TORT 134 Course of Employment and a Frolic of One s Own — Law of Torts Notes for Judiciary

Course of Employment and a Frolic of One's Own: The Boundary of Vicarious Liability

An employer answers for his servant's tort only if it was committed in the course of the employment, and the whole weight of the doctrine rests on that phrase. The classical test is Salmond's: a wrongful act is within the course of employment if it is either an act authorised by the master, or a wrongful and unauthorised mode of doing some act authorised by him. What falls outside is the servant's own escapade, which since Joel v. Morison has been called a frolic of his own. The distinction is therefore not between right conduct and wrong conduct, which would make the doctrine meaningless, but between the servant doing his job badly and the servant not doing his job at all.

1. The Comparison

	In the course of employment	A frolic of his own
What the servant was doing	The employer's work, however badly or improperly	His own business, on his own account
The act	An authorised act, or an unauthorised mode of doing an authorised act	An act unconnected with anything he was employed to do
A prohibition by the employer	No answer, if the act was within the sphere of the employment	Confirms the departure, though it is not decisive by itself
The servant's motive	Immaterial if the act was closely connected with the employment	Relevant, since a purely personal purpose points to a departure
A deviation from the route	A detour incidental to the journey	A new and independent journey of his own
The employer	Vicariously liable	Not liable
The servant	Personally liable in any event	Personally liable

2. The Test

Salmond's formulation is the starting point and is quoted in every case. A master is liable for a wrongful act done by his servant if it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master.
The second limb does all the work. Almost nobody authorises a tort, so the question is virtually always whether what the servant did was a bad way of doing his job or something else altogether.
The modern approach adds the close connection test, developed for deliberate wrongdoing in Lister v. Hesley Hall Ltd., [2002] 1 AC 215: the question is whether the servant's wrongful conduct was so closely connected with what he was employed to do that it would be fair and just to hold the employer liable.
The two are not rivals. Salmond governs the ordinary case of careless or improper performance; the close connection test governs intentional wrongdoing, which the Salmond test never handled convincingly.
The subject is examined fully in TORT 047 and TORT 048.

3. The Origin of the Phrase

📖 Joel v. Morison, (1834) 6 C and P 501

Facts The plaintiff was knocked down by a cart driven by the defendant's servant. There was evidence that the servant had departed from the route he should have taken and was driving in a different direction on an errand of his own.

Held The master was liable, the jury finding that the servant was about his master's business.

Ratio Parke B. directed the jury in the words that have governed the subject since: if the servant, being on his master's business, took a detour to call upon a friend, the master is responsible; but if he went on a frolic of his own, without being at all on his master's business, the master is not liable. The test is whether the servant was, at the moment of the accident, engaged in the master's business, and a deviation incidental to that business does not take him outside it.

4. Deviation from the Route

A detour is not a frolic. A servant who takes a longer road, stops for a meal, or calls on a friend while carrying out his employer's errand remains within the course of the employment.
A new and independent journey is. Where the servant abandons his employer's business and sets out on an errand of his own, the employment is suspended until he returns to it.
Storey v. Ashton, (1869) LR 4 QB 476 draws the line. A carman, having delivered wine and being on his way back to his employer's office, was persuaded by the clerk accompanying him to drive in a different direction to fetch the clerk's belongings. The plaintiff was injured during that diversion. The employer was not liable: this was "an entirely new and independent journey" which had nothing to do with the employment.
The question is one of degree, and the factors are the extent of the deviation in distance and time, the purpose of it, and whether the servant had resumed the employer's business at the moment of the accident.
Travel to and from work is ordinarily outside the employment, unless the servant is travelling between work sites, is on call, or is using a vehicle provided so that he may attend where required.

5. The Prohibited Act

A prohibition does not by itself take an act outside the employment. If it did, every employer could escape liability by issuing an instruction.
The distinction is between a prohibition that limits the sphere of the employment and one that merely regulates the manner of performing it. The first takes the servant outside; the second does not.
Limpus v. London General Omnibus Co., (1862) 1 H and C 526. A driver, expressly forbidden to race or obstruct other buses, did exactly that and caused a collision. The employer was liable: driving the bus was what he was employed to do, and the prohibition regulated the manner of doing it.
Beard v. London General Omnibus Co., [1900] 2 QB 530. A conductor, in the driver's absence, drove the bus to turn it round and injured the plaintiff. The employer was not liable: driving was no part of a conductor's employment at all, so the act was outside its sphere.
Rose v. Plenty, [1976] 1 WLR 141. A milkman, in breach of an express prohibition against carrying helpers, engaged a boy of thirteen to assist on his round, and the boy was injured by the milkman's careless driving. The employer was liable, because the boy was being carried for the purposes of the employer's business and the prohibition went to the manner of performing it.
Twine v. Bean's Express Ltd., [1946] 1 All ER 202 is the contrasting case: a driver gave a lift to a hitch hiker contrary to a prohibition, and the employer was not liable, the passenger being carried for no purpose of the employer's at all.

