Cox v Ministry of Justice (Rev 2)

Vicarious liability is not confined to a contractual employment relationship. The court must make a principled and incremental assessment by synthesising the relationship between the tortfeasor and the proposed defendant with the connection between that relationship and the tort. Relevant features include the defendant’s ability to compensate, whether the activity was undertaken on its behalf and as part of its enterprise, creation of the risk, and control. Lack of consent, mutuality or a contract is a factor, not a bar. A prison authority was therefore liable for a prisoner’s negligent injury where the prisoner’s paid kitchen work was essential to the prison’s operation, done for its benefit and subject to its control. A claim based on failure to provide manual-handling training failed for want of causation.

While working as catering manager at HM Prison Swansea, Susan Elaine Cox was injured when a prisoner carrying food sacks negligently dropped one onto her. The prisoner was undertaking paid kitchen work under her supervision.

The Swansea County Court dismissed claims alleging vicarious liability, breach of the Ministry’s direct duty to provide a safe system and safe staff, and statutory breaches. The statutory claims were abandoned on appeal. The appeal concerned whether the prisoner’s relationship with the Ministry was sufficiently akin to employment for vicarious liability, and whether the judge had erred in rejecting the direct-duty claim based on discontinued manual-handling training.

The appeal was allowed on vicarious liability. The court would not have allowed it on the direct-duty ground, and the statutory claims were no longer pursued.

1. Lord Justice McCombe applied the two-stage synthesis identified in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 AC 1. The court must assess both the relationship between the tortfeasor and the proposed defendant and the connection between that relationship and the tort. The relationship need not be contractual. The relevant question is whether it is sufficiently akin to employment, having regard to factors including the defendant’s means, activity undertaken on its behalf, business activity, creation of risk and control. The approach should be principled, coherent and incremental, as stated in E v English Province of Our Lady of Charity [2012] EWCA Civ 938, [2013] QB 722.
2. The Ministry was responsible for feeding prisoners and procuring and moving food supplies. The kitchen work was essential to the prison’s functioning, was carried out on the Ministry’s behalf and for its benefit, relieved it from employing staff at market rates, and was subject to its direction and control. The work therefore differed materially from rehabilitative education, training or offending-behaviour activities, which were principally for prisoners’ benefit. The fact that prisoners were compelled by their sentences rather than engaged by contract, and received only nominal pay, did not prevent the relationship from being akin to employment. The approach in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151, [2006] QB 510 supported treating control as important but not decisive.
3. Lord Justice Beatson agreed. He added that voluntariness could mislead if treated as a bar rather than a factor, and that the task’s performance on behalf of the proposed defendant and under its direction were important considerations. Lady Justice Sharp agreed with Lord Justice McCombe’s reasons.
4. The direct-duty appeal failed. The judge was entitled to find that failure to provide manual-handling training was not causative. The risk was obvious, the particular accident was unlikely to have been covered by such training, and training was unlikely to have made the prisoner obey the express instruction to stop. The appellate court therefore had no basis to interfere with that finding.
5. The Ministry was held vicariously liable for the prisoner’s negligence. By agreement, issues of quantum were to return to the county court judge for determination.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 132, the appeal was allowed on vicarious liability. The court rejected the direct-duty ground and noted that the statutory claims were no longer pursued.
• Swansea County Court: His Honour Judge Keyser QC dismissed the claimant’s claim on 3 May 2013.