Rose v Plenty

The claimant, Leslie Rose, was a thirteen-year-old boy who, at the relevant time, assisted a milkman employed by Co-operative Retail Services Ltd with his milk round. The milkman, Mr Plenty, encouraged the boy to ride on the milk float and help with deliveries, permitting him to collect and return empty bottles and to accompany him on the vehicle as he progressed along his route. This arrangement was entirely of Mr Plenty's own making and was not sanctioned by his employer.

Co-operative Retail Services Ltd had issued an express prohibition to all of its roundsmen, including Mr Plenty, forbidding them from allowing children to ride on their milk floats or to assist with deliveries. Notices to this effect had been posted and the prohibition was clearly communicated to employees. The employer's position was therefore unambiguous: the engagement of young persons in the delivery operation was categorically forbidden.

During the course of one such delivery round, Mr Plenty drove the milk float negligently. As a result of this negligent driving, Leslie Rose was injured. The precise mechanics of the injury arose directly from Mr Plenty's manner of operating the vehicle while Rose was upon it. Rose consequently brought an action in tort against both Mr Plenty personally and against Co-operative Retail Services Ltd as his employer, claiming that the employer was vicariously liable for the employee's negligence.

At first instance, the trial judge found in favour of the defendants, holding that the employer was not vicariously liable because the express prohibition had effectively removed Mr Plenty's conduct from the course of his employment. The claimant appealed to the Court of Appeal, where the principal question became whether the existence of an express prohibition, clearly communicated to the employee, could insulate an employer from vicarious liability for tortious acts committed by that employee in the general performance of his duties.

The factual context is important for understanding the legal analysis that followed. Mr Plenty was at all material times engaged in delivering milk along his assigned route — the very task for which he was employed. The presence of Leslie Rose on the float, and the assistance the boy provided, were features of how Mr Plenty chose to execute that task, rather than departures into some entirely different activity. This distinction between a prohibited method of doing authorised work and conduct wholly outside employment proved to be the crux of the majority's reasoning.

The central issue before the Court of Appeal was whether Co-operative Retail Services Ltd could be held vicariously liable in tort for the negligent driving of Mr Plenty in circumstances where the employer had expressly prohibited the very conduct — allowing a child to ride on and assist with the milk float — that gave rise to the claimant's injury. More specifically, the court was required to determine whether an express prohibition by an employer is capable of removing an employee's act from the course of employment so as to defeat a claim in vicarious liability.

A secondary but closely related issue concerned the proper treatment of earlier authorities, particularly Twine v Bean's Express Ltd [1946] 62 TLR 458 and Conway v George Wimpey & Co Ltd [1951] 2 KB 266, in which courts had held that express prohibitions against giving lifts to unauthorised persons took the employee's act outside the course of employment. The court was required to determine whether those authorities were distinguishable, or whether they compelled a finding in the employer's favour in the present case.

Ancillary to these questions was the broader doctrinal issue of how the law should draw the boundary of the "course of employment" for the purposes of vicarious liability — in particular, whether the test should focus on the employer's purposes being served by the employee's act, or whether it should instead proceed from the employer's instructions as to the manner in which those purposes are to be achieved.

The Court of Appeal allowed the appeal by a majority, comprising Lord Denning MR and Scarman LJ, with Lawton LJ dissenting. The majority and minority judgments approached the question of course of employment from fundamentally different analytical premises, and the resulting divergence in outcome illustrates the genuine doctrinal difficulty at the heart of the case.

Lord Denning MR identified the governing principle by reference to the foundational distinction between two categories of prohibited conduct. The first category consists of acts that are expressly prohibited as methods of performing work that the employee is in any event authorised and required to do. The second category consists of acts that involve the employee going beyond the scope of employment altogether, embarking on a frolic of his own or doing something that is not merely a prohibited way of doing his job but rather a wholly different act. Lord Denning held that vicarious liability attaches in cases falling within the first category because the prohibited act remains within the general scope of the employment relationship, even if it contravenes the employer's specific instructions.

On the facts, Lord Denning concluded that Mr Plenty remained throughout engaged in delivering milk — the core authorised purpose of his employment. The fact that he chose to use the assistance of a child to do so, contrary to his employer's instructions, was a matter of the mode of performing an authorised task rather than a departure into an entirely new and unauthorised activity. The prohibition went to the manner of doing the job, not to the job itself. Accordingly, the employer's instruction did not remove the negligent driving from the course of employment.

Lord Denning further reasoned that vicarious liability serves an important social and compensatory purpose. Employers, who benefit from the activities of their employees and who are in a position to insure against risks arising from those activities, should not be able to escape liability simply by issuing prohibitions that their employees ignore. To allow an employer to achieve immunity merely by the expedient of posting a notice would undermine the protective function of the doctrine of vicarious liability and would leave innocent third parties, such as Leslie Rose, without a practical remedy against a solvent defendant.

Scarman LJ delivered a concurring judgment in which he emphasised that the correct approach to course of employment requires the court to ask whether the employee was doing something that was within the class of acts that he was employed to do. If the answer to that question is affirmative, then vicarious liability will ordinarily follow even if the particular act was done in contravention of the employer's instructions. Scarman LJ stressed that allowing a child to assist with the milk round did not transform the nature of what Mr Plenty was doing; he was still delivering milk for his employer's benefit, which was precisely what he was employed to do.

