Cox v MoJ: Vicarious Liability Extension in Christian Brothers Case Approved by Supreme Court
Catriona Stirling
Vicarious liability has been considered by our highest courts in a flood of cases in recent years and the law has taken another step forward with today’s judgments from the Supreme Court in the conjoined appeals of Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 (in which the appeal was successful) and Cox v Ministry of Justice [2016] UKSC 10 (in which it was not).
In its separate, but complementary, judgments, the Court has given the latest word on:
what relationship between the defendant and the wrongdoer (Cox); and
what connection between that relationship and the tortious act (Mohamud),
will give rise to vicarious liability.
This blog post considers the Cox case.
Background
Originally, the doctrine of vicarious liability was confined to cases where a wrongdoer was employed by a defendant.
It was later 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 vicarious liability purposes.
In Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (‘the Christian Brothers Case'), the Supreme Court considered the general approach to be adopted in deciding whether a relationship other than one of employment can give rise to vicarious liability, subject to there being a sufficient connection between that relationship and the tort in question and extended the scope of the doctrine.
That case concerned whether the defendant, an international unincorporated association whose mission was to provide children with a Christian education, was vicariously liable for the sexual abuse of children by members of the institute, otherwise known as brothers, who taught at an approved school. The Supreme Court held that it was.
Lord Phillips (with whom the other members of the court agreed), stated in that case (para 35) that:
“The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. 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:
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.”
He added (para 47) that:
“At para 35 above, I have identified those incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant. Where the defendant and 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’”.
Cox v Ministry of Justice
In Cox, the issue was whether the prison service, which is an executive agency of the defendant, was vicariously liable for the act of a prisoner in the course of his work in a prison kitchen, where the act was negligent and caused injury to a member of the prison staff.
Mrs Cox worked as the catering manager at HMA Swansea, where she had day to day charge of the operation of the kitchen. She supervised four members of staff and there were also about 20 prisoners who worked in the kitchen and came under her supervision.
While taking delivery of some kitchen supplies, a prisoner attempted to carry two sacks past Mrs Cox, lost his balance, and dropped one of the sacks onto her back, causing her injury. It was accepted that this was negligent.
The Prison Rules require that convicted prisoners (whether in private or state prisons) shall be required to do useful work for not more than 10 hours per day. The defendant’s policy in relation to such work was that the discipline and routine of regular working hours instils an ethos of hard work into prisoners and that prison should be a place where work is central to the regime and offenders learn vocational skills.
Work can be provided either by the prison or by external providers in the private, voluntary and community sectors.
Prisoners can apply to work in prison kitchens and selections are carried out after relevant assessments have been made. Prisoners may be paid for their work at rates approved by the Secretary of State (£11.55 per week at the relevant time), to encourage and reward their constructive participation. If prisoners did not work in the catering department, additional costs would have to be incurred in employing staff or engaging contractors. Prisoners were not generally allowed their own food, so they depended on the prison service to be fed.
Trial Judge
The trial judge found that the prison service was not vicariously liable for the prisoner’s negligence. He focused on whether the relationship between the prison service and the prisoner was akin to that between an employer and employee and concluded that it was not.
Although he accepted that there were some respects in which the relationship resembled employment, he considered that there was a crucial difference. Employment was a voluntary relationship, in which each party acted for its own advantage. The position regarding prisoners was quite different; the prison authorities were legally required to offer work and make payment for that work. Those requirements were not a matter of voluntary enterprise but of penal policy. The provision of work was a matter of prison discipline, of prisoner’s rehabilitation, and possibly of discharging the prisoners’ obligations to the community. Although the work done by prisoners might contribute to the efficient and economical operation of the prison, the situation was not one in which prisoners were furthering the business undertaking of the prison service.
Court of Appeal
The Court of Appeal overturned this decision.
It 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 and for its benefit. It was part of the enterprise or benefit 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 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: it was founded not on mutuality but on compulsion.
The Supreme Court decision
The Supreme Court upheld the Court of Appeal’s decision.
