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Neutral Citation Number: [2014] EWCA Civ 132 |
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Case No:B3/2013/1761 |
IN THE COURT
OF
APPEAL (CIVIL DIVISION)
ON APPEAL FROM Swansea County Court
His Honour Judge Keyser QC
OLV85852
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
19/02/2014 |
B e f o r e :
LORD
JUSTICE
McCOMBE
LORD
JUSTICE
BEATSON
and
LADY
JUSTICE
SHARP
____________________
Between:
____________________
Robert Weir QC and Robert O'Leary (instructed by Thompsons LLP) for the Appellant
Keith Morton QC and Alexander Williams (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 29 January 2014
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Lord
Justice
McCombe:
(A) Introduction
- This is an appeal from the judgment and order
of
3 May 2013
of
His Honour Judge Keyser QC, sitting in the Swansea County Court, dismissing the Appellant's claim against the Defendant for damages for personal injury.
- The facts
of
the case are fully set out in the careful judgment
of
the learned judge and are not in dispute. A short summary
of
those facts is all that is necessary for the purposes
of
the appeal.
- On 10 September 2007, while working as the catering manager at HM Prison Swansea, the Claimant was injured in an accident caused by the negligence
of
a prisoner carrying out paid work under her supervision. She was 40 years old at the time. She was in the service
of
the Crown in her post, but was not strictly speaking an employee. She had day to day charge
of
catering in the prison, in all its aspects, including supervision
of
the operation
of
the kitchen, ordering supplies, dealing with deliveries and matters relating to budget, staffing and training. Her immediate superior was the Head
of
Custodial Care, who in turn was responsible to the Deputy Governor.
- The claimant had four members
of
staff under her in the staff hierarchy, three civilians and one prison officer. Two
of
these subordinates would be on duty at any one time. Approximately, twenty prisoners would be assigned each day to kitchen work. Such prisoners would sometimes be regularly engaged in this work. Others would assist over short periods.
- Food produced in the kitchen, for which the Claimant had responsibility, was for prisoners only. They numbered some 400 at the time. The kitchen did not cater for staff members.
- On the day in question, at about 9.15 a.m., a delivery
of
supplies for the kitchen arrived on the ground floor. The Claimant went to attend to the delivery, taking with her six prisoners who were to bring the delivered food supplies from the ground floor to the first floor.
- It seems that the customary manner
of
carrying out this task was for the goods to be loaded onto trolleys and taken to the first floor by lift. However, prisoners were not permitted to travel in the lifts for security reasons. A prisoner tasked with the operation would nonetheless have to enter the lift for the purpose
of
loading the goods. On this morning a number
of
lift journeys were successfully accomplished. However, with one trolley still waiting to be moved, the lift door suddenly slammed closed trapping one
of
the working prisoners. It appears that such a malfunction was not uncommon, frequently because
of
vandalism
of
the sensors by prisoners. While the judge found that it was probable that abuse by prisoners was the cause
of
malfunction on this occasion, he did not find that it was caused by any act
of
the prisoners working on kitchen duty.
- The lift was shut down for a time and the trapped prisoner was eventually freed. During this incident a second delivery vehicle arrived. Two
of
the six prisoners, detailed to unloading duties, were instructed to make a start on unloading the new consignment. The four others were instructed by the Claimant to carry the remaining goods from the first delivery manually up the stairs. These foodstuffs were contained in large sacks, made from reinforced paper and tied at the openings with cord. Each sack weighed about 25 kg. In such circumstances, in which sacks had to be carried manually, it was usual for the working prisoners to carry one or two sacks at a time. One prisoner, however, a man called Webster, began to transport three bags at one go. He was instructed by the Claimant and by another member
of
staff to stop as the load was too great. Whether deliberately or otherwise, Webster dropped one
of
the sacks which burst open, spilling rice onto the floor.
- The Claimant instructed all the prisoners to stop work until the spillage was cleared. She despatched one prisoner to fetch the necessary cleaning equipment. She bent down on one knee to prop up the damaged sack, in order to prevent further spillage. The judge accepted her evidence that she had observed that all the prisoners, save Webster, had stopped moving before she bent down. Webster had continued to carry his two remaining bags, ahead
of
the Claimant and up the stairs. As she straightened to stand she felt a heavy thud on her upper back. What had happened was that another prisoner (called Inder) had ignored the Claimant's instruction to stop work and had attempted to carry two sacks past the kneeling Claimant. He lost his balance and hit his head on an adjacent wall; one
of
the sacks which he was carrying fell off his shoulder and onto the Claimant's back.
- The judge found that the accident occurred because
of
Mr Inder's negligence. That finding is not disputed.
