• In the case of Viasystems v Thermal Transfer [2006] 2 W.L.R. 428, it was held that two separate employers could both be vicariously liable for the negligence of a single employee.

Facts of the Case

  • In July 1998, C employed D1 to install air conditioning in their factory. D1 subcontracted the ducting work to D2.
  • D2 contracted with D3 to provide fitters and fitters’ mates on a labour-only basis.
  • The fitter and the negligent fitter’s mate installed the ductwork under supervision of a self-employed fitter contracted to D2. The fitter’s mate was thus employed by D3.
  • The fitters were working in a roof space, accessed by crawling boards. The fitter’s mate went to fetch some fittings and attempted to return by crawling through sections of ducting that had been placed.
  • The ducting shifted and fractured part of the sprinkler system, leading to the factory being flooded.
  • C was held to be entitled to claim from D1 as they were vicariously liable for the fitter’s mate’s negligence. C also brought actions against D2 and D3 under the same grounds.

Issues

  • Could both D2 and D3 be held vicariously liable for the fitter’s mate’s negligence?

Held by the Queen’s Bench Division

  • Finding for C, the question to determine vicarious liability was who was entitled to exercise control over the fitter’s mate’s actions. Entire and absolute control was not a necessary precondition of vicarious liability.
  • On the facts, both D2’s fitter and D3’s fitter had been entitled, and if they had had the opportunity obliged, to prevent the mate’s negligence.
  • There was no authority binding the court to hold that dual vicarious liability was legally impossible, despite previous courts avoiding this conclusion.
  • Under a dual control situation, the measure of control D2 and D3 had over the fitter’s mate’s actions was equal. Applying the Civil Liability (Contribution) Act 1978, D2 and D3 should contribute 50% of their several liabilities to C.

Lord Justice May

  • Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Limited [1947] AC 1 made it clear that decisions depend on the particular facts and that many factors may bear on the result. The heavy burden of showing that responsibility does not remain with the general employer is on that general employer.
  • The parties’ cases and the judge’s decision were predicated on an assumption that only one out of D2 and D3 could be vicariously liable for the fitter’s mate’s negligence. Atiyah’s ‘Vicarious Liability in the Law of Torts’ (1967) stated that it is strange that the courts have never taken the obvious solution of holding both the general and temporary employer vicariously liable.
  • Both the fitter and the foreman were entitled and obliged to control the mate’s work, including his negligence. D2, through the foreman, would have qualified for vicarious liability if it had been the fitter who crawled through the duct. There is no good sense in saying one was not entitled to control the mate or one was ultimately more blameworthy than the other.
  • “There has been a long-standing assumption, technically unsupported by authority binding this court, that finding dual vicarious liability is not legally permissible. An assumption of such antiquity should not lightly be brushed aside, but the contrary has scarcely been argued and never considered in depth. This is not surprising, because in many, perhaps most, factual situations, a proper application of Mersey Docks principles would not yield dual control, as it so plainly does in the present case. I am sceptical whether any of the cases from this jurisdiction which I have considered would, if they were re-examined, yield dual vicarious liability” [46].
  •  If the relevant relationships yield dual control, it is highly likely at least that the measure of control will be equal, even if this will rarely arise. Dual vicarious liability is unlikely to be a possibility if one candidate for such liability is also personally at fault. In this case, D2 and D3 are both vicariously liable, and should contribute equally to damages.

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