Law of Torts
The Course of Employment: Unauthorised Modes, Detour and Frolic, Intentional Torts, and the Close Connection Test
The decisive question in almost every vicarious liability case is whether the wrong was committed in the course of the employment. The old formula is that a master is liable for an authorised act, and also for an unauthorised mode of doing an authorised act, but not for an act altogether outside the employment. That formula works for negligence and breaks down for deliberate wrongdoing, since no employer authorises theft or assault in any mode.
Authorised acts, unauthorised modes and acts outside the employment; detour and frolic; and the close connection test
1. The Three Categories
The category | What it covers | Is the master liable |
An authorised act | What the servant was actually told to do, done as he was told to do it | Yes, and there is no dispute |
An unauthorised mode of an authorised act | The right job done the wrong way, including a way that was expressly forbidden | Yes. This is the category that does the work |
An act outside the employment | Something that is not the job at all, done for the servant's own purposes | No |
📖 Limpus v. London General Omnibus Co. (1862) 1 H and C 526 Facts The defendants' driver had been given printed instructions not to race with or obstruct other omnibuses. In breach of those instructions he drove his bus across the road to obstruct a rival, and in doing so overturned the plaintiff's bus. Held The defendants were liable. Ratio The driver was employed to drive, and he was driving. That he drove badly, and in a manner expressly forbidden, made it an unauthorised mode of doing the authorised act, not a different act. An express prohibition does not by itself take conduct outside the course of employment: what matters is whether the prohibition limits the sphere of the employment or merely regulates the manner of performing it. A prohibition of the second kind is no defence. |
📖 Beard v. London General Omnibus Co. [1900] 2 QB 530 Facts At the end of a journey, and in the absence of the driver, the conductor of an omnibus drove it himself in order to turn it round for the return trip. He drove negligently and injured the plaintiff. Held The defendants were not liable. Ratio A conductor is employed to collect fares and to attend to the passengers, not to drive. Driving was not a mode, good or bad, of conducting: it was a different act altogether, outside the sphere of his employment. The contrast with Limpus is exact, and the two cases together mark the line: forbidden driving by a driver is inside; driving by a conductor is outside. |
2. Detour and Frolic
A detour | A frolic of his own | |
What it is | A deviation from the route or the task while still about the master's business | The servant abandons the master's business and goes about his own |
The classic phrase | A slight deviation does not take the servant out: Joel v. Morison (1834) | The servant is "on a frolic of his own": Joel v. Morison |
Is the master liable | Yes. The servant remains in the course of the employment | No, until the servant returns to the master's business |
Illustration | A delivery driver who takes a longer road, or stops briefly for a meal on a long journey | Storey v. Ashton (1869): a driver who, after the day's work was finished, drove off on a private errand for a fellow employee |
- What decides it is the degree of the departure, in time and in space, together with whether the master's purpose was still being served at all.
- The question is one of degree and of fact, and the cases cannot be reconciled on any mechanical measure of distance.
- A journey abandoned is different from a journey interrupted. A servant who stops on the way is usually still in the course of the employment; a servant who sets off in another direction for his own reasons is not.
- And the servant returns to the course of employment when he resumes the master's business, so an accident on the way back from a frolic may or may not be covered, depending on whether he had rejoined his route.
3. Negligent Acts Incidental to the Work
📖 Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board [1942] AC 509 Facts The driver of a petrol tanker was delivering petrol into an underground tank at a garage. While the petrol was flowing he lit a cigarette and threw the lighted match on the floor. A fire and explosion followed, causing extensive damage. Held The employers were liable. Ratio The driver was doing the very thing he was employed to do, namely delivering petrol. Lighting a cigarette was an act done for his own comfort and convenience, but it was done while and in the course of performing the work, and it made his performance of that work negligent. An act of personal convenience incidental to the work does not take the servant outside the employment; it becomes a negligent mode of doing what he was employed to do. |
4. Intentional Wrongs and Fraud
📖 Lloyd v. Grace, Smith and Co. [1912] AC 716 Facts The appellant, a widow, consulted a firm of solicitors about her small property. She dealt with the managing clerk, who conducted conveyancing business without supervision. He fraudulently induced her to sign documents transferring the property to him, and then disposed of it for his own benefit. The solicitor himself knew nothing of it and gained nothing by it. Held The firm was liable. Ratio A master is liable for the fraud of his servant committed within the scope of the servant's authority, even though the fraud was for the servant's sole benefit and the master derived no advantage from it. The clerk was held out as having authority to conduct such business, and the client dealt with him on that footing. The earlier view, that the master answered only where the fraud was for his benefit, was rejected. |
5. The Close Connection Test
📖 Lister v. Hesley Hall Ltd. [2002] 1 AC 215 Facts The defendants ran a boarding annexe for boys with emotional and behavioural difficulties. The warden they employed, who lived in the annexe with his wife and had day to day care of the boys, systematically sexually abused a number of them over several years. The employers were unaware of it. Held The employers were vicariously liable. Ratio The old question, whether the abuse was an unauthorised mode of caring for the boys, was rejected as unhelpful, since it plainly was not. The correct question is whether the wrongful conduct was so closely connected with what the employee was employed to do that it would be fair and just to hold the employer vicariously liable. It was: the employment placed the warden in a position of authority and intimacy over the boys, and the very duties entrusted to him created the opportunity and the relationship that made the abuse possible. |
- Opportunity alone is not enough. That the employment gave the servant the chance to commit the wrong does not establish the connection, or every employer would answer for every wrong committed at work.
