H418/02 - Course of employment and close connection

Authorised work and unauthorised methods

Once a qualifying relationship exists, the claimant must connect the particular tort to that relationship. Course of employment concerns the scope of the person's work, rather than simply the hours or place where it happened.

For unintentional torts, the traditional Salmond test is a useful starting point. It covers a wrongful act authorised by the employer, or an unauthorised and wrongful way of doing an authorised act. A delivery firm may authorise driving a van; negligent driving is an improper way of carrying out that work. The firm need not have instructed the driver to be careless.

In Century Insurance v Northern Ireland Road Transport Board (1942), a petrol-tanker driver caused a fire by negligently lighting a cigarette and throwing away the match while delivering petrol. The employer was vicariously liable. Although smoking served a personal purpose, the negligence occurred in the performance of the assigned dangerous task. The case does not mean that every personal act during a shift falls within employment.

What a prohibition actually limits

Distinguish an instruction regulating how to do an assigned job from one limiting the scope of the job itself. In Rose v Plenty (1976), a milk roundsman disobeyed a rule against carrying children on the milk float and used a child to help with deliveries. The child was injured by negligent driving. The majority held the employer liable because the employee was still carrying out its milk-delivery business through a prohibited method. Disobedience did not end the work connection.

Original counterexample: a receptionist, employed only to book appointments, takes a customer's car for a recreational drive. This is not simply an unauthorised way of booking appointments. The activity is outside the assigned job. By contrast, a mechanic negligently test-driving a repaired car may remain within work despite ignoring a speed instruction. Check the actual duties: job title alone cannot settle the scope.

The Salmond formula works well for many negligent acts, but describing deliberate abuse as an “improper method” of caring for someone can be artificial. Courts therefore developed a close-connection approach for intentional wrongdoing, taught below.

Detours and independent personal ventures

A deviation from instructions can still be part of work, but abandoning work for an independent private venture can take the tort outside employment. In Joel v Morison (1834), the distinction was expressed as a detour while carrying out the employer's business compared with a “frolic of his own”. The Supreme Court reaffirmed this principle in WM Morrison Supermarkets v Various Claimants (2020).

Assess purpose, extent and the relationship to the assigned activity. A slightly different route taken during deliveries may still serve the delivery task. A substantial private journey after setting aside deliveries is much more likely to be outside it. There is no automatic rule that a particular number of minutes or metres turns work into a frolic. Nor does every benefit to the employee establish a private venture: ordinary work can involve incidental personal acts.

Original example: Maya is employed to take flowers from a shop to a wedding venue. She chooses a different road to avoid congestion and negligently hits a cyclist. The delivery remains her activity, making liability likely. Change the facts: she finishes, then takes the van without permission to drive a friend to another town for a private party. An injury on that journey is much more likely outside the employment connection.

In Morrison (2020), an auditor entrusted with payroll data disclosed it to the public to pursue a vendetta against the employer. Access arose through employment and there was a causal chain from the assigned task to publication. Nevertheless, the employer was not vicariously liable: the disclosure was an independent personal venture, not conduct sufficiently connected with carrying out the assigned work. Opportunity, timing and “but for the job” causation were insufficient.

This distinction connects two different uses of causation. Showing that a job enabled the tort does not answer the normative question of whether that tort belongs to the employer's work risks. The employee may remain personally liable even when the employer's vicarious liability fails.