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Vicarious Liability - From: 1930 To: 1959
This page lists 33 cases, and was prepared on 02 April 2018.
Honeywill v Larkin; CA 1934 - [1934] 1 KB 191
Wilsons and Clyde Coal Co Ltd v English; HL 1938 - [1938] AC 57; [1937] UKHL 2
Uxbridge Permanent Building Society v Pickard; CA 1939 - [1939] 2 KB 248
Canadian Pacific Railway Co v Lockhart [1942] AC 591; [1941] SCR 278; [1942] All ER 464
1941
PC
Lord Thankerton, Lord Dunedin
Vicarious Liability
When considering the imposition of vicarious liability, "the first consideration is the ascertainment of what the servant is employed to do." (Lord Thankerton) and "It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorized that they may rightly be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorizes his servant to do,but also for the way in which he does it . . On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case, the servant is not acting in the course of his employment but has gone outside of it." and
"It is often difficult in the particular case to distinguish between the second and the third of these situations, but the criterion is whether the act which is unauthorised is so connected with acts which have been authorised that it may be regarded as a mode - although an improper mode - of doing the authorised act, as distinct from constituting an independent act for which the master would not be liable."
Lord Dunedin said: "there are prohibitions which limit the sphere of employment, and prohibitions which only deal with conduct within the sphere of employment."
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Gold v Essex County Council; CA 1942 - [1942] 2 KB 293
Century Insurance v Northern Ireland Road Transport Board; HL 4-Mar-1942 - [1942] AC 509; [1942] UKHL 2
Twine v Bean's Eypress Ltd; CA 1946 - (1946) 62 TLR 155
Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd; HL 1946 - [1946] 2 All ER 345; [1947] AC 1; [1946] UKHL 1
Warren v Henlys Ltd [1948] 2 All ER 935
1948
Hilbery J
Vicarious Liability
A garage attendant, as an act of personal vengeance, assaulted a customer of the garage. A customer at a petrol station was abused by the attendant as he drove off without paying. The customer then paid, called the police and then threatened to report the attendant to his employers. At that point the attendant physically assaulted the customer, who now sued the employer. Held: The employers were not liable. The act of assault was one of personal revenge, and was outside the scope of his employment.
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Deatons Pty Ltd v Flew (1949) 79 CLR 370
12 Dec 1949
Latham CJ Dixon, McTiernan, Williams and Webb JJ
Commonwealth, Vicarious Liability
(High Court of Australia). A barmaid employed by the appellant threw a glass of beer in a customers face. The company appealed a find of vicarious liability. Held: The act of the barmaid was not expressly authorized, it was not so connected with any authorized act as to be a mode of doing it, but was an independent personal act which was not connected with or incidental in any manner to the work which the barmaid was employed to perform. It was an act of passion and resentment and: "an act of passion and resentment done neither in furtherance of the master's interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid"
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[ Austlii ]
Navarro v Moregrand Ltd; 1951 - [1951] 2 TLR 674
Conway v George Wimpey and Co Ltd [1951] 2 KB 266
1951
CA
Asquith LJ
Torts - Other, Vicarious Liability
A number of contractors were employed in work at the Heathrow Airport. The defendant company had instituted a bus service for their own employees and the driver was prohibited by the defendant company from giving lifts to anyone other than their own employees. Held: The claim failed. The act of the driver in giving a lift to the plaintiff was outside the scope of his employment. It was not merely a wrongful mode of performing an act of the class which the driver was employed to perform, but was the performance of an act which he was not employed to perform.
Asquith LJ said: "I should hold that taking men not employed by the defendants on to the vehicle was not merely a wrongful mode of performing the act of the class this driver was employed to perform, but was the performance of an act of a class 'which he was not employed to perform at all."
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Young v Edward Box and Co Ltd [1951] 1 TLR 789
1951
CA
Asquith LJ, Denning LJ
Vicarious Liability
A lorry driver employed by a firm of contractors on a site where many other contractors were working, contrary to his express instructions, gave an employee of another firm of contractors a lift in his lorry. The passenger was injured and sought to sue the employer. Held. He could not.
