New South Wales v Lepore [2003]: A Case Summary

Case name & citation: New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511; (2003) 77 ALJR 558; (2003) 195 ALR 412; (2003) Australian Torts Reports 81–684

Court: High Court of Australia
Date of judgment: 06 February 2003
The bench of judges: Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Area of law: Negligence; Whether school authority in breach of non-delegable duty of care; Vicarious liability

What is the case about?

In the case State of New South Wales v Angelo Lepore and Anor and two related cases, Vivian Christina Samin v State of Queensland and Sheree Anne Rich v State of Queensland, the High Court of Australia addressed the issue of liability of state education authorities for the sexual abuse of students by teachers. These cases, that were heard together, concerned allegations of abuse that occurred on school premises during school hours.

The cases involved appeals from the New South Wales Court of Appeal (Lepore case) and the Queensland Court of Appeal (Samin and Rich cases).

The legal issue that arose

The main legal question was whether education authorities could be held vicariously liable for such abuse, even when no fault—such as negligence in hiring, supervising staff, or responding to misconduct—was shown on the part of the authorities.

Court of Appeal decisions

Lepore’s Case:

The NSW Court of Appeal had ruled that a state education authority could be legally obligated to ensure students’ safety from harm by teachers, whether the harm was intentional or negligent on the part of the teacher, and even if the authority itself was not at fault.

“Mason P, with whose views Davies AJA expressed agreement, held that the State of New South Wales, as education authority, owed a non-delegable duty of care “to school pupils on school premises and during school hours … to ensure that they are not injured physically at the hands of an employed teacher (whether acting negligently or intentionally).”

Samin and Rich’s Cases:

The Queensland Court of Appeal disagreed with this approach, holding that the state should not be automatically liable if there was no fault or negligence by the authorities.

High Court’s decision

The High Court ruled that state education authorities would not generally be held liable for the sexual abuse of pupils unless there was fault on the part of the authorities.

The High Court, by majority, overruled the decision of the NSW Court of Appeal. It found that education authorities could only be vicariously liable for actions that occur in the course of employment. Sexual abuse, the Court determined, was generally too far removed from the duties of a teacher to be considered part of their employment. Therefore, authorities were not automatically liable for such abuse.

Outcome for the cases

Lepore’s Case: The High Court allowed part of the appeal in Mr. Lepore’s case, ordering a new trial because of how the original District Court trial had been handled.

Samin and Rich’s Cases: The appeals by Ms. Samin and Ms. Rich were dismissed.

Key Summary

The decision establishes that while education authorities may be responsible for ensuring a safe environment, their liability for the actions of teachers, particularly in cases of sexual abuse, depends on whether those actions can be considered within the scope of employment and whether any fault by the authorities can be proven.

Quotes from the case (New South Wales v Lepore)

“On the other hand, as Jordan CJ pointed out in Deatons Pty Ltd v Flew, extreme and unnecessary violence, perhaps combined with other factors, such as personal animosity towards the victim, might lead to a conclusion that what is involved is an act of purely personal vindictiveness. Sexual abuse, which is so obviously inconsistent with the responsibilities of anyone involved with the instruction and care of children, in former times would readily have been regarded as conduct of a personal and independent nature, unlikely ever to be treated as within the course of employment.”

(GLEESON CJ)

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A Quick Summary of Bugge v Brown (1919) 26 CLR 110

Case name & citation: Bugge v Brown [1919] HCA 5; (1919) 26 CLR 110

Court: High Court of Australia
Decided on: 27 March 1919
The bench of judges: Coram Isaacs, Higgins, and Gavan Duffy, JJ.
Area of law: Employer and Employee; Negligence of employee; Scope of employment; Vicarious liability

What is the case about?

The case of Bugge v Brown revolved around an issue of whether an employer (the defendant) was liable for damages caused by a fire negligently started by an employee (the servant).

Facts (Bugge v Brown)

The defendant owned a certain grazing land and employed a servant to work on the land. The servant’s remuneration included being supplied with cooked meat. On one occasion, the servant was given raw meat for his midday meal and was instructed to cook it at a specific house on the land. The servant disregarded the instructions and lit a fire at a different location closer to where he was working. The fire escaped due to the servant’s negligence and caused damage to the plaintiff’s land.

Issue that arose

Whether the employer (defendant) is liable for the damage caused by the fire started by the servant, despite the servant disobeying instructions about where to light the fire.

Judgment in Bugge v Brown

The decision of the Supreme Court of Victoria was reversed.

