Vicarious liability – the noose tightens: Mohamud and Cox

Introduction

The Supreme Court has handed down two linked judgments on vicarious liability: Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 and Cox v Ministry of Justice [2016] UKSC 10. Cox, in particular, is of interest to students of law and religion because, in the course of delivering the unanimous judgment of the Court, Lord Reed JSC revisited the principles laid down by Lord Phillips PSC in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 – aka the Christian Brothers case.

Background

Mrs Cox was catering manager at HM Prison Swansea in day-to-day charge of all aspects of catering, including the operation of the kitchen, which had four members of staff and provided work for about 20 prisoners [4]. In 2007 a prisoner, Mr Inder, lost his balance while attempting to carry two sacks of rice and dropped one on Mrs Cox. She sued for the resulting back injury and it was accepted that Mr Inder had been negligent [5]. In May 2013 HHJ Keyser QC concluded that the accident had occurred because Mr Inder had failed to take reasonable care for Mrs Cox’s safety – but he dismissed her claim on the basis that the Prison Service was not vicariously liable for Mr Inder’s negligence. As Lord Reed explained the decision at first instance:

“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, [HHJ Keyser] 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 employment, he considered that there was a crucial difference. Employment was a voluntary relationship, in which each party acted for its own advantage. The employer employed the employee as the means by which the employer’s undertaking or enterprise was carried on and furthered. The position regarding prisoners at work was quite different. The prison authorities were legally required to offer work to prisoners. They were required, by the policy set out in the Prison Service Order, to make payment for that work. Those requirements were not a matter of voluntary enterprise but of penal policy. The provision of work was a matter of prison discipline, of prisoners’ rehabilitation, and possibly of discharging the prisoners’ obligations to the community. Although the work done by prisoners might contribute to the efficient and economical operation of the prison, the situation was not one in which prisoners were furthering the business undertaking of the prison service” [13].

Mrs Cox appealed successfully. The Court of Appeal (McCombe, Beatson and Sharp LJJ) concluded 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. It was part of the enterprise or business of the prison service in running the prison. In short, the prison service took the benefit of this work, and there was no reason why it should not take its burdens. Although the relationship differed from a normal employment relationship in that the prisoners were bound to the prison service not by contract but by their sentences, and also in that the prisoners’ wages were nominal, those differences rendered the relationship if anything closer than one of employment: it was founded not on mutuality but on compulsion” [14].

The judgment of the Supreme Court

Lord Reed referred extensively to the principles established by Lord Phillips in the Christian Brothers case, in which it was held that the Institute of the Brothers of the Christian Schools, a Roman Catholic teaching order, was vicariously liable for the sexual abuse of children by members of the order who were employed as teachers at an approved school managed by another organisation: vicarious liability was imposed on a body that did not employ the wrongdoers in circumstances where another body did employ them and was also vicariously liable for the same tort [18].

At para 35 of his judgment, Lord Phillips had laid down five criteria for establishing vicarious liability in such circumstances:

“(i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;

(ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

(iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;

(v) the employee will, to a greater or lesser degree, have been under the control of the employer.”

At para 47 he had added that “Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is ‘akin to that between an employer and an employee’.”

In E v English Province of Our Lady of Charity [2012] EWCA Civ 938[2013] QB 722 the Court of Appeal had held a diocesan trust (as being equivalent to the diocesan bishop) vicariously liable for sexual abuse committed by a priest when visiting a children’s home in the diocese, on the basis that the relationship between the priest and the Roman Catholic Church was akin to employment. At paras [49] and [50] of his judgment in Various Claimants

“… Lord Phillips had summarised Ward LJ’s approach [in E v English Province of Our Lady of Charity] as asking ‘whether the workman was working on behalf of an enterprise or on his own behalf and, if the former, how central the workman’s activities were to the enterprise and whether these activities were integrated into the organisational structure of the enterprise’. Ward LJ found it possible to describe the relationship between the bishop and the priest as being akin to employment, as Lord Phillips put it, ‘by treating the ministry of the Roman Catholic Church as a business carried on by the bishop, by finding that the priest carried on that business under a degree of control by the bishop and by finding that the priest was part and parcel of the organisation of the business and integrated into it’.” [26].

As to the issue of the liability of the Christian Brothers themselves, Lord Phillips had concluded that tthe relationship between the Institute and the brothers had all the essential elements of an employer-employee relationship. The Institute conducted its activities as if it were a corporate body, the brothers operated under the direction of the local administration of the Institute and the brothers were obliged to conduct themselves as teachers in accordance with the Institute’s rules. The brothers were bound to the Institute not by contract but by their vows and were obliged to transfer all their earnings to the Institute. But Lord Phillips had held that neither of those differences was material and that the relationship between the brothers and the Institute was closer than that of an employer and its employees; therefore, it was capable of giving rise to vicarious liability [27].

