FaircloughA2015Background and issue

Cox was working in a prison kitchen with a catering assistant and 20 prisoners under her direction. During the course of this work a prisoner fell and dropped a sack of kitchen supplies on her – injuring her. It is accepted that the prisoner was negligent.

The question before the Court therefore, was a straightforward one – whether the prison service was vicariously liable for the act of a prisoner in the course of his work in a prison kitchen, where the act was negligent and caused injury to a member of the prison staff.

The case principally concerned the first element of the test for vicarious liability recently set out in Various claimants v Catholic Child Welfare Society [2012] UKSC 56: whether the relationship between the tortfeasor and defendant was such that the defendant could be made vicariously liable for the tortfeasor’s actions.

Lower court decisions

The county court focused on the question as to whether the relationship between the prison service and the prisoner was akin to that between employer and employee. The court found that it was not – employment was a voluntary relationship, in which each party acted for its own advantage. This was not the case with regards to work undertaken in a prison by a prisoner. The Court of Appeal allowed Cox’s appeal: the prison took the benefit of the work of prisoners, and there was no reason why it should not take its burdens. If anything the relationship between prison service and prisoner were closer than that of employment.

Supreme Court decision

Whether vicarious liability should be imposed does not depend on the classification of the relationship for the purposes of taxation or national insurance.” [11]

The Court unanimously rejected the MoJ’s appeal, Lord Reed giving the judgment. Relying on an analysis of paras 35 and 47 of the Catholic Child Welfare case, he reasoned that the five factors relevant to the relationship, set out by Lord Phillips in that case, were not all equally significant. His focus was on the ‘middle three’ interrelated factors: that the tort will have been committed as a result of activity carried out on behalf of the defendant; that the tortfeasor’s activity is likely to be part of the business activity of the defendant; and that the defendant will have created the risk of the tort by employing the tortfeasor to carry on the activity [20-22].

The essential idea is that the defendant should be liable for torts that may fairly be regarded as risks of his business activities, whether they are committed for the purpose of furthering those activities or not.” [23]

Following authority, Reed determined that “business activity” did not require the defendant to be  a business or enterprise in an ordinary sense, nor that the activities required of the tortfeasor by the defendant be commercially motivated.

Lastly, the criteria were designed to ensure that liability was only imposed where it was fair, just and reasonable, a separate assessment of whether it was ‘fair, just and reasonable’ would not normally have to be carried out [41].


This case is an interesting application of the restatement, set out in the Catholic Child Welfare case, of the relationship giving rise to vicarious liability. It seeks to narrow down the five relevant factors to three,    at the same time as maintaining it is simply following that case. Whilst Reed explains that the justification for the “… extension [of vicarious liability beyond the employer-employee relationship] is to enable the law to maintain previous levels of protection for the victims of torts, notwithstanding changes in the legal relationships between enterprises and members of their workforces which may be motivated by factors which have nothing to do with the nature of the enterprises’ activities or the attendant risks.” [29], he is keen to play down the importance of the likelihood of the defendant (rather than the tortfeasor) having the means to compensate the victim. He explains that although this is mentioned as a relevant factor in para 35 of Catholic Child Welfare, it “did not feature in the remainder of the judgment, and is unlikely to be of independent significance in most cases . . . The mere possession of wealth is not in itself any ground for imposing liability.” [20]. This however, seems to ignore para 34 of Catholic Child Welfare where Lord Phillips states: “The  policy  objective underlying  vicarious liability is to ensure, insofar as it is fair, just and reasonable, that liability for  tortious  wrong  is  borne  by  a  defendant  with  the means  to  compensate  the  victim”.