Case No: 0LV85852
IN THE SWANSEA COUNTY COURT

Swansea Civil Justice Centre
Caravella House
Quay West
Quay Parade
Swansea
SA1 1SP

Date: 3 May 2013

Before:

His Honour Judge Keyser QC

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Between:

SUSAN ELAINE COX
Claimant

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MINISTRY OF JUSTICE
Defendant
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ROBERT O’LEARY (instructed by Thompsons, of 30-31 Castle Street, Swansea, SA1 1HZ) for the Claimant
ALEXANDER WILLIAMS (instructed by Treasury Solicitor’s Department, of One Kemble Street, London, WC2B 4TS) for the Defendant

Hearing dates: 4 and 5 February 2013

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Judgment
H.H. Judge Keyser Q.C.:

Introduction
1.	On 10 September 2007, while working as a catering manager at HM Prison Swansea, the claimant, Susan Cox, suffered injury in an accident caused by the negligence of a prisoner who was carrying out paid work under her supervision.
2.	In these proceedings the claimant seeks damages for her injuries and consequential financial loss from the defendant, the Ministry of Justice, which stood towards her in a relationship analogous to that of an employer towards an employee.  Although the claimant contends that the defendant was in breach of statutory and common-law duties that it owed to her, the primary basis on which she puts her case is that the defendant is vicariously liable for the negligence of the prisoner.
3.	Both liability and quantum of damages have remained in issue.  At the trial I have heard evidence from a number of witnesses of fact for both parties and from two expert witnesses. I have been considerably assisted by the full but focused submissions, both written and oral, of Mr O’Leary for the claimant and Mr Williams for the defendant.
4.	There has been little dispute concerning the primary facts of the case.  In what follows I shall, for the most part, simply state as facts the conclusions that I have reached, on the evidence, concerning matters that are not formally admitted; in a few instances I shall give some further explanation of my conclusions.

