A prisoner working in the kitchen at HM Prison Swansea negligently dropped a sack of rice onto the catering manager, Mrs Cox, and injured her. The Supreme Court held that the prison service was vicariously liable, and dismissed the Ministry of Justice’s appeal, even though the prisoner was not an employee and was paid only £11.55 a week. His work was an integral part of running the prison and was done for the prison service’s benefit, so the relationship was close enough to employment for the service to bear the loss.
The accident
Mrs Cox was the catering manager at HM Prison Swansea. She supervised civilian catering staff and about 20 prisoners who worked in the kitchen. On 10 September 2007 she told four prisoners to carry supplies, including sacks of rice, upstairs from the ground floor. One sack was dropped and burst. As she bent to stop the rice spilling, another prisoner, Mr Inder, tried to carry two sacks past her, lost his balance and dropped a sack onto her back. It was accepted that he had been negligent.
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The dispute was whether the prison service, an executive agency of the Ministry of Justice, was vicariously liable for that negligence. Vicarious liability means that one person may be held responsible for a civil wrong committed by another because of the relationship between them and the connection between that relationship and the wrong.
Why prisoners worked in the kitchen
Convicted prisoners could be required to do useful work. The prison selected and trained prisoners for the kitchen and its catering staff supervised them.
Prisoners who take part in purposeful activity must be paid, but the pay is meant to encourage participation in the regime, not to provide a commercial wage, and it falls outside the national minimum wage. Mr Inder received £11.55 a week. If prisoners had not done the kitchen work, the prison would have had to employ staff or contractors. Prisoners generally depend on the prison for their food, and the cost of feeding them is met from public money, so the kitchen work formed part of a function the prison service had to perform.
The courts below
The trial judge found that the prisoner had been negligent but considered his relationship with the prison service too different from employment to impose liability.
The Court of Appeal held that the kitchen work was essential to the prison’s operation. The service assigned and benefited from it.
The question for the Supreme Court
The issue was whether the relationship between the prisoner and the prison service could give rise to vicarious liability.
In the Christian Brothers case, Lord Phillips had identified reasons why it is usually fair, just and reasonable to hold an employer liable when an employee commits a wrong in the course of employment, and had said that a relationship which is not employment can still give rise to vicarious liability if it has the same features and is akin to employment. Lord Reed explained that those reasons are not all equally important. The defendant’s greater ability to pay, or the fact of insurance, is not itself a justification for liability. A person is not liable because he is insured; he insures because he is liable. Control has also lost the importance it once had. What can matter is whether the defendant can direct what the person does, not the detailed manner of doing it. Even that limited form of control will rarely decide a case on its own, although a complete absence of it would point against liability.
The significant ideas are connected. The wrong results from an activity carried on for the defendant; that activity is likely to be part of the defendant’s operation; and by assigning the activity the defendant creates the risk of the wrong. The essential point is that a defendant should be liable for wrongs that may fairly be regarded as risks of its activities. A relationship other than employment can therefore give rise to vicarious liability where an individual carries on activities as an integral part of the defendant’s activities and for its benefit, rather than as part of a recognisably independent business of his own or of a third party, and where assigning those activities creates the risk of the wrong.
Lord Reed said that this approach is not confined to cases of sexual abuse. Words such as “business”, “benefit” and “enterprise” should not be read narrowly. The defendant need not be commercial or seeking a profit. Vicarious liability has long applied to public authorities and hospitals. It is enough that the defendant carries on activities in furtherance of its own interests, that the individual carries on assigned activities as an integral part of that operation and for its benefit, and that the assignment creates the risk of the tort. An organisation cannot escape liability by a technical argument about employment status where it has placed someone, as part of its operation, in a position in which the wrong is a risk of the activities assigned to him.
Why the prison service was liable
Those requirements were met. The prison service carries on activities in furtherance of its aims. That those aims serve the public interest, rather than commerce, is no bar. Prisoners working in the kitchens are integrated into the operation of the prison. The activities assigned to them, in particular the provision of meals, form an integral part of what the service does. They are placed where they may commit negligent acts within that work, which is recognised by the health and safety training they receive, and they work under the direction of prison staff. Mrs Cox was injured by Mr Inder’s negligence in carrying on the activities assigned to him. The prison service was therefore vicariously liable to her.
The Ministry’s arguments
The Ministry argued that the relationship was fundamentally different from private employment. Its main purpose in setting prisoners to work was rehabilitation, not the advancement of a prison business. It did not seek a profit, and prisoners had no interest in furthering the service’s objectives. Lord Reed rejected that argument. Rehabilitation is one aim, but not the only one. Penal policy has also long sought to ensure that convicted prisoners contribute to the cost of their upkeep by helping to run and maintain the prison. Work in the kitchen, gardens or laundry is of direct and immediate benefit to the prison service, not merely a potential and indirect benefit to the prisoner. Vicarious liability does not require a profit, or that the wrongdoer share the defendant’s aims. Being required to work for nominal wages binds the prisoner more closely to the service than an ordinary employment contract would, and strengthens rather than weakens the case for liability.
The prison retained a choice about who worked in the kitchen. The fact that a prisoner was required to work and received only nominal pay did not displace liability.
Lord Reed saw the result as an application of the Christian Brothers principles. The catering manager’s ability to recover should not turn on whether the team member who dropped the sack was a prisoner or a civilian.
Attending a rehabilitation class was distinguishable from working as part of the prison’s day-to-day operations.
The companion decision, Mohamud v WM Morrison Supermarkets, addresses the connection between a worker’s assigned duties and the wrongful act.
Verdict: The Court unanimously dismissed the Ministry’s appeal. The prison service was vicariously liable for the negligence that injured Mrs Cox.
