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Viasystems (Tyneside) Limited v Thermal Transfer (Northern) Limited & 2 Others, Court of Appeal, 10 October 2005

25 October 2005
The issues

Vicarious Liability – Whether Two Separate Employers Can Be Vicariously Liable In Respect Of The Negligence Of A Single Employee – Civil Liability (Contribution) Act 1978

The facts

In July 1998 there was a flood at the Claimant’s factory in South Shields which had been caused by the “foolish negligence” of a young fitters mate – Darren Strang. The flood caused great damage which the Claimants were entitled to recover in contract from the First Defendant, Thermal transfer. There were also claims against the Second and Third Defendants, S&P Darwell Ltd and the Third Defendants, Troy Hall and Christopher Day trading as CAT Metalwork Services.

The First Defendants claimed an indemnity against the Second or Third Defendants. The matter came before the Judge at the Newcastle upon Tyne County Court as to whether it was the Second or Third Defendants who were vicariously liable to the Claimants for Darren Strang’s foolishness.

The Judge found on the facts that the Third Defendants were liable. The Third Defendants appealed against the decision.

The Claimants had asked the First Defendants to install air conditioning in the factory. The First Defendant’s sub contracted the ducting work to the second Defendants. The Second Defendants contracted with the Third Defendants to provide fitters and fitters mates on a labour only basis. One of the fitters was a Mr Megson. Mr Megson’s mate was Mr Strang. They were installing the duct work under the supervision of Mr Horsley who was a self employed fitter contracted to the Second Defendants. Both Mr Megson and Mr Strang were employed by the Third Defendants. Darren Strang went away from where the work was being done and returned a little after a few minutes. He returned by a route that was not sensible and which involved his damaging some sections of ducting in place that moved and came into contact with part of a fire protection sprinkler system which fractured causing the flood.

The Judge had rejected the submission that Mr Strang did what he did under the express instruction of Mr Horsley.

The decision

The leading authority was Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Limited. That case was authority for the principle that decisions as to employment depended on the particular facts but certain considerations might be relevant. These included:-

a) That the burden of showing that responsibility does not remain with the general employer and is a heavy one;
b) By whom is the negligent employee engaged? Who pays him? Who has power to dismiss him?
c) Who has the immediate direction and control of the relevant work?
d) Who is entitled to tell the employee the way in which he has to do the work on which he is engaged?
e) Enquiries should concentrate on the relevant negligent act and then ask whose responsibility it was to prevent it? A transfer of services could only be affected with the employees consent.
f) Responsibility should lie with the master in whose act some degree of fault though remote could be found.

The issue therefore for the Court of Appeal was whether both the Second and the Third Defendants could be vicariously liable for the negligence of Mr Strang.

Comments

There was a long standing assumption that a finding of dual vicarious liability was not legally permissible. The assumption lacked binding authority and had barely been argued and certainly never in depth.

There was little sense in or justification for that assumption. The basis for the assumption appeared to be the idea that to find a temporary employer vicariously liable there would have to be a transfer of employment. Although the nature of the employee’s employment was clearly material it was not a determinative factor in all cases. The core question was who was entitled and in theory obliged to control the employee’s relevant negligent act in order to prevent it and there would be some cases in which the sensible answer would be each of two “employers”.

This was such a case and the appeal would be allowed to the extent of holding each of the Second and Third Defendants vicariously liable for Mr Strang’s negligence.

A just and equitable division of contributory responsibility should be equal so that each would contribute 50% to the Claimant.

If the relevant relationship led to the conclusion of dual control it was likely that the measure of control would be equal for the purposes of apportionment (Lord Justice May) Comment Lord Justice Riggs concluded that where there was dual vicarious liability arising out of the negligence of a single employee it followed that the responsibility of each employer for the purposes of contribution must be equal. In the absence of any other negligence by another employee contributing to the same damage or in the absence of any personal fault on the part of either employer in respect of the same damage.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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