Rose v Plenty [1975] EWCA Civ 5

A boy was injured while assisting a milkman who had been expressly forbidden by his employer from using helpers. The Court of Appeal held the employer vicariously liable, reasoning the milkman was performing his authorised job, albeit in an unauthorised manner.

Facts

The plaintiff, Leslie Rose, a boy aged 13, was injured due to the negligent driving of a milkman, Mr Plenty. Mr Plenty was employed by the defendants, A. Plenty & Son, a dairy. The defendants had an explicit policy, communicated through notices, forbidding their milkmen from allowing children to ride on the milk floats or employing them for assistance. One notice stated: ‘Children must not in any circumstances be employed by you’. Despite being aware of this prohibition, Mr Plenty had engaged Leslie to help him on his milk round for a small payment. The purpose of the help was to assist in delivering milk and collecting empty bottles, thereby expediting the round. On the day of the accident, Leslie was riding on the float when Mr Plenty drove negligently around a corner, causing Leslie’s foot to be trapped under a wheel, resulting in a fracture.

Issues

The central legal issue was whether the defendants could be held vicariously liable for the injury caused by their employee’s negligence, given that the employee was acting in direct contravention of an express prohibition by allowing the plaintiff on the vehicle and employing him. The question was whether this prohibition meant Mr Plenty’s actions fell outside the course of his employment.

Judgment

The Court of Appeal, by a majority, dismissed the appeal from the county court, holding the employer vicariously liable.

Lord Denning M.R. (Majority)

Lord Denning drew a crucial distinction between a prohibition that limits the ‘sphere’ of employment itself, and one that merely governs the ‘conduct’ or method of performance within that sphere. He reasoned that Mr Plenty’s act of employing the boy was not for his own benefit but was undertaken to further his employer’s business of delivering milk. Although the method was prohibited, the act was still performed within the course of employment. He distinguished the case from precedents like Conway v George Wimpey & Co Ltd, where giving a lift to an employee of another firm was deemed outside the scope of employment. Here, the boy was actively helping with the employer’s business.

The course of the milk roundsman’s employment was to distribute the milk, collect the money and to bring back the bottles to the van. He got this boy to help him in doing that work. The boy was helping him to do the master’s business…. It is true that he was acting contrary to instructions. He was doing it in a prohibited manner: but he was still doing it in the course of his employment.

Scarman L.J. (Majority)

Agreeing with Lord Denning, Scarman L.J. also focused on the purpose of the employee’s act. He determined that the prohibition did not limit the nature of the job (delivering milk) but rather the way it should be performed. Since the engagement of the boy was to help with the employer’s business, it was an unauthorised mode of performing an authorised task. The fact that the employer benefited from the boy’s assistance, even indirectly by the work being done, was a key factor.

The prohibition in this case affected the way in which the employee was to conduct his employment: it was a prohibition as to conduct within the sphere of employment…. It seems to me plain that the act of the roundsman in engaging the boy to assist him was an act done for the purpose of the business of his employers. It was an unauthorised way of doing that which he was employed to do.

Lawton L.J. (Dissenting)

In his dissent, Lawton L.J. argued that the prohibition was clear and absolute. He believed the case was indistinguishable from Twine v Bean’s Express Ltd and Conway v George Wimpey & Co Ltd, where employers were not held liable for injuries to unauthorised passengers. He viewed the act of taking a boy on the float not as an improper mode of performing the job, but as the performance of a distinct and prohibited act that was outside the scope of employment.

The express prohibition in this case was not a prohibition as to the manner in which the employee was to do his work. It was a prohibition against doing an act which he was not employed to do at all, namely to take a boy on the float as a helper.

Implications

The decision in Rose v Plenty is significant for the law of vicarious liability. It reinforces the principle that an employer can be held liable for an employee’s tortious acts, even when those acts are expressly forbidden, so long as they are performed in the course of employment. The case clarifies that an act is likely to be viewed as within the course of employment if it is an unauthorised method of performing an authorised task for the benefit of the employer’s business, rather than an act done for the employee’s own purposes or one that is entirely outside the scope of duties they were hired to perform.

Verdict: The appeal was dismissed. The employer was held vicariously liable for the plaintiff’s injuries.

Source: Rose v Plenty [1975] EWCA Civ 5