Dual Vicarious Liability

Via Systems (Tyneside) Limited & (1) Thermal Transfer (Northern) Limited (2) S & P Darwell Limited (3) T Hall & C Day (t/a CAT Metalwork Services) 2005

Court of Appeal

Changes to the law on vicarious liability

Crutes acted for the Claimant Company on the instructions of their insurers. The claim followed a flood which caused damage to the Claimant’s factory in July 1998. The Claimant had engaged D1 to install air conditioning to their factory during the summer shutdown period. D1 then subcontracted the ducting work to D2. They in turn contracted with D3 to provide fitters and fitter’s mates on a labour only contract.

The flood occurred when the fitter’s mate Strang employed by D3 decided to crawl through a section of unsupported ducting. This gave way causing it to fracture a sprinkler pipe beneath. At the time of the incident, Strang was working under the supervision of Megson who was also employed by D3. Both workmen were also installing the duct work following the instruction of Horsley, a self-employed fitter contracted to D2.

At first instance His Honour Judge Walton at Newcastle County Court on 1 December 2004 determined that the Third Defendants were vicariously liable for Strang’s negligent act. This was following the application of the “conventional” test. In his view, D3 retained sufficient control over Strang through Megson. In this case, there had not been a temporary transfer of control to D2.

D3 appealed the decision on the basis that Strang’s action followed the express instructions of Horsley. Their view was that D2 should be wholly liable. This approach was rejected by the Appeal Court. However they went on to consider at length whether two employers can be vicariously liable for the actions of an employee.

The Court of Appeal took the view that the main issue was not the transfer of the contract of employment but rather who could have prevented the negligent act. It was found in this case that both D2s fitter Horsley and D3s fitter Megson could have prevented Strang from crawling through the section of ducting. Case Law was considered at length and the Court were of the view that there was no binding authority upon them to hold that dual vicarious liability was not possible. On this basis they found that both D2 & D3 were vicariously liable for Strang’s negligence. Following the application of the Civil Liability (Contribution) Act 1978 they held that as there was dual control there should be equal contribution by both.

The matter is due to go back before His Honour Judge Walton in order to determine quantum.

To view the full Judgment, please click on link below.

http://www.bailii.org/ew/cases/EWCA/Civ/2005/1151.html

« Back to 2005 Archives