United Kingdom House of Lords Decisions

LORD STRACHAN .—On 28th July 1962 the pursuer was returning to Glasgow from a Boys' Brigade camp at Benderloch, Argyll, in a lorry which had been hired from the defenders for the purpose of transporting camp equipment, baggage, and a baggage party. At the time the pursuer was not quite fourteen years of age. The lorry had been hired by the Boys' Brigade company, of which the pursuer was a member. It was being driven by the defenders' servant, John M'Kechnie Ross. On the same day a company of The Girls' Guildry, who had also been camping at Benderloch, were returning to Dollar by train. The shortest route from Benderloch to Glasgow was by Loch Lomond, but at the request of some of the boys on the defenders' lorry Ross drove the lorry to Connell station and then to Stirling station in order that the boys from the Boys' Brigade might meet the girls from the Girls' Guildry at those places. At Stirling, in response to a further request from the boys, Ross agreed to drive the lorry to Dollar in order that the boys might again meet the girls on their arrival at Dollar. At a bend in the road near Dollar the lorry swerved off the road and crashed into an adjacent field. As a result of the accident the pursuer was very severely injured. He is now completely paralysed below the level of his upper chest.

In this action the pursuer claims damages from the defenders on the ground that the accident was caused by the negligence of their servant, for whose actings they are said to be responsible. It is not disputed that the accident was caused by the negligence of Ross. The defence is that the defenders are not responsible for his negligence because at the time in question he was acting outwith the course of his employment. The defenders' case is that, from at least Stirling onwards, Ross was driving without their authority for a purpose requested by the boys which was not related in any way to his employment with the defenders.

After a proof the Lord Ordinary found the defenders liable to the pursuer and assessed damages at £24,000. That assessment of damages is not now challenged. The sole question to be decided in this reclaiming motion is whether or not at the time of the accident Ross was acting within the scope of his employment. Subject to a few references to the notes of evidence on behalf of the defenders on the question as to what Ross was employed to do, both parties accepted the Lord Ordinary's findings on the facts of the case, and agreed that the case should be disposed of on those findings.

The general principles which are to be applied in deciding the question which is raised in this case have been clearly laid down. The difficulty arises in applying those principles to the particular facts of the case. The general rules of law are stated in Salmond on Torts, (13th ed. at pp. 122-123) as follows:—

"It is clear that the master is responsible for acts actually authorised by him … But a master as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes—although improper modes—of doing them. In other words a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it … On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it."

That statement of the law was expressly approved by the Privy Council in Canadian Pacific Railway Co. v. Lockhart . There are many cases illustrating the application of the foregoing rules, but obviously the most relevant cases for present purposes are those which deal with facts where the servant was driving a vehicle on his master's business, and deviated for his own purposes from the direct route which he ought to have followed. There are in particular three cases of that type which must be considered, viz., Joel v. Morison; Mitchell v. Crassweller; and Storey v. Ashton .

In Joel v. Morison the plaintiff was a pedestrian who was knocked down in the City of London by a horse and cart driven by a servant of the defendant. There was evidence that the defendant's cart was not in the habit of being driven in to the City at all on his business and it was suggested that the defendant's servant had gone out of his way for his own purposes, or might have taken the cart at a time when it was not wanted for business, and paid a visit to a friend. Parke, B., in charging the jury said:

"If the servants being on their master's business took a detour to call upon a friend the master will be responsible. … If he was going out of his way against his master's implied commands when driving on his master's business he will make his master liable, but if he is going upon a frolic on his own without being at all on his master's business the master will not be liable."

The verdict was for the plaintiff.

