Cox v. Ministry of Justice

A prisoner working in a prison kitchen dropped a sack of rice on the catering manager's back. The UK Supreme Court asked whether the prison service was vicariously liable (answerable for another person's wrong) for a prisoner, who is not its employee. It held that it was.

Quick Revision

Read the full judgment: UK Supreme Court (supremecourt.uk)

Read the full judgment: UK Supreme Court (supremecourt.uk)

Parties

Mrs Cox — respondent in the Supreme Court; the claimant. She was the catering manager at HM Prison Swansea and was injured by a prisoner's negligence (para 4).

Ministry of Justice — appellant; the defendant. The prison service is an executive agency of the Ministry (para 3).

Mr Inder — a prisoner who worked in the prison kitchen. He was not a party. It was accepted that he was negligent (paras 5, 13).

Procedural History

1. Swansea County Court (judgment of 3 May 2013). His Honour Judge Keyser QC found that Mr Inder failed to take reasonable care for Mrs Cox's safety. He dismissed the claim because the prison service was not vicariously liable. He asked whether the relationship was akin to employment and said it was not. He saw employment as voluntary and mutual, while prison work was a matter of penal policy, discipline and rehabilitation (para 13).
2. Court of Appeal ([2014] EWCA Civ 132; [2015] QB 107). The appeal was allowed. McCombe LJ gave the judgment, with which Beatson and Sharp LJJ agreed. He applied the five features listed in the Christian Brothers case. He found the kitchen work essential to the prison, done on its behalf and part of its enterprise. He said the prison service took the benefit and should take the burden. He found the relationship closer than employment because it rested on compulsion, not mutuality (para 14).
3. Supreme Court. The Ministry of Justice appealed. The appeal was heard on 12 October 2015 and decided on 2 March 2016. It was heard with the companion appeal in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 (paras 1-2).

Facts

1. Mrs Cox worked as catering manager at HM Prison Swansea. She had day-to-day charge of all catering, including the kitchen. She supervised four staff and about 20 prisoners who worked in the kitchen (para 4).
2. On 10 September 2007 she was in the kitchen with a catering assistant and about 20 prisoners. Kitchen supplies were delivered to the ground floor. She told four prisoners to carry them upstairs to the kitchen stores (para 5).
3. One prisoner dropped a sack of rice, and it burst open. Mrs Cox bent down to prop it up and stop the spillage (para 5).
4. Another prisoner, Mr Inder, tried to carry two sacks past her. He lost his balance and dropped one sack on her back. She was injured. It is accepted that he was negligent (para 5).
5. Rule 31(1) of the Prison Rules 1999 requires a convicted prisoner to do useful work for not more than ten hours a day. Under rule 31(3), no prisoner may be set to work not authorised by the Secretary of State. These rules also apply in privately operated prisons (para 6).
6. The Ministry's policy is set out in a Green Paper of 2010, Breaking the Cycle (Cm 7972). It wants prisons to use regular working hours to instil an ethos of hard work. It wants work to be central to the regime and to replicate real working conditions. It says 9,000 prisoners work in prison workshops in public prisons. Work may be provided by the prison or by outside providers, and inside or outside the prison (para 7).
7. Kitchen work is seen as a good working environment, with regular hours and nationally recognised vocational qualifications. Prisoners apply to work there. They are selected after assessments, including a risk assessment covering temperament, security, medical or hygiene problems and training needs, such as manual lifting (para 8).
8. At Swansea the Inmate Regime Employment Board carried out the risk assessments and decided where prisoners worked. About 20 of about 400 prisoners worked in the kitchen. They were trained in food hygiene and the safe use of kitchen equipment, and each had a training record (para 9).
9. The prisoners worked alongside civilian catering staff as one team. They were accountable to the catering manager and staff, and were supervised day to day. They could be removed if their work was unsatisfactory. Mr Inder's instructions required a six-day week, from 8.30 am to 5 pm each day, with a lunch break (para 9).
10. Under rule 31(6) of the Prison Rules, prisoners may be paid at rates approved by the Secretary of State. Prison Service Order No 4460 (Prisoners' Pay) says every prisoner in purposeful activity must be paid. The aim is to encourage and reward constructive participation. Section 45 of the National Minimum Wage Act 1998 excludes prisoners working under the prison rules from the minimum wage. Mr Inder was paid £11.55 a week. Without prisoners, the prison would have to employ staff or engage contractors at extra cost (para 10).
11. The Prison Service Order says governors must deduct national insurance and income tax where earnings pass the thresholds, and pay employer's national insurance. The Ministry said no tax or national insurance was due on prison earnings, and Mrs Cox disputed that. The Court found it unnecessary to resolve this (para 11).
12. Under rule 24 of the Prison Rules, a prisoner may have no food other than that ordinarily provided, with limited exceptions. Section 51 of the Prison Act 1952 says the expenses of maintaining prisoners, which include food under section 53(2), are paid out of moneys provided by Parliament (para 12).