- The claim against the Defendant was made on three bases. First, it was argued that the Defendant was vicariously liable for the negligence
of
Mr Inder. Secondly, it was said that the Defendant was in breach
of
its personal duty to the Claimant as her employer to take reasonable care for her safety by providing a safe system
of
work, a safe place
of
work and safe staff and equipment. Thirdly, the contention was that the Defendant was in breach
of
its statutory duty under Regulation 5(1)
of
the Workplace (Health, Safety and Welfare) Regulations 1992 and under Regulation 5(1)
of
the Provision and Use
of
Work Equipment Regulations 1998 (in each case in failing to keep the lift in proper repair).
- The judge dismissed the claims under all these heads. The Claimant submits that he was wrong to do so in respect
of
the first two heads. The third head
of
claim, based on the two sets
of
Regulations, is no longer pursued.
- The judge refused permission to appeal to this court. It was, however, granted by an order
of
Hallett LJ, on an application on the papers without an oral hearing, on 8 August 2013.
(B) Vicarious Liability, the further material facts
- The negligent prisoner, Mr Inder, received pay, at the rate
of
£11.55 per week, for the kitchen work on which he was engaged at the time
of
the accident. The pay was received under the Prison Rules 1999 and in accordance with the policy to be found in the Prison Service Order No. 4460
of
January 2000. Rule 31
of
the Prison Rules provides:
"(1) A convicted prisoner shall be required to do useful work for not more than 10 hours a day, and arrangements shall be made to allow prisoners to work, where possible outside the cells and in association with one another…
(3) No prisoner shall be set to do work not authorised by the Secretary
of
State
(4) No prisoner shall work in the service
of
another prisoner or an officer, or for the private benefit
of
any person, without the authority
of
the Secretary
of
State…
(6) Prisoners may be paid for their work at rates approved by the Secretary
of
State, either generally or in relation to particular cases".
- The Prison Service Order No.4460, in its introduction, provides the following:
"It is for Governors to set the rates
of
pay for their particular establishment and these should reflect regime priorities. The purpose
of
paying prisoners is to encourage and reward their constructive participation in the regime
of
the establishment. It must not therefore act as a disincentive. Pay is only one element in the process
of
motivating prisoners and should not be considered in isolation. Links need to be made with the Incentive and Earned Privileges Scheme and other Prison Service policies, for example on education, resettlement, enterprise and work, offending behaviour programmes, as well as taking account
of
specific groups
of
prisoners."
The Order continues:
"1.1 It is Prison Service Policy that prisoners receive payment if they participate constructively in the regime
of
the establishment. The pay schemes and rates
of
pay which operate within the establishments are a matter for local management subject to the criteria below…..
1.4 Whatever scheme an establishment operates, it is essential that it is reasoned and structured, the requirements
of
the scheme are clear to both prisoners and staff, and it is not applied in an arbitrary or discriminatory way…
2.1.1 All prisoners who participate in purposeful activity must be paid. Those who refuse must not receive any pay. Prisoners may also lose earnings for disciplinary reasons. Unconvicted prisoners can work if they wish to and must be paid the same rates as convicted prisoners.
2.2.1 Prisoners are eligible for unemployment pay if they are willing to work, but the establishment cannot find suitable employment or the prisoner is unable to work.
2.3.1 Prisoners who are employed in work, induction, education, training or offending behaviour programmes will receive at least the minimum weekly rate
of
pay for employed prisoners.
2.8.2 Governors, Directors
of
contracted-out prisons and outside employers are legally required to deduct National Insurance contributions and income tax from the earnings
of
prisoners whose wages exceed the thresholds. They are also legally required to make employer's National Insurance contributions." (Italics in original).
- There was also a "domestic" document produced at Swansea Prison regulating prisoners' work. The judge set out the material provisions
of
this in paragraphs 27 and 28
of
the judgment as follows:
"27……..It began with a Statement
of
Purpose: "The catering department is committed to helping every prisoner employed in the catering department to lead a useful life whilst in custody by adopting a realistic attitude to meaningful work." The Introduction noted: "The catering department performs a very important function with[in] the prison." Among the objectives
of
the requirement
of
ongoing training were the following: "You are able to contribute to the effectiveness
of
the catering business"; "You understand how you can comply with legislation". There followed instruction on personal hygiene, food hygiene, use
of
work clothing, and illness. There were sections dealing with safety at work; these contained an instruction to report accidents and "near misses", an instruction to familiarise oneself with risk assessments for the jobs carried out in the catering department, and a section on Control
of
Substances Hazardous to Health. At the end
of
the document was a declaration to be signed by the prisoner; it contained the following statements among others:
- I understand that I am responsible for my own Health and Safety and that
of
everyone I work with.
- I will follow all Health and Safety instructions laid down in the Safe Systems
of
Work instructions.
28. There was also a Kitchen Induction document. Some extracts from different parts
of
the document will suffice to show its nature:
- Under the Health and Safety at Work Act Regulations, individuals-both staff and inmates-are responsible for their own safety and that
of
others at work at all times. Health and Safety must be your first consideration; to comply, you must follow the rules and conditions
of
the kitchen.
- Every person working with food or in a food room has a legal responsibility for the care and safety
of
any food they might come into contact with.
