LAW OF TORT

STRICT LIABILITY (THE RULE

IN RYLANDS V FLETCHER) AND
VICARIOUS LIABILITY
The tort of strict liability under the rule in
Rylands v Fletcher originated from the tort
of nuisance
The scope and applicability of the rule is
now more restricted due to the decision of
the House of Lords in Cambridge Water
Co v Eastern Counties Leather PLC
(1994)
STRICT LIABILITY
Is a term used to describe liability which is
imposed on the defendant without any proof of
fault on his part
ie though the defendant might have taken all
reasonable precautions to avoid or minimize risks
arising from his activity he may still be found
liable if the tort which has arisen falls under the
category of strict liability torts
The mental state of a defendant in a strict liability
action is irrelevant
The plaintiff need not prove that defendant must
have intended to do an act alleged to give rise to a
strict liability tort
The rule in Rylands v Fletcher
The landmark case is Rylands v Fletcher (1866)
Facts : Defendant, a mill owner, employed independent
contractors to construct a reservoir on their land which was
separated from the plaintiffs colliery by intervening land.
Unknown to defendants beneath the site of the reservoir
there were some disused shafts connecting their land with
the plaintiffs mine. The independent contractors were
negligent in failing to discover this. Water from the
reservoir burst through the shafts and flooded the
plaintiffs mine. Defendants were held personally liable
despite the absence of blame in themselves.

The defendants themselves
were not negligent and neither
were they vicariously liable for
the negligence of the
independent contractors but the
House of Lords held them liable
to the Plaintiff
Blackburn J : we think that the true rule of
law is, that the person who for his own
purposes brings on his lands and collects
and keeps there anything likely to do
mischief if it escapes, must keep it in at his
peril, and, if he does not do so, is prima
facie answerable for all the damage which is
the natural consequence of its escape
This statement is known as the rule in
Rylands v Fletcher
The defendant may avoid liability if he can
prove that the escape was due to the
plaintiffs own fault or that it was caused by
an act of God
The rule only applies where the defendant
had used his land for a non natural purpose

In subsequent cases non natural use of land
was a requirement to establish liability
under the rule
This narrowed the scope of the rule as what
constitutes non natural use of land is seldom
uncertain and unclear
Elements to establish liability
There are 4 elements to establish
liability under the rule :
1. Dangerous things/things likely to
cause damage if it escapes
2. Intentional storage/Accumulation
3. Escape
4.Non natural use of land
1. Dangerous things/Things likely to
cause damage if it escapes

There must exist a dangerous thing
The word dangerous has its own meaning
under this tort
What is dangerous is a question of fact
The rule applies to anything that may cause
damage if it escapes
Only if the object/thing causes damage if it
escapes will it fulfill the element of
dangerous object

The object/thing need not be dangerous per
se because there are objects which are safe
if properly kept but become dangerous if
they escape
The principle had been successfully applied
to gas, noxious fumes, explosive, fire,
electricity, water, sewage and slug heaps
Whether a thing is considered dangerous in that it may
cause damage if it escapes is determined through ordinary
human experience
Ang Hock Tai v Tan Sum Lee & Anor (1957)
Facts : plaintiff rented a shophouse and lived on first floor
of the building. The ground floor was sublet to defendant
whose business was repairing and distributing tyres.
Defendant stored petrol for his business. One day
defendants premises caught fire which spread to the first
floor killing the plaintiffs wife and child.
Held : the defendant liable under the rule as petrol was a
dangerous thing
Position in England
In England the first element is no longer
accurate
There cannot be liability under the rule
unless the relevant type of damage was
foreseeable (decided by the House of Lords
in Cambridge Water Co v Eastern
Counties Leather PLC (1994))
Hence whether the thing is dangerous or not
is irrelevant
Cambridge Water Co v Eastern Counties Leather
PLC (1994)
Facts : The defendants, leather manufacturers, used a chlorinated solvent in degreasing pelts at their
tannery which was situated some 1.3 miles from the plaintiffs' borehole where water was abstracted
for domestic purposes. The water in the borehole became unfit for human consumption by reason of
the solvent having seeped into the ground below the defendants' premises whence it was conveyed in
percolating water in the direction of the borehole. The plaintiffs brought an action for damages on
three alternative grounds, negligence, nuisance and the rule in Rylands v. Fletcher. The trial judge
dismissed the action in negligence and nuisance because the defendants could not reasonably have
foreseen that such damage would occur, and on the third ground because the solvent used in the
defendants' business constituted in the circumstances a natural use of the defendants' land. On appeal
by the plaintiffs in respect of the dismissal of their third cause of action, the Court of Appeal in
allowing the appeal declined to determine it on the basis of the rule in Rylands v. Fletcher but held
that there was a parallel rule of strict liability in nuisance in that where the nuisance was an
interference with a natural right incident to ownership the liability was a strict one.
Held (by the House of lords) allowing the appeal, that foreseeability of harm of the relevant type by
the defendants was a prerequisite of the recovery of damages both in nuisance and under the rule in
Rylands v. Fletcher; and that, accordingly, albeit (contrary to the judge's finding) the use of the
solvent in the manufacturing process and its storage constituted a non-natural use of the defendants'
land, since the plaintiffs were not able to establish that pollution of their water supply by the solvent
was in the circumstances foreseeable, the action failed

