Read the following extracts and then answer the questions below:

Rose v Plenty and another

COURT OF APPEAL, CIVIL DIVISION

LORD DENNING MR, LAWTON AND SCARMAN LJJ4, 7 JULY 1975

LORD DENNING MR.

The first defendant, Mr Christopher Plenty, was a milk roundsman employed at Bristol by the second defendants, Co-operative Retail Services Ltd ('Co-operative Services'). He started working for them at Easter 1970. There were notices up at the depot making it quite clear that the roundsmen were not allowed to take children on the vehicles. One notice said: 'Children and young personsmust not in any circumstances be employed by youin the performance of your duties.' Both employers and trade union did their utmost to stop it. No doubt Mr Plenty knew it was not allowed. But in spite of all these warnings, the practice still persisted. Boys used to hang about the depot waiting to be taken on: and some of the roundsmen used to take them.

Soon after Mr Plenty started work as a milk roundsman a boy, the plaintiff, Leslie Rose, who was just over 13, went up to Mr Plenty and asked if he could help him. Mr Plenty agreed to let him do it. The boy described his part in these words: 'I would jump out of the milk float, grab the milk, whatever had to go into the house, collect the money if there was any there and bring the bottles back.' That is what he did. Mr Plenty paid the boy 6s for the weekends and 4s for the weekdays.

Whilst young Leslie Rose was going round some houses, Mr Plenty would go to others. On 21 June 1970, unfortunately, there was an accident. After going to one house, Leslie Rose jumped on the milk float. He sat there with one foot dangling down so as to be able to jump off quickly. But at that time Mr Plenty, I am afraid, drove carelessly and negligently. He went too close to the kerb. As the milk float went round the corner, the wheel caught Leslie's leg. He tried to get his leg away, but he was dragged out of the milk float. His foot was broken with a compound fracture; but it has mended. So it was not very serious. Afterwards, by his father as his next friend, he brought an action for damages against Mr Plenty and against his employers, Co-operative Services. The judge found that Mr Plenty was negligent, but he felt that young Leslie was old enough to bear some part of the blame himself. He assessed the responsibility for the accident at 75 per cent to Mr Plenty and 25 per cent to the boy. He assessed the total damages at 800. He gave judgment against Mr Plenty for three-quarters of it, 600. But he exempted the employers from any liability. He held that Mr Plenty was acting outside the scope of his employment and that the boy was a trespasser on the float. The boy, through his father, now appeals to this court. He says the employers, Co-operative Services, are liable for the acts of their milk roundsman.

This raises a nice point on the liability of a master for his servant. I will first take the notices to the roundsmen saying they must not take the boys on. Those do not necessarily exempt the employers from liability. The leading case isLimpus v London General Omnibus Co. The drivers of omnibuses were furnished with a card saying they 'must not on any account race with or obstruct another omnibus ... ' Nevertheless the driver of one of the defendants' omnibuses did obstruct a rival omnibus and caused an accident in which the plaintiff's horses were injured. Martin B (1 H & C at 529, 530) directed the jury that, if the defendants' driver did it for the purposes of his employer, the defendants were liable; but if it was an act of his own, and in order to effect a purpose of his own, the defendants were not responsible. The jury found for the plaintiff. The Court of Exchequer Chamber ((1863) 9 Jr NS 333,[1861-73] All ER Rep 556) held that the direction was correct. It was a very strong court which included Willes and Blackburn JJ. Despite the prohibition, the employer was held liable because the injury resulted from an act done by the driver in the course of his service and for his master's purposes. The decisive point was that it wasnotdone by the servant for his own purposes, but for his master's purposes.

I will next take the point about a trespasser. The boy was a trespasser on the milk float so far as Co-operative Services were concerned. They had not given him any permission to be on the float and had expressly prohibited the milk roundsman from taking him on. There are two early cases where it was suggested that the employer of a driver is not liable to a person who is a trespasser on the vehicle. They areTwine v Bean's Express LtdandConway v George Wimpey & Co Ltd. But these cases are to be explained on other grounds; and the statements about a trespasser are no longer correct. Those statements were made at a time when it was commonly supposed that occupiers of premises were under no duty to use care in regard to a trespasser. But that stern rule has now been abandoned, especially when the trespasser is a child: seeBritish Railways Board v Herrington, Southern Portland Cement Ltd v CooperandHarris v Birkenhead Corporation. So far as vehicles are concerned, I venture to go back to my own judgment inYoung v Edward Box & Co Ltd([1951] 1 TLR 789 at 793), when I said:

'In every case where it is sought to make the master liable for the conduct of his servant the first question is to see whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servant's liability.'

That way of putting it is, I think, to be preferred to the way I put it later inStaveley Iron & Chemical Co Ltd v Jones([1955] 1 All ER 6 at 8,[1955] 1 QB 474 at 480).

Applying the first question inYoung v Box, it is quite clear that the driver, Mr Plenty, was liable to the boy, Leslie Rose, for his negligent driving of the milk float. He actually invited the boy to ride on it. So the second question arises, whether his employers, Co-operative Services, are liable for the driver's negligence. That does not depend on whether the boy was a trespasser. It depends, as I said inYoung v Box, on whether the driver, in taking the boy on the milk float, was acting in the course of his employment.

In considering whether a prohibited act was within the course of the employment, it depends very much on the purpose for which it is done. If it is done for his employers' business, it is usually done in the course of his employment, even though it is a prohibited act. That is clear fromLimpus v London General Omnibus Co, Young v BoxandIlkiw v Samuels. But if it is done for some purpose other than his master's business, as, for instance, giving a lift to a hitchhiker, such an act, if prohibited, may not be within the course of his employment. BothTwine v Bean's Express LtdandConway v George Wimpey & Co Ltdare to be explained on their own facts as cases where a driver had given a lift to someone else contrary to a prohibition and not for the purposes of the employers.Iqbal v London Transport Executiveseems to be out of line and should be regarded as decided on its own special circumstances. In the present case it seems to me that the course of Mr Plenty's employment was to distribute the milk, collect the money and to bring back the bottles to the van. He got or allowed this young boy, Leslie Rose, to do part of that business which was the employers' business. It seems to me that although prohibited, it was conduct which was within the course of the employment; and on this ground I think the judge was in error. I agree it is a nice point in these cases on which side of the line the case falls; but, as I understand the authorities, this case falls within those in which the prohibition affects only the conduct within the sphere of the employment and did not take the conduct outside the sphere altogether. I would hold this conduct of Christopher Plenty to be within the course of his employment and the master is liable accordingly, and I would allow the appeal.

In parting with the case, it may be interesting to notice that this type of case is unlikely to arise so much in the future, since a vehicle is not to be used on a road unless there is in force an insurance policy covering, inter alia, injury to passengers.

Having read Lord Denning's judgment in this case, answer the following questions:

1.Define the concepts of applying and distinguishing a case. When Lord Denning considered the case of Limpus v London General Omnibus Co did he apply it or distinguish it? Demonstrate how you know.

2.What does the term ratio decidendi mean? Can you identify the ratio decidendi of this case. Explain how you identified it.

3.This case was an action in negligence. Compare the differences between negligence and crime. Consider the categorisation of laws and how negligence and criminal trials are run at court.

4.This case was heard without a jury. Explain when a jury is used to hear cases and why a jury is not used for negligence cases.