Last reviewed 7 October 2016
The British concept of vicarious liability is very important in the context of the recovering compensation for death or injury caused by breaches of health and safety rules. Barrister Robert Spicer reports on the recent decision in Cox v Ministry of Justice.
In outline, vicarious liability means that, in some circumstances, an employer can be liable for a civil wrong committed by an employee in the course of his or her employment. It has been described as a loss-distribution device used on grounds of social and economic policy.
In the recent case of Cox v Ministry of Justice (2016), the Supreme Court has restated and expanded the principles that apply to the concept of vicarious liability. This case did not directly involve an employment relationship but the general principles laid down by the Supreme Court are clearly applicable to employer and employee.
The facts of the case
The facts were that Mrs Cox (C) was employed by the Ministry of Justice (MOJ) as the catering manager at Swansea Prison. She was responsible for all aspects of catering, including the operation of the prison kitchen. She supervised prisoners who worked in the kitchen alongside civilian staff.
In September, she told some prisoners to take supplies to the kitchen stores. One prisoner (I) accidentally dropped a sack of rice onto C’s back, injuring her. She brought a claim against the MOJ.
At first instance the claim was dismissed on the basis that the prison service was not liable because the relationship between the prison service and I was not that of employer and employee.
On appeal, the Court of Appeal reversed that decision.
The final ruling
The MOJ appealed to the Supreme Court.
The appeal was dismissed and the Supreme Court made the following points.
There were five factors which made it fair, just and reasonable to impose vicarious liability on a defendant where the defendant and the person guilty of the tort (the wrong) were not bound by a contract of employment.
The first factor is that the defendant is more likely to have the means to compensate the victim and can be expected to have insured against vicarious liability.
The fifth factor (bear with us), that the wrongdoer will have been under the control of the defendant, no longer has the significance it used to have. In modern life it is not realistic to look for a right to direct how an employee should perform his or her duties as a necessary element in the employment relationship.
The other three factors are: the tort (the wrong) was committed as a result of activity being taken by the tortfeasor (the wrongdoer) on behalf of the defendant, the wrongdoer’s activity is likely to be part of the business activity of the defendant and the defendant will have created the risk of the tort.
A relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the defendant’s business and for its benefit and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to that individual.
The defendant need not be carrying on activities of a commercial nature. The benefit which it derives from the wrongdoer’s activities need not take the form of a profit. It is sufficient that there is a defendant carrying on activities in the furtherance of its own interests.
Defendants cannot avoid vicarious liability on the basis of arguments about the employment status of the tortfeasor.
Activities assigned to prisoners who work in kitchens form an integral part of the activities of the prison. The prison service places these prisoners in a position where there is a risk that they may commit a variety of negligent acts, which is recognised by the provision of health and safety training.
C was injured as a result of I’s negligence in carrying on activities assigned to him and the prison service was therefore vicariously liable.
Vicarious liability is imposed where it is fair, just and reasonable to do so.
The basic principles
The Cox case further develops the principles stated by the Court of Appeal in the key case of Majrowski v Guy’s and St Thomas’s NHS Trust (2005).
Here, M was employed as a clinical audit co-ordinator. He alleged that he had been bullied, intimidated and harassed by his departmental manager. He claimed compensation from his employer for a breach of s.3 of the Protection from Harassment Act 1997.
The main issue to be decided was whether an employer could be vicariously liable for a breach of statutory duty by an employee when such a duty did not expressly apply to the employer. At first instance, M’s claim failed. He appealed to the Court of Appeal.
That court allowed the appeal. It found that the employer was liable and made the following points.
Vicarious liability is legal responsibility imposed on an employer, although the employer is free from blame, for a civil wrong committed by an employee in the course of his or her employment.
True vicarious liability is liability for an employee’s unauthorised, or not negligently permitted, unlawful mode of doing an unauthorised act in the course of employment.
For such liability to apply, the act must be so closely connected with what the employee was authorised to do that it would be fair and just to regard it as a mode, even of an improper one, of doing it.
In deciding whether the connection is sufficiently close, the court has to balance the social interest in furnishing an innocent tort (civil wrong) victim with a remedy against a financially responsible defendant with the need to avoid foisting an undue burden on a business enterprise.
An employer cannot avoid vicarious liability by showing that the employee was guilty of intentional wrongdoing, or that the act was criminal, or that the employee was acting contrary to express instructions or that his or her conduct was the very negation of the employer’s duty.
Vicarious liability is a loss-distribution device used on grounds of social and economic policy.
In general, an employer might be vicariously liable for a breach of statutory duty imposed on an employee but not on the employer. What mattered was the closeness of the connection between the offending conduct of the employee with the nature and circumstances of that employment.