Rose v Plenty

An employer may be vicariously liable where an employee performs the employer’s business in a prohibited manner. The court must identify the employee’s job broadly and decide whether the prohibition merely regulates conduct within that sphere or limits the sphere of employment itself.

Liability ordinarily arises where the prohibited conduct serves the employer’s business. It may not arise where the employee acts for an independent purpose. The injured person’s status as a trespasser does not determine vicarious liability. The relevant questions are whether the employee committed a tort and whether that tort occurred in the course of employment.

A milk roundsman employed by a co-operative society engaged a 13-year-old boy to help deliver milk, collect money and return bottles. He did so despite express instructions forbidding roundsmen from employing children or carrying them on milk floats. The roundsman negligently drove too close to the kerb and injured the boy.

The county court apportioned responsibility 75 per cent to the roundsman and 25 per cent to the boy. It entered judgment against the roundsman but held that the society was not liable because the roundsman had acted outside the scope of his employment and the boy was a trespasser on the float.

The boy appealed on the central question whether the roundsman’s prohibited conduct nevertheless occurred in the course of his employment, making the society vicariously liable.

1. By a majority, the appeal was allowed. Lord Denning MR and Scarman LJ held that the roundsman acted in the course of his employment. Lawton LJ dissented.

2. Per Lord Denning MR, an express prohibition does not necessarily exempt an employer from liability. The decisive question is the purpose of the employee’s conduct. Conduct undertaken for the employer’s business is ordinarily within the course of employment even when prohibited. Conduct undertaken for an independent purpose, such as giving a purely personal lift, may fall outside it. The principle in Limpus v London General Omnibus Co (1862) 1 H & C 526 applied.

3. Per Lord Denning MR, the boy’s status as a trespasser did not determine the employer’s liability. The proper inquiry was whether the roundsman was liable in tort and, if so, whether the employer should shoulder that liability. The roundsman had negligently injured a boy whom he had invited onto the float. He had enlisted the boy to deliver milk, collect money and return bottles, all of which formed part of the employer’s business.

4. Per Scarman LJ, the employee’s job must be viewed broadly and as a matter of common sense. It must not be dissected into isolated component activities. Carrying the boy between delivery points enabled him to assist with the round. It was therefore a prohibited mode of performing the entrusted work.

5. Scarman LJ distinguished prohibitions which define or limit the sphere of employment from prohibitions which regulate conduct within that sphere. The instructions in this case did not alter the roundsman’s assigned sphere of delivering milk, collecting empties and obtaining payment. Twine v Bean’s Express Ltd (1946) 62 TLR 458 and Conway v George Wimpey & Co Ltd [1951] 2 KB 266 concerned passengers who did not assist with the employer’s business and were distinguishable.

6. Lawton LJ dissented. He considered the roundsman’s unauthorised delegation to be outside his employment and would have followed Twine and Conway. The majority entered judgment against the society for £620 damages plus £63.90, with costs, and granted leave to appeal to the House of Lords.

1. Court of Appeal: By a majority, allowed the plaintiff’s appeal and entered judgment against the second defendant employer for £620 damages plus £63.90, with costs. Leave to appeal to the House of Lords was granted.

2. County court: His Honour Judge H. S. Russell found the roundsman negligent, apportioned responsibility 75 per cent to him and 25 per cent to the boy, and assessed total damages at £800. He entered judgment against the roundsman for £600 but held that the employer was not liable.