England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL.
Appeal by plaintiff from judgment of
His Honour Judge H. S. Russell on 16th July, 1974

		Royal Courts of Justice.
		7th July 1975.

THE MASTER OF THE ROLLS: Mr. Christopher Plenty was a milk roundsman employed at Bristol by the Co-operative Retail Services Ltd. He started working for them at Easter 1970. There were notices up at the depot making it quite clear that the roundsmen were not allowed to take children on the vehicles. One notice said:

"Children and young persons must not in any circumstances be employed by you in the performance of your duties."

Both employers and trade union did their utmost to stop it. No doubt Mr. Plenty knew it was not allowed. But in spite of all these warnings, the practice still persisted. Boys used to hang about the depot waiting to be taken on: and some of the roundsmen used to take them.

Soon after Mr. Plenty started work as a milk roundsman a boy, Leslie Rose, who was just over 13, went up to Mr. Plenty and asked if he could help him. Mr. Plenty agreed to let him do it. The boy described his part in these words:-

"I would jump out of the milk float, grab the milk, whatever had to go into the house, collect the money if there was any there and bring the bottles back."

That is what he did.

Mr. Plenty paid the boy 6/- for the weekends and 4/- for the week days.

Whilst young Leslie Rose was going round some houses, Mr. Plenty would go to others. On 21st June 1970 unfortunately, there was an accident. After going to one house, Leslie Rose jumped on to the milk float. He sat there with one foot dangling down so as to be able to jump off quickly. But at that time Mr. Plenty I am afraid, drove carelessly and negligently. He went too close to the kerb. As the milk float went round the corner, the wheel caught Leslie's leg. He tried to get his leg away, but he was dragged out of the milk float. His foot was broken with a compound fracture; but it has mended. So it was not very serious.

Afterwards he, by his father as his next friend, brought an action for damages against Mr. Plenty and against his employers, the Co-operative Retail Services Ltd. The Judge found that Mr. Plenty was negligent, but he felt that young Leslie was old enough to bear some part of the blame himself. He assessed the responsibility for the accident at 75% to Mr. Plenty and 25% to the boy.. He assessed the total damages at £800. He gave judgment against Mr. Plenty for three-quarters of it - £600. But he exempted the employers from any liability. He held that Mr. Plenty was acting outside the scope of his employment and that the boy was a trespasser on the float.

The boy, through his father, now appeals to this Court. He says the employers, the Co-operative Society, are liable for the acts of their milk roundsman.

This raises a nice point on the liability of a master for his servant. I will first take the notices to the roundsmen saying they must not take the boys on. Those do not necessarily exempt the employers from liability. The leading case is Limpus v. London General Omnibus Co. (1862) 1 H. & C. Ex. Reports 526. The drivers of omnibuses were furnished with a card saying they "must not on any account race with or obstruct another omnibus." Nevertheless the driver of one of the defendants' omnibuses did obstruct a rival omnibus and caused an accident in which the plaintiff's horses were injured. Baron Martin directed the jury that, if the defendant's driver did it for the purposes of his employer, the defendants were liable: but if it was an act of his own, and in order to effect a purpose of his own, the defendants were not responsible. The jury found for the plaintiff. The Court of Exchequer Chamber held that the direction was correct. It was a very strong Court which included Mr. Justice Willes and Mr. Justice Blackburn. Despite the prohibition, the employer was held liable because the injury resulted from an act done by the driver in the course of his service and for his master's purposes. The decisive point was that it was not done by the servant for his own purposes, but for his master's purposes.

