Determining an employer's liability for injury
Vijay Ganapathy considers the implications of decisions in Cox and Greenway for future cases involving vicarious liability and actionable damage
Recent cases have seen the courts dealing with some major issues that will likely have wide-ranging implications. An example is the Supreme Court decision in Cox v Ministry of Justice  UKSC 10, which further confirms how wide the doctrine of vicarious liability has now become.
Mrs Cox (C) was employed by the Ministry of Justice (M) as a catering manager in a kitchen at HM Prison Swansea. As C bent over to pick something up, a prisoner who worked in the same kitchen tried to go past her carrying two sacks. As he did so, he lost his balance and dropped one of these sacks on C, causing her injury.
It was accepted that the prisoner was negligent, but the main question was whether M could be held vicariously liable. This required consideration of whether the relationship between the prisoner and M was akin to employment.
Some key aspects of the prisoner's relationship to M were noted. The purpose of his working
in the kitchen was not just to help in his rehabilitation but also to assist in the smooth running of the prison. In fact, if prisoners did not undertake such work, the prison would have to incur further costs in paying for civilian workers.
M undertook risk assessments of prisoners to determine who would be suitable to work in the kitchen. Those selected were trained (this included health and safety training) and supervised on a daily basis by other employees
of M. M could remove any prisoner performing unsatisfactorily.
Despite the broad test set out in Various claimants v Catholic Child Welfare Society  UKSC 56 (the Christian Brothers case), the trial judge did not accept this relationship was akin to employment. He considered a key aspect of an employment relationship was that it was voluntary and engaged in for mutual benefit.
The prisoner had no choice but to work and M
was legally obliged to offer work to its prisoners.
The Court of Appeal disagreed over whether this voluntary aspect was necessary. The prison benefited as it did not have to employ external civilian workers at a greater cost. The fact that the prisoner was forced to work actually made the relationship more akin to employment as it showed the prison's control over its workers.
The Supreme Court referred to the five factors set out by Lord Phillips in the Christian Brothers case, which are as follows:
The employer is more likely to have the means to compensate the injured person;
The injury-causing activity would have been undertaken on the employer's behalf;
This activity was likely to be part of the employer's activity;
In employing the worker to undertake the activity, the employer creates the risk of the tort being committed by the employee (the rationale is that an employer should be liable for the risks created by their business); and
The employee would have been under the control ('to a greater or lesser degree') of the employer.
It should be noted that these factors do not carry equal significance, with the first and last being of lesser importance. The issue of control does not have the same prominence it used to.
A common example is that of a surgeon employed by a hospital: the hospital has control over what the surgeon does but not how he or she does it. This aspect would not, therefore, be determinative in itself, but the absence of some residual control might be a negative factor.
The Supreme Court considered the requirements of the test were met in this case.
The Christian Brothers case confirmed it was not necessary for the employer's activity to be commercially motivated with the intention of making profit. Prisoners working in kitchens formed an integral part of the prison's activities and they were clearly placed in a role where there was a risk of various torts being committed (illustrated by the fact that they received health and safety training). The Supreme Court therefore found M liable for its prisoner's negligence.
This decision shows how vicarious liability
can be found to exist in a wide range of situations.
It must not be forgotten that this doctrine is centred on policy, which affords the courts considerable flexibility in how the above five factors are applied. Therefore, technical distinctions will be unlikely to find much favour with judges.
The Court of Appeal decision in Greenway and others v J Matthey plc  EWCA Civ 408 centres on whether the five claimants had sustained damage to complete their causes of action.
The claimants (C) worked for the defendant (J) in a factory making catalytic converters, which involved the use of platinum salts. Substantial exposure to these salts can cause an individual to become sensitised, which can later develop into an allergy, causing various symptoms such as rhinitis, skin irritation, and bronchial problems. However, until the allergy develops, those who are sensitised experience no symptoms. Further, platinum salts are not encountered in everyday life, so unless the sufferer is engaged in some industrial process where these salts are used, their day-to-day life is unaffected.
This is in contrast to someone sensitised to latex products, who is likely to frequently come across various products, such as balloons or elastic bands, which contain latex or rubber compounds that could worsen their condition.
In this case, C became sensitised to platinum salts, which prevented them from undertaking the same or a similar job with equal pay. As such, they sought to recover their lost earnings.
J accepted that it had breached its duty to minimise exposure to these salts by not cleaning the factory properly, but denied C suffered actionable damage. C argued they had undergone a physical change which had the adverse effect of forcing them to quit their jobs. They relied on Cartledge v Jopling  1 QB 189, in which the claimant developed a lung disease from inhaling silica dust. Even though the claimant felt no symptoms, it was considered that he had an injury as his disease could progress even when exposure to the dust ceased, and he was also at an increased risk of developing other conditions such as tuberculosis.
While this was noted, the Court of Appeal referred to Rothwell v Chemical and Insulating Co Ltd  UKHL 39, in which the claimant was diagnosed with pleural plaques (scarring of the lining of the lungs caused by exposure to asbestos fibres). The condition of pleural plaques is also asymptomatic, but is unlikely to deteriorate.
Also, while these sufferers are at risk of developing more serious conditions, this risk arises from the original asbestos exposure as opposed to the pleural plaques. The House of Lords therefore held pleural plaques was not an actionable injury.
In the present case, the Court of Appeal considered the same could be said of platinum sensitisation, provided the sufferer stops being exposed to platinum salts. In ordinary life, therefore, this sensitisation does not have the scope to deteriorate to a state where it can cause symptoms. As such, there was no damage, meaning the claim for lost earnings represented pure economic loss.
C put forward an alternative argument
that J breached an implied term of their contracts of employment to ensure a safe working environment. C claimed their lost earnings
flowed from this breach and so were recoverable.
The Court of Appeal accepted that such an implied term could exist for policy reasons, but held that the scope of this policy needed further consideration. The policy's purpose would be to minimise the risk of workers suffering physical injury, not to compensate them for lost earnings. Therefore, there was no claim in contract.
This case further affirms the rulings in Cartledge and Rothwell. However, it should be remembered that the mere fact a condition is symptomless will not necessarily preclude a claim in tort. If the condition has the potential to deteriorate or lead to other more serious conditions, then it may still constitute 'damage'.