Safety: You must do the following
- Read and take note
of
all safety notices and instructions.
- Recognise the importance
of
safe working practices, for the benefit
of
all.
- Never leave anything on the floor, which can cause a trip hazard.
Duties, wages and attendance
- You will be required to work a 6-day week, 8.30-12.00 & 14.30-17.00; the pay will be £11.55 a week.
- All inmates are employed first and foremost as cleaners. If you show enthusiasm and commitment to the tasks given, you will be rewarded with less mundane jobs and extra responsibilities."
- As the judge said there was a training record for each prisoner showing what instruction he had received in respect
of
work systems and equipment. The authorities also provided for the making
of
work reports on prisoners who had worked in the catering department.
(C) The Judge's Decision
- The judge held that the Defendant was not vicariously liable for Mr Inder's negligence. He carefully reviewed the law on such liability, as then very recently stated by the Supreme Court in Various Claimants v Catholic Child Welfare Society & ors. [2013] 2 AC 1 (which I shall call "CCWS").
- While the judge accepted that it was possible to identify various features
of
the Defendant's relationship with Mr Inder which exhibited "the salient features
of
the employment relationship as identified by Lord Phillips
of
Worth Matravers at paragraph 35
of
his judgment in [CCWS]", he decided that, in context
of
the present case, the relevant features here did not justify the imposition
of
liability.
- I hope that I do not fail to do
justice
to the judge's judgment, if I summarise his conclusions as follows:
i) Employment is a voluntary, mutual relationship for the mutual advantage
of
employer and employee. Prisoners' work is different. The Prison Service is obliged to offer work and to pay for it. This is not a voluntary enterprise or for commercial advantage; it is penal policy.
ii) While it is correct that the work carried out in this case was
of
use to the operation
of
the prison and meant that staff did not have to be engaged to do it, this did not advance the Claimant's case. It might be that expense to the state was defrayed, but this was not a matter
of
furthering the business undertaking
of
the Defendant.
iii) Control and instruction
of
prisoners had to be viewed in context. Some instruction would be particular to the working environment, but did not amount to a justification for the imposition
of
vicarious liability. Instruction and control arose from common sense and from the fact
of
duties owed by the Defendant to prisoners and to staff.
iv) The anomalies presented by the Claimant, arising out
of
the rejection
of
such liability, were in turn rejected by the judge. The Defendant's personal liability to individual prisoners and to staff arose on the same basis; it was not a reason for finding the vicarious liability for which the Claimant contended.
- The Claimant's case on breach
of
the direct personal duty
of
the Defendant to the Claimant was based on three aspects: 1) the existence
of
the lift in part to assist in transport
of
deliveries; 2) the lift was known to fail frequently; and 3) the provision
of
manual handling training for prisoners working in the kitchen had been discontinued, without the knowledge
of
the Claimant or
of
her immediate superior. Mr Inder had received no such training.
- The judge rejected this claim in the following terms:
"58. In my judgment, the claimant's case must fail in so far as it is based on the non-delegable duty
of
care. The failure to train Mr Inder in manual handling operations was not
of
causal relevance to the accident. The simple position is that Mr Inder disobeyed an instruction to wait until the spillage was clear and thereby tried to carry the sacks past, and almost, over the claimant. This was both disobedient and foolish. I do not regard it as realistic to suppose either that manual handling training would have made this obvious folly any more apparent to Mr Inder – I do not believe that training would be at all likely to include instruction on the particular risk that arose or that the risk was anything other than perfectly obvious – or that it would have made him more obedient to the lawful commands
of
prison officers and staff."
- The judge said that if he had found the Defendant liable he would not have found any contributory negligence. The question
of
quantum
of
damage did not arise, although the judge made certain observations on matters going to this issue, for the event that this court took a different view from him on liability. We were told that it was agreed that if we found the Defendant liable we should direct that issues
of
quantum should return to the judge for further consideration and decision.
- It is not necessary to refer to the judge's decision on the statutory duty claim, which is no longer pursued.
- I find it convenient to address the two potential heads
of
liability and to state my conclusions on each separately and in turn.
(D) The Law, Vicarious Liability
- In CCWS Lord Phillips spoke
of
the old law
of
vicarious liability upon which he "cut his teeth" which made an employer liable for the tortious act
of
an employee committed in the course
of
the employee's employment. He noted that since he had "cut his teeth" the law
of
vicarious liability had developed. The same remarks remain true
of
the period since I cut my teeth and I suspect the same is true for the other members
of
this court. Lord Phillips identified four particular areas
of
development:
i) It is now possible for an unincorporated association to be liable for the tortious acts
of
one or more
of
its members.
ii) A defendant may also be liable for the act
of
a tortfeasor even though the act in question involves a violation
of
a duty owed by the tortfeasor to the defendant and even if the act in question is a criminal offence.
iii) Vicarious liability can even extend to liability for a criminal act
of
sexual assault.
iv) It is also possible for two different defendants to be vicariously liable for the single tortious act
of
a tortfeasor.
