Rose v Plenty [1975] EWCA Civ 5

A Co‑operative milk roundsman, contrary to express instructions, employed a 13‑year‑old boy to help deliver milk. The boy was injured through the roundsman’s negligent driving. The Court of Appeal (by majority) held the employer vicariously liable, as the boy’s work furthered the employer’s business.

Facts

Mr Christopher Plenty was employed as a milk roundsman in Bristol by Co-operative Retail Services Ltd. From Easter 1970 there were clear notices at the depot prohibiting the employment of children on the milk rounds. One notice stated:

“Children and young persons must not in any circumstances be employed by you in the performance of your duties.”

Despite these warnings, a practice had developed whereby boys would wait at the depot and some roundsmen would take them as helpers on their rounds.

Soon after starting work, Mr Plenty agreed to let 13-year-old Leslie Francis Rose assist him. The boy described his tasks as follows:

“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.”

For this work Mr Plenty paid the boy 6 shillings for weekends and 4 shillings for weekdays. While the boy attended some houses, Mr Plenty would attend others.

On 21 June 1970, after calling at one house, Leslie jumped onto the milk float, sitting with one foot dangling down so he could alight quickly. Mr Plenty drove negligently, too close to the kerb, and as the float turned a corner a wheel caught Leslie’s leg, dragging him out and causing a compound fracture of the foot.

Leslie, suing by his father as next friend, claimed damages against Mr Plenty and the employer. The trial judge found Plenty negligent and apportioned responsibility at 75% to Plenty, 25% to the boy, assessing total damages at £800. Judgment was entered against Plenty for £600, but the claim against Co-operative Retail Services Ltd was dismissed on the basis that Plenty acted outside the scope of his employment and that the boy was a trespasser on the float.

The plaintiff appealed, contending that the employer was vicariously liable for the roundsman’s negligence.

Issues

Primary legal questions

• Whether the milk roundsman’s use of a child helper, contrary to express prohibitions, was within the course or scope of his employment for the purposes of vicarious liability.
• Whether the boy’s status as a trespasser (from the employer’s perspective) prevented recovery against the employer.
• How earlier authorities, particularly Limpus v London General Omnibus Co., Twine v Bean’s Express Ltd and Conway v George Wimpey & Co Ltd, should be applied or distinguished.

Judgment

Denning MR (majority)

Denning MR emphasised that the employer’s prohibition against employing or carrying children did not of itself exempt the employer from liability. Referring to Limpus v London General Omnibus Co., he reiterated that an employer can still be liable where a servant, acting for the employer’s purposes, does a prohibited act in the course of employment.

He rejected the idea that the plaintiff’s status as a trespasser on the float was determinative. Drawing on his earlier judgment in Young v Edward Box & Co Ltd, he restated the approach:

“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”.

On the first question, he held it was clear that Plenty, having invited the boy onto the float, was liable to him for negligent driving. The second question, whether the employer must shoulder that liability, turned on whether Plenty was acting in the course of his employment in taking the boy onto the float.

Denning MR explained that where a prohibited act is performed for the employer’s business, it is usually still within the course of employment, citing Limpus, Young v Box and Ilkiw v Samuels. By contrast, where a driver gives a lift to a hitchhiker, contrary to prohibition and not for the employer’s purposes, that act may be outside the scope of employment, as in Twine v Bean’s Express Ltd and Conway v George Wimpey & Co Ltd.

In the present case, the course of Plenty’s employment was to distribute milk, collect money and return empty bottles. By allowing Leslie to perform part of this work, the roundsman was having the boy assist in the employer’s business. Although this was prohibited, Denning MR considered it to be conduct within the course of employment. The prohibition affected how the work was to be done within the sphere of employment; it did not remove the act from that sphere.

He concluded that Co-operative Retail Services Ltd were vicariously liable for Plenty’s negligence and the trial judge had erred in exempting them.

Lawton LJ (dissent)

Lawton LJ would have dismissed the appeal. He relied strongly on the decisions in Twine v Bean’s Express Ltd and Conway v George Wimpey & Co Ltd, noting that employers and insurers had long arranged their affairs on the assumption that clear instructions against carrying passengers would prevent liability for injuries to unauthorised passengers.

Quoting Lord Justice Asquith in Conway, he emphasised:

“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.”

He considered that employing the boy did not further the employer’s business interests but amounted to the driver setting the boy to do the work for which the driver himself was paid, effectively sub‑contracting his own job without authority. In that sense, Plenty was acting outside the scope of his employment, just as in Conway.