6. Where the Course of Employment Extends Further Than Expected

The situation	The position
A careless act while doing the job	Plainly within. Century Insurance Co. v. Northern Ireland Road Transport Board, [1942] AC 509: a petrol tanker driver struck a match to light a cigarette while transferring petrol and threw it away. The very act of lighting it was a negligent mode of carrying out his work
An act done for the servant's own comfort or convenience	Within, where it is incidental to the employment: a tea break, warming oneself, attending to a personal need on the premises
An act done in an emergency	Within, where the servant was protecting his employer's property or persons for whom the employer was responsible, even if he exceeded his instructions
Excessive or mistaken protection of the employer's property	Within, where the servant was acting to protect the employer's interests, however wrongheadedly
Fraud for the servant's own benefit	Within, where the servant was placed in a position that enabled the fraud and the victim dealt with him in that capacity
Deliberate assault or abuse	Within, where closely connected with what he was employed to do, as where the employment placed him in authority over the victim: Lister v. Hesley Hall
Theft by a servant entrusted with the goods	Within, where the employer had undertaken the care of the goods and the servant was entrusted with them

7. Where It Does Not

A wholly personal quarrel that happens to occur at the workplace, where the employment supplied nothing but the occasion.
An act entirely outside the sphere of the employment, as in Beard, where a conductor took on the driver's work.
A new and independent journey undertaken for the servant's own purposes, as in Storey v. Ashton.
An act done after the employment has been abandoned, or before it has begun.
Lending the employer's vehicle or tools to a third party for that person's own purposes, where no benefit to the employer was involved.
The mere fact that the employment gave the opportunity is never enough. Opportunity without connection does not make the employer liable, and that is the point at which the close connection test does its filtering.

8. Why the Doctrine Is Drawn This Way

Vicarious liability rests on the risks an enterprise creates. A business that employs people to act for it creates the risk that they will act badly in doing so, takes the profit of their work, chooses and supervises them, and can insure and spread the cost.
A test confined to authorised acts would destroy the doctrine, since nobody authorises a tort.
A test satisfied by mere opportunity would extend it without limit, since almost any wrong a servant commits is facilitated in some way by his being at work.
The course of employment sits between the two, asking whether the wrong was a realisation of a risk the enterprise created by employing this person to do this work.
That is why the close connection test was needed for deliberate wrongdoing. An intentional assault is never a mode of performing a duty, so the Salmond test could only be satisfied by strained reasoning; asking instead whether the employment created the very risk that materialised produces the right answer directly.

⚠ Why the frolic cases are harder than they look

The vocabulary of the subject encourages a search for the moment at which the servant stepped outside his employment, as though there were a line on the road that he crossed. The cases do not work that way, and two of the leading pairs cannot be reconciled on any such basis. Limpus and Beard both concern a bus company and a prohibited act, and they go opposite ways; Rose v. Plenty and Twine both concern a prohibited passenger injured by the driver's carelessness, and they go opposite ways too. What separates each pair is not the degree of the disobedience but whether the servant, at the moment in question, was still pursuing his employer's purposes: the milkman carrying a helper was getting the milk delivered, and the driver carrying a hitch hiker was not; the driver racing another bus was driving his route, and the conductor turning the bus round was doing a job that was not his. The practical consequence for a pleading is that the useful evidence is about purpose and function, what the servant was employed to do and what he was actually trying to achieve, and not about the seriousness of what he did wrong. A defendant who leads evidence only that the act was grave, forbidden and inexcusable has led evidence on the wrong question, because every one of those things was true in Limpus.

9. The Position Stated Shortly

1. An employer answers only for a tort committed in the course of the employment.

2. Salmond's test: an act authorised by the master, or a wrongful and unauthorised mode of doing an act authorised by him.

3. The close connection test in Lister v. Hesley Hall governs deliberate wrongdoing, asking whether the conduct was so closely connected with the employment that liability would be fair and just.

4. Joel v. Morison is the origin of the phrase: a detour to call on a friend leaves the master liable, but a frolic of the servant's own does not.

5. Storey v. Ashton marks the limit: an entirely new and independent journey for the servant's own purposes takes him outside the employment.

6. A prohibition does not by itself take an act outside the employment, the question being whether it limited the sphere of the employment or merely regulated the manner of performance.

7. Limpus v. London General Omnibus: racing in breach of an express prohibition was still driving the route, and the employer was liable.

8. Beard v. London General Omnibus: a conductor driving the bus was acting outside the sphere of his employment altogether.

9. Rose v. Plenty and Twine v. Bean's Express turn on whether the prohibited passenger was being carried for the employer's purposes.

10. Opportunity alone is never enough, and the useful evidence is about purpose and function rather than the gravity of the wrong.