Dr Nicholas Bevan

Dr Nicholas Bevan
www.nicholasbevan.com

Monday, 3 March 2014

MoJ VICARIOUSLY LIABLE FOR PRISONER

In Cox v Ministry ofJustice [2014] EWCA Civ 132 Robert Weir QC has set a new precedent in the obscure world of vicarious liablity.  The Cox judgment also clarifies the correct approach to take when applying the newly articulated criteria for deciding whether vicarious liability is appropriate.  This was devised by the Supreme Court in Various Claimants v Catholic Child Welfare Society & ors. [2012] UKSC 56 , as to which see in particular paragraphs 34 to 36 of Phillips LJ’s seminal judgment in that case.

The Cox case featured a catering officer who was injured by a prisoner’s mishap.  The prisoner was one of a number in her charge that had been tasked with carrying 25kg sacks of rice upstairs.  One of the sacks split and its contents spilled over the steps, creating a predicable slipping hazard.  She told the prisoners to stop and wait until the mess had been cleaned up but one prisoner thought he knew better.  He carried on regardless, slipped and dropped his load on the catering officer, injuring her in the process. 

The case leveled against the MoJ was that it was liable (i) directly, in negligence, and also (ii) vicariously (without regard to fault) for the prisoner’s negligence.  Both claims were dismissed by HHJ Keyser QC.  However, the Court of Appeal upheld Mr Weir’s appeal on the vicarious liability finding.

McCombe LJ’s leading judgment in Cox serves as a useful companion to Phillips LJ’s seminal judgment in the Catholic Child Welfare case and it is a 'must read' for practitioners seeking to navigate the treacherous and incompletely chartered waters around this area of the law.  Vicarious liability is a concept that still eludes a completely watertight definition.  It has been aptly described as a loss distribution device based on grounds of social and economic policy’ by Millet LJ in Dubai Aluminium Co. Ltd v Salam and Ors [2002] UKHL 48. (Similar phraseaology was used by the same judge in the landmark sexual abuse ruling in Lister v Hesley Hall Ltd 2001 UKHL.)  Another eminent jurist, Lord Pearce, has described it as a doctrine; one that ‘has not grown from any very clear, logical or legal principle but from social convenience and rough justice.’ see ICI v Shatwell 1965 AC 656. 

Whatever its precise classification (policy, doctrine or concept), vicarious liability is perhaps best understood by what it does.  It operates to fix a completely innocent third party with responsibility for someone else’s tortious (sometimes criminal) wrong; hence the ‘rough justice’ epithet.  As a bold exception to conventional tort law rules, it is used sparingly and with circumspection: it is not a ‘cure all’ for every hard luck case.  It is deployed where the justice of the situation make it expedient and in keeping with judge made criteria. 

The range of situations deemed appropriate for a finding of vicarious liability has widened considerably over the past few years.  The courts have taken giant strides in extending its remit in keeping with modern expectations and social change.  Whilst it is clearly no longer the case that it is confined to the relationship of 'master and servant', it still seems to have retained at least one foot on terra cognita– with phrases such as ‘akin to employment’ still being in regularly used in many judicial explications. 

Although the scope of vicarious liability has been extended to encompass a nightclub owner for a gratuitously vicious bouncer, the Police for a homophobic officer, priests for the abuse of children (even against a non-parishioner who had no connection with the church or its youth group), for abuse by nuns and wardens, commercial subsidiaries, an unincorporated association for a bellicose sportsman, between partners in a law firm for a fraud, the dual liability of two subcontractors; yet it is still circumscribed by the need to establish a special relationship between the torfeasor and the unwitting third party.

Establishing new precedent for vicarious liability scenarios will always be a matter of fine judgment; its exercise attracts a correspondingly high litigation risk.  This is well illustrated by the first instance decision in Cox, in which the trial judge undertook a careful and painstaking review of all the correct authorities but which nevertheless arrived at a different outcome.  The deciding factor in the Cox appeal was not the degree of control exercised over the perpetrator by the Prison Service, nor whether the prisoners’ were voluntarily contracted or properly paid but, to paraphrase yet another part of the judgment, whether the wrongful act was ‘so much part of the work, ‘business’, or organisation of the person or entity who it is said should be vicariously liable that it is just to make the latter answer for the negligence of the former’[1].

There are clear echoes of Caparo Insustries plc v Dickman [1990] UKHL 2 (whose three stage test is used to establish a whether a duty of care exists in an unusual case where no obvious precedent exists) in the two stage test promulgated by Lord Phillips in the Catholic Child Welfare case.

The judgment in Cox is of particular interest in the way it applies the Catholic Child Welfare criteria to a new vicarious liability scenario, see paragraphs 42 to 47 of McCombe LJ’s judgment, and it is to be welcomed for the valuable new precedent it has set. 

Further training
I am running an in-house half-day workshop law firms on vicarious liability.  It covers all the theory and practice, including the latest developments and new thinking.  It then cements the learning by applying the theory in practice through realistic (and hopefully fun) workshop sessions based on decided cases.

For further details please contact me on:

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[1] See paragraph 64 in Cox v MoJ 2014 EWCA Civ 132.

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