Mohammad Iqbal v London Transport Executive

Vicarious liability for an employee’s wrongful act depends on whether the act was within the scope of employment. An express prohibition may limit the sphere of employment itself, rather than merely regulate the manner in which authorised work is performed. The question is fact-sensitive and turns on the connection between the wrongful act and the employee’s authorised functions. A servant’s intention to benefit the employer does not, by itself, create vicarious liability where the servant has gone outside that sphere. A conductor expressly forbidden to drive buses was therefore outside the scope of employment when negligently driving one, even while attempting to help prepare a bus for service.

The plaintiff, a bus conductor employed by the defendant, was injured at a garage when another conductor, Mr Carberry, drove a bus and trapped him between two vehicles. Carberry had been repeatedly and expressly forbidden to drive buses. The plaintiff had asked or instructed him to obtain an engineer to move an obstructing bus, but Carberry instead drove it himself.

Mr Justice Brabin dismissed the claim, holding that Carberry was outside the scope of his employment. The plaintiff appealed, arguing that driving was merely an unauthorised way of carrying out the conductor’s broader duty to co-operate in getting the bus into service. The central issue was whether the prohibition limited the sphere of employment or regulated conduct within it.

1. Appeal dismissed with costs. The Court of Appeal unanimously upheld Mr Justice Brabin’s dismissal of the claim.
2. Lord Justice Megaw, whose reasoning was adopted by Lord Justice Buckley and accepted by Lord Justice Orr, applied the distinction stated by Lord Dunedin in Plumb v Cobden Flour Mills Co Ltd: some prohibitions limit the sphere of employment, while others regulate conduct within that sphere. The question remains one of fact.
3. The governing principle, expressed in Salmond on Torts and approved in Canadian Pacific Railway Company v Lockhart, Ilkiw v Samuels and Kay v I.T.W. Ltd, is that an employer may be liable for an unauthorised mode of doing an authorised act, but not for an independent act outside the employee’s employment.
4. On the evidence and the employer’s rules, a conductor’s duties concerned passengers, tickets, money and co-operation with the driver. Rule 41 expressly prohibited any unauthorised employee from driving a bus in any circumstances. That prohibition excluded driving entirely from the conductor’s employment. It was not merely a restriction on how the conductor could perform an authorised function.
5. The court rejected the criticisms of the first-instance reasoning. Beard v London General Omnibus Company did not determine the result, and London County Council v Cattermoles Garages Ltd was materially distinguishable because garage employees could ordinarily be assumed to have duties involving the movement of vehicles. The fact that Carberry intended to assist the employer did not alter the conclusion.

• Court of Appeal (Civil Division): Appeal from the judgment of Mr Justice Brabin dated 1 December 1972. Appeal dismissed with costs: [1973] EWCA Civ 3.