Cox v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Beatson,Lady Justice Sharp |
| Judgment Date | 19 February 2014 |
| Neutral Citation | [2014] EWCA Civ 132 |
| Docket Number | Case No:B3/2013/1761 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 February 2014 |
[2014] EWCA Civ 132
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Swansea County Court
His Honour Judge Keyser QC
OLV85852
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lord Justice Beatson
and
Lady Justice Sharp
Case No:B3/2013/1761
Robert Weir QC and Robert O'Leary (instructed by Thompsons LLP) for the Appellant
Keith Morton QC and Alexander Williams (instructed by the Treasury Solicitor) for the Respondent
(A) Introduction
This is an appeal from the judgment and order of 3 May 2013 of His Honour Judge Keyser QC, sitting in the Swansea County Court, dismissing the Appellant's claim against the Defendant for damages for personal injury.
The facts of the case are fully set out in the careful judgment of the learned judge and are not in dispute. A short summary of those facts is all that is necessary for the purposes of the appeal.
On 10 September 2007, while working as the catering manager at HM Prison Swansea, the Claimant was injured in an accident caused by the negligence of a prisoner carrying out paid work under her supervision. She was 40 years old at the time. She was in the service of the Crown in her post, but was not strictly speaking an employee. She had day to day charge of catering in the prison, in all its aspects, including supervision of the operation of the kitchen, ordering supplies, dealing with deliveries and matters relating to budget, staffing and training. Her immediate superior was the Head of Custodial Care, who in turn was responsible to the Deputy Governor.
The claimant had four members of staff under her in the staff hierarchy, three civilians and one prison officer. Two of these subordinates would be on duty at any one time. Approximately, twenty prisoners would be assigned each day to kitchen work. Such prisoners would sometimes be regularly engaged in this work. Others would assist over short periods.
Food produced in the kitchen, for which the Claimant had responsibility, was for prisoners only. They numbered some 400 at the time. The kitchen did not cater for staff members.
On the day in question, at about 9.15 a.m., a delivery of supplies for the kitchen arrived on the ground floor. The Claimant went to attend to the delivery, taking with her six prisoners who were to bring the delivered food supplies from the ground floor to the first floor.
It seems that the customary manner of carrying out this task was for the goods to be loaded onto trolleys and taken to the first floor by lift. However, prisoners were not permitted to travel in the lifts for security reasons. A prisoner tasked with the operation would nonetheless have to enter the lift for the purpose of loading the goods. On this morning a number of lift journeys were successfully accomplished. However, with one trolley still waiting to be moved, the lift door suddenly slammed closed trapping one of the working prisoners. It appears that such a malfunction was not uncommon, frequently because of vandalism of the sensors by prisoners. While the judge found that it was probable that abuse by prisoners was the cause of malfunction on this occasion, he did not find that it was caused by any act of the prisoners working on kitchen duty.
The lift was shut down for a time and the trapped prisoner was eventually freed. During this incident a second delivery vehicle arrived. Two of the six prisoners, detailed to unloading duties, were instructed to make a start on unloading the new consignment. The four others were instructed by the Claimant to carry the remaining goods from the first delivery manually up the stairs. These foodstuffs were contained in large sacks, made from reinforced paper and tied at the openings with cord. Each sack weighed about 25 kg. In such circumstances, in which sacks had to be carried manually, it was usual for the working prisoners to carry one or two sacks at a time. One prisoner, however, a man called Webster, began to transport three bags at one go. He was instructed by the Claimant and by another member of staff to stop as the load was too great. Whether deliberately or otherwise, Webster dropped one of the sacks which burst open, spilling rice onto the floor.
