London County Council v Cattermoles (Garages) Ltd

An employer is vicariously liable where a servant performs an authorised task by a prohibited, improper or unlawful method. An express prohibition does not itself determine the scope of employment. The court must first identify the servant’s actual duties and decide whether the wrongful conduct was a mode of performing those duties or an independent act outside them.

An incidental movement onto a public highway did not take the servant outside the scope of employment where it was part of moving a vehicle to clear the employer’s garage, even though the servant was forbidden and unlicensed to drive.

The London County Council claimed the cost of damage to one of its vans after it collided with a van driven by Preston, a general garage hand employed by the respondent garage company.

Preston had been asked to move a van obstructing access to the garage. His duties included helping to move vehicles, but he had been expressly forbidden to drive and had no driving licence. In moving the van, he drove it into the public road and caused the collision.

The County Court held that driving was wholly outside Preston’s employment and rejected the claim. The Council appealed on the question whether Preston’s driving was an unauthorised mode of performing an authorised task, or an independent act outside the course of his employment.

1. Appeal allowed unanimously. The court entered judgment for the Council for £23 0s 11d, with costs below and on appeal. The Master of the Rolls, Lord Justice Birkett and Lord Justice Romer agreed that the County Court had drawn the scope of Preston’s employment too narrowly.
2. The controlling inquiry was what Preston had actually been employed to do. He was a general garage hand whose work included getting vehicles out of the way of other vehicles. Driving the van was therefore not, in its character, a task independent of his employment. It was a wrongful and expressly prohibited means of carrying out the authorised task of moving the van.
3. The court applied the distinction between an unauthorised mode of doing authorised work and an independent act outside employment. A prohibition on driving could be evidence of the limits of employment, but it did not necessarily impose such a limit. On the facts, it regulated the way Preston performed his vehicle-moving duties rather than excluding vehicle movement by driving from those duties.
4. Lord Justice Birkett held that the County Court had wrongly treated driving in abstraction from the surrounding work. The court applied the approach in Canadian Pacific Railway Company v Lockhart, 1942 Appeal Cases 59, and Goh Choon Seng v Lee Kim Soo, 1925 Appeal Cases 550.
5. The brief excursion onto the public highway was incidental to clearing the garage and returning the van behind the lorries. It remained within Preston’s authorised activities. His lack of a licence and the illegality of driving on the highway did not alter that conclusion.

• Court of Appeal: Allowed the Council’s appeal and entered judgment for it for £23 0s 11d, with costs below and on appeal.
• County Court: Held that the employee’s driving was outside the scope of his employment and rejected the claim against the garage company.