The Servant's Course of Employment
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00109.x |
| Author | Samuel J. Stoljar |
| Date | 01 January 1949 |
| Published date | 01 January 1949 |
THE
SERVAN’I“S
COIJRSE
OF
EMPLOYMENT
I
THE master is vicariously liable for his servant’s tort
to
a
third
party
if
the tort has been committed within the servant’s course
of employment.’ This principle is familiar enough, but acute
difficulties have nevertheless arisen in its application, and a new
attempt is here made to sort them out.
The principal problem confrnnting the lawyer is
to
distinguish
between torts within and without the coursc of employment.
Although vicarious liability operates on that distinction, the term
‘
course
of
employment’ is really of no help
nt
all because it does
not provide the necessary criteria by which we can decide why
or
when
a
certain act comes within the course of employment.
Hence, before asking the omnibus question, ‘Has the servant
acted within the course of employment
’,
it is essential to
go
behind
that phrase and
to
ascertain the precise legal characteristics
of
each
particular situation.
Now
it is obvious that the situations in
which a master has been, or may be, held liable are as variable as
the sets of possible circumstances that may occur. But
it
is sub-
mitted that the manifold cases can, and must he, divided into four
distinct classes of which each represents a specific type-situation.
Perhaps far too little attention
has
hitherto been drawn to this
vital need for a ncater classification of the cases, and this has
also been the cause
of
much
of
the
confusion that surrounds this
subject.? We need not therefore be
as
pessimistic as, for instance,
Professor (now Judge) Batt who has said that ‘only a vaguely
general statement of the law can be made
’,
and that the
‘
standard
(of liability) is conventional and, in a sense, arbitrary
’.3
For
once
we have separated and distinguished the four type-situations,
many of the difficulties will be found to disappear and a satisfactory
precision
of
the rules will
be
achieved. We proceed, therefore, to
1
The rnaatcr and servant arc jointly liable, but thcrc
aro
some exceptions;
the master
is
not liable where (a) servant and plaintiff were in
’
common
employment
,
(b) the master
hsis;
lost the
’
right
of
control
’
under
the principle
of
Mersey
Docks
and Harbour
Board
v.
Coggins and
Grifitks,
[1847]
A.C.
1,
(c) the mash cannot be sued on tlic grounds
of
capacity
,
but
Nee
Smith
v.
Moss,
“403
1
K.B.
424.
The aervant
will
not be liable, though the master
will,
under t,he principle
in
Said
v.
Butt,
[lcjao]
3
K.B.
497,
606.
Moreover,
the master mny recnnipenac himself
:
Adamson
v.
Jenkins
(1827),
4
Bing.
66;
Burrows
v.
RhodPs,
[1899]
1
Q.B.
016.
For
other exemptions
from
liability,
Ree
English
and Empire Digest,
Vol.
34,
pp.
153-6.
1
The only judicial attempt at classification is that by
Lord
Phillimore in
Goh
Choon
Seng
v.
Lee.
Kim
Soo,
[1925]
A.C.
550,
at p.
354.
But it
is
not a very
helpful classification being neither sufficiently ooinprehensive
nor
precise.
*
Master and Servant
(3rd
ed.), pp,
930,
239.
44
JAW.
1949
THE
SERVANT’S
COURSE
OF
EMPLOYMENT
45
consider the four classes of cases or four type-situations; they
follows
:
-
Cases where the servant is negligent in the performance of
his employment duties
;
Cases where the servant commits an intentional tort in the
performance of his employment duties
;
Cases where the dispute arises with regard
to
the extent
or
nature of the servant’s express
or
implied employment
duties
;
Cases where the servant makes a d6tour in driving his
master’s vehicle and injures the plaintiff.
It
is clear that
(1)
and
(2)
deal with the servant’s
performance
of
his work, and we shall call them both the
.‘
performance cases
’,
although-as will
be
seen later on-a distinction mu-;
be
made
between negligent and intentional misperformance. The main
inquiry
in
these cases is
to
determine whether the servant’s tort
was committed
in
th
perfmance,
or
was attributable
to
the
performance, of his employment, and hence what is really meant
by the phrase the servant has acted within the course
of
employ-
ment’ is simply that he has caused the injury in the actual
performance of his work.
This distinction between a
ton
within and outside performance
leads to the very core
of
vicarious liability in English law.
For
why
should the master be liable at all
?
The usually advanced theory
of
‘
implied authority
’
cannot
be
an
explanation, because there
is
obviously no truth in the contention that the master has impliedly
authorised the commission of a tort even if that tort is connected
with the ‘class
of
acts’ which the servant was expressly employed
to
do. In fact, implied authority begs the very question at issue,
i.e.,
has the employer really authorised the tort, and is therefore
purely fictitious in its appli~ation.~ Indeed, if there were any
evidence
of
the maater’a consent, whether express
or
genuinely
4
See generally Baty,
Vicarious Liability;
Laski,
The
Baais
of
Vicarious
Liability
(1916),
26
Y.L.J.
105;
Smith,
Frolic
and
Ddtour
(1923),
a3
Ca1.L.R.
444, 716;
Douglas,
Vicarious Liability
and
Adminiatration
of
Risk
(1929).
88
Y.L.J.
684,
720.
A
tabulation
of
the various ethical beses
of
respondeat
superior is given by
Dr.
Bat
,
op.
cit.,
p.
148
(reprinted
23
Cal.L.R.,
p.
455).
Bot8h
Professors
Smith and 8ouglas contend that the
only
ucceptable rationale
of
vicarious liability is the belief that it is smially more expedient to spread
or
distribute the losses in the carrying on
of
industry over
a
large group
of
the community,
e.g.,
a
company, rather than to cast them upon the servants.
This distribution
of
lwes
is
part
of
modem business administration
of
costa
and risks. This is often called the
’
entrepreneur theory
’.
For
views against
vicarious liability, see Baty,
op. cit.,
Chaps.
I,
V,
VIII,
IX;
Holmes,
6
Harv.
L.R.
14;
Hackctt,
7
H.L.R.
108.
6
For
a
discussion
of
implied authority
’,
see Baty,
op.
cit.,
pp.
87-109;
on
p.
149
he
calls
it
a
P
rrhonistic view,
in
essence destructive
of
all
reason
and argument
. .
.’.
8ee also,
G.
E.
Curtis,
14
Can.B.R.
725, 727.
The
point that
’
implied authority
’
is
a
question-begger
waa
first
made by Bowen,
L.J.,
in
Bn’tish Mutual
Banking
Co.
V.
Chamwood
Forest
Ry.,
18
Q.B.D.
‘714
&D
p.
718.
In
Lloyd
v.
Grace,
Smith,
[lgll]
2
K.B.
489,
Ferwell,
L.J.,
said (at p.
612)
that
this reasoning
of
Bowen, L.J.’s, seemed unanswerable.
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