Issues Raised

1. Is the prison service vicariously liable in tort for a prisoner's negligence in a prison kitchen, which injured a member of staff? The prison service is an executive agency of the Ministry of Justice (para 3).
2. What sort of relationship must exist between an individual and a defendant before the defendant is vicariously liable for that individual's conduct? The appeal was concerned with this first question, not with how the conduct must relate to the relationship (para 2).
3. Would holding the prison service liable be a major development of the common law, which courts should make only cautiously (para 39)?
4. Must the court always ask, as a separate question, whether imposing vicarious liability is fair, just and reasonable (para 40)?

Arguments Contended

The judgment does not set out Mrs Cox's arguments as a separate list. The Court of Appeal's reasoning is summarised in para 14.

For the appellant (Ministry of Justice):

• The relationship between the prison service and working prisoners is fundamentally different from that of a private employer and its employees (para 33).
• The prison service sets prisoners to work mainly to support their rehabilitation as an aim of penal policy, not to advance a business. It makes no profit and acts in the public interest (para 33).
• Unlike employees, prisoners have no interest in furthering the prison's objectives. Even in the Christian Brothers case, the interests of the institute and the brothers were aligned (para 33).
• The prison service must provide useful work, and it must choose workers from the prisoners held there. It relied on compulsory pilotage. There, courts had not imposed vicarious liability on a shipmaster forced to hand over navigation to a pilot. The shipmaster had no power of selection (para 36).
• Prisoners' pay is not a commercial wage but a payment meant to motivate them (para 36).
• Holding the prison service liable would be a major development of the common law, to be made only cautiously (para 39).
• It is always necessary to ask whether imposing vicarious liability is fair, just and reasonable. The prison service acts for the public benefit, and any liability comes from scarce public funds. There was also no reason to add it to its common law and statutory duties towards Mrs Cox (para 40).
• If the claim succeeded, similar claims would follow from other rehabilitation activities, such as classes and offending behaviour programmes. There was a risk of fraudulent prisoner-on-prisoner claims. The prison service might become unduly cautious about the tasks it gave prisoners (para 43).

For the respondent (Mrs Cox): the judgment records no separate submissions.

Court's Reasoning

The judgment is a single opinion by Lord Reed. Lord Neuberger, Lady Hale, Lord Dyson and Lord Toulson agree with it.