Lord Reed’s general conclusions were as follows:

“30. It is … important not to be misled by a narrow focus on semantics: for example, by words such as ‘business’, ‘benefit’, and ‘enterprise’. The defendant need not be carrying on activities of a commercial nature: that is apparent not only from the cases of and the Christian Brothers, but also from the long-established application of vicarious liability to public authorities and hospitals. It need not therefore be a business or enterprise in any ordinary sense. Nor need the benefit which it derives from the tortfeasor’s activities take the form of a profit. It is sufficient that there is a defendant which is carrying on activities in the furtherance of its own interests. The individual for whose conduct it may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit. The defendant must, by assigning those activities to him, have created a risk of his committing the tort … a wide range of circumstances can satisfy those requirements

31. The other lesson to be drawn from the cases of Viasystems, E and the Christian Brothers is that defendants cannot avoid vicarious liability on the basis of technical arguments about the employment status of the individual who committed the tort. As Professor John Bell noted in his article, ‘The Basis of Vicarious Liability’ [2013] CLJ 17, what weighed with the courts in and the Christian Brothers case was that the abusers were placed by the organisations in question, as part of their mission, in a position in which they committed a tort whose commission was a risk inherent in the activities assigned to them.”

Comment

If anyone had any lingering doubts about the extent of the reach of vicarious liability after the Court of Appeal’s decision in Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256, the UKSC’s judgment in Cox will have dispelled them. Readers may remember that in Maga the miscreant was a Roman Catholic priest, one Clonan (possibly) deceased, who had abused a boy who was not even a Roman Catholic, still less a member of his congregation. Lord Neuberger MR nevertheless regarded the fact of Clonan’s priesthood as basic to the sexual abuse that had taken place: a priest

“… has a degree of general moral authority which no other role enjoys; hence the title of ‘Father Chris’, by which Father Clonan was habitually known. It was his employment as a priest by the Archdiocese which enabled him, indeed was intended to enable him, to hold himself out as having such a role and such authority” [45].

And it was that appearance of authority that had enabled Clonan to groom his victim [46].

So, in conclusion, the decision in Cox appears to have further tightened the noose around the institutional necks of religious organisations in relation to sexual abuse by clergy and others where there has been slapdash or incompetent supervision and, as I have observed elsewhere, recent cases suggest that judges are becoming very reluctant to conclude that a survivor of sexual abuse should not be compensated even if the perpetrator is dead or did not have any kind of formal employment relationship with the organisation that is being sued.[1]

“The law of vicarious liability is on the move” said Lord Phillips in Various Claimants [19]to which Lord Reed added that It has not yet come to a stop” [1]. Or as Kate Richmond concludes on the UK Human Rights Blog, “The concept of workers acting ‘on a frolic of their own’[2] has perhaps never been so tightly circumscribed.”


[1] Frank Cranmer, ‘Case-Law on Churches, Religion and Employment’, CLAS, June 2015 para 95 – shortly to be revised.

[2] Parke B’s words in Joel v Morison [1834] EWHC KB J39 at [5].

Cite this article as: Frank Cranmer, "Vicarious liability – the noose tightens: Mohamud and Cox" in Law & Religion UK, 14 March 2016, https://lawandreligionuk.com/2016/03/14/vicarious-liability-the-noose-tightens-mohamud-and-cox/

3 thoughts on “Vicarious liability – the noose tightens: Mohamud and Cox

  1. It is, to an outsider, astonishing that so often child sexual abuse is (or was) perpetrated by clergy or members of religious orders. The very people in whom a vulnerable person may reasonably (one might think) repose trust. The consequences are long-lasting and potentially devastating: the abuse and the betrayal of trust can lead to loss of self esteem. difficulties in forming adult relationships and (very often) a failure to confide in parents and others who might be expected to provide protection and solace. Yet many thousands of pounds are expended by religious charities in defending claims and seeking to prove that (though the relevant individual’s fault is admitted), the institution is not to be required to provide financial compensation. This places the institutions in question in a poor light. Rather than taking responsibility for what has happened on their watch, and making efforts to establish processes to prevent its happening again. they frequently take steps (often encouraged or compelled by insurers) to deny liability and shift it on to someone else. Is this not a sufficiently serious problem and sufficiently damaging to the reputations of religious institution. to justify a concerted effort to set up a compensation funds to which survivors might have recourse without the need to start formal legal proceedings? It would be a charitable purpose to provide relief for survivors.

  2. Pingback: The Christian Brothers, child abuse and vicarious liability – yet again | Law & Religion UK

  3. Pingback: Law and religion round-up – 24th December | Law & Religion UK

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