It focused on the factors mentioned by Lord Phillips in the Christian Brothers case. However, Lord Reed (giving the judgment of the Court) held that these factors are not all of equal significance.
The first factor, that the defendant is more likely than the tortfeasor to have the means to compensate the victim, and can be expected to have insured against vicarious liability, is unlikely to be of independent significance in most cases. A deeper pocket or the existence of insurance is not a principled justification for imposing vicarious liability. Employers insure themselves because they are liable: they are not liable because they are insured themselves. It cannot be ruled out, however, that there might be circumstances in which the availability of insurance might be a relevant consideration.
The fifth factor, that the tortfeasor will, to a greater or lesser degree, have been under the control of the defendant, no longer has the significance that it was sometimes considered to have in the past. It is not realistic in modern life to look for a right to direct how an employee should perform his duties as a necessary element in the relationship between employer and employee. The significance of control is that the defendant can direct what the tortfeasor does, not how he does it. It is therefore a factor which is unlikely to be of independent significance in most cases, although the absence of even that vestigial degree of control would be liable to negative the imposition of vicarious liability.
The remaining factors were that:
the tort will have been 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, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor.
Lord Reed noted that these three factors are inter-related. The essential idea is that the defendant should be liable for torts that may fairly be regarded as risks of his business activities, whether they are committed for the purpose of furthering those activities or not.
The result of the analysis in the Christian Brothers case was that a relationship other than one 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 business 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 question.
Lord Reed rejected criticism of the criteria laid out in Christian Brothers as being insufficiently precise to make their application to borderline cases plain and straightforward. He noted that such a criticism might also be made of other general principles of the law of tort and that a lack of precision is inevitable, given the infinite range of circumstances where the issue arises. The court has to make a judgment, assisted by previous judicial decisions in the same or analogous contexts. Such decisions may enable the criteria to be refined in particular contexts.
However, he emphasised (paras 29-30) that:
“It is important…to understand that the general approach which Lord Phillips described is not confined to some special category of cases, such as the sexual abuse of children. It is intended to provide a basis for identifying the circumstances in which vicarious liability may in principle be imposed outside relationships of employment. By focusing upon the business activities carried out by the defendant and their attendant risks, 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 with it, and also reflects prevailing ideas about the responsibility of businesses for the risks which are created by their activities. It results in an extension of the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment, but not to the extent of imposing such liability where a tortfeasor’s activities are entirely attributable to the conduct of a recognisably independent business of his own or of a third party. An important consequence of that extension is to enable the law to maintain previous levels of protection for the victims of torts, notwithstanding changes in the legal relationships between enterprises and members of their workforces which may be motivated by factors which have nothing to do with the nature of the enterprises’ activities or the attendant risks.
It is also important not to be misled by a narrow focus on semantics: for example, by words such as ‘business’, ‘benefit’ and ‘enterprise’. The defendant need not be carrying on activities of a commercial nature: that is apparent not only from the cases of E and the Christian Brothers, but also from the long-established application of vicarious liability to public authorities and hospitals. It need not therefore be a business or enterprise in any ordinary sense. Nor need the benefit which it derives from the tortfeasor’s activities take the form of a profit. 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 benefits. The Defendant must, by assigning those activities to him, have created a risk of his committing the tort…a wide range of circumstances can satisfy those requirements.”
He stressed that defendants could not avoid vicarious liability on the basis of technical arguments about the employment status of the individual who committed the tort.
He agreed with the Court of Appeal that the requirements laid down in the Christian Brothers case were met in the present case (para 32):
“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. Prisoners working in the prison kitchens…are integrated into the operation of the prison, so that the activities assigned to them by the prison service form an integral part of the activities which it carries on in the furtherance of its aims: in particular, the activity of providing meals for prisoners. They are placed by the prison service in a position where there is a risk that they may commit a variety of negligent acts within the field of activities assigned to them. That is recognised by the health and safety training which they receive. Furthermore, they work under the direction of prison staff. Mrs Cox was injured as a result of negligence by [the prisoner] in carrying on the activities assigned to him. The prison service was therefore vicariously liable to her.”
