Date: Tue, 11 Oct 2005 19:58:43 +0100 (BST)

From: Robert Stevens

Subject: Two employers

The problem with vicarious liability is that without an accepted explanation for its doctrinal basis, trying to articulate its proper boundaries is extremely difficult.

If the Court of Appeal are to be believed, a defendant can be vicariously liable for the acts of someone with whom he has no contract on the basis that he "was entitled to exercise control over the relevant act or operation."

If this is correct, why was it relevant that the individual who was careless had a contract of service with a third party? The logic of the Court of Appeal's position seems to be that whenever I exercise sufficient control over someone else I am liable for his acts even though I am not personally careless. If correct, parents should be vicariously liable for the acts of their children. (Of course, in some jurisdictions they are).

My initial reaction is that it is wrong.

Robert Stevens
Barrister
Fellow and Tutor in Law
Oxford University

Andrew Tettenborn writes:

A generation or two of lawyers have paid the school fees arguing when an employee is transferred, for the purposes of vicarious liability, under the Mersey Docks case. The CA has now, to some extent, short-circuited the process. In Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd & Ors [2005] EWCA Civ 1151 (10 October 2005) some idiot of a fitter flooded a factory when he inadvertently interfered with the sprinkler system. He was employed by X, who had themselves been engaged on a labour-only basis by Y. The judge held that X were liable but Y weren't, effectively applying Mersey Docks. The CA, overturning a long-standing assumption, said "why shouldn't 2 people both count as employers?" and held both X and Y liable, with equal contribution from each. Equal because X and Y were personally without fault and there was no other sensible solution.

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