The relevant facts 
5.	HM Prison Swansea is a Local Prison holding Category B prisoners and young adults.  It is managed by HM Prison Service.  The operational capacity of the prison as at 30 August 2011 was 445; it was probably not very different at the date of the accident, when the claimant estimates it contained approximately 400 prisoners.
6.	The claimant commenced work in the prison’s catering department in February 1994, and since June 1996 she had been the catering manager.  Strictly speaking, she was in the service of, but not an employee of, the Crown.  However, nothing turns on that distinction, because for the purposes of health and safety legislation persons in the service of the Crown are treated as employees of the Crown: section 48 (3) of the Health and Safety Act 1974.  In the remainder of this judgment I shall refer to the relationship between the claimant and the defendant as one of employment.
7.	As catering manager, the claimant had day to day charge of all aspects of catering at the prison, including the supervision of the operation of the kitchen, the ordering of supplies and dealing with their delivery, and matters relating to budget, staffing and training.  She was directly answerable to Helen Davey, the Head of Custodial Care, who in turn was directly answerable to the deputy governor.
8.	The claimant had responsibility for four members of staff—three civilian catering assistants and one prison officer—of whom at least two would be on duty at any one time.  In addition, each day approximately twenty prisoners would be assigned to work in the kitchen under the supervision of the staff.  Some of these prisoners would assist regularly over an extended period of time, whereas others would work in the kitchen for only a short period before being moved to a different task or a different prison.
9.	The work of the kitchen involved the preparation of meals for prisoners only.  It did not produce meals for members of staff.  I accept the evidence of Helen Davey on this point.
10.	On 10 September 2007 the claimant was working in the kitchen with a catering assistant, Mr Cook, and about twenty prisoners.  At about 9.15 a.m. she received a call from the gate lodge, informing her that a delivery of foodstuffs was being made to the ground floor area.  The claimant took six prisoners to bring the foodstuffs from the ground floor to the kitchen stores on the first floor.  Mr Cook was left to supervise the remaining prisoners in the kitchen.
11.	The claimant instructed the prisoners who had accompanied her to unload the goods from the delivery vehicle and load them onto empty trolleys.  When this had been done, she instructed two of the prisoners, Mr Joseph and Mr Tealan, to put the loaded trolleys into the goods lift, which would take them to the first floor.  In order to put the trolleys into the lift, the prisoners would have to enter the lift.  However, for reasons of security prisoners were not permitted to travel in the lift but had instead to use the stairs.
12.	When only one trolley remained to be put into the lift, Mr Joseph shouted to the claimant that the lift door had suddenly slammed shut, narrowly missing him, and that Mr Tealan was trapped inside the lift.  Malfunction of the lift doors was a common occurrence.  It was usually the result of damage deliberately caused by prisoners to the sensors on the doors; it is probable that such abuse was the cause of the malfunction on this occasion.
13.	The claimant secured the area, accounted for the prisoners under her supervision and arranged for the works department to attend and to free Mr Tealan and the trolleys from the lift.  This was duly done and the lift was shut down at the main control panel.
14.	While all of this had been going on, another delivery vehicle had arrived at the prison.  The claimant asked an Operational Support Grade officer, Mr James, to supervise the delivery area and instructed two of the prisoners to make a start on unloading the new delivery.  She instructed the remaining four prisoners to take the foodstuffs from the first delivery up the stairs to the kitchen stores.  The claimant did not herself carry any of the foodstuffs but supervised the prisoners as they did so.
15.	The foodstuffs that comprised the first delivery were contained in large sacks, made of brown reinforced paper and tied at the end with a cord.  Each sack weighed about 25 kg.  When the sacks were moved manually, it was normal for a prisoner to carry one or perhaps two sacks.
16.	On this occasion, one of the prisoners, Mr Webster, was carrying three sacks or maybe, as Mr James said in the statement that he made a few days later, four sacks.  The claimant and Mr James both instructed him to stop and put the sacks down, as the load was too great and presented a risk of injury to Mr Webster and to others.  Mr Webster appeared to take no notice and continued towards the stairs, but after he had gone a few feet and was in the vicinity of a doorway he dropped one of the sacks—whether deliberately or accidentally, I do not know—and then continued up the stairs.  The dropped sack burst open and rice spilled over the floor.  The approximate position of the spillage in relation to the loaded trolleys, the gate to the delivery yard and the approach to the stairs is sufficiently shown for illustrative purposes in the rough sketch at page 98 of the trial bundle.
17.	The claimant’s witness statement dated 8 December 2011 describes what happened next (text taken from paragraphs 34, 54, 55 and 35):
I immediately instructed the other prisoners to stop movement in the area until the area was cleared.  The bag was blocking a doorway and it would have meant that they would have had to step over it.  I bent down on to one knee in order to prop the end of the broken sack up against the end of the trolley in a bid to prevent any further spillage, and also to reduce the risk of slipping/tripping.  I instructed Joseph, who was at the bottom of the staircase, to get a black bag, dustbin and brush from the kitchen.  
On my instruction and observation at that point, all prisoners had stopped movements in the lift area except for Webster who continued to carry the remaining bags up the stairs and out of my sight. … As I have said, all prisoners with the exception of Webster, who continued up the stairs, had stopped movement so I had a clear observation of this before I knelt down.  I retained the broken bag to prevent further spillage and danger to myself and those in the area.  I had established that the prisoners had complied with my instruction before kneeling down.
I was just about to straighten up when I felt a heavy thud on my upper back.
	I find that the claimant bent down on one knee to attend to the spillage.  In her oral evidence the claimant said that she thought she had started to stand up when she felt the thud on her back.
18.	The claimant did not see what caused the thud on her back, but the documentation from the subsequent accident investigation tells what happened.  One of the prisoners, Mr Inder, attempted to carry two sacks past the claimant and the spillage.  As he did so, he lost his balance and hit his head on the corner of the adjacent wall and one of the sacks fell off his shoulder, striking the claimant on the back.
19.	The defendant has questioned the claimant’s assertion that, before she knelt down to deal with the spillage, she instructed the prisoners to stop movement and saw that they had done so.  It relied on the evidence of Mr Jeremy Young, a prison officer who was speaking to Mr James in the vehicle delivery area when the accident occurred and who said that he did not hear the claimant give any instruction to the prisoners.  That evidence does not materially assist me on this point, because Mr Young did not observe either the accident or what led up to it and was not paying attention to the claimant or to what she was saying.  The defendant also relied on the contents of the statement that the claimant made shortly after the incident, during the course of the investigation.  In that statement, the claimant said that she had instructed the prisoners “to stop movements in the area until the area was cleared”, but she did not say that she had observed their compliance with that instruction before she knelt down to attend to the spillage.
20.	I accept that the claimant instructed the prisoners to stop their movements in the area until the spillage had been cleared and that she observed that no one was moving before she knelt down.  No contrary evidence was given; the fact that the instruction was not referred to by Mr Inder or by another prisoner, Mr Jones, in their statements given in the course of the investigation carries little weight, because the statements are brief and neither man was called to give evidence.  It is inherently credible that the claimant gave the instruction, because the fact that she sent another prisoner to obtain cleaning materials and knelt down to attend to the spillage while waiting for his return shows that she regarded the spillage as a potential hazard.  When she gave evidence, the claimant said that she would have automatically checked, as a matter of common sense, that the prisoners had done what they were told and that she did check.  I accept her evidence, both because it is inherently plausible and because I regarded the claimant as an honest witness.  Of course, one must be careful not to exaggerate the formality with which the instruction would have been given or compliance would have been checked.  The statements of Mr Inder and Mr Jones refer to the claimant as “Sue”.  The instruction, any compliance with it and the observation of compliance would have been informal, not akin to a military command and inspection.  It is easily understandable that the claimant did not refer to her observation of compliance when she made her original statement.