- What is required is that the employment created or materially increased the risk of the very wrong that occurred, by conferring authority, intimacy, access or trust that the servant then abused.
- The English courts now apply a two stage test, restated in Trustees of the Barry Congregation of Jehovah's Witnesses v. BXB [2023] UKSC 15. The first stage asks whether the relationship is one of employment or akin to employment, a true independent contractor being outside it. The second asks whether the wrongful conduct was so closely connected with what the wrongdoer was authorised to do that it can fairly and properly be regarded as done while acting in the course of that employment.
- Barclays Bank plc v. Various Claimants [2020] UKSC 13 decided the first stage: a doctor engaged by the bank to conduct pre employment medical examinations, who assaulted those he examined, was a genuine independent contractor carrying on his own practice, and the bank was not liable however serious the wrong.
- Indian law reaches the same result on its own principles, and Lloyd v. Grace, Smith and Co. has long been applied here, so the close connection reasoning is best seen as a restatement rather than an importation.
6. Employer Liability for Sexual Misconduct at Work
- In tort, the question is the close connection question, and the answer turns on whether the employment conferred the authority, access or intimacy that was abused. A residential warden, a doctor conducting an intimate examination and a security guard admitted to a home stand on very different footing from a colleague who happens to work in the same office.
- A separate claim in the employer's own negligence is frequently the stronger one, for negligent hiring, supervision or retention, because it does not depend on the course of employment at all. It is examined in TORT 050.
- And in India the statutory scheme operates alongside the tort. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, enacted following the guidelines laid down in Vishaka v. State of Rajasthan, (1997) 6 SCC 241, places affirmative obligations on the employer: to constitute an Internal Committee, to provide a safe working environment, to display the consequences of such conduct, to organise awareness programmes and to assist the aggrieved woman. A failure to discharge them carries its own consequences and is evidence in any negligence claim.
⚠ Why the close connection test replaced the old formula The Salmond formula asked whether the wrong was a wrongful mode of doing an authorised act. Applied to a careless driver it works, because bad driving is a mode of driving. Applied to a warden who abuses the children in his care it produces an absurdity: the abuse is not a mode of caring for them, so on the old formula the employer escapes, and the more grossly the servant departs from his duty the safer the employer becomes. That result would be perverse, because the institutions that most need the incentive to supervise are precisely those that place employees in positions of unsupervised power over the vulnerable. Lister cut through it by asking the practical question directly: did the employment create the risk of this very wrong, so that it is fair to make the enterprise that created the risk bear the loss. The test is less precise than the old formula, and that is the price of asking the right question. |
7. The Position Stated Shortly
1. A master is liable for an authorised act and for an unauthorised mode of doing an authorised act, but not for an act outside the employment.
2. Limpus v. London General Omnibus: a driver who raced in breach of express orders was still driving, so the master was liable.
3. Beard v. London General Omnibus: a conductor who drove was doing a different act altogether, so the master was not.
4. An express prohibition is no defence if it merely regulates the manner of the work; it is a defence if it limits the sphere of the employment.
5. A detour keeps the servant within the course of employment; a frolic of his own takes him outside it until he returns.
6. Century Insurance: an act of personal convenience done while performing the work, such as lighting a cigarette while delivering petrol, is a negligent mode of the work.
7. Lloyd v. Grace, Smith and Co.: a master answers for his servant's fraud within the scope of the servant's authority, even where the master gained nothing.
8. Lister v. Hesley Hall asks whether the wrong was so closely connected with the employment that it is fair and just to hold the employer liable.
9. Opportunity alone is not enough; the employment must have created or materially increased the risk of the very wrong committed.
10. The current English formulation is the two stage test in BXB [2023] UKSC 15, and Barclays Bank [2020] UKSC 13 confirms that a true independent contractor falls outside stage one.