DUAL VICARIOUS LIABILITY IS LEGALLY POSSIBLE

Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151, 10 October 2005

The Court of Appeal in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151, 10 October 2005, held that, contrary to a long standing assumption, English law does recognise the possibility of dual vicarious liability; that is to say, that two employers may be held vicariously liable for a tort committed by an individual employee. Dual vicarious liability is most likely to arise in the case where one employer hires labour to another employer and both retain control over the actions of the employee. On the facts of the case the Court of Appeal held that the two employers had dual control over the relevant employee so that both were vicariously liable for the latter’s tort. Further, applying the Civil Liability (Contribution) Act 1978, the court held that the two employers were equally responsible for the damage suffered by the claimants. The difficulty which the case opens up lies in discerning when it is appropriate to impose dual vicarious liability on the employers and when it is more appropriate to use the more traditional approach of deciding which of the two employers is vicariously liable for the tort of the employee.