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The Servant's Course of Employment
Published online by Cambridge University Press: 12 February 2016
Extract
It is an accepted principle that a master is vicariously liable for the torts of his servant committed in the course of his employment. While the principle itself is clear, in its practical application many serious problems arise. These problems turn mainly on the question, whether the master is liable when the servant acts solely for his own ends and not on behalf of the master. This question has been considered in numerous cases and there are two apparently opposing trends of judicial authority.
On the one hand there is a long line of decisions, beginning in the 17th century and continuing up to the present time, which lays down that the master is not liable if the servant acts solely to further his own private interests.
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References
1 See Salmond, , Torts (13th ed., 1961) 122.Google Scholar
2 In Radley v. London County Council (1913) 109 L.T.R. 162, 164 Lush L.J. said: “I do not think that there is any class of cases in which it is more difficult to draw the line than that in which the question arises as to whether an act done by a servant was done within or without the scope of his authority.” See also Ilkiw v. Samuels [1963] 1 W.L.R. 991.
3 The word “solely” has been especially emphasized, for cases in which the servant acts out of a dual motive are not considered in the present article. Regarding this matter see Restatement, Agency 2nd, sec. 236, p. 523.
4 See the following judgments of Lord Holt: Turbervilte v. Stampe (1698) Skinner 681; 91 E.R. 1072; Jones v. Hart (1698) Holt 642; 90 E.R. 1255; Middleton v. Fowler (1699) 1 Salk 282; 91 E.R. 247. Also see Huzzey v. Field (1835) 2 C.M. & R. 432; 150 E.R. 186; Limpus v. London General Omnibus Co. (1862) 1 H. & C. 526; 156 E.R. 993; Barwick v. English Joint Stock Bank (1867) 2 Exch. 259.
5 See the authorities quoted in footnotes 13–18 below, as well as Dyer v. Munday [1895] 1 Q.B. 742; Power v. Central S.M.P. Co. [1949] S.C. 376; Deatons Pty. Ltd. v. Flew 23(1950) A.L.J. 522.
6 1 East 106; 102 E.R. 43. Also see Croft v. Alison (1821) 4 B & Ald 590; 106 E.R. 1052.
7 P.44.
8 The reference is to the words of Lord Holt in Middleton v. Fowler (1698) 1 Salk 282; 90 E.R. 281.
9 [1908] S.C.928.
10 Ibid. 938.
11 109 L.T. 162.
12 At p. 165.
13 Warren v. Henlys Ltd. [1948] 2 All E.R. 935.
14 Mintz v. Silverton (1920) 36 T.L.R. 399.
15 Kirby v. National Coal Board [1957] S.L.T. 367.
16 Crook v. Derbyshire Stone Ltd. [1956] 2 All E.R. 447.
17 Hilton v. Thomas Burton (Rhodes) Ltd. [1961] l W.L.R. 705.
18 Finburgh v. Moss Empires Ltd. [1908] S.C. 928; Aiken v. Caledonian Railway Co. [1913] S.C. 66.
19 [1912] A.C. 716.
20 See authorities quoted in footnotes 21–30 below.
21 [1942] A.C. 509.
22 At p. 519.
23 [1955] A.C. 130.
24 At p. 144.
25 The Court pointed out that in this matter there is no difference between fraud and other torts..
26 Lloyd v. Grace, Smith & Co. [1912] A.C. 716.
27 United Africa Co. Ltd. v. Saka Owoada [1955] A.C. 130.
28 Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board [1942] A.C. 509.
29 For previous attempts see Mulholland v. William Reid & Leys Ltd. [1958] S.C. 290, 295; Goh Choon Seng v. Lee Kim Soo [1925] A.C. 550 See also Stoljar, “The Servant's Course of Employment” (1949) 12 M.L.R. 44.
30 See note 4 above.
31 See authorities in note 4 above and also Bolingbroke v. The Local Board of Swindon New Town (1874) L.R. 9 C.P. 575; Ruben v. Great Fingall Consolidated [1906] A.C. 439.
32 18 Q.B.D. 714
33 At p. 717.
34 See Pollock, “Liability for the Torts of Agents and Servants” (1884) 1 L.Q.R. 207.
35 [1912] A.C. 716.
36 See Salmond, op cit. 129.
37 Jenks, , Digest of English Law, 2nd ed., 1921Google Scholar.
38 This can be seen from the fact that in the 2nd edition the author still relied on Ruben v. Great Fingall Consolidated [1906] A.C. 439, even though it was expressly overruled in Lloyd's Case. Lloyd's Case itself is not mentioned.