The High Court of Australia, with Isaacs and Higgins JJ. forming the majority and Gavan Duffy J. dissenting, held that the lighting of the fire was within the scope of the servant’s employment. Thus, the employer was responsible for the servant’s negligence even though the servant disobeyed the specific instructions regarding the location of the fire.

It was emphasized that employers cannot avoid liability merely by setting specific instructions if those instructions are not followed exactly. The principle of employer responsibility for the actions of their employees when those actions are within the scope of their employment, was upheld.

Quote

“If an employer is not to be liable for the negligence of his employee unless his instructions are strictly followed, as to time, place and method, then it will be easy for employers to frame forms of authority for their employees, and SO absolve themselves from responsibility as to the consequences to their neighbours of the employees’ negligence.”

(Higgins J. at 130)

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Deatons Pty Ltd v Flew [1949]: A Case Summary

Case name & citation: Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370

Court: High Court of Australia
The bench of judges: Latham CJ, Dixon, McTiernan, Williams and Webb JJ
Judgment date: 12 December 1949
Area of law: Assault by servant; vicarious liability; scope of employment

What is the case about?

In the legal case of Deatons Pty Ltd v Flew, the issue revolved around whether an employer, Deatons Pty Ltd, was liable for the actions of their employee, Opal Ruby Pearl Barlow, a barmaid who assaulted Mark Waterford Flew, resulting in him losing sight in one eye.

Facts (Deatons Pty Ltd v Flew)

Mark Waterford Flew entered Hotel Manly where Opal Ruby Pearl Barlow worked as a barmaid. Flew asked Barlow about the whereabouts of the licensee. According to Flew, Barlow responded by throwing beer in his face and then throwing a glass at him, causing his injury.

Barlow’s version was that Flew, who was intoxicated, knocked over glasses, used abusive language, and struck her, prompting her to throw the beer at him, accidentally dropping the glass which also hit him.

Flew sued both Deatons Pty Ltd (the employer) and Barlow for damages due to the assault.

The jury found for Flew against both Deatons Pty Ltd and Barlow. However, the Full Court ordered a new trial. On this, Deatons Pty Ltd appealed to the High Court.

Issue

The issue was whether Barlow’s actions were within the scope of her employment and, if so, whether her employer should be held liable.

High Court’s decision

Chief Justice Latham delivered the judgment, stating that for an employer to be liable for an employee’s actions, those actions must be within the scope of employment or incidental to it. Latham concluded that Barlow’s assault on Flew was an independent, personal act not connected to her duties as a barmaid. Therefore, Deatons Pty Ltd. could not be held liable for her actions as a matter of law.

The court allowed the appeal made by Deatons, set aside the decision of the Full Court of the Supreme Court of New South Wales, and entered a verdict for Deatons Pty Ltd, affirming liability only against Barlow individually.

Legal principle

The case underscores the principle of vicarious liability, where an employer can be held responsible for the actions of an employee if those actions were within the scope of employment. Here, the court determined that Barlow’s assault did not meet this criterion.

Quotes from the case (Deatons Pty Ltd v Flew)

“The truth is that it was an act of passion and resentment done neither in furtherance of the master’s interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid.”

(Dixon J at 382)

“But throwing beer in the face of a customer simply was not a means of keeping order, nor in my opinion can it be said that such an action is incidental to the work which the barmaid was employed to do. Upon the plaintiff’s evidence (Flew’s version), the throwing of the beer was a gratuitous, unprovoked act which had nothing at all to do with the performance of the duties of the barmaid. Upon the evidence given for the defendant (Barlow’s version), the act was an act of personal resentment and was not in any way performed as on behalf of the employer. It was not done even in supposed furtherance of the interests of the employer.”

(Latham CJ at 379)

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Sweeney v Boylan Nominees Pty Ltd [2006]: A Summary

Sweeney v Boylan Nominees Pty Ltd [2006] is a famous labour law case from Australia.

Case name & citation: Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; (2006) 227 ALR 46; (2006) 226 CLR 161
The concerned Court: High Court of Australia
Decided on: 16 May 2006
Area of law: Employment status under labour law; Vicarious liability

Given below are the case facts.

Facts of the case (Sweeney v Boylan Nominees)

Mrs. Sweeney sustained injuries when a refrigerator door at a service station fell off and smacked her on the head. Earlier in the day on which Mrs. Sweeney was hurt, the owners of the service station had already informed Boylan, who owned the refrigerator, that there was a problem with the door. Mr. Comninos, a mechanic, was dispatched to the service station to undertake repairs. The trial judge determined that Mr. Comninos failed to exercise reasonable care, which resulted in Mrs. Sweeney’s injuries. This finding was not challenged on appeal.