I will next take the point about a trespasser. The boy was a trespasser on the milk float so far as the Co-operative Services were concerned. They had not given him any permission to be on the float and had expressly prohibited the milk roundsman from taking him on. There are two early cases where it was suggested that the employer of a driver is not liable to a person who is a trespasser on the vehicle. They are Twine v. Bean's Eypress Ltd. (1946) 62 T.L.R. 155, 458; and Conway v. George Wimpey & Go. Ltd. (1951) 2 K.B. 266. But these cases are to be explained on other grounds: and the statements about a trespasser are no longer correct. Those statements were made at a time when it was commonly supposed that occupiers of premises were under no duty to use care in regard to a trespasser. But that stern rule has now been abandoned, especially when the trespasser is a child, see Herrington's case 1972 AC 877; Southern Portland v. Cooper 1974 AC 623; Harris v. Birkenhead 1975 1 W.L.R. 379. So far as vehicles are concerned, I venture to go back to my own judgment in Young v. Edward Box & Co. Ltd. (195D 1 T.L.R. 789, at page 793, when I said:

"In every case where it is sought to make the master liable for the conduct of his servant, the first question is to see whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servant's liability".

That way of putting it is, I think, to be preferred to the way I p put it later in Jones v. Staveley 1955 1 Q.B. at page 480.

Applying the first question in Young v. Box, it is quite clear that the driver, Mr. Plenty, was liable to the boy Leslie Rose for his negligent driving of the milk float. He actually invited the boy to ride on it. So the second question arises, whether his employers, the Co-operative Services, are liable for the driver's negligence. That does not depend on whether the boy was a trespasser. It depends, as I said in Young v. Box, on whether the driver, in taking the boy on the milk float, was acting in the course of his employment.

In considering whether a prohibited act was within the course of the employment, it depends very much on the purpose for which it is done. If it is done for his employers' business, it is usually done in the course of his employment, even though it is a prohibited act. That is clear from Limpus v. London General Omnibus Co. (1862) 1 H. & C. Ex. Reports 526, Young v. Box ...1951) 1 T.L.R. 789, and Ilkiw v. Samuels 1963 1 W.L.R. 991. But if it is done for some purpose other than his master's business, as, for instance, giving a lift to a hitchhiker, such an act, if prohibited, may not be within the course of his employment. Both Twine v. Bean's Express Ltd. (1946) T.L.R. 458 and Conway v. George Wimpey & Co. Ltd. (1951) 2 K.3. 266 are to be explained on their own facts as cases where a driver had given a lift to some one else contrary to a prohibition and not for the purposes of the employers. The case of Iqhal v. London Transport Executive (6th June 1973) in the Times Newspaper, seems to be out of line and should be regarded as decided on its own special circumstances. In the present case it seems to me that the course of Mr. Plenty's employment was to distribute the milk, collect the money and to bring back the bottles to the van. He got or allowed this young boy Leslie Rose to do part of that business which was the employers' business. It seems to me that although prohibited, it was conduct which was within the course of the employment; and on this ground I think the Judge was in error. I agree it is a nice point in these cases on which side of the line the case falls; but, as I understand the authorities, this case falls within those in which the prohibition affects only the conduct within the sphere of the employment and did not take the conduct outside the sphere altogether. I would hold this conduct of Christopher Plenty to be within the course of his employment and the master is liable accordingly, and I would allow the appeal.

In parting with the case, it may be interesting to notice that this type of case is unlikely to arise so much in the future, since a vehicle is not to be used on a road unless there is in force an insurance policy covering (inter alia) injury to passengers.