2. Intentional storage/Accumulation

The rule only applies to an object or thing
which the defendant purposely keeps and
collects
The defendant will only be liable if he has
accumulated or authorised to accumulate
the object
Liability rests in those who have control
over the thing

Miles v Forest Granite Co Ltd (1918)
Facts : the defendant used some explosives to blast
some rocks on his land. Some of the rocks fell
onto the land below and injured the plaintiff
Held : though the rocks were not purposely
collected or kept on the land the explosives were.
The defendant was liable for this deliberate
accumulation which caused the escape of the rocks
and for causing injury to the plaintiff through rock
blasting which was not a natural use of the land
The rule is not applicable to anything that is naturally on
the land
In Giles v Walker (1890) the defendant was found not
liable under this rule when thistles from his land flew onto
the plaintiffs land and seeded. The court held that the
thistles were the natural growth of the defendants land
despite the fact the thistles grew on his land due to his
leaving it unattended after he ploughed it
In cases like this liability may be sought under the tort of
nuisance or negligence


3. Escape

Plaintiff must prove there has been an
escape
Escape means the object has escaped from a
place where the defendant has control or
authority to a place where the defendant has
no control or authority
Not necessary that defendant has
proprietary interest in the land from which
the object escapes
Read v J Lyons & Co Ltd (1972)
Facts : An inspector of ammunitions was injured
when a shell that was being manufactured at the
defendants factory where she was employed
exploded and caused her substantial injuries
Held : defendants not liable as there was no escape
Ponting v Noakes (1894)
Facts : The plaintiffs horse reached its head
into the defendants land and ate the
poisonous leaves of a yew tree which was
planted on the defendants land
Held : there was no escape as the tree and
its leaves did not extend beyond the
defendants boundary and so the plaintiff
failed in his action

Meaning of escape has been extended to include
situation where use of dangerous object
causes/creates event from which damage is
sustained
See Miles v Forest Granite Co Ltd (1918)

Damage caused by the spread of
fire
Liability is imposed for the spread of fire if the
spread was due to the default of the defendants
servant, guest or independent contractor
Lee Kee v Gui See & Anor
Defendant was found liable when a third party
whom he had hired to burn some rubbish on his
land did so without taking any precautions which
resulted in the fire spreading onto the plaintiffs
land destroying the plaintiffs rubber trees.

The court held that if a person makes a fire
on his land in order to burn something
which is inflammable he must take
reasonable steps to prevent the fire from
spreading. This duty is absolute and non-
delegable
But liability will be excluded where the fire
spread or occurred due to an act of nature or
the act of a stranger or trespasser over
whom the defendant has no control
However knowledge of fire, though started
by party not under defendants control,
imposes duty on defendant to extinguish it
within reasonable time
4. Non-natural use of land

