Rose v Plenty
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE SCARMAN |
| Judgment Date | 07 July 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0707-2 |
| Date | 07 July 1975 |
| Court | Court of Appeal (Civil Division) |
[1975] EWCA Civ J0707-2
The Master of the Rolls (Lord Denning),
Lord Justice Lawton and
Lord Justice Scarman.
In The Supreme Court of Judicature
Court of Appeal
Appeal by plaintiff from judgment of His Honour Judge H. S. Russell on 16th July, 1974.
Revised
Mr. C. S. RAWLINS (instructed by Messrs. Riders, agents for Messrs. Bobbetts Harvey & Grove of Clifton, Bristol) appeared on behalf on the Appellant plaintiff
Mr. WILLIAM BARNETT (instructed by Messrs. Barlow Lyde & Gilbert, agents for Messrs. Sainsbury Hill & Co. of Bristol) appeared on behalf of the Second Defendant.
The First Defendant did not appear and was not represented.
Mr. Christopher Plenty was a milk roundsman employed at Bristol by the Co-operative Retail Services Ltd. He started working for them at Easter 1970. There were notices up at the depot making it quite clear that the roundsman were not allowed to take children on the vehicles. One notice said: "Children and young persons must not in any circumstances be employed by you in the performance of your duties." Both employers and trade union did their utmost to stop it. No doubt Mr. Plenty knew it was not allowed. But in spite of all these warnings, the practice still persisted. Boys used to hang about the depot waiting to be taken on: and some of the roundsmen used to take them.
Soon after Mr. Plenty started work as a milk roundsman a boy, Leslie Rose, who was just over 13, went up to Mr. Plenty and asked if he could help him. Mr. Plenty agreed to let him do it. The boy described his part in these words:- "I would jump out of the milk float, grab the milk, whatever had to go into the house, collect the money if there was any there and bring the bottles back." That is what he did.
Mr. Plenty paid the boy 6/- for the weekends and 4/- for the week days.
Whilst young Leslie Rose was going round some houses, Mr. Plenty would go to others. On 21st June 1970 unfortunately, there was an accident. After going to one house, Leslie Rose jumped on to the milk float. He sat there with one foot dangling down so as to be able to jump off quickly. But at that time Mr. Plenty I am afraid, drove carelessly and negligently. He went too close to the kerb. As the milk float went round the corner, the wheel caught Leslie's leg. He tried to get his leg away, but he was dragged out of the milk float. His foot was broken with a compound fracture; but it has mended. So it was not very serious.
Afterwards he, by his father as his next friend, brought an action for damages against Mr. Plenty and against his employers, the Co-operative Retail Services Ltd. The Judge found that Mr. Plenty was negligent, but he felt that young Leslie was old enough to bear some part of the glame himself. He assessed the responsibility for the accident at 75% to Mr. Plenty and 25% to the boy. He assessed the total damages at £800, He gave judgment against Mr. Plenty for three-quarters of it — £600. But he exempted the employers from any liability. He held that Mr. Plenty was acting outside the scope of his employment and that the boy was a trespasser on the float.
The boy, through his father, now appeals to this Court. He says the employers, the Co-operative Society, are liable for the acts of their milk roundsman.
This raises a nice point on the liability of a master for his servant, I will first take the notices to the' roundsman saying they must not take the boys on. These do not necessarily exempt the employers from liability. The leading case is Limpus v. London General Omnibus Co. (1862) 1 H. & C. Ex. Reports 526. The drivers of omnibuses were furnished with a card saying they "must not on any account race with or obstruct another omnibus." Nevertheless the driver of one of the defendants' omnibuses did obstruct a rival omnibus and caused an accident in which the pl plaintiff's horses were injured. Baron Martin directed the jury that, if the defendant's driver did it for the purposes of his employer, the defendants were liable: but if it was an act of his own, and in order to effect a purpose of his own, the defendants were not responsible. The jury found for the plaintiff. The Court of Exchequer Chamber held that the direction was correct. It was a very strong Court which included Mr. Justice Allies andMr. Justice Blackburn. Despite the prohibition, the employer was held liable because the injury resulted from an act done by the driver in the course of his service and for his master's purposes. The decisive point was that it was not done by the servant for his own purposes, but for his master's purposes.
