Date: Mon, 16 Jan 2006 14:53:09 -0500

From: Lionel Smith

Subject: Vicarious vicarious liability

This recent case in the English CA

Viasystems (Tyneside) Ltd. v Thermal Transfer (Northern) Ltd & Ors [2005] EWCA Civ 1151

raises some interesting questions for any theory of VL, namely if A 'lends' an employee to B, and the employee causes harm through negligence, is A or B or both vicariously liable?

Answer: both can be liable if there was dual control. In this case, both were equally liable. An assumption in the cases that it must be one or the other is unfounded.

The case also raises (though it does not address in this form) the related question of how far up a chain VL can go, ie if B has hired A and A hired the employee who was later negligent ... same question. In the real facts, the plaintiff hired TT Ltd to do work, which subcontracted part of it, which sub-subcontracted part of it, and the negligence was of an employee of the sub-subcontractor who was temporarily under the direction of (an employee of) the sub-contractor. There was a contractual claim against TT Ltd and the issues related to tort liability of the sub-contractor and sub-sub-contractor. The court framed the question as in the previous paragraph, asking whether the sub-contractor could be liable for the employee's negligence since they had borrowed the employee in some sense. I wonder why one could not just work up the chain, thus avoiding any question about whether the sub-contractor had any direct control over the employee of the sub-sub-contractor?

Lionel Smith

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