Vicarious Liability - Will the Floodgates open?

The issue of Vicarious liability is making a regular appearance in the law reports recently.

Vicarious liability, is imposed on a person for the negligent acts or omissions of another individual because of his relationship with that individual, and how that relationship is connected with that act or omission. The usual example is an employer/ employee relationship but the concept has extended in recent years.

In a recent article we considered whether a Local Authorities could be vicariously liable for abuse perpetrated by Foster parents - click here to read the article.

This month  the Supreme Court considered whether the Prison Service should be vicariously liable for the actions of prisoners working in prisons.

The case was Cox v Ministry of Justice (2016) and involved a claim by a catering manager injured by the negligent act of a prisoner carrying out paid kitchen work.

When the case came before the Court of Appeal they applied the criteria listed in Various Claimants v Institute of the Brothers of the Christian Schools [2012] UKSC 56, [2013] 2 A.C. 1 (Christian Brothers) and held that the prison service were vicarious liable for the prisoner''s negligence - click here to read more.

The Ministry of Justice appealed, arguing that the relationship was entirely different from an employee/employer relationship. It argued that the Prison Service''s primary purpose was to rehabilitate, not to make profit. They were also concerned that the appeal decision would open the floodgates to further claims.

The Supreme Court upheld the Court of Appeal judges view and found that to be vicariously liable a Defendant does not need to run a business or derive profit, but the Defendant did need to ''carry on activities in furtherance of its own interests''. Those activities do not need to be commercially motivated. The prisoner was an integral part of the Prisons'' activities, (providing meals to the prisoners) he was in a position where he could commit a variety of negligent acts and worked under the direct supervision of prison staff. 

The fact that payments were below commercial level reflected the context in which prisoners worked, but did not mean that vicarious liability should not be imposed.

This decision reinforces the ''Christian Brothers'' guidance, to ensure that vicarious liability is imposed where it is fair just and reasonable to do so.  

This decision will raise concerns about the law extending further, to prisoners making claims related to other activities, such as education classes or offending behaviour programmes. Will this deter rehabilitation programmes? The decision also raises questions about potential fraudulent claims being made for "prisoner-on-prisoner" incidents. 

Will the ''floodgates'' open?.

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