The employer’s business

The employees were instructed to deliver some wine on the return journey one of the employees persuaded the other, since it was by then after hours, to set off in a different direction to visit some relatives. On the way there, the plaintiff was injured by the employee’s negligent driving. It was held that the driver was not acting in the course of employment, it was a new and independent journey which was entirely his own. When considering the scope of employment it is enough to show that the employee was generally doing his job at the time, and doing a job negligently does not ake an employee outside the course of employment.

Century Insurance v NI Road Transport [1942] Under a contract with a petroleum company for the carriage and delivery of their petrol in its lorries, a transport undertaking agreed to keep the petrol while in transit insured against fire and spillage. The careless act of the driver was done in the course of his employment so that the undertaking was responsible for the consequences, and, accordingly, entitled to be indemnified under the policy. Disobedience An express prohibition may be regarded as merely directed to the methods by which a job is done.

Therefore, an act may be within the course of employment even though it has been expressly forbidden by the employer. Limpus v London General Omnibus Co. (1862) A bus driver was instructed not to race with or obstructs the buses of rival companies. He disobeyed the instruction and caused an accident where the plaintiff’s horses were injured. It was held that despite the prohibition, the employers were liable since this was simply an improper method of adopted by the employee in performing his duties.

It is outside the course of employment for an employee to do something which is not connected with what he is employed to do. Beard v London General Omnibus Co. (1900) A bus conductor, in the driver’s absence, decided to turn the bus around for the return journey. As a conductor, he was not acting in the course of his employment and therefore, acting outside the course of his employment. Twine v Beans Express (1946) It was held that there was no vicarious liability for a driver giving a lift.

Where a prohibited act is performed in furthering the employer’s business, it is usually within the course of employment. Rose v Plenty (1976) A milkman employed a 13yr old boy to help deliver milk despite the express instruction not to do so. It was held that the driver was well within the course of employment despite the express prohibition because he was still acting for the master’s purpose, business and benefit. Assault Lister v Hesley Hall [2001] Warden at a boarding annexed to a school for boys with emotional behavioural difficulties sexually abused Cs.

HoL held that it is necessary to consider the relative closeness of the connection between the nature of the employment and the tort and to take a broad approach to the nature of employment. On this basis, H had undertaken to care for the boys through the services of the warden; there had been close connection between his employment and his tort. The torts were committed at a time on the premises while he was caring for the children I the course of his duties. The acts were so closely connected that it was fair and just to hold H vicariously liable.

Where a deliberate assault is involved, the courts are reluctant to find that the employee was acting in the course of employment. Warren v Henlys (1948) An employee engaged as a petrol pump attendant by the defendant mistakenly thought that the plaintiff was attempting to drive away without paying. He made the accusation to the plaintiff in violent language. The plaintiff paid the bill, called the police and when he threatened to report the pump attendant to his employers, he was assaulted and injured by him.

It was held that the defendants were not liable; the assault was a mere act of personal vengeance and outside the course of employment. Kepple Bus v Ahmad UKPC A bus conductor assaulted a passenger in the bus. It was held that the conductor’s duties extended to keeping order; there was no evidence of any disorder so that the conductor was not acting in the course of his duties by striking the passenger. Vasey v Surrey Free Inns [1974] He had visited a nightclub owned by S and, having been refused entry, kicked the door of the premises breaking the glass.

He was pursued into the car park of the premises by two doormen, P and M, and the manager and was attacked.

(1) the conduct of the assailants was a reaction to the damage to the door for the protection of S’s property and was not a private quarrel unrelated to the employee’s duties.

(2) It was an unlawful and unauthorised manner of carrying out their duty;

(3) it was an unauthorised act, which was within the province of their proper duty generally to preserve the integrity of the club. This was not a frolic of his own but an act for which the employer must be held vicariously liable.

(4) It was the duty of the manager of such an establishment to exercise proper control over employees to prevent unwarranted assaults on customers.

Other Misconduct Kooragang v Richardson & Wrench [1982] D’s employee was instructed not to carry out valuations for a group of companies because of the group’s failure to pay for past services. The employee later became a director of one of the companies and, without the employer’s knowledge performed a number of valuations for them, using D’s notepaper and signing the valuations with D’s corporate signature.

The group passed certain valuations to P who relied on them. The valuations had been done negligently and P sued D in respect of D’s employee’s negligence. It was held that there was no authority to perform these valuations could be inferred from the fact that D had authorised the employee to perform others. Since D had forbidden the employee to make valuations for the group and had not taken part in or benefited from them the employee had been acting outside the course of his employment and D were not vicariously liable for his negligence.

An employer’s actual authority to his servant to do a particular act cannot be inferred merely from the fact that the act itself was of a class, which the employer had previously authorised the servant to do. Gen. Eng. Scv. v Kingston [1989] A local authority was held not to be vicariously liable when firefighter deliberately delay their arrival at a fire until the building was destroyed as part of a ‘go slow’ policy in support of a pay claim. An act, which is done with the aim of frustrating the employer’s business purpose is unlikely to be classified as merely an unauthorized mode of performing the job.

There are occasions when an employer will be vicariously responsible for the deliberate criminal conduct of an employee. Fraud Lloyd v Grace Smith ; Co. [1912] The defendant, a firm of solicitors employed a clerk who fraudulently induced a client into transferring some cottage over to him. He then dishonesty disposed of the property and disposed of the proceeds. HoL: Even though the fraud was not committed for the benefit of the employers and they were ignorant of his schemes, they were liable because they had held the clerk out as having authority to perform the type of transaction in question.

Manager who had been bribed entered into an unauthorised charter of a ship. Manager assured A that he has express authority. It was held that: 1. No contract between A and D as manager was known to have no general authority to make contract and neither was there any ostensible authority. 2. When an employee made a fraudulent misrepresentation, which caused loss to an innocent party contracting with him, his employer, would be vicariously liable for the act if the employer had himself by words or conduct induced the injured party to think that the agent was acting in the lawful course of the employer’s business.