Cox v Ministry of Justice

JurisdictionEngland & Wales
JudgeLady Hale,Lord Neuberger,Lord Toulson,Lord Dyson,Lord Reed
Judgment Date02 March 2016
Neutral Citation[2016] UKSC 10
Date02 March 2016
CourtSupreme Court
Cox
(Respondent)
and
Ministry of Justice
(Appellant)

[2016] UKSC 10

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Dyson

Lord Reed

Lord Toulson

THE SUPREME COURT

Hilary Term

On appeal from: [2014] EWCA Civ 132

Appellant

James Eadie QC Kate Grange Stephen Kosmin

(Instructed by The Government Legal Department)

Respondent

Robert Weir QC Robert O'Leary

(Instructed by Thompsons Solicitors)

Heard on 12 October 2015

Lord Reed

(with whom Lord Neuberger, Lady Hale, Lord Dyson and Lord Toulson agree)

1

"The law of vicarious liability is on the move." So Lord Phillips said, in the last judgment which he delivered as President of this court, in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1 ("the Christian Brothers case"), para 19. It has not yet come to a stop. This appeal, and the companion appeal in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, provide an opportunity to take stock of where it has got to so far.

2

The scope of vicarious liability depends upon the answers to two questions. First, 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? Secondly, in what manner does the conduct of that individual have to be related to that relationship, in order for vicarious liability to be imposed on the defendant? Although the answers to those questions are inter-connected, the present appeal is concerned with the first question, and approaches it principally in the light of the judgment in the Christian Brothers case, where the same issue was considered. The appeal in the case of Mohamud is concerned with the second question, and approaches it principally in the light of the historical development of this branch of the law. As will appear, the present judgment also seeks to relate the approach adopted to the first question to ideas which have long been present in the law. The two judgments are intended to be complementary.

3

The first question arises in this case in relation to a public authority performing statutory functions for the public benefit, on the one hand, and an individual whose activities form part of the means by which the authority performs its functions, on the other hand. Specifically, the question is whether the prison service, which is an executive agency of the appellant, the Ministry of Justice, is vicariously liable for the act of a prisoner in the course of his work in a prison kitchen, where the act is negligent and causes injury to a member of the prison staff.

The accident
4

At the material time the respondent, Mrs Cox, worked as the catering manager at HM Prison Swansea. She had day to day charge of all aspects of catering at the prison, including the operation of the kitchen, where meals were produced for the prisoners. She was in charge of four members of staff. There were also about 20 prisoners who worked in the kitchen and came under her supervision.

5

On 10 September 2007 Mrs Cox was working in the kitchen with a catering assistant and about 20 prisoners. Some kitchen supplies were delivered to the ground floor of the prison, and Mrs Cox instructed four prisoners to take them upstairs to the kitchen stores. During the course of this operation, a sack of rice was dropped by one of the prisoners and burst open. Mrs Cox bent down to prop it up and prevent spillage. While she was bent over, another prisoner, Mr Inder, attempted to carry two sacks past her, lost his balance, and dropped one of the sacks on to Mrs Cox's back, causing her injury. It is accepted that Mr Inder was negligent.

The relevant legislation and practice
6

Rule 31(1) of the Prison Rules 1999 (SI 1999/728) provides that a convicted prisoner shall be required to do useful work for not more than ten hours a day. In terms of rule 31(3), no prisoner shall be set to do work not authorised by the Secretary of State. Those provisions apply to prisoners detained in privately operated prisons as well as to those operated by the prison service.

7

The Ministry's current policy in relation to prisoners' work is explained in the Green Paper, "Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders" (2010) (Cm 7972). According to that document, the Ministry wants prisons to use the discipline and routine of regular working hours to instil an ethos of hard work into prisoners. Prison should be a place where work is central to the regime, and where offenders learn vocational skills in environments organised to replicate, as far as practical and appropriate, real working conditions. The document speaks of the "working prison", where prisoners work a full working week, and education is geared primarily to providing prisoners with skills enabling them to perform work effectively and to get a job on release. It is said that, in public prisons, 9,000 prisoners are employed in prison workshops, with many more doing essential jobs to help prisons run smoothly. Work may be provided either by the prison or by external providers in the private, voluntary and community sectors. Prisoners may work either inside or outside the prison. In the latter situation, they may undertake voluntary or charitable work, or may undertake paid work for outside employers.