Lord Denning MR 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".
Asquith LJ said: "I should hold that taking men not employed by the defendants on to the vehicle was not merely a wrongful mode of performing the act of the class this driver was employed to perform, but was the performance of an act of a class 'which he was not employed to perform at all."
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Harrison v National Coal Board; HL 1951 - [1951] AC 639; [1951] 1 TLR 1079; [1951] 95 Sol Jo 413; [1951] 1 All ER 1102
Cassidy v Ministry of Health; CA 1951 - [1951] 2 KB 343
Nicol v National Coal Board (1952) 102 LJ 357
1952
SCS
Lord Guthrie
Vicarious Liability, Scotland, Personal Injury
The court considered a claim against his employer after the plaintiff suffered injury after a breach of safety regulations by a co-worker. Held: Referring to Harrison v NCB: "It appears to me that that principle disposes of the argument against the relevancy of the pursuer's case on breach of the statutory regulations. Accordingly, I hold that the pursuer relevantly averred that the defenders are vicariously responsible for the fireman's breach of regulations 2(e) and (h) of the Explosives Order."
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Kilboy v South Eastern Fire Area Joint Committee 1952 SC 280
1952
Lord President (Cooper)
Scotland, Vicarious Liability, Scotland
The court discussed the rule of respondeat superior: "What was once presented as a legal principle has degenerated into a rule of expediency, imperfectly defined, and changing its shape before our eyes under the impact of changing social and political conditions".
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Sykes v Millington [1953] 1 All ER 1098
1953
Vicarious Liability, Road Traffic
Road and Rail Traffic Act 1933 2(3)
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Ormrod v Crosville Motor Services Ltd; QBD 1953 - [1953] 1 WLR 409; [1953] 1 All ER 711
Matuszczyk v National Coal Board; 1953 - (1953) SC 8
Ormrod v Crosville Motor Services Ltd; CA 2-Jan-1953 - [1953] 1 WLR 1120; [1953] 2 All ER 753
London County Council v Cattermoles (Garages) Ltd [1953] EWCA Civ 3; [1953] 1 WLR 997; [1953] 2 All ER 582
20 Apr 1953
CA
Sir Raymond Evershed MR, Birkett, Romer LJJ
Torts - Other, Vicarious Liability
An employer is vicariously liable for employees' torts committed in the course of employment, in spite of prohibitions dealing with conduct within its course. The defendants were held liable for the negligence of their servant whilst driving, even though the servant, a garage hand had no driving licence and had been expressly prohibited from driving.
[ Bailii ]
Stapley v Gypsum Mines Ltd; HL 25-Jun-1953 - [1953] AC 663; [1953] UKHL 4; [1953] 2 All ER 478; [1953] 3 WLR 279
Semtex Ltd v Gladstone; 1954 - [1954] 2 All ER 206
Roe v Ministry of Health; CA 1954 - [1954] 2 QB 66; [1954] 2 All ER 131; [1954] 2 WLR 915; [1954] EWCA Civ 7
National Coal Board v England [1954] AC 403; [1954] 1 All ER 546
1954
HL
Lord Reid, Lord Oaksey, Lord Porter
Vicarious Liability, Negligence
The plaintiff sought damages after being injured when a co-worker fired a shot. The employee however had himself coupled the detonator to the cable rather than leaving it to the shotfirer, and had his cimmitted a criminal offence. He had been found a quarter responsible, and the NCB sought to rely on the doctrine of ex turpi causa. The trial judge considered a 50% apportionment to be appropriate, on the basis that the plaintiff and the defendant's employee were equally to blame. Held: The House accepted that he had been contributorily negligent but rejected the defence of illegality.
The damages should be reduced by only 25%. Lord Reid observed at p 427 that it was not right to disturb the trial judge's apportionment lightly, but that "the difference between holding the parties equally to blame and holding the one's share of responsibility to be three times that of the other is so substantial that we should give effect to it".
