From: Harold Luntz <haroldjen@netspace.net.au>
To: Jason Neyers <jneyers@uwo.ca>
CC: Obligations list <obligations@uwo.ca>
Date: 22/08/2009 14:02:52 UTC
Subject: Re: ODG: Rebuttal of Mersey Docks Presumption
Attachments: haroldjen.vcf
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