In Mitchell v. Crassweller the defendant's servant had finished the business of the day and returned to the defendant's shop with his horse and cart. He there obtained the key of the stable, which was only 500 yards away, but did not go to the stable at once, as it was his duty to do. The foreman, who was unwell, asked the servant to drive him part of the way home, and the servant, who tried but failed to get his master's permission to do so, said he would "chance it" and agreed to the foreman's request. On his way back he ran over the plaintiff. It was held that the master was not liable. Jervis, C.J., after saying that a master may be liable even where the servant so exceeds his duty as to justify the master in at once discharging him, pointed out that the servant had started on a new journey wholly unconnected with the master's business and said:

"I think at all events if the master is liable where the servant has deviated it must be where the deviation occurs in a journey on which the servant has originally started on his master's business, in other words he must be in the employ of his master at the time of committing the grievance."

Maule, J., pointed out that the servant was not going a roundabout way to the stable, but did "a thing having no connection whatever with his employer's service."

In Storey v. Ashton the servant was sent with a clerk and a horse and cart to deliver some wine and bring back some empty bottles. On their return, and when about a quarter of a mile from the master's office the servant was induced by the clerk after business hours, to drive in another direction on business of the clerk's, and an accident occurred. The master was held to be not liable. Cockburn, C.J., held that no question arose as to the degree of the deviation because the servant "started on an entirely new and independent journey which had nothing to do with his employment … on what may be considered a new journey entirely for his own business as distinct from that of his master." The other judges expressed similar opinions.

In my opinion, those decisions are authority for the proposition that, in cases of this type, where the servant has started his journey on the master's business, the master will not be responsible for the servant's actings if the servant's deviation truly is an entirely new and independent journey not at all connected with the master's business, but if the servant is still on the master's business to any extent the master will remain liable. As stated in Salmond on Torts, "The master is exempt only when the servant was exclusively on his own business." I am further of opinion that the present case must be decided by applying that proposition to the particular facts, and I do not think that any further help is to be obtained from authorities where the question of the scope of employment was considered in cases of a different type.

On the facts of this case, it is to be noted that Ross, the driver of the lorry, did not contravene any express prohibition by his master. Apparently he was not given any express instructions as to the route which he was to follow. His job was to transport the baggage, equipment, and baggage party from Benderloch to Glasgow. I am, however, of opinion that he must be held to have been acting under implied instructions that he was to follow the shortest available route, for he must have known that the defenders' charges would be calculated on that basis.

If it had been necessary to decide whether the deviation to Stirling had taken Ross out of the scope of his employment I would have been disposed to hold that it did not do so. In my opinion it could not reasonably be said that up to that point Ross had started an entirely new and independent journey not at all connected with the defenders' business. He was still transporting the baggage, equipment and baggage party to Glasgow by a recognised route, though not the shortest. He was to some extent ignoring his implied instructions, but he was still carrying out his master's contract.

The journey from Stirling to Dollar, however, was undoubtedly a different matter in some respects. When going to Dollar Ross was in fact going away from Glasgow, and was adding a very considerable mileage to the route. I think that that part of the journey raises a narrow question, and it may be to some extent a matter of impression as to whether a new and independent journey was started when the lorry left Stirling for Dollar. I have, however, come to be of opinion that even on the road to Dollar Ross was still to some extent on his master's business. At the start of the journey from Benderloch he was on his master's business, and that business had not been completed. He was still transporting the baggage, equipment and boys under his master's contract, although by a very roundabout way. The journey to Dollar, in my view, may be said to be an improper mode of carrying out the defenders' contract. I cannot bring myself to hold that at the time of the accident Ross was engaged wholly on his own or the boys' business. This case, I think, is distinguishable from Mitchell v. Crassweller in respect that Ross had not finished the business of the day. It is also, I think, distinguishable from Storey v. Ashton on much the same ground, for although the servant in that case was still a quarter of a mile from the completion of his job the fact that he started out in the opposite direction when so near home, emphasised that he was starting on a new journey. The present case, I think, may reasonably be regarded as falling within Baron Parke's dicta in Joel v. Morison that the master will be responsible if the servant, being on his master's business, took a detour to call upon a friend or if he was going out of his way against his master's implied commands when driving on his master's business. Ross while engaged on his master's business of transporting the baggage, etc., to Glasgow took a detour—albeit a very considerable one—to call upon the boys' friends.