Mrs. Sweeney filed a lawsuit against the owners of the service station and Boylan.

Issue that arose

The main issue of the case was the nature of Boylan’s engagement with Mr. Comninos. That is, whether he was an employee or an independent contractor.

Boylan had six employees in its service department, three field service employees who performed repairs at Boylan’s clients’ locations, and two contractors (including Mr. Comninos) who did the same work as the field service employees. Although Mr. Comninos worked for Boylan on a regular basis, the contractors were only required to work when the field service personnel were fully occupied. Mr. Comninos was referred to as “our mechanic” in Boylan’s service reports, and he was empowered to collect the amount due when repairs were finished. Boylan also referred to Mr. Comninos as “our mechanic” in a report to its public liability insurer.

Unlike the field service personnel, Mr. Comninos was not obligated to accept jobs from Boylan, wore no Boylan uniform, was not based on Boylan’s premises, and invoiced Boylan for the hours he worked. Mr. Comninos also possessed his own trade certificate and contractor’s license, as well as his own public liability and workers’ compensation insurance, and drove his own van with his own firm name on it.

Judgment of the Court in Sweeney v Boylan Nominees

Trial judge:

Mrs. Sweeney’s claim against the owners of the service station was dismissed in the District Court of New South Wales. And this claim was not pursued further on appeal. Mrs. Sweeney, on the other hand, prevailed in her case against Boylan on the grounds that it was vicariously liable for the negligence of Mr. Comninos. The trial judge determined that the mechanic was acting as a servant or agent of Boylan, and he had the approval and authority from Boylan to carry out the work in question. In reaching this, the trial judge gave significant weight to the various documents that referred to Mr. Comninos as “our mechanic.”

Court of Appeal:

The New South Wales Court of Appeal overturned the trial judge’s decision and ruled that the relationship between Boylan and the mechanic, Mr. Comninos, was not that of an employment relationship. The Court of Appeal cited several reasons to support this finding:

Boylan did not exert control over Mr. Comninos in his day-to-day work activities.
There was no mutual obligation between Boylan and Mr. Comninos to provide and accept work.
Mr. Comninos conducted his work under his own name.
Mr. Comninos supplied his own equipment and tools for the tasks and bought his own spare parts.
Boylan paid Mr. Comninos based on a piecework basis.
Mr. Comninos issued his own invoices to Boylan.
Mr. Comninos provided his own insurance coverage and managed his superannuation.

All of these factors distinguished his independence from Boylan’s direct employment. This indicated that he was an independent contractor and not an employee.

High Court:

The High Court upheld the decision of the New South Wales Court of Appeal.

The majority underlined the importance of distinguishing between employees and independent contractors in determining the scope of vicarious liability. It moved away from relying solely on the control test and preferred to consider the totality of the relationship between the parties as articulated in Hollis v Vabu Pty Ltd (2001).

The Court accepted that the facts did not support a finding that Mr. Comninos was an employee. Therefore, Boylan was not held vicariously liable for Mr. Comninos’ actions, and Mrs. Sweeney’s claim against Boylan was not upheld based on vicarious liability.

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Cassidy v Ministry of Health [1951]: Facts and Principles

Cassidy v Ministry of Health [1951] is an important tort and labour law casethat deals with the concept of Res Ipsa Loquitur (Latin for “the thing speaks for itself”) and the liability of a hospital for the negligence of its employees.

The case details are as follows:

Case name & citation:	Cassidy v Minister of Health [1951] 2 KB 343
Court and jurisdiction:	Court of Appeal; England and Wales
The bench of judges:	Somervell, Singleton and Denning, L.JJ.
Area of law:	Employment status under labour law; vicarious liability

Facts of the case (Cassidy v Ministry of Health)

The plaintiff underwent medical surgery for his two stiff fingers at a hospital run by the defendant. As a result of the negligence of one of the doctors involved in the operation, the plaintiff’s hand became stiff affecting majorly all of his fingers. The plaintiff brought a lawsuit against the hospital authority, alleging negligence and seeking to establish vicarious liability.

The defendant contended that the doctors or the staff operating were not considered as its servants as it did not exercise control over how they performed their duties. Hence, it should not be held vicariously liable.

Issue

Whether the hospital authority was liable for the negligence on the part of its doctors.