39 Sec. 772, p. 353.
40 3rd ed., (1938) sec. 792(4), p. 330.
41 Winfield, , Tort, 7th ed., 746Google Scholar.
42 At page 740 Lord Shaw of Dunfermline speaks of “mercantile dealing”. Also see the speech of Lord Keating in Bolingbroke v. The Local Board of Swindon New Town (1874) L R. 9 C P. 575.
43 See the words of Lord Macnaghten at pp. 738–739. In a note in 59 (1943) L.Q.R., 276, 279 Stallybrass expressed the view that in Lloyd's Case it was not a “mercantile transaction” that was under consideration. See in this connection Street, The Law of Torts, 3rd ed., (1963) 444.
44 See p. 14 below.
45 See the arguments of counsel in the Uxbridge Case referred to in the note below, as well as the words of Lord Macnaghten in Lloyd's Case, at p. 732.
46 Uxbridge Permanent Benefit Building Society v. Pickard [1939] 2 K.B. 248.
47 See Stoljar, “The Servant's Course of Employment” (1949) 12 M.L.R. 44, 58.
48 Lord Loreburn in Lloyd's Case at p. 724.
49 In the Court of Kings Bench, before Scrutton J., counsel for the plaintiff attempted to base the claim on contractual grounds but the learned judge rejected this attempt; [1911] 2 K.B. 489, 494. Also see the decision of Lord Selvesen in Aikenv v. Caledonian Railway Co. [1913] S.C. 66. The view that Lloyd's Case was based on contract was expressly rejected in the Uxbridge Case.
50 Lloyd's Case, p. 724: “it was also a tortious act committed by the clerk.”
51 See Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board [1942] A.C. 509 and United Africa Co. Ltd. v. Saka Owoada [1955] A.C. 130. The leading authority for the wide approach is the speech of Lord Wright in the Century Insurance Case. It is interesting to note that in his book, Legal Essays and Addresses, 1939 (Cambridge) 142–262, Lord Wright adopted the intermediate approach to Lloyd's Case.
52 For the difference between real authority and ostensible authority see the Oxbridge Case, n. 46 above.
53 [1912] A.C. 712, 740.
54 Vide ibid. at p. 725.
55 Vide ibid, at p. 738
56 Among other decisions see Malcolm, Brunker & Co. Ltd. v. Waterhouse & Sons (1908) 24 T.L.R. 854, 856; Whitechurch Ltd. v. Cavanagh [1902] A.C. 117.
57 N. 60 below.
58 [1880] 5 A.C. 317.
59 P. 327.
60 17 T.L.R. 37.
61 At p. 37.
62 See n. 56 above.
63 See p. 11 above.
64 See p. 13 above.
65 (1913) 109 L.T. 162.
66 It is doubtful whether today it would be held that protecting the property of a master in the circumstances of Radley's Case is not part of the employment of the servant: Poland v. Parr [1927] 1 K.B. 236.
67 At p. 164.
68 At p. 165.
69 36 T.L.R. 399.
70 Also see Cheshire v. Bailey [1905] 1 K.B. 237.
71 At p. 401.
72 This is the factual basis on which this case as well as Cheshire's Case can be distinguished from the case of Saka Owoada (n. 23 above).
73 [1932] 1 K.B. 544.
74 It was the decision of the trial judge, Scrutton J. (as he then was), in Lloyd's Case which was restored by the House of Lords.
75 At p. 560.
76 [1939] 2 K.B. 248.
77 At p. 253.
78 See, for example, Joel v. Morrison (1934) 6 C&P 501; 172 E.R. 1338.
79 At p. 254.
80 N. 21 above.
81 See Salmond, Law of Torts, 6th ed., 1924 (London) 105: “To pour out motor spirit while smoking is a negligent way of pouring out such spirit and not merely a negligent way of smoking. The servant's negligence was not merely collateral negligence contemporaneous with his employment about his master's business. It was negligence in the performance of that business itself.” Thus, if after finishing the work the servant were to have thrown a cigarette butt onto a pile of cotton which was not under his care the master would not have been liable: see Kelly v. Louisiana Oil Refining Co. 66 S.W. 2d 997. Also see Kirby v. National Coal Board [1957] S.L.T. 367.
82 [1955] A.C. 130.
83 This distinguishes the case from Cheshire v. Bailey (1905) (n. 70) and Mintz v. Sil-verton (1920) (n. 69), for in those cases there was no representation on the part of the master. It is interesting to note that in Soka Owoada the Cheshire Case was expressly noted without any mention being made of the fact that that case no longer has any application in the light of the decision in Lloyd's Case.