Lawton LJ asked what duty the employers owed to the boy. The employers had placed the driver and float on the road owing duties of care to other road users and customers. However, they had expressly forbidden the carriage of passengers. Had the driver obeyed instructions there would have been no passenger to whom the employer owed a duty. The driver’s disobedience alone brought the boy into a class of persons towards whom a duty of care was owed. Since the driver had not been employed to carry passengers at all, Lawton LJ held that the plaintiff failed to establish any duty of care owed by the employer, and he was unwilling to depart from the authority of the 1946 and 1951 cases without intervention from the House of Lords or Parliament.

Scarman LJ (majority, concurring with Denning MR)

Scarman LJ analysed the doctrine of vicarious liability as founded on public policy: that it is “socially convenient and rough justice” that employers be liable for their employees’ torts in appropriate cases. He stressed that the principle does not derive from refined notions of trespass or agency, though such concepts may sometimes be relevant.

He adopted the two‑stage approach: first, whether the servant committed a tort, and second, whether the employer should shoulder the liability. It was clear that Plenty’s negligent driving injured the boy, who was on the float at Plenty’s invitation, so the first question was answered affirmatively.

Turning to the course of employment, Scarman LJ endorsed the broad approach described by Diplock LJ in Ilkiw v Samuels:

“As each of these nouns implies”

and more fully:

“the matter must be looked at broadly, not dissecting the servant’s task into its component activities – such as driving, loading, sheeting and the like – by asking: What was the job on which he was engaged for his employer? and answering that question as a jury would.”

Applying this, he found that Plenty’s job was to drive the float around his round, deliver milk, collect empties and obtain payment. Though expressly forbidden to employ help or give lifts, he chose to disregard those prohibitions and enlisted the boy’s assistance. The boy was carried on the float in order to move from point to point so he could help with deliveries, empties and payments. In Scarman LJ’s view, this was a prohibited but nonetheless genuine mode of doing the job entrusted to Plenty.

He drew support from Sir John Holt’s dictum in Hern v Nichols:

“seeing somebody must be a loser by this deceit, it is more reasonable that he that employs and puts a trust and confidence in the deceiver should be a loser, than a stranger.”

The milk roundsman, in whom the employer had placed trust and confidence, had encouraged a stranger (the boy) to assist in doing his employer’s business. When that stranger was injured by the servant’s negligence in the course of such assistance, Scarman LJ considered it just that the employer bear the loss.

Scarman LJ distinguished Twine and Conway on their facts. In those cases the courts treated the express prohibitions as defining or limiting the scope of employment, with the result that giving lifts was outside the employment. In contrast, here the prohibition did not change the nature or sphere of Plenty’s employment, which remained the work of a roundsman delivering milk and related tasks.

Relying on Lord Dunedin’s distinction in Plumb v Cobden Flour Mills Co Ltd, later approved in Canadian Pacific Railway Co v Lockhart:

“there are prohibitions which limit the sphere of employment, and prohibitions which only deal with conduct within the sphere of employment.”

and echoing Lord Blackburn’s example in Limpus:

“A footman might think it for the interest of his master to drive the coach, but no one could say that it was within the scope of the footman’s employment, and that the master would be liable for damage resulting from the wilful act of the footman in taking charge of the horses.”

Scarman LJ held that the prohibitions here dealt only with how the work was to be conducted within an unchanged sphere of employment. The sphere had not been re‑defined; the servant simply chose a prohibited method of performing his authorised duties. Accordingly, the employer was vicariously liable.

Implications

The Court of Appeal, by a majority (Denning MR and Scarman LJ; Lawton LJ dissenting), allowed the appeal and imposed vicarious liability on the employer for the negligent driving of its servant, notwithstanding clear prohibitions against employing or carrying children.

The decision clarifies that:

• Express prohibitions do not automatically remove acts from the course of employment. The key question is whether the servant’s act, albeit prohibited, is a mode of doing the employer’s business or an act of a different class altogether.
• The status of the injured person as a trespasser is not decisive in vicarious liability; the focus is on the servant’s duties and whether the employer’s business was being furthered.
• Twine v Bean’s Express Ltd and Conway v George Wimpey & Co Ltd are confined to their facts, particularly situations where drivers gave lifts that did not assist in the employer’s business and where prohibitions defined the limits of employment.
• The case reinforces a policy-based, broadly framed approach to vicarious liability, emphasising that employers who put their employees in positions of trust and responsibility may be required to bear losses caused by employees’ disobedient but business-related acts.

It remains an important authority on the scope of employment, unauthorised passengers, and the effect of prohibitions on employers’ vicarious liability in tort.

Verdict: Appeal allowed. Judgment entered for the plaintiff against the second defendants, Co-operative Retail Services Ltd, for £620 damages plus £63.90, with costs. Leave to appeal to the House of Lords was granted.

Source: Rose v Plenty [1975] EWCA Civ 5