I will next take the point about a trespasser. The boy was a trespasser on the milk float so far as the Co-operative Services were concerned. They had not given him any permission to be on the float and had expressly prohibited the milk roundsman from taking him on. There are two early cases where it was suggested that the employer of a driver is not liable to a person she is a trespasser on the vehicle. They are Twine v. Bean's express Ltd. (1946) 62 T. L. R. 155, 458; and Conway v. George Wimpey & Co. Ltd. (1951) 2 K. B. 266. But these cases are to be explained on other grounds: and the statements about a trespasser are no longer correct. These statements were made at a time when it was commonly supposed that occupiers of premises were under no duty to use care in regard to a trespasser. But that stern rule has now been abandoned, especially when the trespasser is a child, see Harrington's case 1972 A. C. 877; Southern Portland v. Cooper 1974 A. C. 623; Harris v. Birkenhead 1975 1 W. L. R. 379. So far as vehicles are concerned, I venture to go back to my own judgment in Young v. Edward Box & Co. Ltd. (1951) 1 T. L. R. 789, at page 793, when I said: "In every case where it is sought to make the master liable for the conduct of his servant, the first question is to see whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servant's liability". That way of putting it is, I think, to be preferred to the way I put it later in Jones v. Staveley 1955 1 Q. B. at page 48O.
Applying the first Question in Young v. Box, it is quiteclear that the driver, Mr. Plenty, was liable to the boy Leslie Rose for his negligent driving of the milk float. He actually invited the boy to ride on it. So the second question arises, whether his employers, the Co-operative Services, are liable for the driver's negligence. That does not depend on whether the boy was a trespasser. It depends, as I said in Young v. Box, on whether the driver, in taking the boy on the milk float, was acting in the course of his employment.
In considering whether a prohibited act was within the course of the employment, it depends very much on the purpose for which it is done. If it is done for his employers' business, it is usually done in the course of his employment, even though it is a prohibited act. That is clear from Limpus v. London General Omnibus Cos. (1862) 1 H. & C. Ex. Reports 526, Young v. Box 1751 1 T. L. R. 789, and Ilkiw v. Samuels 1963 1 W. L. R. 99l. But if it is done for some purpose other than his 'master's business, as, for instance, giving a lift to a hitchhiker, such an act, if prohibited, may not be Within the course of his employment. Both Twine v. Bean's Express Ltd. (1946) T. L. R. 458, and Conway v. George Wimpey & Co. Ltd. (1951) 2 K. B. 266 are to be explained on their own facts as cases where a driver had given a lift to some one else contrary to a prohibition and not for the purposes of the employers. The case of Tohal v. London Transport Executive (6th June 1973) in the Times Newspaper, seems to be out of line and should be regarded as decided on its own special circumstances. In the present case it seems to me that the course of Mr. Plenty's employment was to distribute the milk, collect the money and to bring back the bottles to the van. He got or allowed this young boy Leslie Rose to do part of that business which was the employers' business. It seems to me that although prohibited, it was conduct which was within the course of the employment;and on this ground I think the Judge was in error. I agree it is a nice point in these cases on which side of the line the case falls; but, as I understand the authorities, this case falls within these in which the prohibition affects only the conduct within the sphere of the employment and did not take the conduct outside the sphere altogether. I would held this conduct of Christopher Plenty to be within the course of his employment and the master is liable accordingly, and I would allow the appeal.
In parting with the case, it may be interesting to notice that this type of case is unlikely to arise so much in the future, since vehicle is not to be used on a road unless there is in force an insurance policy covering (inter alia) injury to passengers.
Ever since 1946 employers of drivers have been entitled to arrange their affairs on the assumption that if they gave clear and express instructions to their drivers that they were not to carry passengers on the employer's vehicles, the employers would not be liable in law for any injury sustained by such passengers. They were entitled to make that assumption because of the decision of this Court In Twine v. Bean's Express Ltd, (1946) 62 T. L. R. 458. He doubt since 1946 employers when negotiating with their insurers have sought to get reductions in premiums and have done so because of the assumption which, so it seems to me, they were entitled to make about freedom from liability to unauthorised passengers. It may well be that the Judgment of...
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