Editorial Committee of the Cambridge Law Journal

Tort. Vicarious Liability

Author(s): J. C. Hall
Source: The Cambridge Law Journal, Vol. 14, No. 2 (Nov., 1956), pp. 156-158
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal
Stable URL: https://www.jstor.org/stable/4504389
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 156 The Cambridge Law Journal [1956]

rejection of the House of Lords' decision in London

Co., Ltd v. Horton [1951] A.C. 737, and for his insi
distinction between invitees and licensees has been reduced to
vanishing point. He states the law rather as if the Occupi
Liability Bill, 1956, were already in force, but his remarks
obiter and, in any case, in a few months' time the legislature
catch up with his Lordship.
F. J. Odgers.

TORT—VICARIOUS LIABILITY

The facts of Crook v. Derbyshire Stone, Ltd.

432 were simple. One Bertie Thorpe, the second
was employed by the first defendants, was on oc
the course of his duties to drive one of their vehicles to a certain
destination, the journey being made between the hours of 4 a.m.
and 8 a.m. It was his practice on these occasions, and a practice
which enjoyed the implied sanction of his employers, to stop on the
route to obtain refreshment. On one such occasion he halted his
vehicle and proceeded to cross the road on foot to enter a caf
the other side. In doing so he collided with the plaintiff who
riding his motor-cycle, and both suffered injuries. Thorp
admittedly negligent. The only question for decision was whe
his employers were vicariously liable for his negligence.
reserved judgment at Derby Assizes Pilcher J. held that they
not.

This decision was arrived at through the application of the

following test: was the act which the servant performed negligently
pne which he was employed to do, or was it one which was incidental
to his employment ? Pilcher J. decided that this act (crossing the
road for refreshment) was not one which he was employed to do.
Now if this be the test, the decision justifies itself. But is it
in fact the correct test? It is submitted that it is not, in that it
confines the master's liability too narrowly. The traditional test
is wider. Willes J., in delivering the judgment of the Exchequer
Chamber in Barwick v. English Joint Stock Bank (1867) L.R. 2 Ex.
259 (which is often regarded as the classical authority on the point),
spoke of wrongs committed " in the course of the service " (p. 265).
Thus judges generally ask themselves if the wrong was done " in
the course of his employment" and Lord Macnaghten emphasised
in Lloyd v. Grace Smith 8c Co. [1912] A.C. 716 at p. 736 that this
expression " must be construed liberally." It seems therefore that
the true test is whether the servant was acting in the course of his
employment (liberally construed) or whether in the words of Baron

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 C.L.J. Case and Comment 157

Parke in Joel v. Morrison (1

of his own." Pilcher J. conce
the driver's practice of stopp
was " a necessary practice, w
was sanctioned by them im
hardly be said that he was
he acting in the course of his
In reaching his decision P
Century Insurance Co., Ltd
Board [1942] A.C. 509. Ther
waiting for the petrol from
tank of a garage, negligent
match, thereby causing a co
House of Lords to be in the
said Pilcher J. (at p. 436) " w
down the match he was enga
supervising the discharge
engaged on his master's bu
did was a " necessary practic
ness ? If one can be said to b
when one lights a cigarette d
a fortiori can one be said to
when one stops for a cup of
tinuous driving. For if safe
other people) deprecates the
If one may say so with the
have attached undue significa
his lorry to go for his refre
perform on his master's acco
resumed his journey "; and "
the moment when he left th
His duty was to make the jou
Let us suppose that, instead
road on foot, he had driven
the road and had collided wit
ably the decision would hav
seems to be no distinction
of facts.
Finally, although it may be argued that no good purpose is
served in cases of this nature by having regard to other deeisions
which so often turn on their particular facts, one must surely con¬
sider Whatman v. Pearson (1868) L.R. 3 CP. 422. This was after
all a decision which was binding on the court, though it does not
appear to have been cited. It too concerned a driver, though his

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 158 The Cambridge Law Journal [1956]

vehicle was simply a horse-drawn cart. This

by his employers to take an hour for his dinner, bu
forbidden (1) to go home to dine, (2) to leave
unattended. However, the driver saw fit both t
dinner (involving a digression from his route of
and to leave his horse and cart unattended outside his home while
dining. The horse duly ran away and damaged the plaintiff's
property. It was held unanimously by the four judges of the
Court of Common Pleas that it had been properly left to the jury
to say whether the driver was acting within the scope of his employ¬
ment and that the jury were justified in finding that he was. Bovil
C.J. said that it was " through [the driver's] negligence . . . whilst
acting in the course of his employment that the accident occurred.
Byles J. said that the driver was acting " within the general scope
of his authority." Now if this driver was still within the scope of
his employment when a quarter of a mile from his authorised rout
and while deliberately breaking two express commands of hi
employer, how much more so is the driver of the lorry who is still on
his authorised route and is doing an act not forbidden but impliedly
sanctioned by his employer?
J. C. Hall.

TORT—NEGLIGENCE—STANDARDS OF CARE—VICARIOUS LIABILITY

In Staveley Iron and Chemical Co., Ltd. v. Jones [1

479 the House of Lords has affirmed the Court of App
noted in [1955] C.L.J. 151 (where the facts are set out). The
employers were held liable to their workman, the plaintiff, who had
been injured by the negligent acts of their crane driver without, it
was found, contributory negligence on his part. The route by
which their Lordships reach this conclusion is very different from
that followed in the court below by Denning L.J., whose judgment
is decisively rejected. Four points arise for comment here.
First, the " Caswell test," that it is " not for every risky thing
which a workman in a factory may do in his familiarity with
machinery that a plaintiff ought to be held guilty of contributory
negligence," is primarily applicable to cases of breach by an
employer of strict statutory duty. It may be applicable only to
such cases (Lord Reid at p. 408); if not, it is probably to be applied
in common law cases only to plaintiffs who perform " repetitive
work under strain or for long hours at dangerous machines " (Lord
Tucker at p. 413; Lords Morton and Cohen agreed; Lord Tucker
concurred in Lord Morton's speech; Lord Porter agreed with them

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