Dear Phillip;
Thanks for passing on a very interesting decision. As you know, I am not a fan of the new “akin to employment” test, and don’t think it will be adopted in Australia. But the result in this case seems reasonable. I think the result should have been reached
in another way, however.
This is not a case, however, where the doctrine of non-delegable duty should have applied. Not because the injured worker was not an employee- para [3] tells us that the worker was not an “employee” as such, but in other parts of the judgment the court
assumes that rules about duty of care applying to employee, applied to the worker, so I assume that the court was happy to regard her as an employee for most purposes. But NDD in whatever form one frames it seems to rely on the injured employee being placed
under the authority or supervision or control of the tortfeasor, and here the situation was precisely the opposite, she was supervising the negligent prisoner.
But it seems to me that the action for breach of statutory duty, or the common law negligence claim, in relation to the failure of the lift should have been pursued- see para [11] where the BSD claim is alluded to. We don’t know why the trial judge rejected
this- perhaps it was because of an insufficient causal link. But even on general “system of work” terms it seems to me there was sufficient connection. The system of work was to transport the heavy bags of food by lift. Once you know the lift is regularly
failing, it is entirely foreseeable that prisoners will have to do the dangerous business of lugging these bags up the stairs, and the risk that in the process either the prisoner or a bystander will be injured is also clear.
Even if I am wrong on this point, incidentally, I found the logic in para [46] of McCombe LJ’s judgment unconvincing. His Lordship quoted
CCWS at para [34] where Lord Phillips had referred to a brother of the order in that case driving a car to collect groceries. But in that quote the point of Lord Phillips’ comment was that the brother, as a member of an unincorporated association, could
be regarded as the “agent” of the others (“acting for the common purpose”). That is clearly not the situation with the prisoner in
Cox. The only connection in para [46] is with the moving of groceries!
While I can see the force of the argument in this case- the prisoner was doing work that was essential for the operation of the prison, under control of the prison authorities, being paid for it- I wonder whether it would not have been more sensible, rather
than extending VL to something “akin to employment”, to simply recognise that a prisoner in those circumstances is in fact a true employee of the prison authority? This doesn’t mean that prisoners will always and in all cases be employees, simply when they
are being paid to do work around the prison. The features of the employment contract would be shaped, of course, by the circumstances and the statutory rules governing the operation of the prison- but an employee is in fact what the prisoner is while doing
the work.
Finally, note very carefully the logic of Beatson LJ’s comments in para [63]. His obiter example here suggests that where a worker A, employed by a labour hire firm B, is placed to work under the control of a “host” C, that there will be many cases where
C can be held vicariously liable for harm committed to someone else by A. While this is the logical outcome of the decision in
Viasystems, I have not so far noticed it being regularly applied in this way. It amounts to a large extension of strict liability for those who use labour hire workers.
Regards
Neil
NEIL FOSTER
Associate Professor
Newcastle Law School
Faculty of Business and Law
Dear All,
The Court of Appeal of England and Wales has today handed down an interesting decision on the scope of vicarious liability:
Cox v Ministry of Justice. This decision follows on from the leading decisions of the United Kingdom Supreme Court in
CCWS and the Court of Appeal in JGE. It applies, and examines the scope of the new “akin to employment” category of vicarious liability, which those cases introduced to English law.
The case concerns the injuries sustained by 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 (in this case moving recently delivered food supplies) under her supervision.
The Court of Appeal held that vicarious liability was present for the prisoner’s tort.
In the context of the work carried out by the prisoners the relationship was akin to employment.
They, quite rightly, considered that to focus on the voluntariness of the relationship was an error.
http://www.bailii.org/ew/cases/EWCA/Civ/2014/132.html
Kind regards,
Phillip Morgan
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_______________________
Phillip Morgan,
Lecturer in Law,
York Law School,
The University of York,
Freboys Lane,
York,
YO10 5GD,
United Kingdom,
