Milkman knew he was not allowed to take
children with him to help on his round.
children with him to help on his round.
But did so, paying 13 year old boy to help
him deliver.
him deliver.
Boy slightly injured due to milkman’s negligent
driving (though 25% contributory negligence).
driving (though 25% contributory negligence).
Was driver acting in course of his
employment?
employment?
Denning:
In cases like this, must ask:
1. Was
servant liable?
servant liable?
Milkman clearly liable here – invited boy
to ride.
to ride.
2. If
so, must employer shoulder servant’s liability?
so, must employer shoulder servant’s liability?
Depends whether driver, taking boy on
float, acting in course of his employment.
float, acting in course of his employment.
If act is done for some purpose other than
his master’s business, such act, if prohibited, may not be within course of his
employment.
his master’s business, such act, if prohibited, may not be within course of his
employment.
But here, act done (employing boy to
collect bottles etc) was for purpose of master’s business, and although
prohibited is therefore within course of his employment.
collect bottles etc) was for purpose of master’s business, and although
prohibited is therefore within course of his employment.
Master liable.
Held Twine
could be distinguished on basis it can be explained on other grounds, and statement
about trespasser no longer correct.
could be distinguished on basis it can be explained on other grounds, and statement
about trespasser no longer correct.
[NB Twine
was Court of Appeal case too so could not be overruled]
was Court of Appeal case too so could not be overruled]
