Dual vicarious liability for same act shared by employer and non-employer
D2 had one fitter supervising two fitters from D3. One of the D3 fitters negligently injured the claimant.
The Court of Appeal held the question for vicarious liability was -as always – (see Mersey Docks v Coggins case (1947) etc) one of control over the negligent employee and not about contracts of employment. Here D2 had supervisory control over the negligent employee. D3 employed the negligent fitter and also his mate. Here control was about who could responsibly prevent the claimant's action.
Both D2 and D3( through the mate) could and should equally have prevented the negligent act, dual vicarious liability was legally possible and both parties should contribute 50 percent to the claimant.
Via Systems (Tyneside) Ltd v (1) Thermal Transfer (Northern) Ltd (2) S & P Darwell Ltd (3) T Hall & C Day (T/A Cat Metalwork Services) (2005)
Who to sue, part 2?
The Post Office employed a contractor to repair their premises. The claimant worked for the contractor and had a very serious fall through a Post Office skylight when doing that work.
The Judge found the Post Office, as occupier, had done everything they were obliged to do to perform their duty of care “to take reasonable care to appoint safe and competent contractors": they had undertaken detailed preliminary health and safety checks including ensuring the contractor did a risk assessment before the roof work was done.
From then on the claimant's employer had complete control (see and distinguish case above) and were liable for the negligent method of work which led to the Claimant's injury .
Relevant case discussed: McCook -v- Lobo, 2003 ICR 89, LJ Hale.
There are comments in the Gazette that this case shows there is a strong presumption you should sue the employer in the first instance rather than the occupier in such cases and leave the employer-contractor to show why the occupier should bear responsibility. It adds that you often just do not know what the occupier has done to investigate , before appointing the employer-contractor, so suing them carries a risk their enquiries were sufficient in any event, as above.
Robert Hood -v- Mitie Property Services (Midlands) Ltd & Royal Mail Group PLC, QED, July 2005.