Judgment of the Court in Cassidy v Ministry of Health

The Court held that the hospital authority was responsible for the negligence of its doctors. The doctor operating the surgery (or doctors involved in the incident) was to be categorized as a servant of the defendant because the defendant had chosen him/her for the job and the person was fully integrated into the defendant’s organization. Their selection was not based on the patient’s choice. Therefore, the defendant was held liable for the negligent actions of the doctors during the course of their employment at the hospital.

Applying the doctrine of Res Ipsa Loquitur

In this case, the doctrine of Res Ipsa Loquitur was applied.

The plaintiff said, “I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. This should not have happened if due care had been used. Explain it if you can.”

Given this, it was established that since the plaintiff had suffered an injury during a medical procedure performed by the hospital staff and the exact cause/particular employee responsible for the negligence cannot be identified by him, the hospital authority will be presumed to be negligent unless it proves that none of its employees had acted negligently during the treatment. In other words, the doctrine of Res Ipsa Loquitur was applied. This doctrine allows the court to infer negligence on the part of the hospital authority based on the nature of the accident itself, even without direct evidence of negligence. The circumstances surrounding the case were such that the injury could not have occurred without some degree of negligence on the part of the hospital or its staff.

Quotes from the case

Denning LJ gave the following views:

“I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services.”

“……Whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by themselves: they have no ears to listen through the stethoscope, and no hands to hold the surgeon’s knife. They must do it by the staff which they employ; and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him.”

Conclusion

The level of control exercised by a superior over his subordinates plays a major role in determining an employer-employee relationship. However, since the case of Cassidy v Minister of Health, it has been evident that relying solely on the control test can be inadequate, especially in a hospital setting. This case established that hospitals can be held liable for the negligence of doctors who are employed on a full-time basis by them. The control test alone cannot be sufficient to determine liability in such situations. Because in the case of a professional employee such as a doctor, the employer may lack knowledge of the specific field and may not be able to exert direct control over the doctor’s practice.

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Joel v Morison (1834): A Case Summary

Case name & citation: Joel v Morison (1834) 6 C & P 501; [1834] EWHC KB J39; (1834) 172 ER 1338

Court and jurisdiction: High Court, England and Wales

Decided on: 03 July 1834

Area of law: Vicarious liability; negligence of a servant while on duty

What does the case deal with?

Joel v Morison (1834) is one of the earliest tort law cases on vicarious liability. It established very early on that a servant who goes on a “frolic of their own” is not acting in the course of their employment and therefore cannot hold the master liable for any torts that they commit.

Facts of the case (Joel v Morison)

The plaintiff was walking on foot across a certain public and common highway at the time of the incident. The defendant was in possession of a cart and horse, which were being driven along the said highway by a servant of his, who had the charge of their care, management and direction. The servant was driving the cart in a careless, improper, and negligent manner when he struck the plaintiff whilst he was taking a diversion from the task that his master had sent him for. The plaintiff was thrown to the ground, and the bone in one of his legs was fractured. And as a result, he became ill, was unable to conduct business, and was needed to incur a great deal of medical expense, as well as a further great deal of expense in retaining and employing individuals to supervise and manage his business for six calendar months.

As a consequence, the plaintiff filed a claim for compensation against the defendant.

Issue raised

Is it possible for a master to be held liable for damages caused by the negligent driving of a servant?

Judgment of the Court in Joel v Morison

The Court decided that the master was liable for the negligence of his servant. The servant decided to take a detour, while still being on his master’s business.

Parke B stated as follows:

“The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master’s implied commands, when driving on his master’s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.”

Another case

The Courts have taken a differing view in certain cases. For instance, the case of Storey v Ashton (1869) LR 4 QB 476 in which the court determined that the deviation constituted an entirely new and independent journey, is a good example.

Here, a driver who delivered goods as instructed, but instead of returning directly to his employer’s premises, drove in a different direction to visit the home of a colleague’s relative on personal business, was deemed to be acting outside the scope of his employment for the purposes of an action brought against his employer by a pedestrian injured during the course of that diversion. The employer was not held responsible for the negligence of his employee.

As a result, it may be seen from the cases that have been decided that the degree of diversion to be permitted by the courts cannot be determined with absolute certainty. There is no hard and fast rule. Instead, the outcome in a given case will largely depend on the specific facts of that case and the judge’s perception of what justice requires.

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A Quick Summary of Warren v Henlys Ltd [1948]

Case name & citation: Warren v Henlys Ltd [1948] 2 All ER 935

Court and jurisdiction: King’s Bench, England and Wales

Year of the case: 1948

The learned judge: Hilbery J

Area of law: Vicarious liability; liability of an employer

What does the case deal with?