Mr Inder’s negligence
21.	I find that the accident occurred because Mr Inder failed to take reasonable care for the claimant’s safety.  He attempted to carry two heavy sacks past the spillage, although the claimant was bending down on one knee in an effort to control the spillage and although he had been told to stay where he was.  As his own statements in the investigation make clear, this involved him in trying to step over the spillage, in close proximity to the claimant.  In doing this, he lost his balance.  He ought clearly to have waited until it was safe to proceed, both for him and for the claimant.  It was reasonably foreseeable that, in trying to pass the spillage while carrying the sacks, he would cause an injury to the claimant.  Although Mr Williams did not accept that Mr Inder was negligent, he rightly did not argue very strongly against the conclusion that he was.

Vicarious liability: the factual basis
22.	In support of her contention that the defendant ought to be held vicariously liable for Mr Inder’s negligence, the claimant relies on the nature of their relationship, which is said to be materially similar to that of employer and employee.
23.	For his work in the kitchen, Mr Inder received pay at the rate of £11.55 a week. The other prisoners who worked in the kitchen were paid a similar amount; the claimant says that some were paid at a slightly higher rate of £13 a week, but nothing turns on that.  
24.	The pay was given pursuant to the Prison Rules 1999 and in accordance with the Prison Service policy on prisoners’ pay as set out in Prison Service Order No. 4460 (the PSO), issued in January 2000.  
25.	Rule 31(1) of the Prison Rules 1999 provides:
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.
The Prison Rules permit but do not require that payment be given for work by prisoners.  Rule 31(6) provides:
Prisoners may be paid for their work at rates approved by the Secretary of State, either generally or in relation to particular cases.
26.	The introduction to the PSO showed that it applied to prisoners held in both publicly managed prisons and contracted-out prisons.  It said:
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.

Among the provisions of the policy itself were the following:
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 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.
27.	The catering department at HM Prison Swansea produced a document to regulate the work carried on by prisoners.  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
•	Recognize 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.
29.	Each prisoner had a training record to show what instruction he had received in respect of systems of work and the use of equipment.  There was provision for making work reports on prisoners who had worked in the catering department.