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

1. Noted: Lord Phillips said in the Christian Brothers case that "The law of vicarious liability is on the move." The law has not yet come to a stop. This appeal and Mohamud let the Court take stock. (para 1)
2. Noted: The scope of vicarious liability turns on two questions. First, what relationship must exist between the individual and the defendant? Second, how must the individual's conduct relate to that relationship? (para 2)
3. Noted: This appeal is about the first question, mainly in the light of the Christian Brothers case. Mohamud is about the second question, mainly in the light of history. The two judgments are meant to be complementary. (para 2)
4. Noted: The first question arises here for a public authority performing statutory functions for the public benefit. The prisoner's activities form part of the means by which it performs those functions. (para 3)
5. Noted: The accident, the prison rules, the Ministry's work policy, prisoner pay and food provision are set out as the facts of the case. (paras 4-12)
6. Noted: The tax and national insurance position is disputed but need not be resolved. Whether vicarious liability is imposed does not depend on how the relationship is classed for tax or national insurance. (para 11)
7. Noted: The trial judge and the Court of Appeal are summarised. The trial judge focused on the key passages of the Christian Brothers case and held the relationship was not akin to employment. The Court of Appeal disagreed. (paras 13-14)
8. Noted: Vicarious liability is imposed on a person for another's act or omission because of the relationship between them and the connection between that relationship and the act. Partnership and agency are outside this judgment. (para 15)
9. Noted: The relationship is classically employment, and the connection is that the act occurred in the course of employment (while doing the job). That means within the field of activities assigned to the employee, or in the course of the job, considered broadly. (para 15)
10. Noted: Lord Toulson considers the second question (the connection with employment) fully in Mohamud. (para 15)
11. Noted: A relationship can give rise to vicarious liability even without an employment contract. Where an employer lends an employee to a third party, the third party may be treated as the employer. (para 16)
12. Noted: The Christian Brothers case gave the general approach for relationships other than employment. It was meant to clarify a law unsettled by recent decisions, including Lister v Hesley Hall and Dubai Aluminium v Salaam. (para 17)
13. Noted: The Christian Brothers case asked whether an institute of brothers, which did not employ the teaching brothers, was also vicariously liable for their sexual abuse of children. Another body ran the school and employed them. The Supreme Court held the institute liable. (para 18)
14. Noted: Lord Phillips listed five policy reasons for imposing vicarious liability on an employer. They were means to compensate and likely insurance, activity on the employer's behalf, activity forming part of the employer's business, risk created by employing the person, and control. Later in his judgment he said a relationship with the same incidents can be akin to employment. (para 19)
15. Held: The five factors are not equally significant. The first, means and insurance, is unlikely to matter independently. Why: wealth alone is no ground for liability, and "employers insure themselves because they are liable". (para 20)
16. Noted: The absence or unavailability of insurance or other means of meeting a liability might still be relevant in some circumstances. (para 20)
17. Held: The fifth factor, control, no longer has the significance it once had. Why: it is unrealistic to require a right to direct how an employee does the work. Lord Phillips said "the significance of control is that the defendant can direct what the tortfeasor does, not how he does it". (para 21)
18. Noted: Control is unlikely to matter on its own in most cases. Even so, the absence of even that minimal degree of control would tend to count against vicarious liability. (para 21)
19. Noted: Three factors remain. First, the tort came from activity taken on the defendant's behalf. Second, the activity is likely to be part of the defendant's business activity. Third, the defendant created the risk by assigning the activity. (para 22)
20. Noted: These three factors are inter-related. The first reflects old explanations based on deemed authorisation or delegation, as in Turberville v Stampe and Bartonshill Coal Co v McGuire. (para 23)
21. Noted: The second factor justifies liability because the employee's activities are part of the employer's activities and for its benefit. The employer should bear the cost of harm done within the field of activities assigned. Duncan v Findlater and Broom v Morgan are cited. (para 23)
22. Noted: The third factor is closely related to the second. Anyone who employs others to carry out activities creates the risk that they will behave tortiously within those activities. (para 23)
23. Noted: The essential idea is that a defendant should be liable for torts that may fairly be regarded as risks of its business activities. It applies whether or not they were committed to further those activities. Lister and Dubai Aluminium reaffirmed it, and Lord Nicholls's passage in Dubai Aluminium is quoted. (para 23)
