Vicarious liability has been a topic frequently visited by the courts over the years but the recent conjoined appeals of Cox [2016] UKSC 10 and Mohamud [2016] UKSC 11 have provided the most significant clarification and extension for some time. Vicarious liability originally started as a doctrine applicable only in the context of an employer and employee relationship where the wrongdoer was an employee acting in the course of their employment but this has gradually been extended and both of these cases widen its application.

The case of Cox focused on what relationship between defendant and wrongdoer could give rise to vicarious liability and Muhamud focused on the connection between that relationship and the actions taken and how that determines where vicarious liability rests.

In the Cox case, Mrs Cox was employed as a catering manager by HM Prison Service. During the course of her employment she was injured by the (admitted) negligence of an inmate, Inder, who was working in the kitchens with her. Under national prison rules, prisoners are required to do ‘useful work’ as part of their rehabilitation.

Inder was paid a nominal wage for working in the kitchens. At first instance, the court held that the relationship between the prison service and Inder was not that of employer and employee (largely because it lacked the voluntary nature of such relationship) so there could be no vicarious liability. Mrs Cox appealed and the Court of Appeal took the contrary view that the prison service was vicariously liable for the acts of Inder. It observed that the work performed by prisoners in the kitchen was essential to the functioning of the prison and, if not done by prisoners, would have to be done by someone else. It was therefore done on behalf of the prison service and for its benefit and the prison service should take the burden of responsibility for the risks created by that work.

The matter came before the Supreme Court where Lord Reed upheld the Court of Appeal decision and also found in favour of Mrs Cox. The Supreme Court looked to the ‘Christian Brothers’ case [2012] UKSC 56 as providing a basis for identifying the circumstances in which vicarious liability may, in principle, be imposed outside employment relationships. Christian Brothers determined that, 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, and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question, defendants cannot avoid vicarious liability on the basis of technical arguments about the employment status of the tortfeasor.

The Supreme Court looked at the factors that the Christian Brothers case set out should be considered when determining whether vicarious liability is present. Of the five factors set out, it highlighted the following three to be the most important ones:

  • Whether the tort (an action that wrongly causes harm to someone) will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant
  • Whether the tortfeasor’s activity is part of the business activity of the defendant
  • Whether the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor.

The other factors of control and ability to compensate were held to be relevant but less determinative.

Looking at Mrs Cox’s case the Supreme Court held that prisoners working in kitchens were integrated into the operation of the prison, particularly the provision of meals to prisoners. If the prisoners were not working in the kitchens, outside staff would have had to be employed to provide the meals. The court held that the fact that a prisoner is required to undertake work for nominal wages binds him into a closer relationship with the prison service than would be the case for an employee. This strengthens the case for imposing vicarious liability and the fact that the prison service was obliged to provide work and the inmates to undertake it did not exclude vicarious liability.

The court made clear that it was not essential to the imposition of vicarious liability that the defendant should seek to make a profit or that there was an alignment of the objectives of the defendant and of the tortfeasor.

The Supreme Court has not necessarily changed the approach as set out in the Christian Brothers case, but it has made it clear that the key criterion is whether the commission of the wrongful act is a risk created by the defendant by assigning activities to the wrongdoer which are an integral part of the business activities carried out by the defendant and for its benefit.

The judgment is likely to mean that the doctrine of vicarious liability will probably apply to most businesses or organisations, whether or not the proposed defendant is a commercial entity. Providing the entity operates to further its own interests and assigns some integral part of those activities to the tortfeasor, then vicarious liability will apply (subject to the test of close connection between the tortfeasor’s role and the actions taken, as further expanded in Mohamud). It seems likely therefore that most people involved in an organisation could be captured – not only employees but also agency workers, temporary staff and maybe even volunteers, depending on their role. Almost all organisations including businesses, charities, schools, hospitals etc are likely to be covered.

Specifically, in the hospital context, it should ensure that, where failings are due to agency or temporary staff or those not directly involved in clinical care, a claimant should not face additional difficulties in bringing a claim in terms of identifying and/or pursuing multiple defendants or finding issues with insurance cover.

Philippa Luscombe, partner in the clinical negligence and personal injury team at Penningtons Manches LLP, comments: “This is good news for those suffering injury by the clearly negligent acts of others. It significantly restricts the ability of potential defendants to raise technical arguments about the status of the tortfeasor to avoid liability where that individual is involved in their day to day activities and it is those activities that have created the risk of injury to the claimant.”