Chapter 11

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Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH. [2008] EWCA Civ 1257
Vicarious liability of subcontractors was again considered in a claim arising from a fire at a waste disposal depot being built in Leicester by the claimants. Biffa had agreed to construct a plant for the recycling and disposal of domestic waste and engaged the second defendant to design the part of the facility. The second defendant subcontracted the installation to a third party whose admitted negligence had caused the fire. In allowing the subcontractor’s appeal against liability, the court adopted a narrow construction for the vicarious liability principle and held that the burden on a party seeking to show a transfer of liability for an employee was a heavy one. The Court of Appeal held that the trial judge had been wrong to make a finding of vicarious liability and that he had also been wrong to equate supervision of the employees with control. The cases of Viasystems and Hawley v Luminar Leisure Ltdwere distinguished on the basis that in those cases both defendants' employees had been present when the negligent act took place, but in this case, Maschinenfabrik’s employees were present, but the subcontractor’s were not.

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Viasystems was applied in the case of Hawley v Luminar Leisure Ltd [2006] IRLR where the Court of Appeal said that the decision as to whether an employee remains an employee of the general employer for the purposes of vicarious liability or whether he is deemed to be a temporary employee of the hirer, turns on the facts of the individual case. The general employer has the burden of showing that responsibility has moved to the temporary employer.It was noted by the court that this is a heavy burden. Luminar had contracted with ASE Security Services Limited for the supply of doormen for their nightclub. In the course of an incident outside Luminar's nightclub, one of these doormen, Warren, went to deal with it. Despite Hawley's attempt to show he wanted no trouble, Warren punched him so hard in the face that he fell to the ground and suffered injuries which resulted in brain damage. Hawley sued Luminar and ASE on the basis that they were each responsible for failing to carry out a proper investigation into whether Warren was a suitable person to be employed as a doorman and for failing to train or supervise him.

In determining the question of vicarious liability, the Court of Appeal considered a number of factors including who exercised control over the doormen, who paid them and to whom they were responsible while working at Luminar's clubs. In this case, the prima facie responsibility for the hired employee shifted from ASE, the general employer, to Luminar, the temporary employer, because Luminar had exercised considerable control over how Warren carried out his duties.

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The question of whether the wrongful act of a rugby player during a match was so 'closely connected' with his employment that his club was vicariously liable was considered by the Court of Appeal in Gravil v Carroll[2008] EWCA Civ 689. An altercation developed after a scrum in a match and, although the whistle had been blown, Carroll punched the claimant, Gravil, in the face and caused him injury. Gravil appealed against a decision that the second respondent, Redruth Rugby Football Club, was not vicariously liable for the tortious assault carried out by Carroll. Although both players had other employment, the claimant and Gravil were professional rugby players.Carroll's contract of employment with Redruth Rugby Football Club expressly stated that he should not physically assault an opponent and, on this basis, Redruth contended that Carroll's act was not committed in the course of employment but fell outside the scope of employment. The question for the Court of Appeal was whether Carroll's club, Redruth was vicariously liable for his assault on Gravil. The intense focus on the connection between the nature of employment and the tort was emphasised by their Lordships who held that, in line with the cases following Lister, the question now is whether the employee's tort was so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. It is now recognised that it is possible to be very seriously injured as a result of foul play during a rugby match and, in the present case, there was a very close connection between the punch and Carroll's employment and it would be fair and just to hold Redruth liable.

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Chapter 11