Viasystems v Thermal Transfer [2006] 2 W.L.R. 428

During installation work at a factory, a fitter's mate was supplied through a chain of contractors and worked under supervision connected with two different businesses. While moving through the roof space, he crawled through ducting rather than using the available boards. The ducting shifted, damaging the sprinkler system and flooding the factory. The businesses disputed which of them should bear vicarious responsibility for his negligence. The Court of Appeal considered whether control over the work could justify responsibility attaching to both the general employer and the business supervising the work locally.

Could two businesses both be vicariously liable for the same worker's negligence where each had relevant control over how he performed the work?

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. 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.

Dual vicarious liability is legally possible where the relevant working relationships justify responsibility in two businesses. In Viasystems, both had sufficient control over the negligent work. Their liability to the claimant and the contribution due between them were distinct questions; equal contribution depended on the facts.

Viasystems rejects an assumption that selecting one responsible employer always excludes another. It is particularly useful for labour supply and subcontracting arrangements, where practical supervision may differ from contractual labels. Control was central on these facts, but modern vicarious-liability analysis also considers the nature of the working relationship. Do not infer that all parties in a contracting chain are liable or that contributions must always be equal. Identify the relationship, the particular wrong and each party's relevant role.