Lord Oaksey approved Nicol v NCB: "I agree with the judgment of Lord Guthrie in Nicol v National Coal Board . . that it cannot be said to be necessarily outside the course of the employment of a workman that he performs his work in a manner which is in breach of a statutory regulation. Here it was within the shot-firer's employment to fire the shot electrically, but he did it without due care and in breach of the regulation. Unless there is something in the statute which creates the obligation indicating the intention that no action shall be brought a common law in respect of its breach, the ordinary rules of the common law of tort are applicable, including the doctrine respondeat superior."
Lord Porter said: "My Lords, save in one case I cannot find that such a plea has ever been put forward in circumstances similar to these as excusing common law negligence. If it were sound it would be a defence to many actions in which it was not raised and might also be a defence to many claims for compensation. Conceivably it may be a defence in certain cases between the participes criminis, but the argument that it may be a defence between the two persons involved does not support a conclusion that a third party whose servant is one of two involved in disobeying a regulation and so participating in a criminal offence is thereby absolved from liability." Applying the Cakebread case, "I cannot believe that a breach of a statutory obligation drafted to ensure the adoption of a careful method of working is a 'turpis causa' within the meaning of the rule. Indeed, the adage itself is generally applied to a question of contract and I am by no means prepared to concede where concession is not required that it applies also to the case of a tort. This view is, in my opinion, in conformity with the Law Reform (Contributory Negligence) Act 1945 which, after enacting that a claim shall not be defeated by reason of the fault of one person where the damage is caused partly by the fault of another, then goes on to define 'fault' as meaning 'negligence, breach of statutory duty or other act or omission . .'."
Lord Reid said that the 1945 Act worked to disapply the ex turpi doctrine in all forms of tort in favour of apportionment: "Reading the appropriate part of this definition back into section 1 makes it provide that where a person suffers damage as the result partly of his own breach of statutory duty which would, apart from this Act, give rise to the defence of contributory negligence his claim shall not be defeated . . [W]hatever the former position may have been, it is now clear that the appellants cannot rely on this defence [viz turpitude]."
Lord Asquith of Bishopstone said: "The defendants relied on the maxim 'ex turpi causa non oritur actio' as absolving them of liability.
. . The vast majority of cases in which the maxim has been applied have been cases where, there being an illegal agreement between A and B, either seeks to sue the other for its enforcement or for damages for its breach. That, of course, is not this case. Cases where an action in tort has been defeated by the maxim are exceedingly rare. Possibly a party to an illegal prize fight who is damaged in the conflict cannot sue for assault (Boulter v Clark (1747) Bull N.P. 16, See: (1817) Bull N. P.).
. . If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence against A. But if A and B are proceeding to the premises which they intend burglariously to enter, and before they enter them, B picks A's pocket and steals his watch, I cannot prevail on myself to believe that A could not sue in tort . . The theft is totally unconnected with the burglary."
Law Reform (Contributory Negligence) Act 1945 1(1)
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Adams v War Office; QBD 1955 - [1955] 3 All ER 245; [1955] 1 WLR 1116
Denham v Midland Employers' Mutual Assurance Limited [1955] 2 QB 437
1955
CA
Romer LJ, Birkett LJ, Denning LJ
Vicarious Liability
The court was asked which of two mutually exclusive liability insurance policies covered damages which an employer was liable to pay to the widow of an employee, who was killed while he was working under the specific direction of engineers engaged by the employer to do work on their land. Held: In none of the transfer cases cited to the court had the consent of the man been sought or obtained. The general employer had simply told the employee to go and do some particular work for the temporary employer and he had gone. The supposed transfer was nothing more than a device. Lord Denning referred to the Mersey Docks case, saying that such a transfer rarely takes place when a man is lent with a machine. But a transfer does sometimes take place when a man is lent to help with labouring work.
