The defendant colliery contracted with a contractor, Whittle, to do engineering work in the pit, and for these purposes supplied the contractor with equipment and an engineer in the colliery’s own employment and pay. The claimant was an employee of the contractor, who had been injured by reason of the engineer’s negligence. Under the work contract, the engineer was to be under the control and orders of the contractor. The court of appeal differed in the reasons for its decision that the colliery was not liable for its engineer’s negligence. Cockburn CJ put it on the general basis that an employee lent to a temporary employer for a particular purpose ‘must be dealt with as the servant of the man to whom he is lent’ and that therefore the claimant was a ‘fellow-servant’ and fell foul of that era’s doctrine of common employment, namely that one employee could not recover damages from his employer for the negligence of his fellow-employee (at 209). Mellish LJ and Baggallay JA, however, held that, although the engineer remained the general servant of the colliery, it was not liable for his negligence because the fact that he had been put under the control and orders of the contractor meant that his acts were ‘the acts of Whittle and not of the defendants’ (at 211). They therefore considered that they did not have to deal with the doctrine of common employment. Bramwell JA, however, adopted the ratio of common employment (at 211/212). It seems to me that on either ratio the court considered that for relevant purposes either the whole status of the borrowed employee was transferred to the temporary employer, or at any rate that his acts were to be regarded as those of the employer under whose orders he was working. There was, again, no submission that it might be possible to view both employers as liable, but an assumption that a choice had to be made.
Citations:
[1876] 2 CPD 205
Cited by:
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 . .
Lists of cited by and citing cases may be incomplete.
Vicarious Liability
Updated: 30 April 2022; Ref: scu.231003