Viasystems Ltd v. Thermal Transfer [2005]

Summary

Two separate employers could both be vicariously liable for the negligence of a single employee.

The appellant (D3) appealed against the decision that it was vicariously liable for the negligence of a fitter's mate who had caused a flood at a factory. The claimant (C) had engaged the first defendant (D1) to install air conditioning in C's factory. D1 had subcontracted ducting work to the second defendant (D2) and D2 had contracted with D3 to provide fitters and fitters' mates on a labour only basis. A fitter's mate supplied by D3, who was working with a fitter supplied by D3, both under the supervision of a fitter contracted to D2, negligently caused a flood.

The judge determined that D3 and not D2 was vicariously liable for the negligence of the fitter's mate. The issue on appeal was whether both D2 and D3, rather than only one of them, could be vicariously liable for the negligence of the fitter's mate. D3 submitted that dual vicarious liability was not a legal possibility and that D2 alone should be liable. D2 submitted that D3 alone should be liable but that dual vicarious liability was a legal possibility.

Held, allowing the appeal,

that (1) correctly formulated, the question to determine vicarious liability was who…