I therefore agree with the Lord Ordinary. In my opinion he reached the right conclusion, and I would adhere to his interlocutor.

I would add that senior counsel for the pursuer developed an argument which was based on the duty owed by the defeneders as carriers to the pursuer as a passenger on the lorry. I have not dealt with that argument because, in my opinion, it is not open to the pursuer on the pleadings as they now stand.

LORD WHEATLEY .—The only outstanding issue in this case is whether the defenders are responsible for the loss, injury and damage sustained by the pursuer as a result of the accepted negligence of their driver Ross.

The defenders had contracted to transport the equipment, baggage and members of the Boys' Brigade Company from Benderloch to Glasgow. In discharge of their obligations under the contract the defenders had supplied the lorry and the driver Ross. No specific instructions were given by the defenders to their driver other than to transport the equipment, baggage and members of the Company from Benderloch to Glasgow. The pursuer was one of the members of the Company authorised to travel on the lorry, and this brought him into "neighbourhood" with the defenders, who thereby came under an obligation to him to take reasonable care to see that he was transported in safety in their lorry from Benderloch to Glasgow. The defenders delegated this duty to their servant Ross, who set out from Benderloch with their lorry to discharge it. It was contended by the defenders that the driver, by acquiescing in the request of some members of the party on the lorry to deviate from Stirling to Dollar to have a further meeting with the girls of the Girls' Guildry, took himself out of the scope of his employment with them, with the result that they are not vicariously responsible for his negligence which occasioned the accident to the pursuer during that journey. This, they argued, was a new and independent journey which the driver had no authority from them to make, and accordingly he was not their servant during the course of that journey.

In my opinion this argument is not well founded. The position has to be tested in the light of the duty owed to the pursuer. The pursuer was not a party to the request to make the diversion to Dollar. He had joined the lorry at Benderloch with a view to being transported to Glasgow. Although the driver had undertaken a diversionary journey for another purpose, he was still under the obligation to transport the pursuer to Glasgow, and was still in the process of doing so, albeit by a circuitous route, when the accident occurred. He may have been in breach of implicit instructions from his employers in undertaking the diversion at the request of other members of the party, but whatever else he was doing, he was still carrying out his explicit instructions and discharging on behalf of his employers the obligation to take the pursuer back to Glasgow, and was thus still engaged on his master's business with the pursuer. It may be that the driver by making the diversion was doing this part of his master's business in an improper manner, but that does not exempt his master from vicarious liability for his negligence while on that journey. This was not a new and independent journey in relation to the pursuer, but was part of the original journey in fulfilment of the obligation to transport him in safety from Benderloch to Glasgow. The nature and the character of the journey remained the same so far as the pursuer and the driver were mutually concerned. This, in my opinion, distinguishes the present case from Mitchell v. Crassweller and Storey v. Ashton, which were so strongly relied upon by the defenders. In these cases the court held that the driver was engaged on a new and independent journey entirely divorced from his master's interests, which took him outwith the scope of his employment, so that there was no legal liability on the master for his actings. There was therefore no "neighbourhood" and so no legal obligation between the master and the injured edestrian in each of these cases. In the present case the state of "neighbourhood" which existed between the defenders and the pursuer and gave rise to legal obligations at the beginning of the journey was never severed because the driver was still engaged in the duty which he was instructed by the defenders to perform, namely taking the pursuer back to Glasgow, whatever else he may have been doing at the same time, properly or improperly, at the behest of someone else. I am accordingly of the opinion that in relation to the pursuer the driver was carrying out his master's business when the accident occurred, and that the defenders are vicariously responsible for his negligence which occasioned the accident. I therefore agree with your Lordship that the Lord Ordinary reached the right conclusion and that we should adhere to his interlocutor.

