It has long been a source of legal dispute and consternation when problems arise after an employee who has been formally or informally transferred from one employer to another becomes involved in legally actionable negligence. This difficulty is particularly prevalent in the construction industry where employees of a sub-contractor regularly directly assist the main contractor through their expertise. This type of transfer may also occur in other industries hence the outcome in this case is of significance to them also. The main problem crop ups when, through his actions, a borrowed employee causes damage. Immediately the focus shifts to responsibility for such an employee. For many years the decision in Mersey Docks & Harbour Board v. Coggins & Griffith Ltd [1947] has governed such scenarios. The judiciary in that particular case held that, although responsibility for the employee depended heavily upon the circumstances of each individual case ultimately, unless the contrary could be proved, the original employer was forced to accept responsibility for his employee’s actions.
The decision in Viasystems has radically altered the position in this area of the law. For the first time the courts have been prepared to entertain the idea of dual liability. In this case an employee of sub-contractors Cat Metalwork Services, who was taking instructions directly from S & P Darwell’s foreman, trod on a roof sprinkler and caused considerable damage as a result of subsequent flooding. The courts produced a revolutionary decision as they held both Cat Metalwork Services and S & P Darwell were responsible for the employee’s actions as both were deemed to have the power to control the actions of the negligent employee. This decision has therefore made it increasingly difficult for the borrower of a worker to avoid liability for the employee’s actions.
The next major foreseeable problem emanating from this decision, which will be of particular interest to liability insurers, concerns the question of contribution from each employer. In Viasystems the court held that in the absence of personal fault on behalf of either employer the presumption would be that liability should be apportioned 50:50. However despite this guidance one can reasonably envisage future litigation on this point. Certainly the personal fault test has a much more subjective aspect than the previous Mersey Docks approach, which was strictly focused on the employment relationship when deciding liability and contribution. In other jurisdictions where the dual liability principle is in operation, the courts have been prepared to depart from an equal apportionment (for example the Canadian case of Blackwater v. Plint apportioned liability on a 75:25 basis) so this is undoubtedly a matter which should be monitored closely and with some interest in the future.