The case of Rose v Plenty [1975] EWCA Civ 5 is a landmark decision in English tort law that explores the concept of vicarious liability and the extent to which an employer may be held responsible for the wrongful acts of an employee.
The Court of Appeal considered whether an employer could be found liable when an employee, while performing their duties, acted contrary to express instructions. The decision, led by Lord Denning M.R. with the concurrence of Scarman L.J. and a dissent from Lawton L.J., clarified the distinction between acts performed within the course of employment in an unauthorised manner and acts performed outside the scope of employment altogether.
The ruling in Rose v Plenty remains an influential precedent in cases involving prohibited conduct by employees, defining the fine line between an act done for the employer’s benefit and one done purely for personal purposes.
It reaffirmed the principle derived from Salmond’s test on vicarious liability: that an employer will be held responsible for wrongful acts committed by an employee either in the performance of authorised tasks or in an unauthorised mode of carrying out authorised work.
Facts of Rose v Plenty
The plaintiff, Leslie Rose, was a thirteen-year-old boy living in Bristol. The defendant’s employee, Mr Plenty, worked as a milkman for Co-operative Retail Services Ltd, a company engaged in delivering milk to customers.
Since the Easter of 1970, Mr Plenty had been employed to make rounds distributing milk, collecting payments, and returning empty bottles. At the depot, the company had posted prominent notices prohibiting milkmen from engaging children to assist in their work or to ride on milk floats. One such notice explicitly stated:
“Children and young persons must not in any circumstances be employed by you in the performance of your duties.”
Despite this express prohibition, Mr Plenty allowed the young boy to accompany him on his daily milk deliveries. The boy assisted in carrying bottles, collecting payments from customers, and returning empty bottles to the float. In return for his help, he received a small payment from Mr Plenty. The arrangement continued for some time, even though both were aware that such conduct was expressly forbidden by the employer.
On one occasion, while performing his rounds, Mr Plenty negligently drove the milk float around a corner, causing Leslie Rose’s foot to become trapped under a wheel. The boy sustained a fracture and other injuries as a result. The claim was brought against the employer on the basis that Mr Plenty’s negligent act had occurred in the course of his employment, and therefore, the employer was vicariously liable for the damage suffered.
At first instance, the county court judge held that Mr Plenty was acting outside the course of his employment because he had breached the employer’s instructions. The court also found the boy contributorily negligent. Consequently, the employer was not held liable for the injury. Leslie Rose appealed to the Court of Appeal.
Issue
The key legal issue before the Court of Appeal in Rose v Plenty was whether the employer could be held vicariously liable for the negligent act of an employee who had expressly disobeyed company instructions. The central question was whether the prohibition against employing or allowing children to assist milkmen took Mr Plenty’s actions outside the course of his employment, or whether his actions were merely an unauthorised method of performing his authorised duties.
Rose v Plenty Judgement
The Court of Appeal, by a majority decision, reversed the judgement of the lower court and held that the employer was vicariously liable for the injuries sustained by the plaintiff. The majority comprised Lord Denning M.R. and Scarman L.J., with Lawton L.J. dissenting.
Lord Denning M.R. (Majority Opinion)
Lord Denning emphasised the distinction between prohibitions that define the scope or sphere of employment and those that merely restrict the conduct or mode of performing authorised duties. According to his reasoning, a prohibition that limits how an employee performs a task does not necessarily remove that act from the course of employment.
He observed that the milkman’s duties included delivering milk, collecting money, and returning bottles to the depot. By engaging the boy, Mr Plenty was seeking assistance to complete those very duties more efficiently, which ultimately furthered the employer’s business. The fact that the method of performance was expressly prohibited did not change the essential nature of the act—it remained part of the work he was employed to do.
Lord Denning compared the situation to the case of Limpus v London General Omnibus Company, where a driver acted contrary to orders but still in the employer’s service. He held that the milkman’s wrongful act was an unauthorised mode of performing authorised work rather than an act performed outside his employment altogether.
He stated:
“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 this boy to help him in doing that work. The boy was helping him to do the master’s business. It is true that he was acting contrary to instructions. He was doing it in a prohibited manner: but he was still doing it in the course of his employment.”
Accordingly, Lord Denning concluded that the employer should be held vicariously liable.
Scarman L.J. (Concurring Opinion)
Scarman L.J. agreed with Lord Denning’s reasoning and supported the finding of liability. He too drew a clear distinction between a prohibition concerning the conduct within employment and one that limits the sphere of employment itself.
Scarman L.J. explained that the milkman’s engagement of the boy did not alter the essential nature of his work; it remained within the scope of his employment because it was aimed at fulfilling the duties of milk delivery. The act of employing a helper was an unauthorised way of doing authorised work rather than an activity undertaken for personal reasons.
He added that the employer’s business had benefited, at least indirectly, from the boy’s assistance. The work was completed more effectively and efficiently, which supported the view that the employee’s conduct fell within the course of employment.
Scarman L.J. stated:
“The prohibition in this case affected the way in which the employee was to conduct his employment: it was a prohibition as to conduct within the sphere of employment…. It seems to me plain that the act of the roundsman in engaging the boy to assist him was an act done for the purpose of the business of his employers. It was an unauthorised way of doing that which he was employed to do.”
Lawton L.J. (Dissenting Opinion)
Lawton L.J. dissented from the majority. He took the view that the prohibition was absolute and comprehensive, excluding the act from the scope of employment altogether. He held that the employee was not merely performing his duties in an unauthorised manner but was engaging in a distinct and prohibited act—that of employing a child to assist him.
In his opinion, Rose v Plenty could not be distinguished from Twine v Bean’s Express Ltd and Conway v George Wimpey & Co Ltd, where employers were not held liable for injuries suffered by unauthorised passengers taken by employees in breach of explicit instructions. He concluded that the milkman’s action of allowing the boy onto the float was a separate and forbidden act that had nothing to do with the duties he was authorised to perform.
Lawton L.J. stated:
“The express prohibition in this case was not a prohibition as to the manner in which the employee was to do his work. It was a prohibition against doing an act which he was not employed to do at all, namely to take a boy on the float as a helper.”
Accordingly, he would have dismissed the claim against the employer.
Rose v Plenty Decision
By a majority, the Court of Appeal allowed the appeal and held that the employer was vicariously liable for the plaintiff’s injuries.
The majority reasoned that the act of employing the boy, although expressly forbidden, was carried out in the course of employment because it furthered the employer’s business of delivering milk. The case was therefore distinguished from those where employees acted for their own purposes, unrelated to the employer’s business.
Conclusion
In conclusion, Rose v Plenty [1975] EWCA Civ 5 serves as a defining case on the boundaries of vicarious liability and the meaning of “course of employment.” The Court of Appeal’s majority decision demonstrated that an employer may still be liable even when an employee disobeys clear instructions, provided that the act was done in furtherance of the employer’s business. The case distinguishes between a wrongful act performed for the employer’s purposes and one carried out for the employee’s own benefit.