LORD JUSTICE LAWTON: Ever since 1946 employers of drivers have been entitled to arrange their affairs on the assumption that if they gave clear and express instructions to their drivers that they were not to carry passengers on the employer's vehicles, the employers would not be liable in law for any injury sustained by such passengers. They were entitled to make that assumption because of the decision of this Court in Twine v. Bean's Express Ltd. (1946) 62 T.L.R. 458. No doubt since 1946 employers when negotiating with their insurers have sought to get reductions in premiums and have done so because of the assumption which, so it seems to me, they were entitled to make about freedom from liability to unauthorised passengers. It may well be that the judgment of the Master of the Rolls, Lord Greene, as reported, is not as clear as the judgments of that great Judge normally were; but it was the judgment of the Master of the Rolls and it was accepted by the other two members of the Court, both Judges of very great distinction who were later to go to the House of Lords: Lord Justice Morton and Lord Justice Tucker. If between 1946 and 1951 any employers had the kind of doubts about Twine 's case which in more recent years have been expressed by academic writers, their minds would have been put at rest by another decision of this Court in 1951, namely Conway v. George Wimpey & Co. Ltd. (1951) 2 K.B. 266. That was a case in which a lorry driver employed by a firm of contractors on a site where many other contractors were working, contrary to his express instructions, gave an employee of another firm of contractors a lift in his lorry. This man was injured whilst a passenger. The problem for the Court was whether the injured man could claim against the employers of the lorry driver who had given him a lift. This Court, in a unanimous decision, adjudged that the injured man could not claim. The leading judgment was given by Lord Justice Asquith, as he then was; and at page 276 he gave his reason for saying that what the lorry driver had done had not been done in the course of his employment. He said:

"I should hold that taking men not employed by the defendants on to the vehicle was not merely a wrongful mode of performing the act of the class this driver was employed to perform, but was the performance of an act of a class 'which he was not employed to perform at all."

These two cases have not been overruled by the House of Lords. Insurers have proceeded ever since on the assumption that these cases are properly decided. It would I think be most unfortunate if this Court departed from clear decisions save on good and clear grounds. What has been submitted is that those two judgments should not be followed; because when the driver of the milk float employed the boy to carry bottles for him, he was employing him to do acts which furthered the employers' business interests. In my judgment he was doing nothing of the sort. The driver had been employed to drive the milk float and deliver the milk. He had not been authorised to sub-contract his work. What he was doing was setting the boy to do the job for which he had been employed and for which he was getting paid. In my judgment in so doing he was acting outside the scope of his employment - just as in the same way as was the driver in the case of Conway v. George Wimpay & Co. Ltd.

If a general principle should be relied upon to justify my opinion in this case, I would adopt the same approach as Lord Greene in Twine's case. What duty did the employers owe to the boy? The appellant's Counsel says: Oh well, they put the driver with the milk float on the road: they put him into a position to take passengers if he were minded to disobey his instructions and therefore it is socially just that they should be responsible. I do not agree. When they put the driver with his float on the road they put him into a position where he had to take care not to injure those with whom he was reasonably likely to have dealings or to meet, that is all other road users and his customers. They expressly excluded anyone travelling as a passenger on his milk float. He was instructed expressly that he was not to carry passengers. Had he obeyed his instructions, he would not have had a passenger to whom he owes a duty of care . It was his disobedience which brought the injured boy into the class of persons to whom the employers vicariously owed a duty of care. He had not been employed to do anything of the kind. In my judgment, the injured boy has failed to establish that the employers owed him any duty of care.

I appreciate that in the case of Ilkiw v. Samuels to which the Master of the Rolls has already referred, Lord Justice Diplock, as he then was, did say that a broad approach must be made to this problem. But the broad approach must not be so broad that it obscures the principles of law which are applicable. Therein lies the danger of too broad an approach. That can be illustrated by examining Lord Justice Diplock's suggested general question, namely, what was the job on which he, the employee, was engaged for his employer? If that general question is asked without reference to the particular circumstances the answer in Twine's case would have been to make Bean's Express liable for his injuries. The van driver in that case had been employed to drive carefully. He had not been employed to drive negligently. When Twine was injured the driver was doing the job he had been employed to do, namely, to drive. Unless this Court is prepared to say that Twine v. Bean's Express Ltd. was wrongly decided, for my part I cannot see how that case can be distinguished from this. In the course of the argument an illustrative example was put to Mr. Rawlins, the boy's Counsel. He was asked whether if in Twine's case the driver had asked the passenger to do some map reading for him in order that he could get more quickly to the place where in the course of his employment he wanted to go, whether that fact would have made the employers liable. Mr. Rawlins said it would. In my judgment fine distinctions of that kind should have no place in our law, particularly in a branch of it which affects so many employers and their insurers. Having regard to what has been decided in the past, in my judgment it would be wrong now, without the authority either of the House of Lords or of Parliament not to follow the 1946 and 1951 cases.

