Denham v Midland Employers’ Mutual Assurance Limited: CA 1955

The court was asked which of two mutually exclusive liability insurance policies covered damages which an employer was liable to pay to the widow of an employee, who was killed while he was working under the specific direction of engineers engaged by the employer to do work on their land.
Held: In none of the transfer cases cited to the court had the consent of the man been sought or obtained. The general employer had simply told the employee to go and do some particular work for the temporary employer and he had gone. The supposed transfer was nothing more than a device. Lord Denning referred to the Mersey Docks case, saying that such a transfer rarely takes place when a man is lent with a machine. But a transfer does sometimes take place when a man is lent to help with labouring work.
Denning LJ said (obiter): ‘Much of the difficulty arose out of the 19th century idea that a servant of a general employer may be transferred to a temporary employer so as to become for the time being the servant of the temporary employer. The conception was a very useful device to put liability on the shoulders of one who should properly bear it, but it did not affect the contract of service itself. No contract of service could be transferred without the servant’s consent: and this consent is not to be raised by operation of law but only by the real consent in fact of the man, express or implied: see Nokes v. Doncaster Amalgamated Collieries Ld. In none of the transfer cases which have been cited to us had the consent of the man been sought or obtained. The general employer has simply told him to go and do some particular work for the temporary employer and he has gone. The supposed transfer, when it takes place, is nothing more than a device – a very convenient and just device, mark you – to put liability on to the temporary employer; and even this device has in recent years been very much restricted in its operation. It only applies when the servant is transferred so completely that the temporary employer has the right to dictate, not only what the servant is to do, but also how he is to do it: see Mersey Docks and Harbour Board v. Coggins and; Griffith (Liverpool) Ld. 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 and Co. [1952] 2 QB 174. The temporary employer can then no doubt tell the labourer how he is to do the job. The labourer becomes so much part of the organization to which he is seconded that the temporary employer is responsible for him and to him.’ and
‘These results are achieved in law by holding that Clegg became for the time being the temporary servant for Le Grands. There is no harm in thus describing him so long as it is remembered that it is a device designed to cast liability on the temporary employer. The real basis of the liability is, however, simply this: if a temporary employer has the right to control the manner in which a labourer does his work, so as to be able to tell him the right way or the wrong way to do it, then he should be responsible when he does it in the wrong way as well as the right way. The right of control carries with it the burden of responsibility.’
Romer LJ, Birkett LJ, Denning LJ
[1955] 2 QB 437
England and Wales
CitedMersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd HL 1946
Employers Liability for Worker’s Negligence
A worker was injured by a negligently driven crane. The crane and Board’s driver were hired out to stevedores for loading work. The stevedores controlled the crane’s operations, but did not direct how the driver controlled the crane. The hire . .

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CitedBiffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others CA 12-Nov-2008
The defendant contracted to build a plant for the claimant. The plant was damaged by a fire caused by the defendant’s independent sub-contractor. The defendant appealed against the finding that it was responsible for the sub-contractor’s failure. . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.230998