A milkman (against company orders) took a 13-year-old boy to help him on his round, and the boy was injured through the milkman's negligent driving. The boy sued both the milkman and the dairy co-operative. The trial judge found that the co-operative was not liable. The plaintiff appealed.
The court held that the milkman was doing an authorised act,
delivering milk, in an unauthorised way.
Per Lord Scarman: Determining vicarious liability is a matter of public policy determined by:
1. Did the servant commit a tort on the plaintiff?
2. Whether the employer should shoulder the responsibility.
"if that visitor from Mars is still in court [...] he will return to his planet conscious that one member of the court sees no irreconcilable differences opening up in the common law."
The Court of Appeal (by a majority) found the
dairy vicariously liable for the boy's injuries. The boy was
actually helping to deliver the milk, and so the driver's action was
an unauthorised way of performing his duties.