VIASYSTEMS (TYNESIDE) LTD V THERMAL TRANSFER (NORTHERN) LIMITED AND OTHERS [2005] EWCA Civ 1151
FACTS:-
In July 1998, the Claimant engaged the First Defendants to install air conditioning at their factory. The First Defendant subcontracted the ducting work to the Second Defendants, who in turn subcontracted with the Third Defendant to provide fitters and fitter’s mates. A fitter’s mate employed by the Third Defendant negligently damaged the fire protection sprinkler system causing substantial damage. At the time, they were working under the supervision of an employee of the Second Defendant.
JUDGMENT:-
Lord Justice May considered the leading relevant authority of Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Limited [1947] AC 1.
In that case it was said that there were a number of relevant considerations:-
May LJ considered the possibility of dual vicarious liability. He referred to another case Denham v Midland Employers’ Mutual Assurance Limited [1955] 2 QB 437 which said that if a temporary employer had the right to control the manner in which a labourer did his work, so as to be able to tell him the right way or the wrong way to do it, then he should be responsible when he did it in the wrong way as well as the right way.
May LJ said that looking for a transfer of a contract of employment was no more than a distracting device, and in this case the negligent fitter’s mate’s contract was never transferred. The question in this case was who was entitled and obliged to stop the act of negligence by the fitter’s matter. The answer was the Second Defendant’s employee and the fitter employed by the Third Defendant.
The problem was that this presupposed that it was possible in law for both the Second and Third Defendants to be vicariously liable, and earlier authorities had found against more than one employer being vicariously liable. However later authorities suggested that dual liability was a possibility and there was support for that argument from other jurisdictions.
Therefore if the relevant contributions yielded dual control, it was highly likely at least that the measure of control would be equal. An equal measure of control would not often arise. Dual vicarious liability was most unlikely to be a possibility if one of the candidates for such liability was also personally at fault.
May LJ considered the issue of contribution between the parties. If each of the Second and Third Defendants were vicariously liable to the Claimants, they were each severally liable in respect of the same damage, so contribution was available to them under Section 1(1) of the Civil Liability (Contribution) Act 1978. In this case the contribution should be equal between the parties.
Lord Justice Rix agreed.
FACTS:-
In July 1998, the Claimant engaged the First Defendants to install air conditioning at their factory. The First Defendant subcontracted the ducting work to the Second Defendants, who in turn subcontracted with the Third Defendant to provide fitters and fitter’s mates. A fitter’s mate employed by the Third Defendant negligently damaged the fire protection sprinkler system causing substantial damage. At the time, they were working under the supervision of an employee of the Second Defendant.
JUDGMENT:-
Lord Justice May considered the leading relevant authority of Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Limited [1947] AC 1.
In that case it was said that there were a number of relevant considerations:-
- The burden of showing that responsibility did not remain with the general employer was on the general employer and it was a heavy one.
- By whom were the negligent employees engaged?
- Who had the immediate direction and control of the relevant work?
- The inquiry should concentrate on the relevant negligent act and then ask who responsibility it was to prevent it.
- A transfer of services can only be effected with the employee’s consent.
- Responsibility should lie with the master in whose act some degree of fault, though remote, might be found.
May LJ considered the possibility of dual vicarious liability. He referred to another case Denham v Midland Employers’ Mutual Assurance Limited [1955] 2 QB 437 which said that if a temporary employer had the right to control the manner in which a labourer did his work, so as to be able to tell him the right way or the wrong way to do it, then he should be responsible when he did it in the wrong way as well as the right way.
May LJ said that looking for a transfer of a contract of employment was no more than a distracting device, and in this case the negligent fitter’s mate’s contract was never transferred. The question in this case was who was entitled and obliged to stop the act of negligence by the fitter’s matter. The answer was the Second Defendant’s employee and the fitter employed by the Third Defendant.
The problem was that this presupposed that it was possible in law for both the Second and Third Defendants to be vicariously liable, and earlier authorities had found against more than one employer being vicariously liable. However later authorities suggested that dual liability was a possibility and there was support for that argument from other jurisdictions.
Therefore if the relevant contributions yielded dual control, it was highly likely at least that the measure of control would be equal. An equal measure of control would not often arise. Dual vicarious liability was most unlikely to be a possibility if one of the candidates for such liability was also personally at fault.
May LJ considered the issue of contribution between the parties. If each of the Second and Third Defendants were vicariously liable to the Claimants, they were each severally liable in respect of the same damage, so contribution was available to them under Section 1(1) of the Civil Liability (Contribution) Act 1978. In this case the contribution should be equal between the parties.
Lord Justice Rix agreed.