Warren v Henlys Ltd [1948] is a UK tort law case on the vicarious liability of employers.

Facts of the case (Warren v Henlys Ltd)

A customer at a petrol station engaged in a heated argument with the attendant, who erroneously suspected him of attempting to make off without payment. The customer was angered by the manner in which he was addressed by the petrol station attendant. After paying for the petrol, the customer spotted a passing police vehicle and drove off in pursuit. He expressed his displeasure with the attendant’s behaviour to the police officer, and he managed to convince the officer to accompany him back to the petrol station. After listening to both men, the officer indicated that he did not believe it was a matter that required the assistance of the police. In response, the customer stated that he would report the attendant to his employer. The officer was about to leave when the attendant punched the customer in the face and knocked him to the ground.

The customer brought legal action against the employer (the petrol company).

Issue that arose

Could the petrol company be vicariously held liable for the assault by the attendant?

Judgment of the Court in Warren v Henlys Ltd

According to the judgment made by Hilbery J, the assault was not carried out in the course of the attendant’s employment. By the time the assault took place, the customer’s business with the petrol station had already come to an end, the payment for the petrol had been made, and the customer had left the premises. When he came back with the police officer, the reason was to lodge a personal complaint about the attendant, who he felt had treated him inappropriately. On being told that the customer was going to report him to his employer, the attendant responded in a violent manner; however, there was no basis for holding the employer vicariously liable for the attendant’s that behaviour (assault).

The judge did the right thing by deciding to dismiss the customer’s claim against the petrol station. At the time of the incident, the plaintiff’s relationship with the attendant had changed from that of a customer and representative of the petrol station to that of a person making a complaint to the police and the subject of the complaint.

Therefore, in Warren v Henlys, any misbehaviour by the petrol station attendant, in his capacity as a petrol station attendant, was past history by the time that he assaulted the claimant. In the meantime, the claimant had left the scene, and the context in which the assault occurred was that he had returned with the police officer to make a complaint against the attendant.

Thus, the employer was not liable.

Key point

In this case, the short gap between the initial argument and the subsequent assault (in the presence of the police officer with whom the claimant had returned to the scene) has been viewed as a significant factor pointing away from vicarious liability.

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Poland v Parr and Sons [1927]: Case Summary

Case name & citation: Poland v John Parr and Sons [1927] 1 K.B. 236

Court and jurisdiction: The Court of Appeal, England and Wales

Decided on: 1926 June 11

The bench of judges: Bankes, Scrutton and Atkin LJJ

Area of law: Vicarious liability, Liability of Master for Act of Servant

What is the case about?

This is an interesting case about whether or not a master is responsible for the actions of his servant. It concludes that a servant is acting within the scope of his employment if he acts, even outside of his hours of work, for the protection of his master’s property, in the mistaken but honest belief that it is in danger. It was determined that the servant was acting within the scope of his employment.

Facts of the case (Poland v Parr and Sons)

The defendants’ waggon, which contained bags of sugar, was being driven on the highway. It just so happened that H, a servant in their employment who was not at work at the time but was walking along behind it, saw the plaintiff with his hand on the bags of sugar as he passed by. H struck the plaintiff, causing him to fall, and the plaintiff was then run over by the waggon. H had a sincere belief that the other person was stealing the bags of sugar, and his sole intention was to protect his master’s interests. The lawsuit was filed because the defendants’ servant had been negligent, which had resulted in injury to the plaintiff. The servant had believed that the plaintiff had been stealing the sugar, but he hadn’t been doing so.

Issue that arose

Could the master be held liable for the negligence of the servant and the resultant personal injury caused to the plaintiff?

Judgment of the Court in Poland v Parr and Sons

The judges held that an act is not considered outside the scope of the servant’s duty simply because it is not one of the types of acts for which he is specifically employed, or because the time is not an hour at which he is ordinarily at work. (Scrutton LJ)

Atkin LJ stated that “Any servant is, as a general rule, authorized to do acts which are for the protection of his master’s property.” The fact that H was not actually at work when the emergency occurred does not negate the fact that he has the implied authority to protect his master’s property.

Therefore, despite the fact that the employer may not expressly authorize hitting a boy, the Court decided that the employee had the implied delegated authority to act in defense of his employer’s property in an emergency situation.

The Court acknowledged that the actions of the employee were entirely in the interests of the employer, even though this was an extreme way of doing so (he used excessive force and struck the boy). It was not excessive enough that it could be considered to be outside the scope of his employment.

