Levers J
```html IN CHAMBERS IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NO ： 283 OF 2000 BETWEEN： JUAN GARCIA Plaintiff AND： M CALPINE (CAYMAN) LTD. First Defendant AND： ERROL RANKINE Second Defendant BEFORE：The Honorable Madam Justice Levers APPEARANCE： Counsel for the Plaintiff：Mrs. Keva Reid of McKinney Reid & Co. Counsel for the First Defendant：Mr. William Helfrecht of Ogier & Boxalls Counsel for the Second Defendant：Mr. Delroy Murray of Associated Advocates Chambers Heard：21st November 2005 REASONS Levers J. is is an apby the Sedant. Errol 14 Grand Co. Rankine (a) of the ourt Rules Thplication cond Defender section ```
He submits that by virtue of Order 14(a) (1) - the Court may upon its own motion determine any question of law arising in any Cause or matter at any stage of the proceedings, where it appears to the Court that: (a) Such question is suitable for determination without a full trial of the action; and (b) Such determination will finally determine (subject to any possible appeal). The entire cause or matter or any claim or issue therein. Subsection 14 (a) (2) reads: "Upon such determination, the Court may dismiss the cause or matter, or make such orders or judgment as it deems fit." Subsection 3 reads: "The Court shall not determine any question under this Order unless the parties have either (a) had an opportunity of being heard on the question or (b) consented." and the cause of action to be dismissed against any defendant that is not joined properly or against whom there is no cause of action. If the issue is
```html 1 one of law, the Court will further order the issue to be tried on the pleadings 2 or on a case stated or on an agreed statement of facts. In Allen v Golf Oil 3 Fining Limited [1981] AC 101 HL, Lord Roskill said: 5 “The preliminary point procedure can in certain 6 classes of cases be invoked to achieve the desirable 7 aim both of economy and simplicity. But cases in 8 which invocation is desirable are few. 10 His lordship gave two examples of situations 11 where the procedure may be appropriate: 13 (a) where ‘a single issue of law can be isolated 14 from the other issues in a particular case, 15 whether of fact or of law, and its decision may 16 be finally determinative of the case as a 17 whole.’ 18 (b) Where the ‘facts can be agreed and the sole 19 issue is one of law.’ 21 Before reviewing the facts of this case I bear in mind the words of Lord 22 Scarmon in Tilling v Whiteman [1980] AC 1. He said: 24 “They were too often treacherous short cuts. Their 25 delay, price can be delay, anxiety and expense.” 27 Th of course the Cour or against 28 the point of law the case has to go back to the courts of first instance to be ```
```markdown The Facts of this Case The alleged facts are that the Plaintiff was employed to the Second Defendant who loaned him to the First Defendant. The question therefore arises, what is the scope of an employer’s duty to his employees and in what circumstances does an employee who is the general employer of one person but whose services are temporarily put at the disposal of another, remain an employee of the general employer and not the particular employer, so as to render the general employer liable for injuries caused to the employee whilst in the employ of the particular employer. Mr. Murray relies on the statement of claim, the amended defence and the witness statements. He asks this Court to look at the witness statements wherein it is admitted that the First Defendant was the one who had control over the employee at the time. He states that the original employer from a duty of care to the employee even in those ```
The original employer's duty to his employee is to see that reasonable care is taken. The agreed facts in this matter are that the Plaintiff was employed to the Second Defendant. The Second Defendant loaned him to the First Defendant and payment was made by the First Defendant to the Second Defendant for the Plaintiff's services. However, as Lord Dunedin said in Bain v Central Vermont Ry [1921] 2 AC at page 412 at 416: "Payment is not everything, it is a circumstance pointing to who is the employer, but the real test is control." I have read the witness statements and it is clear that the Second Defendant's agent is the one who gave the Plaintiff the directions and had control over him at the material time. However, so much depends on the evidence that will be given viva voce at the trial as to the circumstances in which the employee was loaned, the conditions under which the employee was loaned, and the extent of the knowledge the Second Defendant had as to the working conditions provided by the First Defendant to the Plaintiff. The Second Defendant avers that he knew the First Defendant was a well-established construction company and
therefore felt the employee would be safe. That with respect is not
sufficient. As I have stated previously, the House of Lords has protested
against orders for the trial of preliminary points of law on assumed facts and
I think it is safe to say that if I allow this application, I will have to assume
certain facts as to knowledge of the Defendant and the conditions of transfer
of the Plaintiff's employment. In those circumstances, I dismiss the
application and reserve the question of costs to be argued by Counsel now,
or at the trial. 9.
Dated this 6 th December 2005 11.
Judge of the Grand Court