Vandervell v Inland Revenue Comrs

An employer remains vicariously liable where a servant performs authorised work by an unauthorised route or method. Liability ceases only where the deviation is sufficiently detached from the employer’s business to constitute a new and independent journey undertaken exclusively for another purpose. This is a question of fact and degree.

Where the servant is charged with transporting passengers, their continued carriage and safety may remain a dominant part of the employer’s enterprise. A substantial and prohibited deviation does not necessarily end the course of employment, particularly where some passengers did not participate in the deviation.

A boy was travelling with other members of a youth organisation in a lorry supplied with a driver by the defenders. The defenders had undertaken to transport the passengers, equipment and baggage from a camp to Glasgow. At the request of some passengers, the driver took a substantial and unauthorised diversion towards Dollar. His negligent driving caused the lorry to leave the road, seriously injuring the pursuer.

The Lord Ordinary held the defenders vicariously liable and assessed damages at £24,000. The Second Division, by a majority, refused the defenders’ reclaiming motion. The defenders appealed to the House of Lords. The central question was whether the driver remained within the course of his employment during the diversion.

1. Appeal dismissed unanimously. Lord Pearce delivered the leading speech. Lord Reid, Lord Upjohn and Lord Pearson agreed with his reasons. Lord Guest, while expressing difficulty, concurred in the dismissal because of the concurrent decisions below and the views of the other Law Lords.

2. Per Lord Pearce, an unauthorised deviation from a prescribed route raises a question of fact and degree. The court must determine whether the servant remained engaged to any extent in the employer’s enterprise or had embarked upon a new and independent journey wholly unconnected with it. A servant may remain within the course of employment while performing authorised work in an improper or prohibited manner.

3. The deviation authorities drew the controlling distinction between a detour during the employer’s business and a separate frolic undertaken exclusively for another purpose. The approach in Joel v Morison (1834) 6 C. & P. 501, Mitchell v Crassweller (1853) 13 C. B. 237 and Storey v Ashton (1869) L. R. 4 Q. B. 476 was consistent with the general scope-of-employment framework stated in Kirby v National Coal Board 1958 S C 514.

4. Per Lord Pearce, the presence of passengers whom the driver had been employed to carry to their destination was decisive. Their carriage remained a dominant purpose of the authorised journey. Since not all the passengers were parties to the diversion, it was impossible to characterise the journey as being entirely for the driver’s purposes. Their transport and safety did not cease to form part of the employer’s enterprise merely because the driver chose a substantial route contrary to instructions.

5. The driver had not completed his duty to transport the passengers and baggage to Glasgow. Although the diversion was substantial and would have been forbidden, he continued to perform that duty by a circuitous and improper route. The defenders therefore remained vicariously liable for his negligence.

6. The House found it unnecessary to determine whether the defenders owed a separate duty to the pursuer in his capacity as a passenger. The case had not been pleaded in contract and the Lord Ordinary had not decided it on that basis.

1. House of Lords: The defenders’ appeal was dismissed unanimously, leaving the finding of vicarious liability and the damages award undisturbed.
2. Second Division of the Court of Session: The defenders’ reclaiming motion was refused by a majority on 30 July 1965. Lord Walker dissented.
3. Lord Ordinary: The defenders were held vicariously liable for their driver’s negligence. Damages were assessed at £24,000.