Garcia v McAlpine (Cayman) Ltd

• Jurisdiction: Cayman Islands
• Judge: (Levers, J.)
• Judgment Date: 06 December 2005
• Court: Grand Court (Cayman Islands)
• Date: 06 December 2005

Grand Court

(Levers, J.)

GARCIA

and

McALPINE (CAYMAN) LIMITED and RANKINE

Mrs. K. Reid for the plaintiff;

W.J. Helfrecht for the first defendant;

H.D. Murray for the second defendant.

Cases cited:

(1) Allen v. Gulf Oil Refining Ltd., [1981] A.C. 1001; [1981] All E.R. 353; [1981] J.P.L. 353, followed.

(2) Bain v. Central Vermont Ry. Co., [1921] 2 A.C. 412, applied.

(3) Tilling v. Whiteman, [1980] A.C. 1; [1979] 1 All E.R. 737; [1979] J.P.L. 834, applied.

Legislation cited:

Grand Court Rules, O.14A, r.1: The relevant terms of this rule are set out at para. 1.

Civil Procedure-trial of preliminary issue-appropriate issues-issue to be tried must be isolatable question of fact or law, or issue of law based on agreed, not assumed facts-possible introduction of further relevant evidence at trial may prevent preliminary ruling

Employment-employer-definition of employer-employee loaned by one employer to another-which is employer for liability purposes depends on payment, control and terms of loan

Employment-safety-safe workplace-when employee loaned by one employer to another, even if original employer not considered employer at time of accident, does not negate duty of care to ensure he works in safe environment

The plaintiff brought an action for damages for personal injury sustained in the course of his employment by the first and/or second defendants.

It was uncertain which of the two defendants had been the plaintiff”s actual employer at the time he was injured. He had been in the general employ of the second defendant but, when he suffered his injury, he had been loaned to the first defendant in exchange for payment, and was working under the control of the first defendant”s agent. Further evidence as to the exact terms of the loan was to be given viva voce at the trial. The second defendant applied for the court to make a preliminary ruling, under O.14A of the Grand Court Rules, that he was showed not to be a

party to the trial as he had not been the plaintiff”s employer at the time of the injury.

He submitted that (a) the first defendant was the plaintiff”s employer at the relevant time, as he had loaned the plaintiff to the first defendant, a well-established company which was familiar with dealing with employees, the first defendant had paid him for the plaintiff”s work, and the plaintiff had been under the control of the first defendant”s agent at the material time; and (b) since all the submissions in (a) had...