LORD WALKER .—In the course of the hearing before us counsel for the reclaimers (defenders in the action) intimated that they departed from then challenge of the Lord Ordinary's assessment of £24,000 as representing the damage suffered by the pursuer and respondent. They maintained however that the Lord Ordinary was in error in holding their clients liable for the consequences of the admitted negligence of their servant Ross. The facts found by the Lord Ordinary were accepted by both parties. The controversy was as to whether the law relating to vicarious liability of a master for the fault of his servant had been correctly applied to the facts.

The material facts are I think as follows. The defenders had agreed with Captain M'Nicol, then in charge of a camping party of the Boys' Brigade, to send a lorry to Benderloch in order to bring back to Glasgow some camping equipment together with a baggage party of two or three boys. They employed Ross to drive their lorry. No route for the journey was expressly laid down, but the usual and available route was to turn southwards at Crianlarich and to follow along the bank of Loch Lomond. Before leaving Benderloch some of the boys had suggested to Ross that he might return via Stirling, but Ross had demurred on account of the extra mileage involved. The route from Crianlarich to Glasgow via Loch Lomond is fifty one miles, but the route via Stirling is seventy five miles. On seeking Captain M'Nicol's authority to go by the longer route Ross was instructed that he must go by the shorter. However on arrival at Connel the boys met their friends of the Girls' Guildry, who were travelling home to Dollar by rail from their camp at Benderloch. At the railway station in Connel some of the boys over-persuaded Ross and induced him to proceed to the station in Stirling. Stirling is about twenty five miles from Glasgow. At Stirling the boys again met their friends and again some of them persuaded Ross to drive to Dollar in order that they might say goodbye. The direct route from Stirling to Dollar is abour twelve miles in an easterly direction and therefore further away from Glasgow than is Stirling. On leaving Stirling Ross missed the direct route and wandered along on the south side of the Forth until he came to the bridge at Kincardine whence he proceeded northwards towards Dollar. Some miles short of Dollar he was driving too fast to take a bend. The lorry left the road and so caused the damage. If the defenders had known of Ross's intention to drive to Dollar they would have forbidden him to do so.

Although the pursuer was a passenger on the lorry, the case has been dealt with on the footing that the law applicable is the same law as would have applied had he been a pedestrian run down at the scene of the accident, namely, the so-called "deviation" cases, Joel v. Morison; Mitchell v. Crassweller; and Storey v. Ashton . There can I think be no doubt that the proper route for the journey was by Loch Lomond, and that Ross deliberately deviated towards Stirling in order that the boys might meet their friends. But I do not think that deviation would have put him out with the course of his employment. The object of enabling the boys to meet the girls was, up to a point, a reasonable enough incident of the return journey from camp. And Stirling is considerably nearer Glasgow than is Crianlarich, so that Ross in going there would be to some extent still driving in his master's interests. Moreover the route by Stirling though a roundabout way is a recognised route. The fifty miles or so from Crianlarich to Stirling is not so significant in the motoring age as it would have been in the days of horse-drawn traffic. But when Ross left Stirling for Dollar I think he went outwith the course of his employment. The object of meeting the girls in Dollar went beyond what in my opinion could be regarded as being a reasonable incident of the journey. Ross was driving further away from Glasgow so that the element of driving in his master's interest disappears. In my opinion at Stirling Ross started an entirely new and independent journey which had nothing at all to do with his employment. It is no doubt true that after Dollar he would probably have resumed the course of his employment by driving to Glasgow. That in my opinion is not material. The true test is to ask whether what he was doing, in the doing of which he was guilty of negligence, was in the course of his employment. I do not think that the deviation cases countenance the view that the driver will remain within the course of his employment so long as some duty still falls to be performed and probably will be performed in future. If that were so, Storey v. Ashton could not have been decided as it was for there it still remained for the servant to bring the empty bottles back to his master. Tried by what I think is the true test Ross was not in the course of his employment at the time of the accident, and differing with respect from those who think otherwise I am of opinion that the defenders are not vicariously liable for his fault on the ratio of the "deviation" cases.

