''Rose v Plenty''

976 Year 976 ( CMLXXVI) was a leap year starting on Saturday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * January 10 – Emperor John I Tzimiskes dies at Constantinople, after ret ...

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, rather than criminal law, that usually requi ...

case, on the issue of where an

employee Employment is a relationship between two parties regulating the provision of paid labour services. Usually based on a contract, one party, the employer, which might be a corporation, a not-for-profit organization, a co-operative, or any other ...

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 res ...

was tenuously found under John William Salmond'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 under employment in

Bristol Bristol () is a city, ceremonial county and unitary authority in England. Situated on the River Avon, it is bordered by the ceremonial counties of Gloucestershire to the north and Somerset to the south. Bristol is the most populous city in ...

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 (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * January 10 – Emperor John I Tzimiskes dies at Constantinople, after ret ...
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 A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...

, this judgment was reversed, with

Lord Denning Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer 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 ...

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 Leslie George Scarman, Baron Scarman, (29 July 1911 – 8 December 2004) was an English judge and barrister, who served as a Law Lord until his retirement in 1986. Early life and education Scarman was born in Streatham but grew up on the borde ...

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 Wi ...

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