P contracted D1 to install air conditioning. D2 was sub contracted to do the work by D3. D3 was contracted by D2 to do the fitting, under D2’s supervision. When D3’s employee broke the fitting, P sued D1 under vicarious liability. CA rejected this claim, stating that vicarious liability applied to employees and not sub-contractors. The correct approach was to ask whose negligent act caused the damage and whose responsibility it was to prevent the damage occurring. The CA held for the first time that dual vicarious liability was possible.
May LJ: There is no logic, where both employers have a degree of control and neither is at fault (i.e. they are simply taking on the fault of their employees) to say that only one can be vicariously liable and Ds can have contribution proceedings between them.
Rix LJ: In cases of dual vicarious liability is not equated with control. “What one is looking for is a situation where the employee in question is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence…Is the employee, in context, still recognisable as the employee of his general employer and, in addition, to be treated as though he was the employee of the temporary employer as well?”