83a [1965] 2 All E.R. 725.
84 [1911] 2 K.B.D. 489.
85 In the words of Farwell L.J.: “The explanation of numerous and perplexing authorities cited to us rests, in my opinion, on the applicability of this doctrine of estoppel, and not on any qualification of the generality of the rule of law.” (p. 508).
86 Ibid.
87 [1911] 2 K.B. 775.
88 At p. 785.
89 See Beard v. London General Omnibus Company [1900] 2 Q.B. 530.
90 See the Uxbridge case (n. 76) as well as Navarro v. Moregrand Limited [1951] 2 T.L.R. 674.
91 “Pure vicarious liability” is that type of vicarious liability which is determined solely by the regular principles of torts, and not by estoppel or representation, which are not principles of torts. To the best of our knowledge, the expression “pure vicarious liability” appears only in Daniel v. Ricket Cockerell & Co. [1938] 2 K.B. 322, 325 where it was used as opposed to personal liability, and is therefore not synonymous with the expression as it is used here. However, the phrase “pure tort” has been used to distinguish between these cases and cases in which there is a contractual or procedural element of estoppel: See the judgment of Farwell L.J. in Lloyd's Case. This latter use of the phrase is very similar to the meaning which has been attributed to it in our present context. In Broom v. Morgan [1953] 1 Q.B. 597 Denning, L.J. used the term “true vicarious liability” but the intention was to vicarious liability as distinguished from personal liability. According to our terminology “vicarious liability by holding out”, is also vicarious liability and not personal liability: see the Navarro Case (n. 90).
92 See Power v. Central S.M.T. Co., [1949] S.C. 376.
93 See Bickman v. Smith Motors [1955] 5 D.L.R. 256.
93a Cf. Deatous Pty. Ltd. v. Flew (1949) 79 C.L.R. 370.
94 See Restatement Agency, and authorities quoted below.
95 Pollock, , Torts, 15th ed., (London) 60Google Scholar. See also Fleming, The Law of Torts, 2nd ed., (1961) 341–343.Google Scholar
96 (1867) L.R. 2 Ex. 259.
97 Pollock, op cit. 60.
98 Paton, , “The Liability of a Master for the Torts of his Servant” (1936) 1 Res Judicatae, 85Google Scholar.
99 When the expression “real authority” is used the intention is not that the master authorized the servant to commit the tort which the servant committed. “Real authority” refers to the legal acts of the servant and not to the tort which was committed. See Navarro v. Moregrand Limited [1951] 2 T.L.R. 674, 681: “He had no actual or ostensible authority to do an illegal act. Nevertheless he was plainly acting in the course of his employment”. With all respect, it is submitted that Stalybrass erred in his statement that, “It is not within the actual authority of a clerk to commit fraud but it is within his ostensible authority.” (Salmond, , Torts, 10th ed., (London 1945) 94.)Google Scholar Real authority, like ostensible authority, is authority to commit a legal act and not to commit an illegal act.
100 See Prosser, , Law of Torts (3rd ed., 1964, St. Paul Minn.) 474Google Scholar; Harper, and James, , The Law of Torts (1956 Boston) 1391Google Scholar.
101 See, for example, Lucas v. Friedman (1928) 55 App. D.C. 5, 24 F 2d 271. Even the theory of the “zone of risk”, which was developed by Dean Smith in his article “Frolic and Detour”, (1923) 23 Col.L.R. 716, and which has been adopted by the majority of American writers on the law of torts (see Prosser, op.cit. 475 and Harper and James, op.cit. 1385) does not oppose our view, for if the servant acts solely for his own benefit at the time of the detour, one can no longer regard him as acting within the zone of risk: see Harper and James, op. cit. 1385.
102 See, for example, Kelly v. Louisiana Oil Ref. Co. (1934) 167 Tenn. 101, 66 S.W.2d 997; Shuck v. Carney (1938) 22 Tenn. App. 125, 118, S.W.2d 896; the master will, of course, be liable if the smoking forms an improper mode of performing the work on behalf of the master. In this latter case the servant acts out of a dual motive. See Wood v. Saunders (1930) 228 App. Div. 69; 238 N.Y. Supp. 571; George v. Bekins Van E.S. Co. (1949) 33 Cal 2d 834, 205 P 2d 1037. Also see p. 9 above.
