62
|
P a g e
Mr Plenty was
under employment i
by the Co-operative Retail
Services Ltd, since Easter of 1970. At the depot where he worked, there was a
prohibition on allowing children onto any vehicle, with evidence that the employers and
trade unions had attempted to stop such behavior. There were signs to this effect, which
were large and visible to employees; one such stated:
"
Children and young persons must not in any circumstances be employed by you in the
performance of your duties.
However, children still persisted in going to the depot in the hopes of being allowed
onto milk floats. Soon after he was employed, Mr Plenty was approached by Leslie Rose,
at the time a 13 year old boy, who asked if he could help the employee on his rounds.
This was agreed upon, and Rose engaged in collecting money and delivering milk during
Mr Plenty's rounds. He was paid a small wage for this help on several occasions, before
he was injured due to the negligent driving of Mr Plenty, suffering
At first instance, Rose was adjudged 75
and recovery from the
employer was barred altogether, the judge stating that it was not in the scope of Mr
Plenty's employment to take on a child as a subordinate.
Judgment
On appeal to the
this judgment was reversed, wit
making the leading speech. It was established that, as in the case o
the employee was merely acting in an unauthorised way,
whilst still going about his duties of delivering milk
“
In the present case it seems to me that the course of the milk roundsman's
employment was to distribute the milk, collect the money and to bring back the
bottles to the van. He got or allowed this young boy to do part of that business
which was the employers' business. It seems to me that although prohibited, it
was conduct which was within the course of the employment; and on this
ground I think the judge was in error. I agree it is a nice point in these cases on
which side of the line the case falls; but, as I understand the authorities, this
case falls within those in which the prohibition affects only the conduct within
the sphere of the employment and did not take the conduct outside the sphere
altogether. I would hold that the conduct of the roundsman was within the
course of his employment and the masters are liable accordingly, and I would
allow the appeal
”
Whilst the majority of Lord Denning an
agreed upon this interpretation,
Lawton LJ dissented, arguing that precedents set in two earlier cases,
an
could not be distinguished from the
instant case. In these cases, no liability was found on the part of the employer where
passengers taken by employees - against specific instructions - were injured. Lord
Denning distinguished the cases on the grounds that Leslie Rose had been furthering
the employee's duties, keeping Mr Plenty within the course of his employment.
Speed v Swift (Thomas) & Co Ltd [1943] 1 All ER 539 – elements of, and an
employer’s duty to provide, a safe system of work