Denning LJ said (obiter): "Much of the difficulty arose out of the 19th century idea that a servant of a general employer may be transferred to a temporary employer so as to become for the time being the servant of the temporary employer. The conception was a very useful device to put liability on the shoulders of one who should properly bear it, but it did not affect the contract of service itself. No contract of service could be transferred without the servant's consent: and this consent is not to be raised by operation of law but only by the real consent in fact of the man, express or implied: see Nokes v. Doncaster Amalgamated Collieries Ld. In none of the transfer cases which have been cited to us had the consent of the man been sought or obtained. The general employer has simply told him to go and do some particular work for the temporary employer and he has gone. The supposed transfer, when it takes place, is nothing more than a device - a very convenient and just device, mark you - to put liability on to the temporary employer; and even this device has in recent years been very much restricted in its operation. It only applies when the servant is transferred so completely that the temporary employer has the right to dictate, not only what the servant is to do, but also how he is to do it: see Mersey Docks and Harbour Board v. Coggins &; Griffith (Liverpool) Ld. Such a transfer rarely takes place, if ever, when a man is lent with a machine, such as a crane or a lorry: nor when a skilled man is lent so as to exercise his skill for the temporary employer. In such case the parties do not contemplate that the temporary employer shall tell the man how to manipulate his machine or to exercise his skill. But a transfer does sometimes take place in the case when an unskilled man is lent to help with labouring work: see Garrard v. A. E. Southey & Co. [1952] 2 QB 174. The temporary employer can then no doubt tell the labourer how he is to do the job. The labourer becomes so much part of the organization to which he is seconded that the temporary employer is responsible for him and to him." and
"These results are achieved in law by holding that Clegg became for the time being the temporary servant for Le Grands. There is no harm in thus describing him so long as it is remembered that it is a device designed to cast liability on the temporary employer. The real basis of the liability is, however, simply this: if a temporary employer has the right to control the manner in which a labourer does his work, so as to be able to tell him the right way or the wrong way to do it, then he should be responsible when he does it in the wrong way as well as the right way. The right of control carries with it the burden of responsibility."
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Staveley Iron and Chemical Co Ltd v Jones; HL 1956 - [1956] AC 627
Lister v Romford Ice and Cold Storage Co Ltd; CA 1956 - [1956] 2 QB 180
Lister v Romford Ice and Cold Storage Co Ltd; HL 1957 - [1957] 1 All ER 125; [1957] AC 555; [1956] UKHL 6
Darling Island Stevedoring and Lighterage Co v Long (1957) 97 CLR 36
1957
Vicarious Liability, Commonwealth
(High Court of Australia) An employer was not responsible vicariously for a breach of a duty at common law between one emplyee and another. There could be no vicarious liability on an employer under regulations providing precautions to be observed in the loading and unloading of ships (for which the regulations provided only a criminal sanction), or at common law, since the regulations only imposed a penalty for breach on the employee ("the person in charge"), not upon the employer.
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Kirby v National Coal Board 1958 SC 514
1958
OHCS
Lord President Clyde
Vicarious Liability
The court considered the degree of connection necessary between the act of an employee and his employer's business to establish liability under the rule respondeat superior: "four different types of situation have been envisaged as guides to the solution of this problem. In the first place, if the master actually authorised the particular act, he is clearly liable for it. Secondly, where the workman does some work which he is appointed to do, but does it in a way which his master has not authorised and would not have authorised had he known of it, the master is nevertheless still responsible, for the servant's act is still within the scope of his employment. On the other hand, in the third place, if the servant is employed only to do a particular work or a particular class of work, and he does something outside the scope of that work, the master is not responsible for any mischief the servant may do to a third party. Lastly, if the servant uses his master's time or his master's place or his master's tools for his own purposes, the master is not responsible. . ." and "It is probably not possible and it is certainly inadvisable to endeavour to lay down an exhaustive definition of what falls within the scope of the employment. Each case must depend to a considerable extent on its particular facts."
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