103 See, for example, Cary v. Hotel Rueger (1954) 195 Va 980, 81 S.E. 2d 421; Souter v. New York Tribune (1953) 305 N.Y. 442, 113 N.E. 2d 790.
104 See Georgia Power Co. v. Shipp. (1943) 195 Ga 446; 24 S.E. 2d 764; State ex rel. Gosselin v. Trimble (1931) 328 Mo. 760, 41 S.W. 2d 801; Seavey, , Studies in Agency, 255–258Google Scholar. It seems that in California the approach is different: see Fields v. Sanders (1947) 29 Cal 2d 834, 180 P 2d 684; Carr v. Wm. С Crowel Co. (1946) 28 Cal 2d 652, 171 P 2d 5. Judicial authority in California is apparently influenced by the Workmen's Compensation Acts; see Small, Ben F., “The Effect of Workmen's Compensation Trends on Agency-Tort Concept of Scope of Employment” 11 (1953) Nacca Law Journal 19Google Scholar.
105 See Prosser, op.cit. 479.
106 See the list of authorities in Prosser, op.cit. 480. Also see Bowman v. Home Life Ins. Co. (1957) 243 F 2d 331; Industrial Ins. Co. of N.J. v. First Nat. Bank of Miami (1952) 57 So 2d 23; Hartford Life Ins. Co. v. Sherman (1906) 223 111 329; 78 N.E. 923; Restatement, Agency 2d, Appendix, 423.
107 See, for example, Colwell v. Grandin Inv. Co. (1922) 64 Mont. 518, 210 P 765.
108 Restatement of the Law, Agency 2d, (1958, St. Paul. Minn.)
109 Ibid. 520.
110 Ibid. 522.
111 The sections in this chapter apply, as therein stated, to the master and servant relationship as well.
112 Ibid. 571.
113 Ibid. 572.
114 The master is therefore not liable if the servant acted solely to further his own interest and not within the bounds of his ostensible authority: see First Nat. Bank of Manistee, Mich. v. Marshall & Ilsley Bank (1897) 108 Mich. 114, 65 N.W. 604; Crawford v. Boston Store Mercantile Co. (1896) 67 Mo. App. 39; Farmers State Guaranty Bank v. Cromwell (1918) 70 Okl. 190, 173 P 826, 1 A.L.R. 684; or when the plaintiff knew that the servant had exceeded his authority: see Motor Castings Co. v. Milwaukee County Bank (1949) 254 Wis. 493, 36 N.W. 2d 687. Also see Restatement, Agency 2d, Appendix, 425.
115 See Broom v. Morgan [1953] 1 Q.B. 597, 608.
116 Romford Ice & Cold Storage Co. Ltd. v. Lister [1956] 2 Q.B. 180, 186; Duncan v. Findlater (1839) 6 C. & F. 894, 910; 7 E.R. 934; The “Druid” (1842) 1 W.Rob 391; 166 E.R. 619.
117 The doctrine of vicarious liability, said Fullager J. in Darling Island Stevedoring and Lighterage Co. Ltd. v. Long (1957) 31 A.L.J. 208, “was adopted not by way of an exercise of analytical jurisprudence but as a matter of policy.”
118 See Hern v. Nichols (1709) 1 Salk 289; 91 E.R. 256; Brocklesby v. Temperance Permanent Building Society [1895] A.C. 173; Lloyd v. Grace, Smith & Co. [1912] A.C. 716.
119 See Seavey, Studies in Agency, St. Paul, (1945) 145Google Scholar.
120 Morris, , Studies in the Law of Torts, Brooklyn (1925) 215Google Scholar.
121 See n. 125 below.
122 Per Agranat J. in State of Israel v. Madar (1961) 15 P.D. 1569, 1594. See also Seavey, op.cit., 147.
123 [1950] P. 39.
124 At p. 59.
125 See Fleming, op.cit. 8. See also Calabresi, “Some Thoughts on Risk Distribution and the Law of Torts” (1960) 70 Yale L.J. 499.
126 Fleming, op.cit. 11.
127 See Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120.
128 See Cassidy v. Minister of Health [1951] 2 K.B. 343.
129 Lord Macnaghten, in Lloyd v. Grace, Smith & Co. [1912] A.C. 716, 736 said: “…the expressions ‘acting within his authority’, ‘acting in the course of employment’ …must be construed liberally.” See Aitchison v. Page (1935) 52 T.L.R. 137, 139; London County Council v. Catermoles (Garages) Ltd. [1953] 1 W.L.R. 997.
130 See p. 19 above.