24. Noted: Lord Phillips wove these ideas into a modern theory of vicarious liability. (para 24)
25. Held: A relationship other than employment can in principle give rise to vicarious liability. This applies where harm is wrongfully done by an individual who carries on activities as an "integral part of the business activities carried on by a defendant and for its benefit". It does not apply where the activities are entirely attributable to a recognisably independent business of his own or of a third party. (para 24)
26. Held: The second condition is that the wrongful act must be a risk created by the defendant by assigning those activities to the individual. (para 24)
27. Noted: Lord Phillips illustrated this with Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd. Employees of one company were supplied labour-only to another. The Court of Appeal held both liable, for different reasons. (para 25)
28. Noted: In Viasystems, May LJ relied on the right to control. Rix LJ relied on integration into the business enterprise. Lord Phillips endorsed Rix LJ's approach. (para 25)
29. Noted: In E v English Province of Our Lady of Charity, a diocesan trust was held vicariously liable for abuse by a priest. The relationship between priest and Church was akin to employment. The abuse happened when the priest visited a children's home in the diocese. Lord Phillips summarised Ward LJ's approach. It asked whether the workman worked for the enterprise or himself, how central the work was, and whether it was integrated into the organisation. Ward LJ found the relationship akin to employment by treating the Church's ministry as a business carried on by the bishop. He found the priest worked under a degree of control by the bishop and was part and parcel of the organisation. (para 26)
30. Noted: In the Christian Brothers case itself, the relationship between the institute and the brothers had all the essential elements of employment. The institute was hierarchical and acted like a corporate body. It directed the brothers to teach. Their teaching furthered the institute's objective or mission. Its rules dictated how they taught. (para 27)
31. Noted: The brothers were bound by vows, not contract, and they had to hand over their earnings. Neither difference was material. They made the relationship closer than employment. It was sufficiently akin to employment to give rise to vicarious liability. (para 27)
32. Noted: The three cases illustrate Lord Phillips's general approach. The criteria may be said to be imprecise, as with other general principles of tort. Lord Nicholls said in Dubai Aluminium that a lack of precision is inevitable. (para 28)
33. Noted: The court must make a judgment, assisted by earlier decisions in the same or analogous contexts. Such decisions may refine the criteria in particular contexts, as Lord Phillips suggested. (para 28)
34. Held: The general approach is not confined to a special category of cases such as the sexual abuse of children. It gives a basis for finding vicarious liability outside employment. (para 29)
35. Noted: By focusing on the defendant's business activities and their risks, the approach suits modern workplaces. Workers may be part of a workforce without an employment contract. It also reflects ideas about the responsibility of businesses for risks they create. (para 29)
36. Held: The approach extends vicarious liability beyond employees. It does not reach activities entirely attributable to a recognisably independent business of the tortfeasor (the person who commits the tort) or a third party. (para 29)
37. Noted: The extension keeps previous levels of protection for victims when the legal relationships between enterprises and their workforces change for reasons unrelated to the enterprise's activities or risks. (para 29)
38. Held: Courts should not be misled by words such as business, benefit and enterprise. The defendant need not carry on activities of a commercial nature. Vicarious liability has long applied to public authorities and hospitals. (para 30)
39. Held: The benefit need not be a profit. It is enough that the defendant carries on activities in furtherance of its own interests. The individual must carry on activities assigned by the defendant as an integral part of its operation and for its benefit. The defendant must, by assigning them, have created a risk of the tort. (para 30)
40. Held: Defendants cannot avoid vicarious liability by technical arguments about the employment status of the person who committed the tort. (para 31)
41. Noted: In E and the Christian Brothers case, the organisations placed the abusers, as part of their mission, in a position of risk. Committing the tort was a risk inherent in the activities assigned to them. Professor John Bell's article [2013] CLJ 17 is cited. (para 31)
42. Held: On the facts, the requirements of the Christian Brothers case are met. The prison service carries on activities in furtherance of its aims. That those aims are not commercial and serve the public interest is no bar. (para 32)
43. Held: Prisoners working in the kitchen are integrated into the operation of the prison. Their assigned activities, such as providing meals for prisoners, form an integral part of the prison's activities. (para 32)
