Vicarious liability: The 'Sufficient Connection' test
In this case, the Supreme Court considered whether an employer was vicariously liable for an employee's unprovoked and violent assault on a customer…
Published 15 April 2016
In this case, the Supreme Court held that the Ministry of Justice could be liable for the negligence of a prisoner working in a prison kitchen, although there was no employment relationship.
Employers will be vicariously liable for civil wrongs committed by an employee where there is a sufficient connection between the employment and the wrongdoing. There is a two-stage test:
In this case, the Supreme Court considered the first limb of this test. The second part was considered in another case decided on the same day [Mohamud v WM Morrison Supermarkets plc  UKSC 11, 2 March 2016].
Mrs Cox was the catering manager at a prison. She was in charge of four members of staff and also supervised about 20 prisoners who were required to work in the kitchen. She sustained a back injury when a prisoner negligently dropped a sack of rice onto her. The prisoner was not an employee. Mrs Cox brought a claim against the Ministry of Justice (the Government department of which HM Prison Service is an executive agency). The Swansea County Court found the prisoner negligent, but held that the MoJ was not vicariously liable for his actions. Mrs Cox appealed, and the Court of Appeal allowed her appeal.
The MoJ appealed to the Supreme Court, which held that the MoJ was vicariously liable for the prisoner's negligence.
Courts have already held that relationships other than an employment relationship can give rise to vicarious liability. In 2012, in the Christian Brothers case, the Supreme Court held that a Catholic Institute was vicariously liable for alleged sexual abuse by teachers at a boys' school. Although the teachers were employed by the school's management (which was also vicariously liable) rather than by the Institute, the Institute was sufficiently closely connected with the teachers to create the necessary relationship for vicarious liability purposes.
A judge in the Christian Brothers case identified five incidents of an employment relationship that make it fair, just and reasonable to impose vicarious liability on the employer. He held that a relationship other than one of employment may also give rise to vicarious liability where it has "the same incidents", on the ground that it is similar to employment.
In this case, the Supreme Court discussed these factors, saying that the Christian Brothers case had woven together a number of related concepts from earlier case law to develop a modern theory of vicarious liability. It held that vicarious liability can arise outside employment relationships where an individual carries on activities for the defendant's benefit as an integral part of its business (rather than being entirely attributable to the conduct of an independent business of the individual or of a third party), and where the Defendant, in assigning those activities to the individual, has created a risk of the civil wrong being committed. This is not confined to some special category of cases, such as the sexual abuse of children (this being the background to most other cases on this issue), but is intended to provide a general basis for identifying circumstances under which vicarious liability can be implied outside the employment relationship.
This case is an example of how vicarious liability can be extended beyond the traditional employment relationship. Employers need to identify the position they are placing an individual in, the circumstances in which risks may arise from that position and how they can best be managed. In addition to maintaining health and safety standards, they should consider, where appropriate, whether they are, directly or indirectly, adequately covered by insurance and /or contractual indemnities (for example when engaging third party contractors).