Vicarious Liability: the law
30.	The central case of vicarious liability is that of an employer for torts committed by an employee in the course of the latter’s employment.  However, the incidence of vicarious liability is not confined to such a case.
31.	The leading authority is now Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2012] 3 W.L.R. 1319.  The case concerned allegations that boys at a residential school had been sexually and physically abused by their teachers.  Those teachers were members of a lay Roman Catholic order and, as such, had taken religious vows and lived a communal life as brothers under the care of the order, renouncing their salaries for teaching, which instead were paid to a charitable trust for the benefit of the order.  The question for the Supreme Court was whether the order should be held liable for the tortious acts of its brother members, although it did not employ the brothers.  Lord Phillips of Worth Matravers delivered a judgment with which all the other members of the court agreed.
32.	Lord Phillips observed at paragraph 21 that the scope of vicarious liability had been extended by “sound and logical incremental developments of the law” and that the test for vicarious liability required a synthesis of two stages: first, consideration of the relationship between the tortfeasor and the party said to be vicariously liable, to see whether that relationship was one that was capable of giving rise to vicarious liability; second, examination of the connection that linked the relationship and the tortious act or omission.
33.	In respect of stage 1, Lord Phillips distinguished between the underlying policy of vicarious liability and the criteria of its incidence.
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, 20th 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 [Lister v Hesley Hall Ltd] [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.
	He then considered the central case of the employer-employee relationship and identified five policy reasons why it was fair, just and reasonable to impose vicarious liability on an employer when certain criteria—namely, a contract of employment, and (a) the commission by the employee of a tort (b) in the course of the employee’s employment—were satisfied:
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.
34.	After a discussion of decided cases, Lord Phillips turned to consider vicarious liability outside the employment relationship.
47.  At para 35 above, I have identified those incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant. Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is “akin to that between an employer and an employee”. That was the approach adopted by the Court of Appeal in E’s case [JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust] [2012] IRLR 846.
	In E’s case, it was held that a Roman Catholic bishop was vicariously liable for the tortious acts of a priest, on the ground that the relationship between them was akin to employment.  With that ground in mind, Lord Phillips proceeded to consider the position in the Catholic Child Welfare Society case.
55.  … The truth is that the case for finding vicarious liability is much stronger in the present case than it was in E’s case.
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. … (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 from that of the relationship between employer and employee in that: (i) 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.
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60.  For these reasons I consider that the relationship between the teaching brothers and the institute was sufficiently akin to that of employer and employees to satisfy stage 1 of the test of vicarious liability.
35.	Regarding stage 2 of the enquiry, namely the connection between the acts complained of and the relationship between the tortfeasor and the person to be held vicariously liable, Lord Phillips said:
62.  Where an employee commits a tortious act the employer will be vicariously liable if the act was done “in the course of the employment” of the employee. This plainly covers the situation where the employee does something that he is employed to do in a manner that is negligent. In that situation the necessary connection between his relationship with his employer and his tortious act will be established. Stage 2 of the test will be satisfied. The same is true where the relationship between the defendant and the tortfeasor is akin to that of an employer and employee. Where the tortfeasor does something that he is required or requested to do pursuant to his relationship with the defendant in a manner that is negligent, stage 2 of the test is likely to be satisfied.
36.	I have set out these passages from Lord Phillips’ judgment in the Catholic Child Welfare Society case because I think that they show the manner in which the courts are to set about the task of deciding whether vicarious liability exists outside the employment context.  The process is one of incremental extension by analogy.  The extension is justified on the basis that the relationship in question is “akin to that between an employer and an employee” in respects that make it fair, just and reasonable to impose vicarious liability.  In deciding what similarities and dissimilarities between the relationship in question and the relationship of employment are relevant in that regard, the court should have regard to those features or incidents of the employment relationship that provide the policy justification for vicarious liability in that context.
37.	However, Lord Phillips did not purport to lay down detailed criteria for the extension of vicarious liability to situations outside the employment relationship.  His discussion of principle was in the context of a consideration of particular facts and issues.  This is to make the common point that his words are to be read as those of a judgment, not of a legislative provision.
38.	In the present case, the relevant relationship between the defendant and Mr Inder arose under the Prison Rules and the PSO.  On behalf of the defendant, Mr Williams referred to the decision of the Court of Appeal in Sargent v Walsall Metropolitan Borough Council (27 June 1985, unreported) and submitted that it was necessary to consider whether the imposition of vicarious liability was consistent with the statutory nature of the relationship between the defendant and the prisoner.  The Sargent case concerned a claim by an infant plaintiff, who had suffered injury by reason of the negligence of the foster parent with whom she had been placed by the local authority.  In the Court of Appeal it was submitted that the trial judge had been wrong to refuse to hold the local authority liable on the basis of vicarious liability.  It was not said that the foster parents were employees of the local authority, but “it was suggested that there was a relationship of principal and agent or of a sufficient proximity between the foster parents and the local authority to make the local authority liable for the acts of the foster parents.”  The Court rejected the appeal on this ground.  Oliver LJ, with whom Balcombe LJ agreed, considered in detail the statutory provisions under which the plaintiff had been taken into care and continued:
[T]he statute and the regulations show quite clearly that this is a statutory scheme and that the relationship between the child and the local authority, and indeed between the child and the foster parents, is one which is regulated, in my judgment, simply and solely by the provisions of the statutory scheme. It seems to me that that is entirely inconsistent with the notion that the foster parents are in any way the agents of the local authority in carrying out their duties. It is the duty of the local authority to provide accommodation for the child, and the duty is satisfied by the provision of the accommodation by boarding out, and I do not think that the foster parents are in any way fulfilling the local authority’s duty to provide accommodation. They are the means by which the local authority carries out its own duty. It certainly does not seem to me to be consistent with the statutory scheme that they should be treated as agents of the local authority. I would therefore hold that the learned judge, in his judgment, came to entirely the right conclusion on that aspect of the case.
39.	Mr Williams accepted that the Sargent case, if a suitable starting-point, could not be the final word on the matter, in view of the “incremental developments” leading to and culminating in the Catholic Child Welfare Society case.  In my judgment, all that the Sargent case decided was that the relationship created by the statutory scheme between the local authority and the foster parent was neither one of principal and agent nor one sufficiently akin to that of principal and agent to justify the imposition of vicarious liability.  It is an example of the importance of a close examination of the nature of the relationship, including any statutory provisions that give rise to it; but it is not authority for the proposition that the statutory origin of a relationship necessarily precludes the imposition of vicarious liability.