44. Held: The prison service places them where they may commit negligent acts within their assigned activities. The health and safety training they receive recognises this. They work under the direction of prison staff. Mrs Cox was injured by negligence in carrying on those activities, so the prison service is vicariously liable. (para 32)
45. Noted: The Ministry argued first that the relationship differs fundamentally from private employment. The Court rejected this. (paras 33-34)
46. Held: Rehabilitation is not the prison service's only objective. Since at least the nineteenth century it has been an aim of penal policy that convicted prisoners contribute to the cost of their upkeep. The Court cites a 1991 White Paper, Custody, Care and Justice (Cm 1647), para 7.22. (para 34)
47. Held: More importantly, prisoners in the kitchen, gardens or laundry are integrated into the prison's operation. Their activities are not merely of potential and indirect benefit to themselves. They are of direct and immediate benefit to the prison service. (para 34)
48. Held: It is not essential that the defendant seeks a profit. Nor must the objectives of the defendant and the individual align. It would be naive to think all employees are committed to their employer's interests, or that no prisoner gains satisfaction from a kitchen job or vocational qualifications. (para 35)
49. Held: A prisoner who must serve part of his sentence in prison and do useful work for nominal wages is bound into a closer relationship than an employee. That strengthens the case for vicarious liability. (para 35)
50. Noted: The Ministry argued secondly that other aspects differ from employment. The prison service must provide useful work and can choose only among the prisoners held. It relied on compulsory pilotage. It said prisoners' pay is a motivating payment, not a commercial wage. (para 36)
51. Held: These differences do not prevent vicarious liability. Below-market incentive payments reflect the context in which prisoners work. The Christian Brothers case shows that payment of a wage is not essential. (para 37)
52. Held: The statutory duty to provide prisoners with useful work is not incompatible with vicarious liability. The legislation does not exclude it. No separate point was argued under section 2(1)(a) of the Crown Proceedings Act 1947. Under it, the Crown is liable in tort as a private person would be for its servants or agents. (para 38)
53. Held: The compulsory pilotage cases are not in point. The prison service need not provide particular types of work or allocate particular prisoners to them. It is not compelled to employ prisoners in the kitchen. It has a meaningful power of selection and takes particular care in choosing them. (para 38)
54. Noted: A restricted pool of workers featured in the Christian Brothers case. It is also not uncommon in ordinary employment, where an employer can select only from those who apply. (para 38)
55. Held: The third argument, that this is a major development of the common law, fails. The conclusion follows from applying the approach in the Christian Brothers case. (para 39)
56. Noted: The fourth argument was that the court must always ask whether liability is fair, just and reasonable. The Ministry relied on the prison service acting for the public, on scarce public funds and on the existing duties towards Mrs Cox. (para 40)
57. Held: It is not always necessary to ask the broader question. Lord Phillips's criteria are designed, as he made clear, to ensure that liability is imposed where it is fair, just and reasonable. (para 41)
58. Held: Where the criteria are satisfied, it should not generally be necessary to reassess fairness, justice and reasonableness. Routine reassessment would lead to uncertainty and inconsistency. (para 41)
59. Held: The criteria are "not to be applied mechanically or slavishly". Lady Hale said in Woodland v Swimming Teachers Association that judges' words are not to be treated as the words of a statute. (para 42)
60. Held: Where a case concerns circumstances not previously decided by authority, it may be valuable to stand back and ask whether liability is fair, just and reasonable. This appeal is such a case. (para 42)
61. Held: The conclusion is not unreasonable or unjust. What would be unjust is that Mrs Cox's ability to obtain compensation depended on whether the person who dropped the sack was a prisoner or a civilian. The prison service should be liable for a negligent member of the catering team, civilian or prisoner. (para 42)
62. Noted: Counsel sought to alarm the Court, like the Fat Boy in The Pickwick Papers. The fears were claims from other rehabilitation activities, fraudulent prisoner-on-prisoner claims, and undue caution by the prison service. (para 43)
63. Held: The Court is not persuaded by these fears. Prisoners in classes or offending behaviour programmes contribute to their own rehabilitation. There is an intelligible distinction between such activities and working as an integral part of the prison's operation and for its benefit. (para 44)
64. Held: The risk of fraudulent claims is inherent in personal injury compensation. Employers, insurers and courts are experienced in guarding against it. (para 44)
65. Held: The risk of undue caution is speculative. It looks only at the costs of liability and ignores the costs of ceasing to employ prisoners and hiring civilian staff or contractors at market pay. (para 44)
66. Held: The appeal is dismissed. (para 45)