8

Work within a prison kitchen, in particular, is regarded as providing a good working environment, with regular hours and the ability to gain nationally recognised vocational qualifications. Prisoners can apply to work in the kitchen, and a selection is made after relevant assessments have been carried out, including a risk assessment considering such matters as the prisoner's temperament, potential security implications, any relevant medical or hygiene problems, and the need for any relevant training in relation to such matters as manual lifting or other skills.

9

At Swansea in particular, prisoners were assessed for their suitability to work in the kitchen by the Inmate Regime Employment Board, a panel which carried out risk assessments and decided where prisoners should work around the prison. Those selected for work in the kitchen numbered about 20, out of a total of about 400 prisoners. They received instruction and training in relation to such matters as food hygiene, the safe use of kitchen equipment and other aspects of safety at work. Each prisoner had a training record to show what instruction he had received. The prisoners worked alongside civilian catering staff as part of the team comprising the catering department, and were accountable to the catering manager and the other civilian staff. They were subject to day-to-day supervision by the catering staff, and could be removed from the catering department in the event that their performance was unsatisfactory. Mr Inder's instructions required him to work a six day week, from 8.30 am to 5 pm each day, with a break for lunch.

10

Under rule 31(6) of the Prison Rules, prisoners may be paid for their work at rates approved by the Secretary of State. It is the Ministry's policy, as set out in Prison Service Order No 4460 ("the PSO"), entitled "Prisoners' Pay", that all prisoners who participate in purposeful activity must be paid. The purpose of paying prisoners is explained as being to encourage and reward their constructive participation in the regime of the establishment. Prisoners doing work in pursuance of prison rules are expressly excluded from the scope of the national minimum wage: National Minimum Wage Act 1998, section 45. At the time of the accident, Mr Inder was paid £11.55 per week. If prisoners did not work in the catering department, additional costs would have to be incurred in employing staff or engaging contractors.

11

The PSO also states that prison governors are legally required to deduct national insurance contributions and income tax from the earnings of prisoners whose wages exceed the thresholds, and to pay employer's national insurance contributions. Notwithstanding the terms of the PSO, it was the Ministry's position in this appeal that there was no liability to tax or national insurance on the earnings of prisoners working within prisons under prison rules. That was disputed on behalf of Mrs Cox, but it is unnecessary to resolve the issue. Whether vicarious liability should be imposed does not depend on the classification of the relationship for the purposes of taxation or national insurance.

12

It is also relevant to note the legislative provisions concerned with the provision of meals in prisons. In terms of rule 24 of the Prison Rules, no prisoner shall be allowed to have any food other than that ordinarily provided, subject to specified exceptions. Prisoners therefore depend on the prison service to be fed. Section 51 of the Prison Act 1952 provides that all expenses incurred in the maintenance of prisoners (an expression which is defined by section 53(2) as including all necessary expenses incurred for food) shall be defrayed out of moneys provided by Parliament.

The history of the proceedings
13

The claim was heard by His Honour Judge Keyser QC in the Swansea County Court. In a judgment given on 3 May 2013, he found that the accident occurred because Mr Inder had failed to take reasonable care for Mrs Cox's safety, but dismissed the claim on the basis that the prison service was not vicariously liable for Mr Inder's negligence. On the basis of a careful review of the law on vicarious liability, as stated in particular at paras 35 and 47 of Lord Phillips's judgment in the Christian Brothers case, he focused on the question whether the relationship between the prison service and Mr Inder was akin to that between an employer and an employee. He concluded that it was not. Although he accepted that there were some respects in which the prison service's relationship with Mr Inder resembled...

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