As a consequence of this, the employee’s actions were considered to have been impliedly authorized by the employer, and the employer was found to be liable for the personal injuries that were caused as a result of the employee’s actions.

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Lloyd v Grace, Smith & Co [1912]: A Summary

Case name & citation: Lloyd v Grace, Smith & Co [1912] AC 716

Court and jurisdiction: The House of Lords, England & Wales

Year of the case: 1912

The bench of judges: Lord Macnaghten, Earl Loreburn LC

Area of law: Vicarious liability under tort law

What does the case deal with?

Lloyd v Grace, Smith & Co [1912] is a tort law case on vicarious liability. It dealt with the issue of an employee committing fraud within the course of his employment and while conducting business for which he holds an apparent authority.

Facts of the case (Lloyd v Grace, Smith & Co)

An employee who worked for a firm of solicitors in the capacity of a conveyancing manager (managing clerk) was given the authority to arrange and negotiate the sales of real estate. Mrs Lloyd, the plaintiff, was a client of the firm and she was dealing with the managing clerk regarding the sale of two of her properties. The employee fraudulently induced and convinced the plaintiff to transfer ownership of her property to himself. He then used it for personal gain.

Issue

Could the defendant firm be held liable for the fraud committed by its agent?

Judgment of the Court in Lloyd v Grace, Smith & Co

In light of these facts, their Lordships concluded unanimously that the defendants should be held vicariously liable for the fraud.

Lord Macnaghten was convinced that a principal was liable for the fraud of his agent if the fraud was committed in the course of the agent’s employment and did not go beyond the scope of his agency. This was the case regardless of whether the fraud was committed for the benefit of the principal or not. The client had been invited by the firm to deal with their managing clerk. The fact that the agent acted dishonestly for his own benefit was irrelevant.

And it can be said that the underlying basis for the decision is well expressed in the notion that the fraud of the agent was closely related to his position as conveyancing manager, and that the principal created the risk of the fraud being committed by putting him in that position.

In other words, the House of Lords arrived at this conclusion after finding that the firm had ostensibly delegated authority to the managing clerk to carry out certain types of business by allowing him to deal with clients. He looked after conveyancing which is a part of the ordinary business of solicitors. As a result, the firm was responsible for the fraud.

The essence of the case

This decision was viewed as a ‘breakthrough’ because it demonstrated that vicarious liability need not necessarily be avoided when the employee acts for his own profit or benefit.

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Century Insurance v Northern Ireland Road Transport Board [1942]

Case name & citation: Century Insurance v Northern Ireland Road Transport Board [1942] AC 509

Court and jurisdiction: House of Lords, England and Wales

Decided on: 04 March 1942

The bench of judges: Viscount Simon (Lord Chancellor), Lord Wright, Lord Romer and Lord Porter

Area of law: Vicarious liability

What is the case about?

Century Insurance v Northern Ireland Road Transport Board [1942] is a UK tort law case on the vicarious liability of employers.

Case facts (Century Insurance v Northern Ireland RTB)

The employee was the driver of a petrol tanker. When he was transferring gasoline from the vehicle to an underground tank, he struck a match to light a cigarette, and then he threw it on the floor while it was still alight. It caught fire and caused damage.

Issue

Could the employer be vicariously held liable for the negligence of the driver?

Judgment of the Court in Century Insurance v Northern Ireland Road Transport Board

The House of Lords held that the negligent act of the employee was within the course of his employment. He was still at his job filling up the garage tank when having the cigarette.

It was emphasized that the employee was performing his duties when he connected his petrol tanker to the underground tank, and that he would have been performing his duties when he disconnected the nozzle once the tank had reached its capacity. During this interim period, his duty (and, thus, what was in the course of his employment) was to stand and supervise the procedure. In this regard, Viscount Simon LC quoted Milton to highlight the point: ‘they also serve who only stand and wait.’

Therefore, his employers were found to be liable for the explosion and fire that resulted from the incident because the negligent act of the driver was merely an unauthorized method of carrying out the task he was employed to do, which was to deliver gasoline.

Now, this decision is particularly intriguing from the standpoint of employers since it would seem to be an act of clear recklessness for an employee to throw a lighted cigarette in an area where he is delivering gasoline. Despite the high degree of negligence, in this case, the employer was still held vicariously liable.

The legal point in this case

An employer will be vicariously liable for the negligent acts of his employees if the employee was doing something authorized by the employer in an unauthorized manner.

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