Meaning of non natural use of land is
shrouded in much uncertainty
Examples of ordinary/natural use of land
1. erecting a house
2. installing water, electric wiring and gas
pipes
3. constructing a fish pond (this is
considered as natural use of land though it
is artificial)
The meaning of non-natural use of land was
explained in the case of Rickards v
Lothian (1913)
Facts : property on the second floor of a
building was damaged by an overflow of
water from a basin on the top floor because
the tap had been turned on and the water
pipe plugged by a third person
Held : by having on his premises a reasonable supply of
water the defendant was only making an ordinary and
proper use of his house and that he was not responsible for
the wrongful act of a third party
Lord Moulton : it is not every use to which land is put that
brings into play that principle (i.e of Rylands v Fletcher).
It must be some special use bringing with it increased
danger to others, and must not merely be the ordinary
use of land or such a use as is proper for the general
benefit of the community
No conclusive test as to what may constitute
non natural use of land
Factors such as time, location and ordinary
human activities must be consider so that
what constitute non natural use of land may
differ in different circumstances
Eg in the 17
th
century the building of
skyscrapers would probably constitute a non
natural use of land but in 21
st
century it is
usual
Factors which courts have taken into
account include quantity of the thing, the
way in which it was stored and location of
defendants land
Examples of non natural use of
land
Crowhurst v Amersham Burial Board (1878)
Facts : defendant planted a yew tree on his land.
The branches and leaves of the trees extended into
the plaintiffs land. The leaves of the tree are
poisonous to cows. The plaintiffs horse ate the
leaves and died.
Held : the defendant was liable as planting a
poisonous tree is not a natural use of land
This decision may be justified on the basis that an
escape of the tree had occurred as the branches
and leaves had encroached onto the plaintiffs land
Yat Yuen Hong Co Ltd v Sheridanlea & Anor
(1963)
Facts : Appellants were developing their land
which was adjacent to respondents land.
Appellants land was situated on higher ground
than respondents land. Some earth fell onto
respondents land and damaged respondents
nursery
Held : piling loose earth on steep slope so that
more flat land would be available was non natural
use of land
Abdul Rahman bin Che Ngah v Puteh bin Samat (1978)
Facts : defendant was contractor engaged to clear irrigation
canal which went through plaintiffs rubber estate. The
work involved clearing bushes and weeds in the stream
and on the banks. These bushes and weed were negligently
set on fire by the defendant and the ignition escaped onto
the plaintiffs land destroying plaintiffs rubber trees
Held : defendant liable in negligence and also under the
rule for the escape of fire resulting from non natural use of
land
DEFENCES
1. Consent of the Plaintiff
If the plaintiff consents expressly/impliedly
to the existence of the dangerous object and
the defendant is not negligent in any way
the defendant will not be liable for any
escape and resulting damage
This is a specific application of the defence
of volenti non fit injuria
In practice it has been often invoked when water
from a top floor of a building affects the occupants
of lower floors
Examples
Overflowing cisterns, bath tubs etc
In most cases however it is not really necessary to
fall back on this defence because defendant can
always argue that existence of normal amounts of
water is not a non natural use
2. Common benefit
It is a defence that the source of danger is maintained for
the common benefit of both plaintiff and defendant
Carstairs v Taylor (1871)
Plaintiff occupied ground floor of a building. The top floor
was occupied by defendant. Rain water from roof was
collected in a specially constructed box from which it was
discharged into the drains. A rat gnawed a hole in the box
and water drained into plaintiffs premises and damaged
his goods. The defendant, not being negligent in any way,
was held not liable.
3. Act of a Third party
Test used to determine whether a person is a
3
rd
party or otherwise is whether that person
acts outside the defendants control or
within defendants control
Generally trespassers and those who act on
land that does not belong to defendant are
said to be 3
rd
parties
Unforeseeable act of a 3
rd
party who is not under
defendants control is a good defence
Box v Jubb (1879)
The defendants neighbours reservoir overflowed
and flooded defendants reservoir causing
defendants reservoir to overflow and damaged
plaintiffs property.
Held : since sequence of events were not
foreseeable and defendant was not negligent
defendant was not liable
4. Act of God
This is available whenever an escape is caused by
the operation of natural forces beyond human
anticipation/avoidance
Nichols v Marsland (1876)
Defendant created artificial ornamental lakes by
damming up natural stream. He was held not
liable when rainfall greater and more violent than
any within the memory of witnesses caused the
embankments to collapse and the escaping water
destroyed 4 nearby bridges.
Nowadays however there is a tendency to
restrict the ambit of this defence not least
because of the increased ability to predict
such occurrences
5. Default of Plaintiff
This defence is applicable if the damage to
the plaintiff is due entirely to his act or
default
Where this amounts to his own contributory
negligence then his damages will be
reduced in accordance with the general
principles
S12(1) of the Civil law Act 1956 provides that
where any person suffers damage as a result partly
of his own fault and partly of the fault of any other
person(s) a claim in respect of that damage shall
not be defeated by reason of the fault of the person
suffering the damage but the damages recoverable
in respect thereof shall be reduced to such extent
as the court thinks just and equitable having regard
to the claimants share in the responsibility of the
damage

