''Rose v Plenty''

976 Year 976 ( CMLXXVI) was a leap year starting on Saturday of the Julian calendar. Events By place Byzantine Empire * January 10 – Emperor John I Tzimiskes dies at Constantinople, after returning from a second campaign against ...

1 WLR 141 is an

English tort law English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than English criminal law, crimi ...

case, on the issue of where an

employee Employment is a relationship between two party (law), parties Regulation, regulating the provision of paid Labour (human activity), labour services. Usually based on a employment contract, contract, one party, the employer, which might be a cor ...

is acting within the course of their employment.

Vicarious liability Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, '' respondeat superior'', the responsibility of the superior for the acts of their subordinate or, in a broader sense, the r ...

was tenuously found under

John William Salmond Sir John William Salmond (3 December 1862 – 19 September 1924) was a legal scholar, public servant and judge in New Zealand. Biography Salmond was born in North Shields, Northumberland, England, the eldest son of William Salmond (died 1 ...

's test for course of employment, which states that an employer will be held liable for either a wrongful act they have authorised, or a wrongful and unauthorised mode of an act that was authorised.

Facts

Mr Plenty was a

milkman Milk delivery is a Delivery (commerce), delivery service dedicated to supplying milk, typically in milk bottle, bottles or cartons, to customers' homes. This service is performed by a milkman, milkwoman, or milk deliverer. (In contrast, a Cowman ...

under employment in

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by the Co-operative Retail Services Ltd, since Easter of 1970. At the depot where he worked, there was a prohibition on allowing children onto any vehicle, with evidence that the employers and trade unions had attempted to stop such behaviour. There were signs to this effect, which were large and visible to employees; one such stated:

"Children and young persons must not in any circumstances be employed by you in the performance of your duties.
976 Year 976 ( CMLXXVI) was a leap year starting on Saturday of the Julian calendar. Events By place Byzantine Empire * January 10 – Emperor John I Tzimiskes dies at Constantinople, after returning from a second campaign against ...
1 WLR 141, p. 143.

However, children still persisted in going to the depot in the hopes of being allowed onto milk floats. Soon after he was employed, Mr Plenty was approached by Leslie Rose, at the time a 13-year-old boy, who asked if he could help the employee on his rounds. This was agreed upon, and Rose engaged in collecting money and delivering milk during Mr Plenty's rounds. He was paid a small wage for this help on several occasions, before he was injured due to the negligent driving of Mr Plenty, suffering a fractured leg. At first instance, Plenty was adjudged 75% contributorily negligent, and recovery from the employer was barred altogether, the judge stating that it was not in the scope of Mr Plenty's employment to take on a child as a subordinate.

Judgment

On appeal to the

Court of Appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...

, this judgment was reversed, with

Lord Denning Alfred Thompson Denning, Baron Denning, (23 January 1899 – 5 March 1999), was an English barrister and judge. He was called to the Bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when he w ...

making the leading speech. It was established that, as in the case of ''Limpus v London General Omnibus Company'' the employee was merely acting in an unauthorised way, whilst still going about his duties of delivering milk: Whilst the majority of Lord Denning and Scarman LJ agreed upon this interpretation,

Lawton LJ Sir Frederick Horace Lawton (21 December 1911 – 3 February 2001) was a British barrister and judge who served as Lord Justice of Appeal from 1972 to 1986. Early life and career Frederick Lawton was born in Wandsworth, London, the son of Wil ...

dissented, arguing that precedents set in two earlier cases, ''Twine v Bean's Express Ltd'' and ''Conway v George Wimpey & Co Ltd'', could not be distinguished from the instant case.

1 WLR 141, p. 145. In these cases, no liability was found on the part of the employer where passengers taken by employees - against specific instructions - were injured. The leading judgment on appeal distinguished these on the grounds that the passenger (Leslie Rose) had been furthering (advancing) the employee's duties, this kept Mr Plenty within the course of his employment. A consequence is the close or sporadic audit of all an employee's inherently risky activities becomes strongly advisable in the English employment system. The benefit is that third parties are less likely to suffer business-caused loss than before due to an employee's foolhardiness.

References

{{reflist, 2 English tort case law English vicarious liability case law Lord Denning cases 1975 in United Kingdom case law Court of Appeal (England and Wales) cases

Facts

Judgment

See also

References