Authorities

• Various Claimants v Catholic Child Welfare Society (the Christian Brothers case) ([2012] UKSC 56; [2013] 2 AC 1): the main authority. Lord Phillips's key passages are applied. The five factors are ranked, and the approach is held to apply beyond abuse cases (paras 1, 2, 13-14, 17-19, 20-31, 32-42).
• Mohamud v WM Morrison Supermarkets plc ([2016] UKSC 11): the companion appeal on the second question, the connection with the relationship (paras 1, 2, 15).
• Central Motors (Glasgow) Ltd v Cessnock Garage & Motor Co (1925 SC 796, 802): Lord Cullen on acts within the field of activities assigned to the employee (para 15).
• Ilkiw v Samuels ([1963] 1 WLR 991, 1004): Diplock LJ on acts in the course of the job, considered broadly (para 15).
• Lister v Hesley Hall Ltd ([2001] UKHL 22; [2002] 1 AC 215): one of the recent decisions that left the law unsettled. It reaffirmed the risk idea (paras 17, 23).
• Dubai Aluminium Co Ltd v Salaam ([2002] UKHL 48; [2003] 2 AC 366): the same. Lord Nicholls's passage on business risks is quoted, and his remark on imprecision is cited (paras 17, 23, 28).
• Turberville v Stampe ((1698) 1 Ld Raym 264, 265) and Bartonshill Coal Co v McGuire ((1858) 3 Macq 300, 306): deemed authorisation or delegation as an old explanation of employer liability (para 23).
• Duncan v Findlater ((1839) 6 Cl & Fin 894, 909-910) and Broom v Morgan ([1953] 1 QB 597, 607-608): the employer should bear the cost of harm within the field of activities assigned (para 23).
• Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd ([2005] EWCA Civ 1151; [2006] QB 510): labour supplied to another company; Rix LJ's integration test endorsed by Lord Phillips (paras 25, 28, 30, 31).
• E v English Province of Our Lady of Charity ([2012] EWCA Civ 938; [2013] QB 722): a diocesan trust liable for a priest's abuse because the relationship was akin to employment (paras 26, 28, 30, 31).
• Woodland v Swimming Teachers Association ([2013] UKSC 66; [2014] AC 537): Lady Hale on not treating judges' words as a statute (para 42).
• Cox v Ministry of Justice ([2014] EWCA Civ 132; [2015] QB 107): the Court of Appeal decision under appeal, upheld (para 14).
• John Bell, The Basis of Vicarious Liability ([2013] CLJ 17): cited for what weighed with the courts in E and the Christian Brothers case (para 31).
• Government publications: Breaking the Cycle (2010, Cm 7972), Green Paper on prison work (para 7); Custody, Care and Justice (1991, Cm 1647), White Paper, para 7.22, on prisoners contributing to their upkeep (para 34).

Provisions mentioned

• Prison Rules 1999, rule 31(1): a convicted prisoner must do useful work for not more than ten hours a day (para 6).
• Prison Rules 1999, rule 31(3): no prisoner may be set to work not authorised by the Secretary of State (para 6).
• Prison Rules 1999, rule 31(6): prisoners may be paid for work at rates approved by the Secretary of State (para 10).
• Prison Rules 1999, rule 24: a prisoner may have no food other than that ordinarily provided, with exceptions (para 12).
• National Minimum Wage Act 1998, section 45: excludes prisoners doing work under the prison rules from the minimum wage (para 10).
• Prison Act 1952, sections 51 and 53(2): expenses of maintaining prisoners, including food, are paid from moneys provided by Parliament (para 12).
• Crown Proceedings Act 1947, section 2(1)(a): the Crown is liable in tort, as a private person would be, for torts of its servants or agents (para 38).
• Prison Service Order No 4460 (Prisoners' Pay): all prisoners in purposeful activity must be paid, and governors must deduct tax and national insurance where thresholds are passed (paras 10-11).

Judgement

1. The appeal by the Ministry of Justice is dismissed (para 45).
2. The prison service is vicariously liable to Mrs Cox for the negligence of the prisoner, Mr Inder, in carrying on the activities assigned to him (para 32).
3. The Court of Appeal's decision is left undisturbed, because the appeal is dismissed (paras 14, 45).
4. The judgment records no order on costs.

Legal Principle / Ratio

A relationship other than employment can give rise to vicarious liability. The individual must carry on activities as an "integral part of the business activities carried on by a defendant and for its benefit". The defendant must also have created the risk of the wrong by assigning those activities. The defendant need not be a commercial business, make a profit, pay a wage or have a contract with the individual (paras 24, 29-31).

Subsequent Treatment

One later Supreme Court judgment discusses this case. It is described only as its own text states.

Barclays Bank plc v Various Claimants — [2020] UKSC 13; on appeal from [2018] EWCA Civ 1670; UK Supreme Court; judgment given on 1 April 2020. The bench was Lady Hale, Lord Reed, Lord Kerr, Lord Hodge and Lord Lloyd-Jones. Lady Hale gave the judgment, and the others agreed.