He did not accept (para 34) that the primary aim of setting prisoners to work in a prison was not to advance any business or enterprise of the prison, but to support the rehabilitation of the prisoners as an aim of penal policy. It was an aim of penal policy that convicted prisoners contribute to the cost of their upkeep by working, and working prisoners were integrated into the operation of the prison. The activities assigned to them were not merely of benefit to themselves, but of direct and immediate benefit to the prison service itself.
Moreover, it was not essential to the imposition of vicarious liability that the defendant should seek to make a profit; nor did it depend upon an alignment of the objectives of the defendant and of the individual who committed the act or omission in question (para 35). Nor did the fact that the prison service was under a statutory duty to provide useful work for prisoners and had a restricted choice of workers exclude vicarious liability (paras 36-38).
The imposition of vicarious liability in this case did not represent a major development of the common law and it was not always necessary to ask the broader question of whether it would be fair, just and reasonable to impose vicarious liability; where the criteria in the Christian Brothers case were satisfied, it should not generally be necessary to re-assess the fairness, justice and reasonableness of the result in the particular case (paras 39-41).
However, the criteria were not to be applied mechanically and slavishly, and where a case concerned circumstances which had not previously been the subject of an authoritative judicial decision, it may be valuable to stand back and consider whether the imposition of vicarious liability would be fair, just and reasonable. The present case was such a case (para 42).
However, the conclusion that the doctrine of vicarious liability should apply was not unreasonable or unjust; those adjectives were more likely to apply if Mrs Cox’s ability to obtain compensation for the injury that she had suffered at work depended entirely on whether the member of the catering team who dropped the bag on her back happened to be a prisoner or a civilian member of staff (para 42).
Implications of Cox
The Supreme Court has taken the opportunity provided by this appeal to give comprehensive and wide-ranging clarification of the types of relationship which can give rise to the imposition of vicarious liability upon a defendant.
While it has to a large extent approved the criteria set down by Lord Phillips in the Christian Brothers case, it is now clear that the key criterion is whether the commission of the wrongful act is a risk created by the defendant by assigning activities to the wrongdoer which are an integral part of the business activities carried out by the defendant and for its benefit. The presence of control and ability of a defendant to compensate are less important than previously thought.
This judgment has clarified that the doctrine is potentially applicable in an extremely wide range of environments and circumstances (subject, always, to the second, ‘close connection’ part of the test being met).
It is likely to apply to most representatives of a business, whether dealing with employees, customers or service users, as it will apply not only to employees, but also to workers and agency workers in many circumstances, unless they are truly independent contractors whose activities are entirely attributable to a recognisably independent business of their own. It may also cover volunteers. It is apparent from Lord Phillips’ judgment that short shrift will be given by the courts to technical arguments about the employment status of the wrongdoer.
Moreover, the judgment confirms that the doctrine is not limited to defendants carrying on activities of a commercial nature: it is sufficient that there is a defendant which is carrying on activities in the furtherance of its own interests, which do not have to be economic. Such interests could be charitable, or could be the interests of a religious institute, as in the Christian Brothers case. Or they could be the interests of complying with a statutory duty in the case of a public authority or hospital.
The do not appear to be any factors circumscribing the types of organisation or activity which can be subject to vicarious liability: it is sufficient that the organisation is carrying on activities which are somehow in furtherance of its own interests (which is presumably applicable to virtually every organisation of any kind) and that it has assigned some integral part of those activities to the wrongdoer.
The clarification provided in this judgment is therefore another extremely positive step for claimants. The Supreme Court has recognised that extensions to the vicarious liability doctrine are necessary to maintain protection for victims of torts.
This is a welcome development for innocent injured parties, who should not be left at the mercy of capricious and arbitrary distinctions between different categories of worker or organisation when a defendant has created the risk of their injury in each case.