Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd

JurisdictionEngland & Wales
JudgeLord Justice May,Lord Justice Rix
Judgment Date10 October 2005
Neutral Citation[2005] EWCA Civ 1151
Docket NumberCase No: B2/2004/2659
CourtCourt of Appeal (Civil Division)
Date10 October 2005
Viasystems (Tyneside) Ltd
(1) Thermal Transfer (Northern) Limited
(2) S & P Darwell Limited
(3) T Hall & C Day T/a Cat Metalwork Services

[2005] EWCA Civ 1151


The Rt Hon Lord Justice May and

The Rt Hon Lord Justice Rix

Case No: B2/2004/2659





NE 203485

Royal Courts of Justice

Strand, London, WC2A 2LL

Andrew Prynne QC and Toby Riley-Smith (instructed by Watson Burton) for the Claimant

Patrick Field QC (instructed by James Chapman & Co) for the Defendants

Lord Justice May

Lord Justice May



On 28 th July 1998, there was a flood at the claimants' factory at Eldon Street, South Shields. The flood was caused by the foolish negligence of a young fitter's mate, Darren Strang. The flood caused extensive and expensive damage, the cost of which it is now agreed the claimants are entitled to recover in contract from the first defendants, Thermal Transfer (Northern) Limited. The claimants also claimed against the second defendants, S. & P. Darwell Limited, and the third defendants, Troy Hall and Christopher Day, trading as CAT Metalwork Services. The first defendants likewise claimed an indemnity against the second or third defendants.


The question which His Honour Judge Walton heard and determined in the Newcastle-upon-Tyne County Court on 1 st December 2004 was whether it was the second defendants or the third defendants who were vicariously liable to the claimants for Darren Strang's foolishness. It was not then suggested that they might both be vicariously liable. The judge decided on the facts which he found that the third defendants were so liable. This is the third defendants' appeal, with leave of Chadwick LJ, against the judge's decision.

The facts


In July 1998, the claimants engaged the first defendants to install air conditioning in their factory. The first defendants subcontracted ducting work to the second defendants. The second defendants contracted with the third defendants to provide fitters and fitters' mates on a labour only basis. One such fitter was Mr Megson. His mate was Darren Strang. They were installing the ductwork under the instruction or supervision of Mr Horsley, a self-employed fitter contracted to the second defendants. Both Mr Megson and Darren Strang were thus employed by the third defendants.


At the time of the accident, the men were working in a roof space. Access was by crawling boards using the roof purlins. Mr Megson needed some fittings and sent Darren Strang to get them. Darren was away for a few minutes, during which Mr Horsley was helping Mr Megson with the ducting. Mr Horsley naturally expected Darren to return by a sensible route, but he did not so return. On the contrary, he attempted to return by crawling through some sections of ducting that were in place. These moved and came into contact with part of a fire protection sprinkler system. The relevant part of this system fractured – hence the flood. The judge had no difficulty in finding that Darren was negligent, as he obviously was.


It was the third defendants' case before the judge that Darren Strang did what he did on the express instruction of Mr Horsley. The judge rejected this and there is no appeal against this finding. Indeed the third defendants now accept the judge's primary findings of fact.

The Mersey Docks case


The leading relevant authority is Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Limited [1947] AC 1, which the judge considered with other authorities. This was a case in which someone was injured by a negligently driven crane. The crane had been let by the Harbour Board to a firm of stevedores for loading a ship, together with the crane driver who was employed by the Harbour Board. The stevedores had immediate control of the relevant operation which the crane was performing, but had no power to direct how the crane driver should control the crane. The House of Lords upheld decisions of lower courts that the Harbour Board, being the crane driver's general employer, retained responsibility for his negligence.


The opinions make clear that decisions of this kind depend on the particular facts and that many factors may bear on the result (Lord Porter at 17). In assessing the facts, certain considerations will or may be relevant. These include:

(a) the burden of showing that responsibility does not remain with the general employer is on the general employer and is a heavy one (Lord Simon at 10, Lord MacMillan at 13, Lord Uthwatt at 21).