I would dismiss the appeal.

LORD JUSTICE SCARMAN: Should there be an attentive visitor from Mars sitting in Court at this moment, he might be forgiven for thinking that he was witnessing the exposure of an irreconcilable breach between two lines of authority in the English common law. But in my judgment no such breach has in fact been opened and the two lines of authority that have led my Lord, Lord Justice Lawton, to differ from the judgment of my Lord, the Master of the Rolls, are perfectly well capable, when properly analysed, of being reconciled with the principles of the law as asserted, not for the first time, by the Master of the Rolls in his judgment in this case.

Let me begin with a statement of the general principle of vicarious liability, as I understand it in its application to compensation for accidental damage. In words which have frequently been quoted both in the Courts and in the universities, Salmond on Tort, l6th edition, at page 462, refers to the basis of vicarious liability for accidental damage as being one of public policy. That view is supported by quotations (dated no doubt, but still full of life) of a dictum of Lord Brougham and of another, one hundred years or more earlier, of Sir John Holt. That it is "socially convenient and rough justice" to make an employer liable for the torts of his servant in the cases to which the principle applies, was recognised in Limpus v. London General Omnibus Co. (1862) 1 H. & C. Ex. Reports 526; see the judgment of Mr. Justice Willes at page 539. I think it important to realise that the principle of vicarious liability is one of public policy. It is not a principle which derives from a critical or refined consideration of other concepts in the common law - e.g. the concept of trespass or indeed the concept of agency. No doubt in particular cases it may be relevant to consider whether a particular plaintiff was or was not a trespasser. Similarly, when, as I shall indicate, it is important that one should determine the course of employment of the servant, the law of agency may have some marginal relevance. But basically, as I understand it, the employer is made vicariously liable for the tort of his employee not because the plaintiff is an invitee, nor because of the authority possessed by the servant, but because it is a case in which the employer, having put matters into motion, should be liable if the motion that he has originated leads to damage to another. What is the approach which the cases identify as the correct approach in order to determine this question of public policy? First, as my Lord, Lord Denning, has already said, one looks to see whether the servant has committed a tort upon the plaintiff. In the present case it is clear that the milk roundsman, the servant of the dairy company, who are the defendants, by the negligent driving of the milk float, caused injury to the plaintiff, a boy 13 1/2 years old, who was upon the float at his invitation. There was therefore a tort committed by the servant. The next question, as my Lord has said, is whether the employer should shoulder the liability for for compensating the person injured by the tort. With all respect to the points developed by my Lord, Lord Justice Lawton, it does appear to me to be clear, since the decision of Limpus v. London General Omnibus Co. that that question has to be answered by directing attention to what the servant was employed to do when he committed the tort that has caused damage to the plaintiff. The servant was, of course, employed at the time of the accident to do a whole number of operations. He was certainly not employed to give the boy a lift, and if one confines one's analysis of the facts to the incident of injury to the plaintiff, then no doubt one would say that carrying the boy on the float - giving him a lift - was not in the course of the servant's employment. But in Ilkiw v. .Samuels Lord Justice Diplock indicated that the proper approach to the nature of the servant's employment is a broad one. I quote from page 889 of the report of the case in 1963 2 All.E.R. He says that

"As each of these nouns implies" –

he is referring to the nouns used to describe course of employment, sphere, scope and so forth –

"the matter must be looked at broadly, not dissecting the servant's task into its component activities - such as driving, loading, sheeting and the like - by asking: What was the job on which he was engaged for his employer? and answering that question as a jury would."