(See paragraph 20
of
Lord Phillips' judgment.)
- In E v English Province
of
Our Lady
of
Charity [2013] QB 722, at paragraph 73, Ward LJ said,
"I can conclude that the time has come emphatically to announce that the law
of
vicarious liability has moved beyond the confines
of
a contract
of
service. The test that I have set myself is whether the relationship… [in question] …is so close in character to one
of
employer and employee that it is just and fair to hold the employer vicariously liable."
In that case, Ward LJ directed his enquiry to whether the features
of
the relationship between "quasi-employer" and "quasi-employee" were "akin to employment".
- The facts
of
the CCWS case are well known and do not need extensive recitation here. It was a case
of
sexual abuse in a school – a feature which Mr Morton QC for the Respondent identified and emphasised as being a common feature
of
much
of
the developing law in this area, giving strong policy incentive to an imposition
of
liability in such cases. Diocesan authorities responsible for the management
of
a residential school had left it to an institute
of
religious brothers to nominate the headmaster and other teachers. The issue was whether the institute shared vicarious responsibility with the diocesan authorities for sexual abuse perpetrated on pupils by brothers assigned to the school.
- The institute contended that the relationship
of
the individual brothers to the institute as a body was not sufficiently close to give rise to such responsibility. The successful argument for the diocesan authority was that the necessary closeness was provided by the fact that the institute sent the brothers to the school to further the purpose
of
the institute, clothed with the status
of
institute membership, and thereby significantly increased the risk
of
abuse
of
those children to whom they were in physical proximity.
- Lord Phillips gave a judgment with which all the other members
of
the court agreed. He said that Hughes LJ (as he then was) in this court in that case had rightly said that the test
of
vicarious liability involved "a synthesis"
of
two stages, the contents
of
which Lord Phillips modified somewhat from what had been stated by Hughes LJ. The first stage was to consider the relationship between D1 and D2 ("employee" and "employer" respectively). The second stage was to consider the connection that links that relationship and the act or omission
of
D1. Thus, there was the synthesis
of
the two stages. (See paragraph 21
of
the judgment.)
- Excessive citation is never advisable. However, I do not believe that I can do
justice
to the law that this court must now apply without setting out in full paragraphs 34 to 36
of
Lord Phillips' judgment. His Lordship said this, in respect
of
stage 1
of
the enquiry:
"Stage 1: the essential elements
of
the relationship
34. Vicarious liability is a longstanding and vitally important part
of
the common law
of
tort. A glance at the table
of
cases in Clerk & Lindsell on Torts, 20th ed (2010), shows that in the majority
of
modern cases the defendant is not an individual but a corporate entity. In most
of
them vicarious liability is likely to be the basis upon which the defendant was sued. The policy objective underlying vicarious liability is to ensure, in so far as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim. Such defendants can usually be expected to insure against the risk
of
such liability, so that this risk is more widely spread. It is for the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability. Where the criteria are satisfied the policy reasons for imposing the liability should apply. As Lord Hobhouse
of
Woodborough pointed out in the Lister case [2002] 1 AC 215, para 60, the policy reasons are not the same as the criteria. One cannot, however, consider the one without the other and the two sometimes overlap.
35. The relationship that gives rise to vicarious liability is in the vast majority
of
cases that
of
employer and employee under a contract
of
employment. The employer will be vicariously liable when the employee commits a tort in the course
of
his employment. There is no difficulty in identifying a number
of
policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (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.
The significance
of
control
36. In days gone by, when the relationship
of
employer and employee was correctly portrayed by the phrase "master and servant", the employer was often entitled to direct not merely what the employee should do but the manner in which he should do it. Indeed, this right was taken as the test for differentiating between a contract
of
employment and a contract for the services
of
an independent contractor. Today it is not realistic to look for a right to direct how an employee should perform his duties as a necessary element in the relationship between employer and employee. Many employees apply a skill or expertise that is not susceptible to direction by anyone else in the company that employs them. Thus the significance
of
control today is that the employer can direct what the employee does, not how he does it."
- It seems to me that Lord Phillips also approved the approach taken by Rix LJ in Viasystems (Tyneside) Ltd. v Thermal Transfer (Northern) Ltd. [2005] QB 510. Lord Phillips put it this way,
"The courts had, however, imperceptibly moved from using the test
of
control as determinative
of
the relationship
of
employer and employee to using it as the test
of
vicarious liability
of
a defendant. At para 79, he questioned whether the doctrine
of
vicarious liability was to be equated with control. Vicarious liability was a doctrine designed for the sake
of
the claimant, imposing a liability incurred without fault because the employer was treated at law as picking up the burden
of
an organisational or business relationship which he had undertaken for his own benefit. Accordingly, what one was looking for was:
"a situation where the employee in question, at any rate for relevant purposes, is so much a part
of
the work, business or organisation
of
both employers that it is just to make both employers answer for his negligence."
