NOTES OF CASES
| Date | 01 January 1976 |
| Published date | 01 January 1976 |
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01445.x |
NOTES
OF
CASES
WHEN
IS
A
SERVANT
IN
THE
COURSE
OF
EMPLOYMENT?
THE
defendants in
Stone
v.
Taffe
owned a public house which was
managed by their servant Taffe. In breach of the licensing laws
and contrary to express instructions, Taff e permitted Stone (among
others) to remain on the premises until
1.00
a.m. Stone then fell
downstairs to his death because Taff e negligently extinguished
(or
failed to light) the lamp over the staircase, which was structurally
safe. The Court of Appeal held that Stone was still
a
lawful visitor
at the time, and that Taffe was acting in the course of his employ-
ment.* Both problems were to be solved by asking the same question:
:“
did Mr. Stone know, or ought he
on
a balance of probabilities to
be held to have known,3 that his permission to be there ended
reasonably
soon
after
10.30
p.m.?
”
Invitations to enter premises are frequently extended, not by the
occupier, but by his family, guests or servants, whether in the
course of their employment or
not.
There is much to be said for
being indulgent to these visitors, as an occupier (unlike the usual
employer or principal) can by notice make clear that the visitor
is excluded or his
own
liability is excluded. However, in the
unauthorised invitation cases (none of which was cited), the usual
approach is that of Asquith
L.J.
in
Conway
v.
George
Wimpey
&
Co. Ltd.,6
namely that it is “elementary that if A, professedly
acting
on
behalf of
B,
purports to give me leave to enter
on
B’s
land and A has
no
actual authority to do
so,
I
am
a
trespasser if
I
act
on
this permission: none the less
so,
because
I
do not know of
A’s want of authority.” It is true that Asquith
L.J.
apparently
moves from the obvious proposition that
a
man
may
be a trespasser
without knowing it to the unnecessary conclusion that what he
knows is
never
relevant to his status. An implied right of entry‘
is not lost because the occupier inwardly resolves to over-ride it;
it would be consistent with this and with the present case to say
that
a
visitor invited by
a
servant etc., is not a trespasser unless he
either knows or ought to know from the purpose of the visit or
method of entry
O
that he is forbidden to be there. Unfortunately,
1
[
19741 3 All E.R. 1016.
2
The damages were reduced because of Stone’s contributory negligence; Reeve
J.
had held that
S
was
a
lawful visitor, but that
T
was not in the course of employment.
This conclusion the Court of Appeal found illogical.
3
As there was
no
evidence as
to
Stone’s state of mind, the incidence
of
the
burden of proof
on
the defendants was crucial.
4
119741
3
All E.R. 1016 at p. 1022.
5
[
19511 2
K.B.
266.
6
Ibid.,
at
p. 274.
7
Such
as
that recogniscd in
Robson
v.
Hallett
[1967] 2
Q.B.
239.
8
As
in
Twine
v.
Bean’s Express Ltd.
(1946) 62 T.L.R.
458.
In
Conway
V.
George
Wimpey and
Co.
Lid.
[1951] 2
K.B.
266 it was regarded
as
immaterial whether the
plaintiff knew
or
not.
*
As in
Hillen
v.
I.C.I.
(Alkali) Ltd.
119361 A.C. 65.
94
Jan. 19761
NOTES
OF
CASES
95
that conclusion seems blocked by authority, and
a
narrower basis
for the present case has to be constructed. It may be that the court
regarded the permission to remain (though a breach of the licensing
laws) as within Taffe's ostensible authority. Megaw
L.J."
indeed
referred to ostensible authority but mysteriously in relation to the
original invitation (when Stone arrived at
8.00
p.m.) which was
"
duly given with the ostensible authority of the occupiers."
Surely it must have had their actual authority. In
Conway
v.
George
Wimpey
&
Co.
Ltd.
l1
the argument about ostensible authority
(unsuccessful on the facts) was advanced on the more usual basis
that the defendants had misled the plaintiff by acquiescing in the
practice of giving lifts. Alternatively, the only distinction may be
that in
Stone
v.
Tczfle,'*
Stone was originally a lawful visitor, and
Stephenson
L.
J.l3
emphasises that an occupier must clearly delimit
the time or space to which the invitation applies.
If
this is the ratio,
it would mean that
a
latecomer to the party, admitted after
10.30
p.m., would have been a trespasser. In any case, it begs the question
about how the clear delimitation is to be made.
If
an instruction
to
a
servant not to admit visitors at all is enough to make an
ignorant visitor a trespasser, an instruction only to admit visitors
within certain hours should be enough to make an ignorant visitor
a
trespasser outside those hours.
On the issue of vicarious liability, the court held, applying Lord
Dunedin's familiar distinction,'" that the prohibition only limited
Taff e's conduct within his sphere of employment. However,
Stephenson
L.J.'"
accepted that
"
the injured person cannot make
the employer liable where he himself knows of the prohibition,
and has the opportunity to avoid the danger of injury from the
prohibited act, before he exposes himself to the danger
"
and added
that this might be
so
even
if
the prohibition was only likely to be
known
to
him. What should be the relevance of such knowledge?
(1)
Where the prohibition limits the sphere of employment, the
master is not liable, and knowledge is immaterial, except that
a
victim cannot argue that the master has held out the servant as
having apparent authority, if he knows the servant does not. Yet
Stephenson
L.
J.
Is
in discussing
Iqbal
v.
London Transport
Executive
says that the master is
"
more clearly [immune] where
the person injured
. . .
knows the limits of the conductor's sphere
of employment." There is nothing in the judgments to suggest
that this is relevant,17 nor in the facts to suggest that Iqbal's knowl-
edge could have enabled him to avoid injury.
(2)
The plaintiff's
knowledge of
a
prohibition within the sphere of employment cannot
10
Stone
v.
Tafe
[
19741
3
All
E.R.
1016
at p.
1024.
12
[
19741
3
All
E.R.
1016.
16
In
Plumb
v.
Cobden
Flour
Mills
Co.
Ltd.
(1862) 1
H.
C
C.
526
at p.
539.
15
[1974]
3
All
E.R.
1016
at p.
1022.
16
(1974) 16
K.I.R.
329.
17
In
Beard
V.
London General
Omnibus
Co.
[1900] 2
Q.B.
530,
the plaintiB
11
[
19511 2
K.B.
266.
l3
Ibid..
at p.
1021.
was a passing
bicyclist.
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