Vicarious liability in “relationships akin to employment”

On 2 March 2016, the Supreme Court handed down two judgments dealing with the law of vicarious liability, i.e. when an employer (or someone in a position akin to an employer) can be liable for the acts or omissions of an employee (or an individual in a position akin to an employee). The judgments are intended as companion pieces and were produced by the same five justices, although they were delivered separately because the claims and issues are separate. This piece will consider the judgment in Cox v Ministry of Justice, and a separate piece will consider the judgment in Mohamud v WM Morrison Supermarkets.

The leading judgment in Cox’s case was given by Lord Reed, with whom the other four justices agreed. Lord Reed stated that two questions have to be answered when considering vicarious liability:

  1. What is the relationship between the individual who committed the act or omission and the person or organisation sought to be made liable?
  2. What is the connection between that relationship and the act or omission of the individual?

Cox’s case deals with the first question.

Mrs Cox was the catering manager at HM Prison Swansea. She was in charge of all aspects of catering at the prison, and supervised four other employees and 20 prisoners. The prisoners worked in the kitchen pursuant to the requirement in the Prison Rules 1999 that convicted prisoners do useful work for not more than 10 hours a day.

On 10 September 2007, Mrs Cox and four prisoners were transporting kitchen supplies from the ground floor of the prison to the kitchen stores. One of the prisoners dropped a sack of rice, which burst open. Mrs Cox bent down to prop the sack up and prevent spillage. Whilst she was bent down, another prisoner dropped a different sack of rice onto Mrs Cox’s back, causing her injury.

It was accepted that the prisoner had been negligent and that, had the sack of rice been dropped by an employee rather than a prisoner, the Ministry of Justice would have been vicariously liable for that employee’s negligence. However, the Ministry’s case was that it should not be held vicariously liable for the negligence of a prisoner working in the prison.

The Ministry stated that the relationship between the prison and a prisoner working in that prison is not like that between an employer and an employee. Several reasons were given for this:

  • First, there is no contract of employment.
  • Second, a prisoner is compelled to work by the Prison Rules 1999, and the prison can only select those prisoners who happen to be in the prison at the time to work there. The voluntary aspect of the employment relationship (where an employer chooses whom to employee and an employee chooses whom to work for) is therefore absent.
  • Third, the main purpose of a prisoner working in a prison is not for the “benefit” of the prison, but to rehabilitate the prisoner and to equip them with the skills and knowledge to find work on release.
  • Fourth, a prisoner (unlike an employee) has no interest in furthering the aims and objectives of the prison.

Lord Reed rejected these arguments:

  • First, he stated that it is long-established that a contract of employment is not essential to vicarious liability.
  • Second, he stated that the element of compulsion under the Prison Rules 1999 bound the prisoner into a closer relationship with the prison than would be the case for an employee, thus strengthening rather than weakening the case for imposing vicarious liability on the prison.
  • Third, the work that prisoners did was clearly of “benefit” to the prison. The work formed an integral part of the operation of the prison, and if it were not done by prisoners it would have to be done by employees. It would therefore be unjust to allow the prison to take the “benefit” of the work done by prisoners without assuming the “burden” of vicarious liability for acts or omissions of prisoners whilst working in the prison.
  • Fourth, it was naïve to suggest that employees always act in furtherance of the aims of their employer, just as it was naïve to suggest that prisoners working in a prison never act in furtherance of the aims of the prison.

This case is a useful review of the development of the law of vicarious liability, and it makes clear that an element of compulsion in a relationship between someone performing work and someone for whose benefit that work is performed will not necessarily negative vicarious liability. It is unlikely to have much application beyond its specific facts.

However, given Lord Phillips’ statement in 2012 that “the law of vicarious liability is on the move”, Lord Reed’s judgment is a valuable staging post in taking stock of the journey so far, and will be useful to those who are not employees, but are in relationships akin to employment, in establishing whether they or their “employer” will be liable for any acts or omissions in the course of that relationship.