- On the facts
of
the CCWS case, Lord Phillips applied the features that he had identified earlier and said this (at paragraphs 56-58):
"56. In the context
of
vicarious liability the relationship between the teaching brothers and the institute had many
of
the elements, and all the essential elements,
of
the relationship between employer and employees. (i) The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body. (ii) The teaching activity
of
the brothers was undertaken because the provincial directed the brothers to undertake it. True it is that the brothers entered into contracts
of
employment with the Middlesbrough defendants, but they did so because the provincial required them to do so. (iii) The teaching activity undertaken by the brothers was in furtherance
of
the objective, or mission,
of
the institute. (iv) The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the institute's rules.
57. The relationship between the teacher brothers and the institute differed form that
of
the relationship between employer and employee in that: (1) The brothers were bound to the institute not by contract, but by their vows. (ii) Far from the institute paying the brothers, the brothers entered into deeds under which they were obliged to transfer all their earnings to the institute. The institute catered for their needs from these funds.
58. Neither
of
these differences is material. Indeed they rendered the relationship between the brothers and the institute closer than that
of
an employer and its employees."
- In the context
of
this case, I think it is also worth recalling an example given by Lord Phillips in paragraph 61
of
the judgment:
"61. There is a simpler analysis that leads to the conclusion that stage 1 was satisfied. Provided that a brother was acting for the common purpose
of
the brothers as an unincorporated association, the relationship between them would be sufficient to satisfy stage 1, just as in the case
of
the action
of
a member
of
a partnership. Had one
of
the brothers injured a pedestrian when negligently driving a vehicle owned by the institute in order to collect groceries for the community few would question that the institute was vicariously liable for his tort."
I return to this example below.
(E) Vicarious Liability, the arguments and my conclusion
- We were fortunate to have presented to us written and oral arguments
of
a very high quality which enable me, I think, to identify the distinctive and salient points
of
each party's case quite shortly.
- Mr Weir QC for the Claimant submitted that our focus should be on the facts
of
the present case. He was not, he said, contending for a wide vicarious responsibility
of
the Prison Service for the negligent acts
of
prisoners in all circumstances. However, this was a case in which the relationship was properly "akin to employment" and, carefully applying the features identified by Lord Phillips as giving rise to liability on the part
of
an employer, the circumstances
of
this case were squarely within them.
- Mr Weir argued that, interestingly, the feature
of
payment for the work in question was not one
of
Lord Phillips' criteria in CCWS and, therefore, he did not place it foremost in his argument, although it was relevant. Equally, consent and mutuality
of
the relationship was not part
of
Lord Phillips' analysis and the judge, he submitted, was wrong to elevate that aspect
of
this case to the level that he did in rejecting the Claimant's case. He pointed out that this feature had been central to the judge's judgment and is central to the argument
of
the Respondent in resistance to the appeal.
- Mr Weir argued that if one applied the features which were picked out by Lord Phillips in paragraph 35
of
his judgment in CCWS (supra) to the facts
of
this case one reached these conclusions. The Respondent had the means to compensate the Claimant. The tort was committed as a result
of
activity conducted on behalf
of
the Respondent in maintaining the prisons and prisoners under section 51
of
the Prison Act 1952, including providing prisoners with food. The activity being conducted by Mr Inder, the negligent prisoner, was part
of
the activity
of
the Respondent in running the catering department
of
the prison. The Respondent by assigning the prisoner to the activity had created the risk
of
the tort being committed by him. The negligent prisoner was undoubtedly under the control
of
the Respondent. It was submitted that vicarious liability followed.
- Mr Morton QC for the Respondent contended that the issue, on this part
of
the case, was as to the nature
of
the relationship between the prisoner and the prison. There was no contractual relationship, no intention to create legal relations and no mutuality
of
obligation, such as there is in an employment contract. The Respondent could not choose whether a prisoner would be provided with work; the Respondent was obliged by statute to provide it: rule 31(1)
of
the Prison Rules (supra). The provision
of
work was part
of
"penal policy" and not the running
of
a business or commercial activity. The relationship was not "akin to employment".
- Mr Morton said that we should not be beguiled (my word, not his) into confining our attention too closely to the individual facts
of
this case, without regard to the wider ramifications
of
accepting the Claimant's arguments. He submitted that we should be cautious and should follow the approach
of
Ward LJ in E's case (supra, at paragraph 54), stated in these terms by the learned Lord
Justice
:
"My own view is that one cannot understand how the law relating to vicarious liability has developed nor how, if at all, it should develop without being aware
of
the various strands
of
policy which have informed that development. On the other hand, a coherent development
of
the law should proceed incrementally in a principled way, not as an expedient reaction to the problem confronting the court. So I must see whether it is possible to articulate general legal principles which will allow the court to decide whether the bishop may be vicariously liable for the alleged torts…"
To accept the Claimant's arguments would be an expedient reaction to the present problem, but would not be soundly based in principle.