• Facts: some 126 claimants alleged sexual abuse by Dr Bates during medical examinations he did for Barclays Bank between 1968 and about 1984. He was a medical practitioner with a portfolio practice, and part of it was as a part-time employee of the health service. For the Bank's work he was in business on his own account and was paid a fee for each report (paras 2-4, 28).
• The dispute: the Bank relied on the rule that the employer of an independent contractor is generally not liable for the contractor's torts. The claimants said Christian Brothers, Cox and Armes had replaced it with a multi-factor fair, just and reasonable approach (paras 7-8).
• Reading of Cox: the Court says Lord Reed focused on the five policy factors. It restates that means and insurance are not a principled reason, and control has less weight than before. It repeats Lord Reed's summary of the principle in Cox. It also repeats his points that the approach is not limited to abuse cases and that business need not be commercial (paras 20-21).
• Result on Cox: the result in Cox was bound to be the same under either the para 24 test or the akin-to-employment test. Vicarious liability for prisoners at work is stronger than for employees. Nothing in Lord Reed's judgment casts doubt on the classic distinction between employment and independent contractors (para 22).
• Trilogy and later cases: Barclays also notes that Armes repeated the analysis in Cox (para 23). It says Kafagi v JBW Group [2018] EWCA Civ 1157 and Ng Huat Seng v Mohammad [2017] SGCA 58 reached the same conclusion. The Singapore court described Christian Brothers and Cox as fine-tuning the existing framework (paras 24-26).
• Trilogy: nothing in Christian Brothers, Cox and Armes suggests that the distinction between employment or akin-to-employment relationships and independent contractors has been eroded (para 24).
• Test: the question is whether the tortfeasor carries on business on his own account or is in a relationship akin to employment. The five incidents may help in doubtful cases, but the key is usually the details of the relationship (para 27).
• Result: the Court allowed the appeal. The Bank was not vicariously liable for Dr Bates's wrongdoing in the medical examinations (paras 28, 30).

Critical Analysis

Analysis based on the judgment text.

• The criteria stay open-textured. The Court admits they are insufficiently precise for borderline cases and that this is inevitable (para 28). It also says they are not to be applied mechanically (para 42). How far the test reaches is left to case-by-case judgment.
• Two routes to fairness. Para 41 says the fair, just and reasonable question need not routinely be asked. Para 42 says it may be valuable where no authority covers the circumstances. The judgment does not say when a case counts as new.
• Insurance and control. The Court reduces both to weak factors (paras 20-21). It leaves open that lack of insurance or means might matter in some case (para 20).
• Fears answered briefly. The Court calls the fear of undue caution speculative (para 44). It gives no evidence either way about the effect on prison budgets.

Significance

• The judgment restates the modern test for vicarious liability outside employment. It ties the test to the defendant's activities and the risks they create (paras 24, 29).
• It says the test is not limited to child abuse cases and applies to modern workplaces, where workers may not be under a contract (para 29).
• It confirms that public bodies and non-commercial defendants can be vicariously liable (para 30).
• It plays down insurance and control as tests (paras 20-21).
• It was decided together with Mohamud, which covers the second question (para 2).

Exam-Important Points

• Facts in one line: a prisoner working in a prison kitchen dropped a sack of rice on the catering manager, Mrs Cox. The Supreme Court held the prison service vicariously liable (paras 5, 32).
• Two questions in vicarious liability: the relationship, and the connection between the relationship and the wrong. Cox is about the first. Mohamud is about the second (para 2).
• Two conditions for a non-employment relationship: activities as an integral part of the defendant's business and for its benefit, and a risk created by assigning them (para 24).
• Trap: a prisoner is not an employee. There is no contract and the pay is nominal (£11.55 a week). The relationship still came within the test (paras 10, 32, 35).
• Trap: business, benefit and enterprise need not be commercial. Profit is not required (para 30).
• Trap: control is a weak factor now, but a total absence of control tends against liability (para 21).
• Trap: insurance and deep pockets are not principled grounds for liability (para 20).
• The fair, just and reasonable question is not needed in every case (para 41). It may help where the facts are new (para 42).
• Compulsory pilotage was distinguished. The prison service has a real power to choose prisoners for the kitchen (para 38).

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.