Applying those words to the employment of this servant, I think it is clear from the evidence that he was employed as a roundsman to drive his float round his round and to deliver milk, to collect empties and to obtain payment. That was his job. He was under an express prohibition - a matter to which I shall refer later - not to enlist the help of anyone doing that work. And he was also under an express prohibition not to give lifts on the float to anyone. How did he choose to carry out the task which I have analysed? He chose to disregard the prohibition and to enlist the assistance of the boy. As a matter of common sense, that does seem to me to be a mode, albeit a prohibited mode, of doing the job with which he was entrusted. Why was the boy being carried on the float when the accident occurred? Because it was necessary to take him from point to point so that he could assist in delivering milk, collecting empties and, on occasions, obtaining payment. The boy was there because it was necessary that he should be there in order that he could assist, albeit in a way prohibited by the employers, in the job entrusted to him by his employers.

We have taken a brief look at the historical origins of the doctrine of vicarious liability. One finds in the analysis of the facts which I have just given an echo of words used by Sir John Holt as long ago as 1700. In the case of Hern v. Nichols 1 Salkeld 289 he was enunciating, with I think a good deal of prophetic wisdom, the principle of vicarious liability as he saw it. He said - and one notes the factor of public policy in his thinking:- ...

"seeing somebody must be a loser by this deceit, it is more reasonable that he that employs and puts a trust and confidence in the deceiver should be a loser, than a stranger."

His words have no direct application to the facts of this case, but there is a family relationship. The "deceiver" is the milk roundsman in whom the dairy company had placed its trust and confidence. It is he who has encouraged the boy (who acted, of course, in ignorance of the prohibition and perfectly reasonably), to accompany him on his float and assist him in doing his employers' business. The boy was a stranger to the employers. When in the course of such assistance, the "stranger" was injured by the servant's negligence, the question which, according to Sir John Holt, one should ask is:- should the stranger be without remedy against the employer who put trust and confidence in the servant merely because he disobeyed instructions not known to the stranger?

It does seem to me that the principle that I have been attempting to describe is to be found in the case law, notably in Limpus v. London General Omnibus Co., Hilton v. Thomas Burton (Rhodes) Ltd., and Ilkiw v. Samuels. Yet it is said that the flow of this current of authority must be dammed and the stream of the law diverted because of the two decisions to which Lord Justice Lawton has referred: Twine v. Bean's Express Ltd. 62 T.L.R. 458 and Conway v. George Wimpey & Co. Ltd. (1951) 2 K.3. 266. Both of those decisions seem to me distinguishable upon their facts. In Twine's case at the very end of the judgment (I quote from page 459 of 1962 T.L.R.) the Master of the Rolls, Lord Greene, says:

"The other thing which he"

- that is the servant -

"was doing simultaneously was something totally outside the scope of his employment - namely, giving a lift to a person who had no right whatsoever to be there."

In that case the conclusion of fact was that the express prohibition upon giving lifts was not only a prohibition but was also a limiting factor on the scope of the employment; and, of course, once a prohibition is properly to be" treated as a defining or limiting factor upon the scope of employment certain results follow. In Twine's case the driver was engaged to drive his employers' van, his employers having a contract with the Post Office. When so doing, he gave Mr. Twine a lift from A to B. True A and B happened to be, both of them, offices of the Post Office. With deep respect, I can well understand why the Court reached the conclusion that in the circumstances of that case it was not possible to say that the driver in giving Mr. Twine a lift was acting outside the scope of his employment not doing improperly that which he was employed to do. Similarly when one looks at Conway's case, reported in 1951 2 K.B. 266, one again sees that upon the facts of that case the Court considered it right so to define the scope of employment that what was done, namely giving somebody a lift, was outside it and was not a mode of doing that which the servant was employed to do. That also was a case of a lift: the person lifted was not in any way engaged, in the course of the lift or indeed otherwise, in doing the master's business or in assisting the servant to do the master's business; and no doubt it was for that reason that Lord Justice Asquith was able to say that what was done - that is giving somebody else's employee a lift from the airport home - was not a mode of performing an act which the driver was employed to do, but was the performance of an act which he was not employed to perform. In the present case the milk roundsman, the servant, was employed to deliver milk, to collect empties, to obtain payment from customers. The boy was there on the float in order to assist the roundsman to do those jobs. I would have thought therefore that whereas Conway v. George Wimpey & Co. Ltd. was absolutely correctly decided upon its facts, the facts of the present case lead to a very different conclusion. The dividing factor between for instance, the present case and the decisions in Twine v. Bean's Express Ltd. and Conway v. George Wimpey & Co. Ltd. is the category into which the Court, upon the study of the facts of the case, puts the express prohibition issued by the employers to their servant. In Ilkiw v. Samuels Lord Justice Diplock, in a judgment to which I have already referred, dealt with this problem of the prohibition, and quoted a dictum of Lord Dunedin in Plumb v. Cobden Flour Mills Co. Ltd., which itself has been approved in the Privy Council case of Canadian Pacific Railway Co. v. Lockhart. Lord Dunedin said: ...

