A carter, who had handed over his wagon and was going home to his dinner, struck a boy whom he suspected, wrongly but on reasonable grounds, of stealing his master’s property.
Held: The master was responsible. A servant has implied authority, at least in an emergency, to protect his master’s property.
To fix a master with liability for an unauthorised mode of performing an authorised act, the act must be sufficiently connected with the authorised act as to be a mode of doing it.
Scrutton LJ said: ‘Maybe his action was mistaken and maybe the force he used was excessive; he might have pushed the boy instead of striking him. But that was merely acting in excess of what was necessary in doing an act which he was authorized to do. The excess was not sufficient to take the act out of the class of authorized acts.’
Atkin LJ said: ‘I am of the same opinion. With great respect to the learned judge I think his judgment goes wrong where he says ‘The blot, the failure in this case is that he [Hall] was not then in fact acting in the course of his employment . . nor was he in fact doing an act incidental to it.’ The learned judge took the view that the servant was not doing an authorized act, because he was not doing an act of the class which was expressly authorized, and therefore his act could not be authorized. Bank of New South Wales v. Owston shows that to be an erroneous view. The learned judge has not given enough weight to the consideration that a servant may be impliedly authorized in an emergency to do an act different in kind from the class of acts which he is expressly authorized or employed to do. Any servant is as a general rule authorized to do acts which are for the protection of his master’s property. I say ‘authorized,’ for though there are acts which he is bound to do, and for which therefore his master is responsible, it does not follow that the servant must be bound to do an act in order to make his master responsible for it.’
Judges:
Scrutton, Atkin LJJ
Citations:
[1927] 1 KB 236, [1926] All ER 177
Jurisdiction:
England and Wales
Cited by:
Cited – Brown v Robinson and Sentry PC 14-Dec-2004
(Jamaica) The deceased claimant had been shot by a sentry employed by the respondent company. His estate appealed a finding that the sentry was not acting in the course of his employment.
Held: Older authorities had now been replaced by recent . .
Cited – Keppel Bus Co v Ahmad PC 20-May-1974
Singapore – The respondent, the plaintiff was a passenger in a bus belonging to the appellants. They employed as conductor of the bus the second defendant. The conductor treated an elderly lady passenger in a high-handed and rude fashion. The . .
Lists of cited by and citing cases may be incomplete.
Vicarious Liability
Updated: 05 August 2022; Ref: scu.220484