In the concluding speech for the pursuer and respondent senior counsel outlined an alternative argument on the view that the defenders as carriers owed the pursuer as passenger a duty to carry him with care, and that as they had delegated performance of that duty to their servant they—on the ratio of Central Motors (Glasgow) Limited v. Cessnock Garage and Motor Company —remained vicariously liable for his negligence until the termination of the journey, notwithstanding that for the time being he was acting for his own private interest and not at all on his master's business. The argument is not mentioned in the Lord Ordinary's opinion. It was not mentioned by junior counsel who opened for the respondent in this court. Counsel for the reclaimers have accordingly had no opportunity to comment on it. In these circumstances it would not be right for me to express an opinion on its merits.

On the whole matter I would allow the reclaiming motion, recall the Lord Ordinary's interlocutor, and assoilzie the defenders.

The defenders appealed to the House of Lords, before whom the case was heard on 12th May 1966.

At delivering judgment on 22nd June 1966,—

LORD REID .—For the reasons given by my noble and learned friend Lord Pearce, I would dismiss the appeal.

LORD GUEST .—I have had more difficulty over this case than the rest of your Lordships. But in view of the concurrent findings in the courts below and the fact that the rest of your Lordships are unanimously of opinion that the appeal should be dismissed, I am not prepared to dissent from that decision.

LORD PEARCE .—[After the narrative quoted supra, his Lordship continued]—The defenders' servant was employed by them as a driver and he had been ordered to drive the boys and their baggage to Glasgow. His duty was, by implication, to drive by the most direct route. When the accident happened, he had not yet completed his overall duty of driving the boys and baggage to Glasgow, but he was on a part of the road where he would not have been if he had carried out his orders. He should not have gone anywhere near the place of the accident, and his employers, had they been asked, would certainly not have permitted him to go there. Was he still acting within the scope of his employment so as to make his employers vicariously liable for his negligence?

The leading Scottish case which deals in general terms with vicarious liability for a servant is Kirby v. National Coal Board . There the Lord President, following Goh Choon Seng v. Lee Kim Soo and Canadian Pacific Railway Company v. Lockhart, said (at p. 532):

"Vicarious responsibility for the act of a servant will only attach to the master if the act of the servant is done within the scope of the employment. It is probably not possible, and it is certainly inadvisable, to endeavour to lay down an exhaustive definition of what falls within the scope of the employment. Each case must depend to a considerable extent on its particular facts. But, in the decisions, four different types of situation have been envisaged as guides to the solution of this problem. In the first place, if the master actually authorised the particular act, he is clearly liable for it. Secondly, where the workman does some work which he is appointed to do, but does it in a way which his master has not authorised, and would not have authorised had he known of it, the master is nevertheless still responsible, for the servant's act is still within the scope of his employment. On the other hand, in the third place, if the servant is employed only to do a particular work, or a particular class of work, and he does something outside the scope of that work, the master is not responsible …"

"The master is exempt only when the servant was exclusively on his own business" says Salmond on Torts. And Professor Fleming writes:

"The question is whether the activity was reasonably incidental to the performance of his authorised duties or involved so substantial a departure that the servant must pro hac vice be regarded as a stranger vis-à-vis his master."

The particular aspect of the problem which is presented by deviation from an authorised route has been considered in three English cases in which injury was done to persons who were not passengers in the vehicle driven by the servant, Joel v. Morison, Mitchell v. Crassweller and Storey v. Ashton . It is a question of fact and degree in each case whether the deviation is sufficiently detached from the master's business to constitute a frolic of the servant unconnected with the enterprise for which he was employed.

