Employers Liability for Worker’s Negligence
A worker was injured by a negligently driven crane. The crane and Board’s driver were hired out to stevedores for loading work. The stevedores controlled the crane’s operations, but did not direct how the driver controlled the crane. The hire contract made the driver the employee of the defendant stevedores.
Held: The House upheld decisions that the Board, as the crane driver’s general employer, retained responsibility for his negligence.
Decisions of this kind depend on the particular facts and many factors may bear on the result. Considerations include: (a) the burden of showing that responsibility does not remain with the general employer is on 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? Who is entitled to tell the employee the way in which he is to do the work upon which he is engaged? ‘The proper test is whether or not the hirer had authority to control the manner of execution of the act in question. Given the existence of that authority its exercise or non-exercise on the occasion of the doing the act is irrelevant’. (d) the inquiry should concentrate on the relevant negligent act, and then ask whose responsibility it was to prevent it. In the Mersey Docks case, the stevedores had no responsibility for the way in which the crane driver drove his crane, and it was this which caused the accident. The ultimate question may be, not what specific orders or whether any specific orders were given, but who is entitled to give the orders as to how the work should be done. (e) a transfer of services can only be effected with the employee’s consent. (f) responsibility should lie with the master in whose act some degree of fault, though remote, may be found
Viscount Simon said that a heavy burden of proof lay on the general or permanent employer to shift responsibility for the negligence of servants engaged and paid by such employer to the hirer for the time being who had the benefit of the services rendered. This could only be achieved where the hirer enjoyed the right to ‘control the way in which the act involving negligence was done.’
Lord Porter, Lord Simon, Lord MacMillan, Lord Uthwatt
[1946] 2 All ER 345, [1946] UKHL 1, [1947] AC 1
Bailii
England and Wales
Cited by:
Cited – Denham v Midland Employers’ Mutual Assurance Limited CA 1955
The court was asked which of two mutually exclusive liability insurance policies covered damages which an employer was liable to pay to the widow of an employee, who was killed while he was working under the specific direction of engineers engaged . .
Cited – Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others CA 10-Oct-2005
The defendants had subcontracted work installing air conditioning to the second defendants, who in turn bought in fitters from the third defendants. A fitter caused a flood acting irresponsibly.
Held: The court reviewed the law of vicarious . .
Cited – Hawley v Luminar Leisure Ltd and others CA 24-Jan-2006
The claimant was assaulted and severely injured at a night club by a doorman supplied to the club by a third party company now in liquidation. He claimed the club was the ‘temporary deemed employer’ of the doorman. He also sought to claim under the . .
Cited – Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others CA 12-Nov-2008
The defendant contracted to build a plant for the claimant. The plant was damaged by a fire caused by the defendant’s independent sub-contractor. The defendant appealed against the finding that it was responsible for the sub-contractor’s failure. . .
Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
Cited – JGE v The Portsmouth Roman Catholic Diocesan Trust CA 12-Jul-2012
The claimant suffered physical and serious sexual abuse whilst a child at a children’s home run by the defendant. A parish priest committed some of the abuse, and she claimed that the defendants were vicariously liable. They denied such liability. . .
Cited – Hawley v Luminar Leisure Plc and Others QBD 10-Jan-2005
The claimant had been assaulted by a doorman at a club operated by the defendants. The doorman was supplied by a security company, which was now in liquidation. The insolvent company’s insurers had declined indemnity. . .
Lists of cited by and citing cases may be incomplete.
Vicarious Liability, Personal Injury, Health and Safety
Leading Case
Updated: 02 November 2021; Ref: scu.190029