Vicarious liability: short summary of submissions
40.	For the claimant, Mr O’Leary did not submit that the Ministry of Justice would necessarily be vicariously liable for the torts committed by prisoners in the course of carrying out paid work.  However, he submitted that the circumstances of this case made the relationship akin to one of employment for the purposes of the Catholic Child Welfare Society case.  In that regard he relied on the facts that I have mentioned in paragraphs 22 to 29 above and submitted that the relationship was, for present purposes, closely similar to one of employer and employee.  Mr Inder was working under direction, supervision and control of the prison authorities.  The work he was doing was integral to the operation of the prison: it had the purpose of assisting the catering department to carry out its necessary functions, and it would have had to be done at greater expense by paid employees or contractors if prisoners had not been used for the purpose.  The claimant had no choice but to work alongside the prisoners, in the same way in which she would have worked alongside employees.  In that respect, her health and safety was dependent on the conduct of the prisoners with whom she worked, just as much as if they had been employees.  The prisoners were treated in the same way as employees as regards training, instruction and risk assessment.
41.	Mr O’Leary submitted that the policy reasons that justified the imposition of vicarious liability in the employment context did so in the present case: the defendant had the means to compensate the claimant, whereas the prisoner was unlikely to have them; the tort was committed as a result of activity being taken by the prisoner on behalf of the defendant; the prisoner’s activity was part, not admittedly of the “business activity” of the defendant, but of an enterprise that required finance for its operation and saved money by the use of prisoners’ labour; the defendant created the risk of the tort committed by the prisoner by engaging him to work in the catering department; and the prisoner was clearly under the control of the defendant.
42.	Further, Mr O’Leary submitted that, if vicarious liability were not imposed in the present case, the resulting position would be anomalous.  If the claimant had been injured by the negligence of one of her fellow employees, the defendant would have been vicariously liable.  If she had injured Mr Inder by her own negligence, the defendant would have been vicariously liable for her negligence.  But if the defendant’s case in these proceedings were correct, the defendant would not be liable when the claimant was injured by the negligence of a prisoner.
43.	For the defendant, Mr Williams submitted that the statutory context of the relationship between the defendant and Mr Inder was of primary importance; although he did not maintain orally the submission, advanced in his skeleton argument, that the Sargent case was itself a conclusive answer to the assertion of vicarious liability, but he said that the cases were analogous.  The engagement of prisoners to perform useful work for pay was a statutory requirement for the purposes of prison discipline and the efficacy of the penal system.  It was not a voluntary, mutual arrangement entered into by the defendant for its own advantage or for commercial reasons to further a business or enterprise of running prisons.  The fact that the work might benefit the prison—for example, in assisting in the provision of meals for prisoners—was contingent, in that the work done by prisoners was required to be “useful”, and this was for a proper objective of penal policy rather than a matter of financial advantage for the prison authorities.  The high degree of control exercised over working prisoners was a necessary incident of the relationship between prison and prisoners and was also required by the obligation to provide useful work.
Vicarious liability: discussion and conclusions
44.	In my judgment, the defendant is not vicariously liable for the negligence of Mr Inder.
45.	It is possible to identify various respects in which the defendant’s relationship with Mr Inder appear to exhibit the salient features of the employment relationship as identified by Lord Phillips in paragraph 35 of the Catholic Child Welfare Society case; see paragraph 41 above.  However, I agree with Mr Williams that the context is of critical importance and that, when viewed in context, the features in question do not justify the imposition of vicarious liability.
46.	Employment is a voluntary, mutual relationship, in which each party acts for what is or is perceived to be its own advantage.  The employer employs an employee to be the means by which the employer’s undertaking or enterprise is to be carried on and furthered.  The point requires neither illustration nor further explanation.  It provides the context in which the policy reasons identified by Lord Phillips in paragraph 35 of his judgment are readily intelligible.  
47.	The position concerning prisoners at work is quite different.  The prison authorities are legally required to offer work to prisoners in accordance with the Prison Rules.  They are required, by the policy set out in the PSO, to make payment for that work.  These two requirements are a matter not of voluntary enterprise or commercial advantage but of penal policy.  The provision of work is a matter of prison discipline, of prisoners’ rehabilitation and, perhaps, of the discharge of prisoners’ obligation to the community.  Payment for the work is an “element in the process of motivating prisoners”, as the PSO makes clear.  The position is not properly analogous to the employment situation.
48.	It is correct to say that the work being carried on by Mr Inder was of use to the operation of the prison and that, if prisoners did not work in the catering department, additional costs would have to be incurred in employing staff or engaging contractors.  In my judgment this fact does not advance the claimant’s case.  The Prison Rules require that the work be useful: rule 31 (1).  This again is a matter of penal policy; the exaction of useless drudgery would be unlikely to further any sensible penal objective, other (arguably) than retribution.  Further, there is no obvious reason why the usefulness of the work should lead to the imposition of vicarious liability, if useless work would not do so.  The matter particularly relied on by Mr O’Leary was that the work was useful to the efficiency and economy of the operation of the prison and so was analogous to the employment of staff in an employer’s undertaking.  In my judgment the analogy is not a helpful one.  It is no more true to say that prisoners perform work than to say that they are incarcerated for the purposes of the advancement of prisons.  Both the incarceration and the work are in furtherance of penal policy.  It may be that one reason for requiring prisoners to work is an economic one.  But this, if so, is a matter of defraying the expense to the state caused by prisons; it is not a matter of prisoners being the means of furthering the business undertaking of the Ministry of Justice.
49.	Similarly, matters of control and instruction must be viewed in the context of the prison regime.  Discipline in prisons is not confined to prisoners who are performing paid work.  Some instruction will of course be particular to the working environment: for example, instruction in the use of dangerous equipment, or in hygiene, or in safe working practices.  Such instruction and control does not amount to a justification for the imposition of vicarious liability.  It arises from common sense and from the fact that the prison authorities owe legal duties of care both to prisoners and to staff, any breach of which is actionable if damage results.  
50.	I also reject the submission that a rejection of vicarious liability would lead to anomalies.  I was referred to numerous cases regarding prisoners, none of which seemed to me to be of much if any relevance: Ellis v Home Office [1953] 2 All ER 149; Pullin v Prison Commissioners [1957] 1 W.L.R. 1186; Davis v Prison Commissioners (The Times, November 21, 1963); Ferguson v Home Office (The Times, October 8, 1977); and Egerton v Home Office [1978] Crim. L.R. 494.  Mr O’Leary suggested that the cases showed that prisoners were treated similarly to employees for the purposes of health and safety, but I do not agree.  What they show is simply that the prison authorities owe a duty to take reasonable care for the safety of prisoners in their charge, although the prisoners are not employees of the prison authorities.  This does not constitute a reason for making the defendant vicariously liable for torts committed by prisoners performing paid work.  The matters mentioned by Mr O’Leary and set out in paragraph 42 above are not genuine anomalies or inconsistencies at all.  The defendant is vicariously liable to both prisoners and staff on the same basis for the negligence of employees and it is not vicariously liable to either prisoners or staff for the negligence of prisoners.  Both prisoners and staff can claim against the defendant for its own breach of duty.
51.	It is correct that, if the defendant is not vicariously liable for the torts of prisoners, an employee would have a cause of action against the defendant if she were injured by a negligent fellow employee but not if she were injured by a negligent prisoner.  To state that proposition is, however, simply to identify the absence of vicarious liability for prisoners; it is not to show a reason why such vicarious liability should exist.
52.	If any anomaly were to arise, it would do so by imposing vicarious liability such as the claimant contends for.  The result would be that, for example, a member of staff would have a claim against the defendant if she were injured by the negligence of a prisoner performing paid work in the kitchen, but that a member of staff injured by the negligence of a prisoner under his supervision and control in the gymnasium or on the exercise yard or on a prison landing or staircase would have no such claim, although in each case the prisoner would be subject to the discipline of the regime in furtherance of penal policy.
53.	As I have said, Mr O’Leary disclaimed any submission that the defendant was vicariously liable for all torts committed by prisoners while performing paid work.  He said that the enquiry in each case was fact-sensitive and that an examination of the facts in the present case indicated that vicarious liability ought to be imposed.  The reference to sensitivity to facts sounds nuanced and high-minded, but I do not think that in the present context it is.  One submission that Mr O’Leary made, at paragraph 18 (f) of his skeleton argument, was that the failure of the defendant to disclose sufficient records to enable the claimant to assess the economic relevance of prisoners’ work to the regime at HMP Swansea justified an adverse inference in accordance with Wiszniewski v Central Manchester HA [1998] PIQR P324.  In my judgment, the question whether the defendant is vicariously liable for the torts of its prisoners does not turn on that sort of enquiry, far less on the results of disclosure on such matters in the particular case, and to suppose that it does reflects a lack of appreciation of the critical nature of the relationship between the defendant and serving prisoners.

