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‘The law of vicarious liability is on the move’ began Lord Reed in his leading judgment in Cox handed down on 2 March 2016 and warned that 'It has not yet come to a stop.' In Cox, and also in the judgment of Mohamud v WM Morrison Supermarkets plc  UKSC 11, the Supreme Court has sought to further define what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual.
At issue was whether a prisoner working in a prison kitchen had negligently dropped a sack of rice on the prison’s Catering Manager, Mrs Cox. At issue, was whether the Ministry of Justice were vicariously liable for this negligence.
Classically, leaving aside other areas where vicarious liability such as partnership and agency (with which Cox was not concerned), the relationship was one of employment such that it would not have applied to the acts of prisoners in the course of their prison work.
However, more recently, the relationship has been broadened by cases such as E v English Province of Our Lady of Charity  EWCA Civ 938 and Various Claimants v Catholic Child Welfare Society  UKSC 56 (‘the Christian Brothers case’). In the latter case, it was held that even where there is no contract of employment, a relationship ‘akin to that between an employer and an employee’ can properly give rise to vicarious liability.
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In his leading judgment in Cox, Lord Reed stresses that this approach is not confined to child sexual abuse cases, it is a general approach intended to provide a basis for identifying the circumstances in which vicarious liability may in principle be imposed outside relationships of employment.
Kinship to an employer and employee relationship is to be determined on the basis of five factors:(1) 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.
Practitioners should note that the first factor was held unlikely to be of independent significance in most cases such that over reliance should not be placed on the fact that a Defendant is without insurance or other means of meeting a liability - although this factor might, in certain (as yet undefined) circumstances be relevant. Equally, the fifth factor is of limited significance; except that an absence of any control over what a tortfeasor does would be liable to negate vicarious liability.
The key factors here, and in most other cases, will be two, three and four. It should be noted that Cox discourages an over-literal interpretation of these factors. For business, read ‘operation’; for business activity read ‘activity for benefit of operation’ and benefits may, of course, not simply be financial profits:
‘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 benefit. The defendant must, by assigning those activities to him, have created a risk of his committing the tort.’ Per Lord Reed at para 30.
Thus, here, prisoners were furthering the activities of the prison by helping with the running and maintenance of the prison. They were found to be integrated into the operation of the prison when working in the prison kitchen or other workplaces such as gardens or the laundry. The fact that the prison was not seeking to make a profit was not essential. Payment of a commercial wage, in this case, or indeed, any wage at all, as in the Christian Brothers case, was not essential for vicarious liability to apply. A restricted pool from which to select the workforce was also no bar to liability.
It should be noted that the question of whether it was fair, just and reasonable to impose a duty was not found to be generally a necessary one if the Christian Brothers criteria were satisfied. However, in cases such as Cox, it was held it may continue to be valuable to answer this question. Here, it was felt both unreasonable and unjust for compensation to depend upon whether the member of the catering team who dropped the bag of rice happened to be a prisoner or a civilian member of staff.
 Quoting Lord Philips in Various Claimants v Catholic Child Welfare Society  UKSC 56;  2 AC 1 (‘the Christian Brothers case’), para 19.