Cox v Ministry of Justice [2016] UKSC 10

In Cox v Ministry of Justice [2016] UKSC 10 (2 March 2016) this judgment was given before, Lord Neuberger, Lady Hale, Lord Dyson and  Lord Toulson in the Supreme Court by Lord Reed, with which they agreed. The Respondent worked as a catering manager in a prison in Swansea. Her duties involved all catering matters at the prison including overseeing the kitchen where meals were cooked for the prisoners. There were about 20 prisoners working under her supervision. On the 10th September 2007, whilst working in the kitchen with the prisoners and a catering assistant, she instructed four of the prisoners to carry supplies upstairs to the kitchen stores. One of the prisoners dropped a sack of rice and whilst she was bending down to deal with it, another prisoner tripped carrying two further sacks. One of the sacks landed on her back causing her injury.  Lord Reid accepted that the prisoner had been negligent.

Under Rule 31(1) of the Prison Rules 1999 a prisoner is required to undertake useful work authorised by the Secretary of State for no more than 10 hours a day. At the prison, inmates were assessed for their ability to work in a kitchen with risk assessments carried out by a panel. The prisoners were supervised by the catering staff and the prisoner in question was required to work a six day week from 8.30 am to 5pm with a lunch break.  Under the rules the prisoner must be paid and he received £11.55 per week. The Prison Rules also stated that the prison governors were legally bound to deduct national insurance and income tax where applicable and pay employer’s national insurance contributions.

The original hearing before His Honour Judge Keyser QC was heard in the Swansea County Court and in his judgment on the 3rd May 2013 he found that the prisoner had failed to take reasonable care for the Respondent’s safety and dismissed the claim finding that the prison service was not vicariously liable for the prisoner’s negligence.

The Court of Appeal allowed an appeal against that decision in 2014 where the five aspects identified by Lord Phillips in the Christian Brothers case were referred to by the Lord Justices. Lord Phillips had stated in the case that vicarious liability arises mostly from the relationship of employer and employee under a contract of employment, the employer will be liable for a tort committed by its employee during that employment. He pointed to other reasons for vicarious liability being imposed on an employer where the following criteria should be 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.

Lord Phillips added in his judgment that where there is no contract of employment but these matters arise, there would still be vicarious liability as that relationship is still between employer and employee.

Lord Reid referred to the five factors identified by Lord Phillips in the Christian Brothers case and observed that they were not all of the same significance, in particular the first one that the employer is expected to have insured against that liability. He found this was unlikely in many cases to be of independent significance where there is a contract of employment, since, the employer is more than likely to have much more money than the employee and would be expected to have insured against vicarious liability. He added that just because they have more money it does not follow that they should be liable. Employers take out insurance because they are liable not because they have taken out the insurance.

Referring to the fifth factor he commented “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”.

He found the factors numbered 1, 2 and 3, listed by Lord Phillips, were inter-related.

Number 1 referred to a tort committed by a person because of activity they have undertaken on behalf of the Employer.

Number 2 referred to the activity undertaken by that person which is likely to be part of the business of the Employer.

Number 3 by employing that person to carry on with that work the Employer has created the risk of the tort by the person who has committed the wrong.

He noted that Lord Phillips in his examination of the Christian Brothers case brought together all the factors required to develop a modern concept of vicarious liability. He said the result of this was that a relationship, aside from one of employment, can in principle give rise to vicarious liability where an individual has been a substantial part of the business and by assigning those activities to that person, it has created a risk.

In the Christian Brothers case the relationship between the brothers and the institute was different from that between employer and employee as the brothers were tied by their vows, they were not paid and were under an obligation to give their earnings to the institute.  Lord Phillips had observed this made their relationship closer, it was near enough to employer and employee and gave rise to vicarious liability.

In this case Lord Reid observed that the requirements identified in the Christian Brothers case had been met.

  • The prison carried out its activities in pursuance of its aims which are not commercial but serving the public interest. This does not prevent it being vicariously liable.
  • The prisoners working in the kitchen formed part of the running of the prison and those activities given to them by the prison were carried out to further those aims which were mainly to provide meals for the prisoners.
  • The prison had put them into a situation where there was a risk that they may be negligent in the activity assigned to them, which had been acknowledged because of the health and safety training they undertook.

He found that the Respondent catering manager was injured because of the negligence of the prisoner in undertaking his activities, which had been assigned to him, making the prison service vicariously liable to her.  He dismissed the appeal.


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