Denham v Midland Employers' Mutual Assurance Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 26 May 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0526-2 |
| Date | 26 May 1955 |
| Court | Court of Appeal |
In the Matter of the Abritration Act 1950
In the Matter of an Arbitration
[1955] EWCA Civ J0526-2
Lord Justice Denning
Lord Justice Birkett and
Lord Justice Romer.
In The Supreme Court of Judicature
Court of Appeal
MR PATRICK O'CONNOR and MR MARTIN McLAREN (instructed by Messrs Kewitt, Woollacett & Chown) appeared on behalf of the Appellant (Applicant).
MR R. MARVEN EVERETT, Q.C., and MR H. TUDOR EVANS (instructed by Messrs Machin & Co.) appeared on behalf of the Respondent.
Eastwoods Limited are brick makers who own property at Woburn Sands in Hertfordshire. Le Grand Sutcliff & Gell Limited are contractors who specialise in boring holes in the ground. In August, 1953. Eastwoods emplosed Le Grands tomake test borings on their property at Woburn Sands. Le Grands agreed to provide two skilled drillers with plant and tackle to carry out the test borings at a stated price; and Eastwoods agreed to provide "one labourer to assist" the two skilled men free of charge to Le Grands. It was quite a usual arrangement between the two companies for Eastwoods to provide unskilled labour to assist the skilled drillers of Le Grands. If Eastwoods had not provide the unskilled labour Le Grands would have got it from the loom Labour Exchange.
In September, 1953, Eastwoods lent a men named Clegg to Le Grands to do the unskilled work. After a few days he was killed at his work; he was helping to get a wire ripe on to a derrick when it came into contact with the cable of an electricity pylon and he was electrecuted. It is agreed for present purpose that Le Grands are liable to pay damages to his widow on the ground that his death was due to the negligence of them or their servants. Le Grands seek to be indemnified by their insurore against this liability; but the difficulty arises because they insured with two concernes. They insured with the Midland Employers Assurance Company in respect of their liability to their servents; and they insured with Lloyds in respcet of their liability to the public. One or other of these concerns in liable to indemnify Le Grands. The question is which of them is to do so. They have put the matter before an arbitrator who has stated his award in the form of a Special case for the decision of the Court.
The Employers Liability Policy issued by the Midland Company states that "If any person under a contract of service or apprenticeship with the inured shall sustain any personal injury by accident or disease caused during the period of insurance and arising out of and in the course of his employment by the insured in the business above mentioned and if the insured shall be liable to pay damage of such injury or disease the Association shall indemnify the insured against all sums forwhich the insured shall be so liable". The Public Liability Policy estates that the Lloyds Underwriters will "indemnify the assured for any sums which they may because legally liable to pay in respect of: 1. Dasth of or accidental bodily injury to persons; 2. Loss of or damage to property; arising in or out of the business of boring and pump engineers carried on by Le Grand Sutcliffs & Gell Limited anywhere in the United Kingdon and Ireland including Fire. Exclucience. This policy does not cover: 1. Liability for death of or dedily injury to any persem under a contract of service or apprentiseship with Le Grand Suteliff & Cell Limited where such death or injury arises out of and in the course of his employment by Le Grand Suteliff & Cell Limited".
On reading those two policies it is plain that the question is whether Clogg was employed "under a constract of service" with is Grands. If he was so employed, the Hidlond Company is liable to indenify Le Grand. If he was not so employed, Lloyds Underwriters are liable.
The Artitrater stated the relevant facts in paragraphs 6 and 6 of his Award: "On the evidence called before me I find as facts that a few days prior to the 30th September, 1953, clogg was lent by Backwoods to Le Grand for the amid purpose; that it was the practice of Le Grand, if no labourer was lent to them, to employee one obtained from the local Labour Exchange; that the labourer's work was unskilled; that Clogg himself had no previous experience at that work, that the actual annual work which he was required to do consisted of all sorts of rough work and add jobs and included handling a reps in connection with the erection of the rig for the purpose of patting it on a drum; that he did this under the specific direction of one cale, a forman employed by Le Grand, that he had to comply with any proper elders given his by such foreman; worked the came hours as these of Le Grand's general employees on the sits including avertice. I also find as facts that he was paid his cages byEastwoods; that they alone had the poser to dismiss him; that they kepthis National Health Insurance card, but apart from the cessienal presence of one Oresby on the site of the work no other employes of Eastwood's was present on the site at any laterial time, nor gave any directions to Clogg directly or indrectly .…. On the said facts I draw the inference that the only practical way in which his services were or could here been employed at that site were such that whenever it was necessary to instruct him what to do or has to do what he was required to do he would have to obey the orders of the foremen gals and that that was recognised by Le Grand, by Eastwoods and by Clogg himself".
The difficulty of the case is shown by the fact that the Arbitrater - for whose opinion we all have the most sincere respect - found one way and the Lord Chief Justice has found the other way. I find myself in agreement with the decision of the Lord Chief Justice.
Much of the difficulty which surrounds this subject arises out of the 19th centurey conception that a servant of a general employer may be transferred to a temporary employers so do to become for the time being the servant of the temporary employer. That conception is a very useful device to put liability on the shouldered of the who should properly hear it. But it do not affect the contract of serve itself. No contract of service can be transfered from one employer to another without the...
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