Through each of the three English cases cited runs the idea of a new journey entirely unconnected with the master's business as opposed to a mere detour for the servant's selfish purposes. "If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable," said Parke, B., in the leading case of Joel v. Morison . In Mitchell v. Crassweller Jervis, C.J., speaks of the servant starting on a new journey wholly unconnected with the master's business, and Maule, J., refers to the servant as doing "a thing having no connection whatever with his employer's service." Finally, in Storey v. Ashton Cockburn, C.J., said:

"I am very far from saying, if the servant when going on his master's business took a somewhat longer road, that owing to his deviation he would cease to be in the employment of the master, so as to divest the latter of all liability; in such cases, it is a question of degree as to how far the deviation could be considered a separate journey. Such a consideration is not applicable to the present case, because here the carman started on an entirely new and independent journey which had nothing at all to do with his employment … on what may be considered a new journey entirely for his own business, as distinct from that of his master."

And Lush, J., said "… but he had started on an entirely new journey on his own or his fellow servant's account."

In the last case a carman together with one of his master's clerks had to take wine from his master's store in the Minories to Blackheath and return with empty bottles to the store. When he was about a quarter of a mile from the store on the return journey, he agreed with the clerk to go completely out of his way to call at the clerk's house and collect a cask belonging to the clerk and take it to Barnsbury. Before he reached Barnsbury there was an accident for which the employer was held to have no liability. The continued presence in the cart of the master's empty wine bottles, whose ultimate destination was the master's premises, was not considered a compelling factor in deciding the question of degree as to how far the deviation could be held to absolve the master from vicarious responsibility. The presence of some unimportant dead baggage en route for its ultimate destination adds but little weight as a rule to the argument that the master's business is being pursued, albeit by devious ways. After all, the vehicle itself is also the master's property en route for its ultimate destination. But had the property in the cart been some more valuable or important and dominant cargo which was being transported, the result might well have been different. And in that case the presence of the clerk in the cart added nothing, since he was the instigator and beneficiary of the deviation; and that capacity superseded his role of passenger during the deviation.

Had the driver in the present case been driving a lorry which was empty or contained nothing of real importance, I think that so substantial a deviation might well have constituted a frolic of his own. The presence of passengers, however, whom the servant is charged qua servant to drive to their ultimate destination makes it impossible (at all events, provided that they are not all parties to the plans for deviation) to say that the deviation is entirely for the servant's purposes. Their presence and transport is a dominant purpose of the authorised journey, and, although they are transported deviously, continues to play an essential part. It was said in argument that there must be some limits to that contention and that one could not hold that, if the driver had gone to Inverness, he would still be acting on his master's business. No doubt there are such limits to the argument as common sense may set on the facts of each case. But when there are passengers whom the servants on his master's behalf has taken aboard for transport to Glasgow, their transport and safety does not cease at a certain stage of the journey to be the master's business, or part of his enterprise, merely because the servant has for his own purposes chosen some route which is contrary to his instructions.

The more dominant are the current obligations of the master's business in connection with the lorry, the less weight is to be attached to disobedient navigational extravagances of the servant.

In weighing up, therefore, the question of degree, whether the admittedly substantial deviation of the vehicle with its passengers and baggage was such as to make the lorry's progress a frolic of the servant unconnected with or in substitution for the master's business, the presence of the passengers is a decisive factor against regarding it as a mere frolic of the servant. In the present case the defenders remained liable, in spite of the deviation, for their driver's negligence.

It is unnecessary, therefore, to consider how far the pursuer could rely on the defenders' duty to him qua passenger or base his claim on further arguments not available to a mere pedestrian. The Lord Ordinary did not deal with it on that basis and no case was pleaded in contract.

I would dismiss the appeal.

LORD UPJOHN .—I have had an opportunity of reading the speech of my noble and learned friend Lord Pearce, with which I wholly agree.

I would dismiss this appeal.

LORD PEARSON .—I agree with the opinion of my noble and learned friend Lord Pearce, and with his reasons. I would therefore dismiss the appeal.