Both majority judges drew support from the long-established authority of Limpus v London General Omnibus Co (1862) 1 H & C 526, in which an omnibus driver who had been expressly prohibited from racing or obstructing rival omnibuses nevertheless rendered his employer vicariously liable when he drove recklessly in competition with a rival vehicle. In that case the court had held that the prohibition went to the manner of doing an authorised act, and did not remove the driver's conduct from the scope of his employment. The majority in Rose v Plenty regarded the present case as governed by the same principle: Mr Plenty, like the omnibus driver in Limpus, was doing an act within his employment, albeit in a manner that was expressly forbidden.

The majority distinguished Twine v Bean's Express Ltd [1946] 62 TLR 458 on the basis that in that case the employee had given an unauthorised lift to a person who was a stranger to the employer's business and whose presence on the vehicle served no purpose connected with the employer's operations. The prohibited act in Twine was therefore wholly outside the course of employment because it was entirely unconnected with the task the employee was authorised to perform. By contrast, in the present case Leslie Rose was not merely a passenger receiving a gratuitous lift; he was actively assisting with the milk delivery, thereby directly contributing to the furtherance of the employer's business purposes. This factual distinction, in the majority's view, was legally decisive.

Similarly, the majority distinguished Conway v George Wimpey & Co Ltd [1951] 2 KB 266 and Young v Edward Box & Co Ltd [1951] 1 TLR 789, both of which involved employees giving unauthorised lifts to persons who had no connection with the employer's undertaking and who derived no benefit that could be attributed to the course of the employee's duties. In those cases the employees had stepped outside the scope of their employment by performing a private service for a third party. The same reasoning did not apply where the presence of the child was integral to, or at least facilitative of, the delivery work being carried out.

Lawton LJ dissented with force. He took the view that the authorities of Twine v Bean's Express Ltd and Conway v George Wimpey & Co Ltd could not properly be distinguished from the present case and that, applied correctly, they compelled a finding that the employer was not liable. In Lawton LJ's analysis, the effect of the express prohibition was to limit the class of persons for whom the employee was authorised to act and, correspondingly, to confine the course of employment so as to exclude any dealings with persons outside that class. Since Co-operative Retail Services had expressly prohibited the use of children as assistants, Mr Plenty's act of engaging Leslie Rose was in Lawton LJ's view a departure from the course of employment, not merely a prohibited mode of performing it.

Lawton LJ further expressed the concern that the majority's approach would create significant uncertainty in the law by making it difficult for employers to define the limits of their employees' authority through clear prohibitions. If an employer can incur vicarious liability notwithstanding an unambiguous and communicated prohibition, the dissent argued, the practical utility of such instructions as a means of limiting liability is substantially diminished. Employers would be left in an exposed position with respect to conduct they had specifically sought to prevent and had taken reasonable steps to communicate.

The majority, however, did not accept that their analysis rendered express prohibitions legally irrelevant. Lord Denning acknowledged that prohibitions remain effective to define the scope of employment in cases where the employee's act is altogether outside the type of work he is employed to do. The key is whether the prohibited act falls within the class of acts the employee is employed to perform. Where it does, the prohibition goes only to the manner of performance and cannot negate vicarious liability. Where the prohibited act is of an entirely different character from the authorised work, the prohibition may be said to reinforce the pre-existing limits of the course of employment.

The Court of Appeal, by a majority of Lord Denning MR and Scarman LJ (Lawton LJ dissenting), held that Co-operative Retail Services Ltd was vicariously liable to Leslie Rose for the negligent driving of Mr Plenty. The appeal was accordingly allowed and judgment entered against the employer. The majority held that the express prohibition did not remove Mr Plenty's conduct from the course of his employment because he remained at all material times engaged in the delivery of milk — the very task he was employed to perform — and the prohibition addressed only the manner in which he went about that task.

The court affirmed the general principle, derived from Limpus v London General Omnibus Co (1862) 1 H & C 526, that an employer may be vicariously liable for an employee's tortious act notwithstanding an express prohibition, provided that the act is a prohibited mode of doing something within the scope of the employee's employment rather than a wholly unauthorised act of a different nature. The earlier authorities of Twine v Bean's Express Ltd and Conway v George Wimpey & Co Ltd were distinguished on the ground that in those cases the employees' acts involved carrying unauthorised passengers who had no connection with the employer's business, rather than engaging a third party in the direct furtherance of the employer's operations.

Rose v Plenty [1976] 1 WLR 141 is a leading authority on the doctrine of vicarious liability and the course of employment test in English tort law. Its central contribution lies in the clarification — and in the view of some commentators, the expansion — of the principle that an employer cannot escape vicarious liability merely by issuing an express prohibition against the act in question. The case establishes that the legally significant question is not whether the act was prohibited, but whether, viewed objectively, the act falls within the class of activities the employee was employed to carry out. This inquiry focuses on the nature of the act rather than the instructions given as to its performance.

The case is particularly significant for the weight it places on whether the third party's presence or participation served a purpose connected with the employer's business. This purposive dimension distinguishes Rose v Plenty from the unauthorised passenger cases and provides a workable principle for subsequent courts: where a third party is actively engaged in furthering the employer's enterprise — even in a manner prohibited by the employer — the employer's liability to that third party will not be extinguished by the prohibition. This reasoning anticipates later developments in the law of vicarious liability concerning the closeness of the connection between the employee's acts and the nature of his employment.

Academically, the case has generated sustained commentary concerning the tension between the compensatory and deterrence functions of vicarious liability. Critics of the majority's approach, following Lawton LJ's dissent, argue that permitting employers to incur liability despite clear prohibitions creates