Direct liability: common law
54.	In the alternative, Mr O’Leary submitted that the defendant was liable to the claimant by reason of its breach of the duty upon an employer to take reasonable care for its employees’ safety.  
55.	That duty is non-delegable, in the sense that, although the employer is entitled to delegate the performance of the duty to others, it cannot delegate responsibility for the negligent performance of the duty by those others: McDermid v Nash Dredging & Reclamation Co Ltd [1987] A.C. 906, per Lord Hailsham of St. Marylebone at 910G.  The precise content of the duty will vary according to the nature of the particular risk involved, but in general terms the duty encompasses the provision of a safe system of work, a safe place of work, safe staff and safe equipment.
56.	Mr O’Leary based his submission on several facts, all of which are in my judgment established on the evidence and may be stated shortly.  First, among the purposes served by the lift were the provision of access to the kitchen stores on the first floor and the reduction of the need for manual handling operations relating to deliveries for the kitchen.  Second, the lift failed, and was known to fail, frequently.  Third, the system of procuring manual handling training for all prisoners who were to work in the kitchen had been discontinued without the knowledge of either the claimant or Helen Davey.  Accordingly, Mr Inder had not received manual handling training.
57.	Mr O’Leary did not submit that it was inappropriate for Mr Inder to carry two sacks rather than one or that there was anything wrong with the manner in which he carried them.  Rather he submitted that the defendant had failed to take reasonable care to ensure that Mr Inder did not present a risk to the claimant’s safety, in that he had not been trained in manual handling.  Such training would not have been narrowly confined to matters of technique (a straight back, a manageable load, and so forth) but would have dealt with more wide-ranging matters, such as the risks that would be created by attempting to carry heavy and awkward loads past persons in vulnerable positions.  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 a good reason and he would have obeyed it instead of ignoring it.
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.

