Bounced into liability
Hawley v Luminar Leisure Ltd, ASE Security Services Ltd, David Preston Mann [2006] EWCA Civ 18


The second defendants were contracted to supply the first defendant with a bouncer to work at one of their nightclubs.


The bouncer badly injured the claimant in an incident that took place outside the club. The claimant sued the first defendant as the general employer of the bouncer, and the second defendant as the 'temporary deemed employer' - a phrase used in the leading authority of Mersey Docks Harbour Board v Coggins & Griffiths [1947] AC 1.


In addition, the claimant sought to reply on the recent Court of Appeal authority of Viasystems (Tyneside) Ltd v Thermal Transfers (Northern) Ltd [2005] EWCA Civ 1151, which permits the court to find dual vicarious liability between defendants.


It was established in Mersey Docks that it was the general employer's burden, and a heavy one at that, to show that responsibility leaves him and shifts to the temporary deemed employer. A number of factors are considered, and these include the following key questions:


  • Does the hirer have authority to control the manner of execution of the act in question?


  • Whose responsibility was it to prevent the negligent act?


  • By whom is the negligent employee engaged?


  • Who pays him?


  • Who has power to dismiss him?



    • In answering these questions, the courts have traditionally looked at who 'controls' the actions of the negligent employee, but Lord Justice Rix in Viasystems said that the 'control test isn't wholly determinative'. The appeal court found that dual vicarious liability is legally permissible, with the latter looking to subsequent cases to 'refine the circumstances' in which it will be imposed. Lord Justice May found that the test went beyond control to 'whether or not the employee in question is so much part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence'.


    In this case, the judges, led by Lady Justice Hallett, gave a unanimous judgment to which they had all contributed, and found that the second defendants were responsible for the actions of the bouncer because their manager was in overall charge of security, they controlled the doorman and they provided uniforms for the doorman.


    Effectively, the bouncer was 'embedded' in the second defendants' organisation. The question of control remains at the heart of the test to be applied, and the appeal court found that a transfer of controlling responsibility had taken place from the first to the second defendants. There was no dual responsibility because the defendants were not working together as contractor/sub-contractor, as in Viasystems.


    Interestingly, by inference, her Ladyship cast doubt on the concept of dual vicarious liability in stating that 'although the law now apparently entitles this court to make a finding of dual vicarious liability... we decline to do so'.


    It becomes more and more difficult to gather a consistent body of authority from the Court of Appeal. However, we can properly extract from this case that the control test is still of crucial importance. Mersey Docks continues to provide leading authority in guiding a trial judge in how to interpret the facts of a particular case.


    It is also important to note, as her Ladyship stated: 'Vicarious liability requires no fault on the part of his employers or, in this case, the deemed employer.' This may seem harsh, but is built on the premise that he who creates the opportunity for an employee to behave tortuously is responsible for those actions.


    By Simon Allen, Russell Jones & Walker, Sheffield