The Claimant instructed all the prisoners to stop work until the spillage was cleared. She despatched one prisoner to fetch the necessary cleaning equipment. She bent down on one knee to prop up the damaged sack, in order to prevent further spillage. The judge accepted her evidence that she had observed that all the prisoners, save Webster, had stopped moving before she bent down. Webster had continued to carry his two remaining bags, ahead of the Claimant and up the stairs. As she straightened to stand she felt a heavy thud on her upper back. What had happened was that another prisoner (called Inder) had ignored the Claimant's instruction to stop work and had attempted to carry two sacks past the kneeling Claimant. He lost his balance and hit his head on an adjacent wall; one of the sacks which he was carrying fell off his shoulder and onto the Claimant's back.
The judge found that the accident occurred because of Mr Inder's negligence. That finding is not disputed.
The claim against the Defendant was made on three bases. First, it was argued that the Defendant was vicariously liable for the negligence of Mr Inder. Secondly, it was said that the Defendant was in breach of its personal duty to the Claimant as her employer to take reasonable care for her safety by providing a safe system of work, a safe place of work and safe staff and equipment. Thirdly, the contention was that the Defendant was in breach of its statutory duty under Regulation 5(1) of the Workplace (Health, Safety and Welfare) Regulations 1992 and under Regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998 (in each case in failing to keep the lift in proper repair).
The judge dismissed the claims under all these heads. The Claimant submits that he was wrong to do so in respect of the first two heads. The third head of claim, based on the two sets of Regulations, is no longer pursued.
The judge refused permission to appeal to this court. It was, however, granted by an order of Hallett LJ, on an application on the papers without an oral hearing, on 8 August 2013.
(B) Vicarious Liability, the further material facts
The negligent prisoner, Mr Inder, received pay, at the rate of £11.55 per week, for the kitchen work on which he was engaged at the time of the accident. The pay was received under the Prison Rules 1999 and in accordance with the policy to be found in the Prison Service Order No. 4460 of January 2000. Rule 31 of the Prison Rules provides:
"(1) A convicted prisoner shall be required to do useful work for not more than 10 hours a day, and arrangements shall be made to allow prisoners to work, where possible outside the cells and in association with one another…
(3) No prisoner shall be set to do work not authorised by the Secretary of State
(4) No prisoner shall work in the service of another prisoner or an officer, or for the private benefit of any person, without the authority of the Secretary of State…
(6) Prisoners may be paid for their work at rates approved by the Secretary of State, either generally or in relation to particular cases".
The Prison Service Order No.4460, in its introduction, provides the following:
"It is for Governors to set the rates of pay for their particular establishment and these should reflect regime priorities. The purpose of paying prisoners is to encourage and reward their constructive participation in the regime of the establishment. It must not therefore act as a disincentive. Pay is only one element in the process of motivating prisoners and should not be considered in isolation. Links need to be made with the Incentive and Earned Privileges Scheme and other Prison Service policies, for example on education, resettlement, enterprise and work, offending behaviour programmes, as well as taking account of specific groups of prisoners."
The Order continues:
"1.1 It is Prison Service Policy that prisoners receive payment if they participate constructively in the regime of the establishment. The pay schemes and rates of pay which operate within the establishments are a matter for local management subject to the criteria below…..
1.4 Whatever scheme an establishment operates, it is essential that it is reasoned and structured, the requirements of the scheme are clear to both prisoners and staff, and it is not applied in an arbitrary or discriminatory way…
2.1.1 All prisoners who participate in purposeful activity must be paid. Those who refuse must not receive any pay. Prisoners may also lose earnings for disciplinary reasons. Unconvicted prisoners can work if they wish to and must be paid the same rates as convicted prisoners.
2.2.1 Prisoners are eligible for unemployment pay if they are willing to work, but the establishment cannot find suitable employment or the prisoner is unable to work.
2.3.1 Prisoners who are employed in work, induction, education, training or offending behaviour programmes will receive at least the minimum weekly rate of pay for employed prisoners.
2.8.2 Governors, Directors of contracted-out prisons and outside employers are legally required to deduct National Insurance contributions and income tax from the earnings of prisoners whose wages exceed the thresholds. They are also legally required to make employer's National Insurance contributions." (Italics...
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