Direct liability: statute
59.	Mr O’Leary also submitted that the defendant was in breach of its statutory duty to maintain the workplace and work equipment, namely the lift.  For these purposes it is unimportant whether the lift be considered to be part of the workplace or a piece of work equipment; the relevant duties are materially identical.  Regulation 5 (1) of the Workplace (Health, Safety and Welfare) Regulations 1992 provides:
“The workplace and the equipment, devices and systems to which this regulation applies shall be maintained … in an efficient state, in efficient working order and in good repair.”
Regulation 5 (1) of the Provision and Use of Work Equipment Regulations 1998 provides:
Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.
In the context of these regulations, “efficient” means efficient from the viewpoint of safety and not from the viewpoint of productivity or economy: Jaguar Cars Ltd v Coates [2004] EWCA Civ 337, per Tuckey LJ at para 12.
60.	Mr O’Leary’s argument was to the following effect.  One purpose for which the lift was provided was to minimise manual handling and thereby reduce the risks to the safety of those responsible for the movement of deliveries.  The accident occurred because the lift broke down and it was accordingly necessary to perform a manual handling operation.  The breakdown of the lift was itself sufficient to place the defendant in breach of the relevant regulation, even if that breakdown could not have been prevented by any measures available to the defendant: Stark v Post Office [2000] I.C.R. 1013.  The critical question was whether that breach of duty was causative of the accident or, rather, the institution by the claimant of what she regarded as a safe alternative system of work and Mr Inder’s negligent failure to comply with that system broke the chain of causation.  Mr O’Leary accepted that the case was on the “borderline” as regards causation.  However, he submitted that the chain of causation was not broken.  It was a foreseeable consequence of the breakdown of the lift that there would be a manual handling operation.  Any such operation gave rise to a foreseeable risk of an accident.  The defendant should fairly and reasonably be held responsible for the claimant’s injury in those circumstances, and the chain of causation should therefore not be held to have been broken.
61.	In my judgment, the claim under the Regulations must fail for either of two related reasons.  The first reason is that the breakdown of the lift did not constitute or give rise to a breach of duty under the Regulations, because the lift had been shut down and taken out of use and was not in an inefficient condition as regards health and safety.  The lift could harm no one; the circumstances of the accident involve the absence of a lift, not a risk to health and safety from the malfunction of a lift.  Suppose that the lift in a workplace breaks down and is taken away for repair, or even permanently removed; in the absence of the lift, an employee has to carry out a manual handling operation that would not have been required if the lift had been in situ and operating: so far as statutory duties are concerned, the case surely concerns the failure to obviate the need to carry out manual handling operations for the purposes of the Manual Handling Operations Regulations, not a failure to maintain the lift for the purposes of the regulations mentioned in paragraph 59 above.  In my judgment, the present case is essentially similar.  I would reject the claim under the Regulations for this reason.
62.	The second, alternative reason arises from the same point as the first, though it differs analytically.  If there was a breach of regulation in respect of the maintenance of the lift, it was not the effective cause of the accident but did no more than give rise to the opportunity for the occurrence of the effective cause, which was the negligence of Mr Inder in implementing the alternative system of work established by the claimant.

Conclusion on liability
63.	For the reasons set out above, liability is not established and the claim fails.
64.	In those circumstances issues of contributory negligence and quantum of damages do not arise for consideration.  However, I shall express some views on both matters.

Contributory negligence
65.	I can be brief on this matter.  If I had found that the defendant was liable, I would not have found that the claimant was contributorily negligent.  
66.	The submission that the claimant ought to be held entirely or largely to blame for the accident rested on the contention that she failed to keep the prisoners under proper supervision.  I reject that contention, having regard to my findings of fact as set out in paragraphs 19 and 20 above.  In my judgment the claimant instituted a proper system of work in the situation that presented itself and took reasonable care for her own safety in her supervision and instruction of the prisoners in her charge.  It would be wrong to blame her for the accident that befell her.

