Key Case | Cox v Ministry of Justice (2016) | Vicarious Liability - Relationship of Employment

Vicarious liability can be imposed, in the absence of a traditional employer – employee relationship if a number of factors are proven.

These factors are:

1. The tort was committed as a result of activity being undertaken by the tortfeasor on behalf of the defendant.

2. The tortfeasor’s activity is likely to be part of the business activity of the defendant.

3. The defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor.

The courts may also consider the fact that the employer is likely to be insured and the employer maintains a degree of control over the employee but these factors are not as significant.

CASE SUMMARY

Claimant: Catering manager in a prison

Defendant: Ministry of Justice as the executive agent of the prison service

Facts: The claimant managed the prison kitchen with four other members of staff and around twenty prisoners. During a negligent incident, a prisoner dropped a bag of rice on the claimant’s back causing injury. The claimant sought an action against the Ministry of Justice upon the basis that they were vicariously liable for the acts of the prisoner.

Outcome: Liable

Legal principle: It is possible for vicarious liability to be imposed where there is a relationship of employment, rather than employment itself, where the activity of the tortfeasor is carrying out an activity integral to the defendant’s business, for the benefit of the defendant and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to that individual. The court felt it fair to impose vicarious liability for a number of reasons. Firstly, the tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant. Secondly, the tortfeasor’s activity is likely to be part of the business activity of the defendant. And thirdly the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor. The courts may also consider the fact that the employer is likely to be insured and the employer maintains a degree of control over the employee, but these factors are not as significant.