VICARIOUS LIABILITY AND LIABILITY FOR ‘EXTRA HAZARDOUS ACTIVITIES’

Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2008] EWCA Civ 1257, 12 November 2008

In Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2008] EWCA Civ 1257, 12 November 2008, the Court of Appeal allowed an appeal from the decision of Mr Justice Ramsey (on which see our April 2008 issue, pp. 1–8). The appeal was confined to two principal issues. On the first issue the Court of Appeal concluded that Mr Justice Ramsey had erred in finding that one employer was vicariously liable for the negligence of employees who were generally employed by another employer. In so concluding the Court of Appeal affirmed that ‘the burden on a party seeking to show a transfer or assumption of liability to or by the hirer of an employee is a heavy one’. Second the Court of Appeal held that one employer was not liable for the activities of the employees of another employer on the ground that the employees had been undertaking work of an ‘extra hazardous’ nature. Liability for such ‘extra hazardous’ activities is ‘anomalous’ and should only be imposed in ‘truly exceptional’ cases. The present case was not such an exception because the activity in question was welding and it could not be said to be an extra hazardous activity.