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Cite as: [2014] PIQR P17, [2014] 3 WLR 1036, [2015] 1 QB 107, [2014] EWCA Civ 132, [2015] QB 107, [2014] ICR 713

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		Neutral Citation Number: [2014] EWCA Civ 132
		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:

	SUSAN ELAINE COX	Appellant/ Claimant
	- and -
	MINISTRY OF JUSTICE	Respondent/Defendant

____________________

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
____________________

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.

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, 20^th 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]