Dear Jason, Neil, colleagues

The Court of Appeal considered matters of vicarious liability for torts of temporary employees last year in Biffa Waste [2008] EWCA Civ 1238 (now reported in 2009 3 WLR 324), and concluded that such liability is 'exceptional'. On the way to this the Court discussed the Denham case to which Harold refers, and seemed to prefer the judgment of Slesser LJ over Denning's more widely quoted approach. To be honest though I am not sure this gets us very far, because Slesser LJ also clearly expressed the view (obiter) that the temporary employer would have been liable had a third party been injured through the tort of the temproary worker. In fact this was a case where the temporary worker was killed and the question was which liability insurer would pay - the EL insurer (on basis deceased was an employee), or the PL insurer (on basis he wasn't an employee). Employment might exist for purposes of vicarious liability to third parties, while not for this purpose.

Best wishes

Jenny

Professor Jenny Steele
Director of Research
York Law School
University of York
York
YO10 5DD

+ 44 (0)1904 325814

From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: 27 August 2009 00:58
To: haroldjen@netspace.net.au; Jason Neyers
Cc: Obligations list
Subject: Re: ODG: Rebuttal of Mersey Docks Presumption

Dear Colleagues;
The only thing I would add to Harold's excellent summary is that the question of employment pro hac vice was also discussed in the NSW decision of Transtate Pty Ltd v Rauk [2002] NSWCA 222 http://www.lawlink.nsw.gov.au/scjudgments/2002nswca.nsf/00000000000000000000000000000000/f2e15a1c1fc2bc88ca256bf20004fa56?opendocument at [76]-[79]. But no further light on the issue Jason was interested in.

Regards

Neil F

Neil Foster

Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law

MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Harold Luntz <haroldjen@netspace.net.au> 23/08/09 12:02 >>>
Jason,

In /Deutz Australia Pty Ltd v Skilled Engineering Ltd/ [2001] VSC 194;
(2001) 162 FLR 173, Ashley J cited a passage from Lord Denning in
/Denham v Midland Employers Mutual Assurance Ltd /[1955] 2 QB 437, which
included the following:
 "Such a transfer rarely takes place, if ever, when
a man is lent with a machine, such as a crane or a lorry: nor when a
skilled man is lent so as to exercise his skill for the temporary
employer. In such case the parties do not contemplate that the temporary
employer shall tell the man how to manipulate his machine or to exercise
his skill. But a transfer does sometimes take place in the case when an
unskilled man is lent to help with labouring work: See /Garrard v A E
Southey & Co/ [1952] 2 QB 174; [1952] 1 TLR 630; [1952] 1 All ER 597."

The /Garrard /case cited by Lord Denning, in which such a transfer was
held to have occurred, was not concerned with vicarious liability, but
liability /to/ the worker of the temporary employer.

Ashley J went on to say (at [114]:
 "I was referred to no case decided in the twentieth
century in which the burden of showing transfer for purposes of
imposition of vicarious liability was discharged."

However, he did refer to /McDonald v Commonwealth /(1945) 46 SR (NSW)
129 (FC); 62 WN (NSW) 242, decided before the /Mersey Docks/ case, but
on the same principles, where in fact vicarious liability was imposed on
the temporary employer (under wartime conditions).

I hope that is of some assistance to you.

Harold.

Jason Neyers wrote:
> Colleagues:
> Does anyone know of any 20th century English case in which the Mersey
> Dock presumption (indicating that a general employer should be
> vicariously liable rather than the temporary employer) was rebutted? I
> know of Hawley after Viasystems but is there anything before?
> All the best,
> --
> Jason Neyers
> Associate Professor of Law
> Faculty of Law
> University of Western Ontario
> N6A 3K7
> (519) 661-2111 x. 88435
>
>

From:	jcs507 <jcs507@york.ac.uk>
To:	'Neil Foster' <Neil.Foster@newcastle.edu.au>
	haroldjen@netspace.net.au
	'Jason Neyers' <jneyers@uwo.ca>
CC:	'Obligations list' <obligations@uwo.ca>
Date:	27/08/2009 08:59:21 UTC
Subject:	RE: ODG: Rebuttal of Mersey Docks Presumption