- Mr Morton said that the approach
of
Mr Weir focussed too much on the appearance
of
an employment relationship, rather than the reason for the activity being carried out by the prisoner concerned, namely the statutory requirement for prisoners to undertake useful work. He held before us the danger
of
laying too much emphasis on the control exercised over the working prisoner. A prison officer on a prison wing had control
of
prisoners. If Mr Weir was right, said Mr Morton, the Prison Service would be liable for negligent activity or omissions
of
prisoners in a non-catering environment, such as when prisoners were associating on the wing, engaged in the gymnasium, on training courses (including offending behaviour programmes) or on cleaning work, for which they might also fall to be paid: see paragraph 2.3.1
of
the PSO 4460. Mr Morton argued that on proper analysis features "akin to employment" were absent from the relationship in this case.
- For my part, I accept Mr Weir' submissions. It seems to me that, adopting a principled, coherent and incremental approach, which Mr Morton urges us to adopt, requires us carefully to apply (as Lord Phillips did) the features
of
the traditional relationship giving rise to vicarious liability (for which the paradigm is employment) and ask whether the features
of
the present case fall within them so that it is fair and just to impose vicarious liability. To do this is, I think, to ask the same thing as whether the relationship in question is one "akin to employment".
- In my judgment, when one carries out that task and tries to apply the features picked out by Lord Phillips in paragraph 35
of
the CCWS case, one finds that those features quite distinctly apply here.
Of
those features, it seems to me that (i) (ability to compensate), (iv) (creation
of
the risk) and (v) (control) clearly apply and require no amplification on my part. I recognise the debate that one can have over (ii) and (iii). However, I think that it is here that one comes to the process
of
"synthesis" that Hughes LJ and Lord Phillips said was necessary in these cases. One cannot divorce entirely the analysis
of
the relationship between D1 (the "quasi-employee") and D2 (the "quasi-employer") from the act or omission
of
D1.
- In this case, the prison authorities have to feed the prisoners and for that purpose they have to have food supplies delivered to the prison. When delivered the supplies have to be taken from the delivery area to the stores. Someone has to do that job. In many institutions, schools or hospitals perhaps, the task would be performed by employees
of
the institution. Here, it was performed by prisoners for whom the authorities were obliged to provide useful work. However, the work performed by these prisoners was one essential to the functioning
of
the prison. The activity had to be performed by someone on behalf
of
the prison service and the activity was part
of
the Respondent's activity
of
providing secure and humane accommodation and maintenance for the prisoners. The activity was different in nature from the activity
of
a prisoner engaged in education, training or on an offending behaviour programme. Such activity, while no doubt part
of
the Respondent's task
of
rehabilitating prisoners (and, as such, part
of
the "business"
of
the prison), is largely for the prisoner's benefit and certainly is not an activity which (absent the prisoners' work) would have to be performed by an employee. Quite the opposite, no employee would be engaged on such rehabilitative activity. Those activities are prisoners' activities, far from any kinship with employment.
- The work carried out by the prisoners in the present case relieved the Respondent from engaging employees at market rates
of
pay and with all the concomitants
of
an employment relationship. The work was clearly done on the Respondent's behalf and for its benefit or as the judge put it to "defray…the expense to the state caused by prisons". Departing from the judge, however, I think that the feeding
of
the prisoners and the procurement
of
supplies for that purpose was clearly part
of
the venture, enterprise or "business" (if you will)
of
the Respondent in running the prison.
- To paraphrase Lord Phillips, "Had one
of
the [prisoners] injured a pedestrian when driving a vehicle owned by the [Respondent] in order to collect groceries for the [prison] few would question that the [Respondent] was vicariously liable for his tort", (adapting the example in paragraph 61
of
the judgment in CCWS). It matters not, to my mind, to the pertinence
of
the example that a prisoner is perhaps very unlikely to be entrusted with such a task as driving in real life, although it is perhaps not impossible. I do not see that moving food supplies from delivery to storage is different in nature to driving to collect such supplies from a grocer or wholesaler nor do I think that the relationship between a driving prisoner and a porter/prisoner is different. The Respondent took the benefit
of
this work and I can see no reason why it should not take its burdens.
- I do not think that it is necessary to apply minutely the parallels or differences between the facts
of
the CCWS case and the normal employment relationship, analysed by Lord Phillips in paragraphs 56 to 58
of
his judgment, to the facts confronting us. It seems to me, however, that the parallels are close. As for the differences, they too are close to the facts
of
the CCWS case: (i) the prisoners were bound to the Respondent not by contract, but by their sentences
of
imprisonment, (ii) while the prisoners were paid, the wages were nominal. As in the CCWS case, I consider that these differences from the normal employment relationship rendered the relationship between the prisoners and Respondent, in the conduct
of
this activity, if anything closer than that
of
an employer and its employees. Far from there being mutuality or consent in the relationships in CCWS or here, there was there and is here an element
of
compulsion in engaging in the activity directed by the "quasi-employer".
