Severe flood damage had been caused to a factory, where air-conditioning was being installed, by the negligence of a fitter’s mate; the fitter and his mate had been supplied on a labour only basis by the third defendant to the second defendant to whom some of the work had been sub-contracted.
Held: Both the second and third defendants were jointly vicariously liable.
The court reviewed the law of vicarious liability. The assumption that dual vicarious liability was a legal impossibility was wrong. Depending on the facts of the case, a judge may be entitled to find more than one set of employers liable. Both the employer of the negligent employee and the contractor who had contracted with the employer for the supply of that employee on a labour-only basis were vicariously liable for the damage caused by the negligence of the employee.
May LJ said: ‘there has been a long-standing assumption, technically unsupported by authority binding this court, that a finding of 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 . . in considering contribution that, if the relevant relationships yield dual control, it is highly likely at least that the measure of control will be equal. An equal measure of control will not often arise. Dual vicarious liability is most unlikely to be a possibility if one of the candidates for such liability is also personally at fault. It would be entirely redundant, if both were.’ and ‘If, on the facts of a particular case, the core question is who was entitled, and in theory obliged, to control the employee’s relevant negligent act so as to prevent it, there will be some cases in which the sensible answer would be each of two ’employers’. The present is such a case.’
Rix LJ doubted that the doctrine of vicarious liability should depend solely on the question of control and suggested a broader test of ‘whether or not the employee in question is so much part of the work business or organisation of both employers that it is just to make both employers answer for his negligence’. Vicarious liability was imposed because the employer was treated as picking up the burden of an organisational or business relationship which he had undertaken for his own benefit. Accordingly, what one was looking for was ‘a situation where the employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence’.
Judges:
May, Rix LJJ
Citations:
[2005] EWCA Civ 1151, [2005] IRLR 983, [2006] 2 WLR 428, [2006] QB 510, [2006] ICR 327, [2005] 42 EG 235, [2005] NPC 114, [2005] 4 All ER 1181
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd HL 1946
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 . .
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 – Laugher v Pointer 1826
The owner of a carriage hired a pair of horses for a day to draw the carriage. The owner of the horses also provided the driver, by whose negligence a horse belonging to a third party was injured. It appears that the majority of the court held that . .
Cited – Brady v Giles 1835
. .
Cited – Quarman v Burnett 1840
. .
Cited – Murphey v Caralli 22-Nov-1864
. .
Cited – Rourke v White Moss Colliery Co Ltd 1876
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 . .
Cited – Sykes v Millington 1953
Prosecution for an offence under section 2(3) of the Road and Rail Traffic Act 1933. . .
Cited – Donovan v Laing, Wharton and Down Construction Syndicate Ltd CA 1893
The plaintiff was injured by the negligence of a crane driver. The defendants had contracted to lend the crane with its driver to a firm who were loading a ship.
Held: There are circumstances in which vicarious liability for the tortious act . .
Cited – Jones v Scullard 1898
A borrowed driver was acting as the servant of the defendant owner of the carriage and horses so as to make the defendant liable for the driver’s negligence. . .
Cited by:
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 – Cox v Ministry of Justice CA 19-Feb-2014
Appeal against rejection of claim for personal injury. While working as the catering manager at HM Prison Swansea, the Claimant was injured in an accident caused by the negligence of a prisoner carrying out paid work under her supervision. The . .
Cited – Cox v Ministry of Justice SC 2-Mar-2016
The claimant was working in a prison supervising working prisoners. One of them dropped a bag of rice on her causing injury. At the County Curt, the prisoner was found negligence in the prisoner, but not the appellant for vicarious liability. The . .
Cited – Barclays Bank Plc v Various Claimants SC 1-Apr-2020
The Bank had employed a doctor to provide medical assessments as necessary. The doctor had used the opportunities presented to assault sexually many patients. The court was now asked whether the Bank was vicariously liable for the acts of this . .
Lists of cited by and citing cases may be incomplete.
Vicarious Liability
Leading Case
Updated: 07 August 2022; Ref: scu.230992