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Case and Comment
COX v Ministry of Justice [2016] UKSC 10; [2016] 2 W.L.R. 806, and Mohamud v Wm Morrison Supermarkets plc. [2016] UKSC 11; [2016] 2 W.L.R. 821 expand the reach of vicarious liability. In Various Claimants v Institute of the Brothers of the Christian Schools [2012] UKSC 56; [2013] 2 A.C. 1 ("CCWS"), Lord Phillips had declared vicarious liability "is on the move". Lord Reed stated in Cox "it has not yet come to a stop".
Vicarious liability makes one party, A, strictly liable for the torts of another, B. It has two stages: whether there is a relationship between A and B sufficient to trigger the doctrine, and whether there is sufficient connection between B's tort and the relationship for A to be liable. Cox concerns the first stage, Mohamud the second. The Supreme Court considered the cases should be read together.
Classically the relationship is that of employment; however, other relationships may also suffice. JGE v Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938; [2013] Q.B. 722 and CCWS introduced the "akin to employment" relationship. B need not be paid, nor have a contract with A, for A to be vicariously liable.
The second-stage test following Lister v Hesley Hall [2001] UKHL 22; [2002] 1 A.C. 215 and Dubai Aluminium Co. Ltd. v Salaam [2002] UKHL 48; [2003] 2 A.C. 366 is that the tort must be closely connected to the relationship. Lister made a clear distinction between close connection, and mere opportunity to commit a tort. The latter is not enough: whilst there was vicarious liability for the warden's abuse, there would have been no such liability for the groundsman's.
In Cox, the claimant was a prison catering manager. A prisoner working in the prison kitchen negligently injured her in the course of his work. Kitchen workers were selected from amongst prisoners who applied. They were given training, worked alongside civilian catering staff as part of the catering department, were supervised by catering staff, and were accountable to the catering manager. Whilst they were paid for their work, this was not subject to the minimum wage.
Lord Reed gave the sole judgment. He distilled the justifications for vicarious liability in CCWS...