Chapter 16Employing labourso in effect in respect of injuries caused by his employ-
ees to fellow employees, but insurance is not compul-
sory(though highly advisable) in respect of injuries to
outsiders.
Finally, it should be noted that the employee who
actually caused the injury is always liable personally
along with the employer, but of course the prime defend-
ant is the employer because he has either insurance or
other funds which the employee probably does not have.
The course of employment
Whether an employee was or was not acting in the course
of employment when he brought about the injury for
which the person injured wants to make the employer
liable is a matter for the court to decide in each case. The
decision is sometimes a difficult one to make and we
may all from time to time disagree with a decision made
by a judge in a particular case.
However, the following analysis of the cases gives some
idea of the way in which the courts have dealt with this
most important aspect of employers’ liability.
1 Acts outside of the contractual duties. If the employee
is engaged on a private matter personal to him, the
employer will not be liable for injuries caused by the
employee during this time.
495
Brittv Galmoye & Nevill(1928)Nevill was employed by Galmoye as a van driver. Nevill
wanted to take a friend to the theatre after he had fin-
ished work and Galmoye lent Nevill his private motor car
for this purpose. Nevill, by negligence, injured Britt and
Britt’s action against Galmoye was based upon vicarious
liability so that it was necessary to deal with the matter
in course of employment. The court decided that, as the
journey was not on Galmoye’s business and Galmoye
was not in control, he was not liable for Nevill’s act.
Comment.
(i)Britt’s case is a rather obvious example of an act out-
side of the contract of service. However, sometimes the
court is called upon to make a more difficult decision. In
particular it should be noted that an employee does not
make his employer liable by doing some act which is of
benefit to the employer during the course of what is
basically an outside activity. For example, in Raynerv
Mitchell(1877) a van man employed by a brewer took,
without permission, a van from his employer’s stables in
order to deliver a child’s coffin at the home of a relative.While he was returning the van to the stables he picked
up some empty beer barrels and was afterwards involved
in an accident which injured Rayner. Rayner sued the
van man’s employer and it was held that the employer
was not liable. The journey itself was unauthorised and
was not converted into an authorised journey merely
because the employee performed some small act for the
benefit of his employer during the course of it.(ii)In TrotmanvNorth Yorkshire County Council(1999)
the Court of Appeal held that acts of sexual misconduct
by a deputy headmaster on male pupils while on a school
trip abroad was a personal act and an independent course
of conduct that was outside the scope of his employ-
ment (but see below).(iii)In more recent times there has been a significant
move by the courts towards greater employer liability in
what might be called the ‘acts personal to the employee’
cases. In ListervHesley Hall Ltd(2001) the claimants
were boys at a school for children with emotional diffi-
culties. It was owned and managed by the defendant
company. The company employed a warden and house-
keeper to look after the claimants. He systematically
abused them. They brought claims for personal injury
against the company as vicariously liable for the acts of
the warden. The case reached the House of Lords on
Appeal. Their Lordships were faced by a defence that in
essence stated that the warden in abusing the claimants
was not acting in the course of his employment but was
in abusing the claimants doing acts personal to himself.
The abuse was not part of his employment. The em-
ployment merely gave him the opportunityto abuse
the claimants. The House of Lords did not accept this
defence. Whatever may be the grounds for this factdeci-
sion, it must be regarded as an essential background
to the case that the employers were better able to pay
any damages awarded to the claimants. Nevertheless,
it would now seem to be the law that even though the
act is not within the ordinary course of employment and
where the employment merely gives the employee an
opportunity to commit the tortious act, the employer may
nevertheless be held liable for it. A previous decision
by the Court of Appeal in TrotmanvNorth Yorkshire
County Council(1999) that acts of sexual abuse were
beyond the scope of employment so that the employer
was not liable was overruled by the House of Lords in
the Listercase.(iv)The decision of the Court of Appeal in Fennellyv
Connex South Eastern Ltd(2001) further liberalises the
attitude of the courts to what can be regarded as within
the scope of employment.