- For these reasons, which I hope give proper respect to the careful judgment
of
the judge below and to the very able argument
of
Mr Morton, I would hold that the Respondent is vicariously liable for the injury caused to the Claimant and would allow the appeal on that basis. It is, therefore, not strictly necessary for me to address the second ground
of
appeal presented to us. However, as it has been fully argued I will do so shortly.
(F) Direct Liability
of
the Respondent
- I have set out above the judge's conclusion on this head
of
potential liability from paragraph 58
of
the judgment.
- Mr Weir for the Claimant criticised the judge for failing to make any finding
of
whether or not there had been a breach
of
duty on the part
of
the Respondent in failing to provide a safe place
of
work, safe systems and safe staff. In particular, he focussed on the discontinuance by the Respondent
of
the provision
of
manual handling training for prisoners engaged in this work. He argued that the judge should have asked himself and should have decided expressly whether the failure to provide training was a breach
of
duty and, if so, what would or should have such training provided to prevent such an accident as occurred here.
- He pointed (by analogy) to the Schedule to the Manual Handling Operations Regulations 1992, setting the standards
of
training to be provided by employer to employee, and argued that training in the risks
of
moving heavy loads in constrained spaces and over slippery surfaces, on the balance
of
probabilities, would have prevented Mr Inder from embarking on the manoeuvre which led to the Claimant's injury. A similar submission was made to the judge which he recorded thus,
"If Mr Inder had been trained in manual handling (said Mr O'Leary), he would have understood that the Claimant's instruction to wait until the spillage had been cleared was given for good reason and he would have obeyed it instead
of
ignoring it."
- As for causation, Mr Weir submitted that the task for the judge was to ask whether the failure to provide training was a cause
of
the accident: see O'Neill v DSG Retail Ltd. [2003] ICR 222, at paragraph 94, per Chadwick LJ. He argued that the proximate cause was not, as the judge found, a failure by Mr Inder to follow an instruction, but his carrying
of
a load in a confined area, in which rice had been spilled and over which he had to step.
- In paragraph 58
of
the judgment, the judge did make a finding; he said that he did not believe that training would have been at all likely to include instruction on the particular risk that arose. He found that the risk was obvious and that training would not have made Mr Inder more obedient to a lawful command to stop movement, such as that that he found was given by the Claimant in this case.
- Mr Weir attacked this finding on the basis that it was clear that training had been given in the past, but the Respondent had failed to give either disclosure or evidence
of
what such training consisted. He submitted that, in such circumstances, the court should have drawn inferences adverse to the Respondent as to the content
of
such training, relying in this respect upon the judgment
of
Brooke LJ in Wiesniewski v Central Manchester Health Authority [1998] PIQR 324. Brooke LJ stated the following principles:
"From this line
of
authority I derive the following principles in the context
of
the present case:
(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence
of
a witness who might be expected to have material evidence to give on an issue in an action.
(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.
(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.
(4) If the reason for the witness's absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect
of
his/her absence or silence may be reduced or nullified."
- Mr Morton argued that the judge's findings in paragraph 58 as to the likely content
of
training and as to the consequences, even if training had been provided, were unassailable findings
of
fact on both duty and causation with which this court should not interfere. The judge was not obliged to draw any inferences against the Respondent and he did not do so. The fact remained that the risk was obvious; Mr Inder chose to ignore both the obvious risk and the express instruction
of
the Claimant. He was, therefore, entitled to conclude that no training would have caused him to do otherwise.
- I accept Mr Morton's submissions on this part
of
the case and I would not have allowed the appeal on this ground.
(G) Conclusion
- For the reasons given in paragraphs 35 to 48 above, however, I would allow the appeal on the ground that the learned judge was wrong to hold that the Respondent was not vicariously liable for the negligence
of
Mr Inder in this case.
Lord
Justice
Beatson:
- I am grateful to Lord
Justice
McCombe for his comprehensive summary
of
the material facts and the questions for decision in this appeal. I agree with both his conclusion and his reasoning. I add a judgment
of
my own because we are differing from the judge's careful and clear judgment on vicarious liability, and in tribute to the excellent submissions
of
Mr Morton QC.
- I do not wish to add anything on the "non-delegable duty" ground
of
appeal. The judge's finding (at [58]) that "the failure to train Mr Inder in manual handling operations was not
of
causal relevance to the accident" was one to which he was entitled to come and with which this court cannot interfere.
- In Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 AC 1, Lord Phillips stated that "the law
of
vicarious liability is on the move." Vicarious liability has (see Dubai Aluminium Co. Ltd v Salam and Ors [2002] UKHL 48, [2003] 2 AC 366 at [107] per Lord Millett) been said to be "a loss distribution device based on grounds
of
social and economic policy". But the tests for determining when a person or entity will be vicariously liable for the negligent act
of
another, including the "sufficiently close connection" test laid down in Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215 have been criticised as vague and open-ended: see Dubai Aluminium Co. Ltd v Salam at [25] - [26], per Lord Nicholls. For this reason, Ward LJ's statement in E v English Province
of
Our Lady
of
Charity [2012] EWCA Civ 938, [2013] QB 722 at [54] that the "development
of
the law should proceed incrementally in a principled way, not as an expedient reaction to the problem confronting the court", is particularly important.