Issues relating to quantum of damages
67.	The parties were agreed that the trial should address only those issues of fact and expert opinion that were necessary to be resolved to enable them, in the event that liability were established, to quantify damages or, at least, identify the areas of disagreement to be addressed by supplemental submissions.  
68.	As I have rejected the claimant’s case on liability, issues relating to quantum of damage do not strictly arise for consideration.
69.	I have been forewarned that the claimant might seek to challenge an adverse finding as to liability.  For that reason it would be desirable that I express such views as I had formed regarding the evidence on quantum.  	However, at the risk of appearing unhelpful, I decline to express full conclusions on quantum, for the following reasons.
70.	The issues involved some interplay of orthopaedic and psychiatric evidence, particularly as regards the effects of the accident on the claimant’s experience of pain in her lumbar back and thoracic back.  The orthopaedic evidence in the case was received in the form of written reports by Mr David Lake, a retired consultant orthopaedic surgeon.  Unfortunately, the parties were not in clear agreement as to the meaning of those reports; this disagreement was apparent in the psychiatric evidence, the scope and relevance of which was in part dictated by the evidence of Mr Lake, and in counsel’s submissions.  (It may be noted that the defendant’s expert, Dr Thomas, modified his understanding of Mr Lake’s reports in the course of his oral evidence.  However, I do not think that the modification was an exercise in psychiatric expertise; and Dr Thomas’s oral evidence did not seem, in the event, to be based on the same understanding of the orthopaedic evidence as that reflected in Mr Williams’ cogent submissions.)  In summary, it was contended on behalf of the claimant that Mr Lake’s reports established that there was a physical cause for some but not all of the pain experienced by the claimant since the accident, whereas the defendant’s case was that Mr Lake’s evidence identified sufficient physical causes for all of the claimant’s post-accident pain and rendered unnecessary the search for psychiatric or psychological explanations of the experience of the pain.  Mr O’Leary reflected the consensus at trial when he said that Mr Lake’s reports were “confusing and unclear”.  The confusion and the consequent difference of understanding ought to have been identified at an early stage and before the issues to be addressed by the psychiatrists were formulated, and it could have been easily resolved by putting some written questions to Mr Lake.
71.	If I had found liability to be established, it may be that I would have felt compelled to make an attempt to make sense of the evidence and reach some conclusion on the matter.  However, that is not the position that arises.  This is a claim for a large amount of money, and I am concerned that the uncertainty arising out of the different interpretations of Mr Lake’s evidence has clouded the issues and threatens to result in unreliable conclusions.
72.	In the event that quantum of damage falls to be considered at a later date, the parties should seek to reach a definitive position as to the conclusions to be drawn from the orthopaedic evidence; that may well require that questions be put to Mr Lake, who will be in no worse position than I am to explain what his own views are.  The psychiatric experts who gave evidence before me, Dr Jenkins and Dr Thomas, had reached a large measure of agreement before the hearing and the differences between them narrowed still further in the course of the hearing.  I anticipate that little if any issue will remain once they are able to reflect on an unambiguous conclusion from the orthopaedic evidence and the further treatment that the claimant will presumably be undergoing in the light of the views expressed by the experts at trial.  (It is hardly to be expected that a decision on treatment will await the judicial determination of these proceedings.)
73.	I am satisfied that the trial has not given rise to questions concerning the honesty or credibility of the claimant.  There were however some points of fact on which I should briefly express my conclusions.  I accept that the Records of Staff Contact dated 26 September 2007 (p. 345 of the trial bundle) and 7 December 2007 (p. 360) accurately reflect the conversations they record.  I accept that, even if the accident had not occurred, the claimant would not have applied for her existing post when it was re-graded and would not have been fit to continue in employment as a caterer.  The combination of her constitutional lower-back pain and the carpal tunnel syndrome from which she has suffered for “three or more years” would have prevented the claimant in any event from carrying out any work with a significant physical component.
74.	I shall also express limited conclusions concerning the psychiatric evidence.  First, I prefer the evidence of Dr Thomas to that of Dr Jenkins regarding the degree of the claimant’s depression immediately before the accident.  Dr Jenkins thought her continuing condition to be “minor”; he referred to stresses being past and to the stability of the claimant’s personal relationships.  However, although the claimant was at work before the accident, the documents confirm that she was by no means free of a sense of stress and upset, and I think that Dr Thomas’s view that her condition was “mild to moderate” rather than mild at the date of the accident is more consistent with the facts.  The supposition that the medication being taken by the claimant had ameliorated her condition to the position where they could be considered mild is not made out.  Second, I also agree with Dr Thomas that it is unlikely that the claimant would have made a full recovery from the symptoms of her pre-existing condition, at least within a short timescale.  Dr Jenkins’ evidence was to the effect that there was a high statistical probability that a full recovery would be achieved by the claimant’s course of medication.  Dr Thomas, however, observed that factors such as continuing stress at work would militate against recovery; he acknowledged that, unless one were able to quantify such factors, a firm opinion was hard to achieve.  The claimant’s work records seem to me to show that, quite apart from the accident, she was under significant personal stress when the accident occurred and had by no means recovered.  It seems to me unlikely that the stress would have disappeared quickly.  In December her father, visiting from Spain, was taken seriously ill; he died after an illness of a few months.  Although it is common ground that the claimant’s condition was exacerbated by the accident, I consider it probable that she would have continued to suffer from symptoms of depression for a significant period of time.  The slow course of her recovery since the accident tends to strengthen that conclusion.  The length of time for which her symptoms would have been continued is a matter that, in my view, depends on further clarification of the orthopaedic evidence.  However, having regard to the very substantial recovery that had been made by the spring of 2012, I consider it probable that, had the accident not occurred, and on the assumption that there is no physical cause of the claimant’s upper-back pain, the claimant would not have suffered from disabling psychiatric symptoms for more than two years after the date of her accident.  By September 2009 there would have been no psychiatric impediment to her seeking employment.
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