"there are prohibitions which limit the sphere of employment, and prohibitions which only deal with conduct within the sphere of employment."

Now those words are in fact an echo of what has long been the law. Much the same thing but in a different social context was said by Lord Blackburn in Limpus v. London General Omnibus Co. at page 542 and I will quote just one sentence:

"A footman might think it for the interest of his master to drive the coach, but no one could say that it was within the scope of the footman's employment, and that the master would be liable for damage resulting from the wilful act of the footman in taking charge of the horses."

And, coming right down to today, one finds the same idea being followed and developed by this Court in Iqhal v. London Transport Executive which we have reported in The Times newspaper of 6th June 1973. In that case the Court of Appeal had to consider whether the London Transport Executive was liable for the action of a bus conductor in driving contrary to his express instructions a motor bus a short distance in a garage. Of course, the Court had no difficulty at all in distinguishing between the spheres of employment of a driver and a conductor in the London Transport. Accordingly, it treated the prohibition upon conductors acting as drivers of motor buses as a prohibition which defined his sphere of employment. Now there was nothing of that sort in the prohibition in this case. The prohibition is twofold:- (1) that the roundsman was not to give lifts on his float; and (2) that he was not to employ others to help him in delivering the milk and so forth. There was nothing in those prohibitions which defined or limited the sphere of his employment. The sphere of his employment remained precisely the same after as before the prohibitions were brought to his notice. The sphere was as a roundsman to go round the rounds delivering milk, collecting empties and obtaining payment. Contrary to instructions, this roundsman chose to do what he was employed to do in an improper way. But the sphere of his employment was in no way affected by his express instructions.

Finally, I think one can see how careful one must be not to introduce into a study of this sort of problem ideas of trespass and agency. It is perfectly possible, upon the principle that I am now considering, that an employer may authorise his servant, if the servant chooses to do it — "permit" is perhaps a better word — to give lifts, But the effect of that permission does not make the employer liable if in the course of recreational or off duty but permitted activity the servant drives the vehicle negligently and injures the passenger. The case of Hilton v. Thomas Burton (Rhodes) Ltd. to which I have referred is a case in which the plaintiff failed although the journey was a permitted journey, because he was not able to show that the journey on which he was being carried was a journey which occurred in the course of the servant's employment. Conversely one has the classic case of Limpus v. London General Omnibus Co., when what the servant was doing was a defiance and disregard of the bus company's instructions. Nevertheless the plaintiff who was injured by those defiant and disobedient acts was entitled to recover against the employer.

It is for those reasons that I agree with the Master of the Rolls; and if that visitor from Mars is still in Court after this long judgment, he will return to his planet conscious that one member of the Court sees no irreconcilable difference opening up in the common law.

Appeal allowed. Judgment for plaintiff against second defendants for £620 damages plus £63.90, with costs. Leave to appeal to the House of Lords.