- In the light
of
such criticisms, in circumstances such as those in this case, the concept
of
a non-delegable duty may appear to be a more attractive, direct and principled solution than vicarious liability.[1] It has, however, been pointed out that resort to it and to an extended notion
of
agency [2] in this context "derives from frustration at the limits
of
vicarious liability rather than any considered conceptual development
of
these doctrines".[3] Moreover, as the facts and findings in this case show, the focus on the anterior duty
of
a defendant to provide a safe place to work, safe systems and safe staff rather than the negligent act which has in fact caused the claimant's loss may in some cases be to direct the bright light
of
analysis at the wrong point. This is because it relegates the organisational or "business" relationship between the person who in fact committed the tort and the person on whose behalf the activity is undertaken to a secondary role.
- The force
of
the Appellant's case that the
Ministry of Justice
is vicariously liable for Mr Inder's negligence is the apparent artificiality
of
making a distinction between the position
of
the prison according to whether the negligent person is a prisoner, or a prison officer or civilian employee. The prison will be liable where a prison officer or employee acts negligently and injures another officer or employee. The rejection
of
liability by the judge where it is a prisoner who has negligently injured the officer or employee, and the Respondent's submissions, rely heavily on the fact that the prison/prisoner relationship is not a voluntary one. It is said that it therefore follows that it is not a relationship "akin to employment". It is said that, accordingly, even on the broader test enunciated by the House
of
Lords in Lister v Hesley Hall Ltd and by the Supreme Court in Various Claimants v Catholic Child Welfare Society, it is not a relationship which gives rise to vicarious responsibility on the part
of
the prison for the negligence
of
a prisoner.
- It is understandable that asking whether a relationship is "akin to employment" can lead to a focus on whether the relationship is a voluntary one. But that focus can mislead if it is taken as a bar to vicarious liability rather than simply a factor to be taken into account. For example, in cases
of
borrowed servants or agency workers,[4] the primary voluntary relationship is between the individual worker, "A", and the "lending" employer or the agency, "B", rather than between "A" and the end user, "C". "A" may, for example, be under a contractual obligation to work wherever he or she is placed by "B". It is true that "A", as a borrowed servant or an agency worker could, unlike a prisoner, terminate his or her contractual relationship with "B" if dissatisfied with a placement with "C". But, what is important in determining whether "C" is vicariously liable for "A", particularly since the decision
of
this Court in Viasystems (Tyneside) Ltd v Thermal Transfers (Northern) Ltd. [2005] EWCA Civ 1151, [2006] QB 510, is whether "A" is under "C's" direction and control, and whether the task "A" is undertaking is undertaken on behalf
of
"C".
- Rix LJ's approach in the context
of
borrowed workers in Viasystems (Tyneside) Ltd differed from that
of
May LJ, but was approved
of
by Lord Phillips in Various Claimants v Catholic Child Welfare Society at [45]. Adapting what Rix LJ stated at [79], while control is important, vicarious liability does not depend solely on it. What one is looking for is whether or not the person who actually does the negligent act is so much part
of
the work, "business", or organisation
of
the person or entity who it is said should be vicariously liable that it is just to make the latter answer for the negligence
of
the former.
- In this case, for the reasons expressed so clearly by my Lord at [43]-[45], the task carried out by Mr Inder was done on the Respondent's behalf and for its benefit. It is those factors which distinguish working in the kitchens as part
of
the prison's organisational arrangements for the delivery
of
food and its preparation in order to feed the prisoners from the examples given by Mr Morton
of
carelessness while undertaking activities such as engaging in sport or participating in courses.
Lady
Justice
Sharp:
- This appeal raises some interesting issues as is clear from the observations
of
my Lord, Lord
Justice
Beatson. For the reasons given by my Lord, Lord
Justice
McCombe, I agree that this appeal should be allowed.
Note 1 N. McBride and R. Bagshaw, Tort Law 4th ed. p.880 [Back]
Note 2 The cases mainly involve driving the car
of
another: see Samson v Aitchison [1912] AC 844, 850 (JCPC): Vandyke v Fender [1970] 2 QB 292, and, for the limits, Morgan v Launchbury [1973] AC 127, especially Lord Wilberforce at 135 (“agency in contexts such as these is merely a concept, the meaning and purpose
of which is to say ‘is vicariously liable’”). See also ibid, 139, 140-1. [Back]
Note 3 P. Gilker, Vicarious Liability in Tort (2010) p. 144 and see also pp. 124-125. [Back]
Note 4 On agency workers, see P Gilker, op cit., 93-98 and F Reynold QC, (2005) 34 ILJ 270. [Back]
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URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/132.html