the claim was dismissed on the basis that the prison service was not liable because the relationship between the prison service and I was not that of employer and employee. On appeal, the Court of Appeal reversed that decision. The MOJ appealed to the Supreme Court.

Decision 1. The appeal was dismissed.

  1. There were five factors which made it fair, just and reasonable to impose vicarious liability on a defendant where the defendant and the tortfeasor were not bound by a contract of employment.

  2. The first factor is that the defendant is more likely to have the means to compensate the victim and can be expected to have insured against vicarious liability.

  3. The fifth factor, that the tortfeasor will have been under the control of the defendant, no longer has the significance it was sometime considered to have. In modern life it is not realistic to look for a right to direct how an employee should perform his duties as a necessary element in the employment relationship.

  4. The other three factors are: the tort was committed as a result of activity being taken by the tortfeasor on behalf of the defendant, the tortfeasor’s activity is likely to be part of the business activity of the defendant and the defendant will have created the risk of the tort.

  5. A relationship other than ne of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the defendant’s business and for its benefit and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to that individual.

  6. The defendant need not be carrying on activities of a commercial nature. The benefit which it derives from the tortfeasor’s activities need not take the form of a profit. It is sufficient that there is a defendant carrying on activities in the furtherance of its own interests.

  7. Defendants cannot avoid vicarious liability on the basis of arguments about the employment status of the tortfeasor.

  8. Activities assigned to prisoners who work in kitchens form an integral part of the activities of the prison. The prison service places these prisoners in a position where there is a risk that they may commit a variety of negligent acts, which is recognised by the provision of health and safety training.

  9. C was injured as a result of I’s negligence in carrying on activities assigned to him and the prison service was therefore vicariously liable.

  10. The criteria set out in the Christian Brothers case are designed to ensure that vicarious liability is imposed where it is fair, just and reasonable to do so.

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