(b) by whom is the negligent employee engaged? Who pays him? Who has power to dismiss him (Lord Simon at 10)? In the present case the answer to these questions is the general employer – the third defendants.

(c) who has the immediate direction and control of the relevant work (Lord Simon at 10, Lord Porter at 16)? Who is entitled to tell the employee the way in which he is to do the work upon which he is engaged (Lord Porter at 16, Lord Uthwatt at 23)? "The proper test is whether or not the hirer had authority to control the manner of execution of the act in question. Given the existence of that authority its exercise or non-exercise on the occasion of the doing the act is irrelevant" (Lord Uthwatt at 23).

(d) the inquiry should concentrate on the relevant negligent act, and then ask whose responsibility it was to prevent it. (Lord Simon at 10,11). In the Mersey Docks case, the stevedores had no responsibility for the way in which the crane driver drove his crane, and it was this which caused the accident (Lord Simon at 12, Lord MacMillan at 13, Lord Simonds at 18). The ultimate question may be, not what specific orders or whether any specific orders were given, but who is entitled to give the orders as to how the work should be done (Lord Porter at 17).

(e) a transfer of services can only be effected with the employee's consent (Lord Porter at 15, Lord Uthwatt at 21).

(f) responsibility should lie with the master in whose act some degree of fault, though remote, may be found (Lord Simonds at 18).


The factors relied on by the second defendants as indicating vicarious responsibility by the third defendants are:

(1) consent by the employee to a transfer of his employment is an important, perhaps necessary, factor, absent in this case. The judge correctly found that Mr Hall did not have a transfer of employment in mind. Mr Hall regarded himself as entitled to decide who should be sent to work on the site. Darren Strang did not consider that his employment was transferred. His services were often provided for short periods. It was unreal to suggest that he was bounced in and out of temporary employments.

(2) the second defendants did not have control over the manner in which Darren Strang carried out his work, it being a necessary precondition of the transfer of employment that the temporary employer should have entire and absolute control. Darren worked principally under the control and supervision of Mr Megson, who was in effect his immediate boss. He had been sent by Mr Megson to obtain the fittings.


The factors relied on by the third defendants are:

(1) the most important question is who had the right to control Darren Strang's method of working at the particular time. That is a question of fact and inference. On the facts of this case, where there was no question of the employee being in charge of complicated machinery—as of the crane in the Mersey Docks case. You do not need exceptional circumstances. You simply have to look at the facts and answer the question as to control.

(2) the contract was for the provision of labour only.

(3) Mr Megson and Darren Strang worked under the supervision of Mr Horsley. Workmen were not allowed to work in the roof void except under his supervision. He was in charge of all work in the roof void. He told the workman what to do.

(4) the third defendants had no say in the manner in which Darren Strang was used once he was on the site.

(5) the charge made by the third defendants to the second defendants did not include for supervision. Darren Strang was basically a labourer.

(6) Mr Horsley gave introductory instruction to temporary workmen about methods of working, including safety. The temporary workmen did the same job as the second defendants own workmen. Their tasks were basically simple.

(7) Mr Horsley was the person who obtained and signed the relevant permit to work. He was the person who was responsible for site safety.

(8) Mr Horsley was as a matter of fact in charge of the relevant workmen, including Mr Megson and Darren Strang. He was supervising them when the accident happened.

The judge's decision


The judge did not read the Mersey Docks case as saying that consent and control were determinative preconditions, although they were very significant. The contractual arrangements did not suggest a transfer of Darren Strang's employment. Mr Hall was able to substitute employees without reference to the second defendants. It would be strange if employees were bouncing in and out of employment. He then said at page 9 of the transcript:

"While Mr Horsley did instruct Mr Strang to perform tasks from time to time, Strang was under the immediate control of his fitter and there is no instance in evidence of Mr Horsley giving an instruction as to the manner the fitter or the fitter's mate should work. Yes, he told them what required doing, but he himself worked at another location and left Mr Megson and Mr Strang to get on with the task of fitting the ducting sections together. When he went over to see them it was to see how they were doing and to...

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