6. Statutory Authority
Statute may exclude liability which would otherwise arise
Green v The Chelsea Waterworks Co. (1894)
Parliament authorised defendant to lay a water pipe which
burst without defendants negligence and flooded
plaintiffs premises. Since defendant was under statutory
duty to maintain continuous supply of water through the
pipes it was held that by necessary implication defendant
were exempt from all liability where damage was not due
to their negligence
But in Charring Cross Electricity Co. v
Hydraulic Power Co. (1914) where the facts
were similar, plaintiff succeeded in his claim.
Difference can be explained on ground that in this
case defendant had only power to supply water
and keep pumping it through the pipes but no duty
to do so.
If statute only gives discretionary power to
defendant, defendant may still be held liable if
defendant is found to be careless in exercising his
discretionary power
VICARIOUS LIABILITY
The doctrine of vicarious liability applies to
all forms of tort
Definition : liability imposed on a master by
a third party for the tort of his servant
committed in the course of employment
A relationship of master and servant, as
distinct from employer and independent
contractor, has to exist
Vicarious liability is another instance of
stricter liability in the sense that the master
who is not at fault is saddled with the
responsibility for the servants default
It thereby gives injured party compensation
from the person who is better able to pay
and spread the cost of the injury, namely the
master
Example
A is liable to C for damage/injury suffered by C due to
negligence /other tort committed by B
A need not have done anything wrongful
A need not owe a duty of care to C
The most important condition for imposing liability on A is
the nature of the relationship between A and B
This relationship is usually that of master and servant,
employer and employee and principal and his agent
Justification of the Doctrine of Vicarious Liability
1. a master must be liable for employing a negligent employee
2. a master must be liable for failing to control employee
3. master set whole thing in motion therefore master should bear
consequences if 3
rd
party suffers through servants wrongful conduct
4. Since master derives benefit from employees work he should be
made liable for any tortious conduct of employee in performing his
work
5. master in better financial standing to compensate 3
rd
party
6. master in better position to spread the loss through insurance or
price of his products
Imperial Chemical Industries(I.C.I) Ltd. V Shatwell
(1965)
Lord Pearce : the doctrine of vicarious liability has not
grown from any clear, logical or legal principle but from
social convenience and rough justice. The master having
(presumably for his own benefit) employed the servant,
and being (presumably) better able to make good any
damage which may occasionally result from the
arrangement, is answerable to the world at large for all the
torts committed by his servant within the scope of it
Elements of Vicarious Liability
1. wrongful/tortious act
2. special relationship recognised by law
between person alleged to be vicariously
liable and tortfeasor
3. tort must have been committed within the
course of employment
1. Wrongful/Tortious Act

Firstly court will decide whether a tort has
been committed
All the elements of the particular tort must
be satisfied
Once a tort is established nature of
relationship between defendant and tort
feasor will be examined
ICI v Shatwell (1965)
2 brothers George and James were employed as shot firers.
Safety regulations imposed on them personally required
that tests of electrical circuits for shot firing should only be
conducted from behind cover but rather than
inconvenience themselves by having to comply with
regulations they agreed to test circuit in the open. An
explosion followed injuring both of them. George sued the
company alleging that it was vicariously liable for the
negligence and breach of regulations by his brother James.
The House of Lords held the company not liable
on the ground of consent. Since James himself
would not have been liable to George for this
reason the employer was entitled to the vicarious
benefit of that defence just as they would have had
to carry the vicarious liability in its absence
Lord Pearce : unless the servant is liable the
master is not liable for his acts, subject only to
this, that the master cannot take advantage of an
immunity from suit conferred on the servant
Broom v Morgan (1953)
Plaintiff and her husband were employed by the
defendant. Plaintiff was injured through her
husbands negligence. Plaintiff sued defendant.
Defendant disputed vicarious liability contending
that, as the law then stood, husband and wife
could not sue each other in tort, and that if the
husband was not liable to his wife defendant could
not be liable either. But Court of Appeal held
defendant liable since husbands immunity was
only from suit not from responsibility for a tort
2. Special Relationship
There must be special relationship recognised by law
between person alleged to be vicariously liable and
tortfeasor
Such relationship usually exists between employer and
employee
If tort is committed on defendants premises but not by his
employer defendant cannot be vicariously liable for the tort
Possible for a person to be an employee of more than one
employer provided master servant relationship is
established between the parties

Whether a person is an employee and whether
there is special relationship is dependent on
determination whether relationship is one based on
contract of service or contract for services
contract of service special relationship exists,
person is an employee
contract for services - special relationship does
not exist, person is an independent contractor
General rule : employer not liable for torts
of his independent contractors
Determining existence of contract of
service and employer-employee
relationship
1. The Control Test
4 factors to consider in determining existence of contract of service
1. power of selection by employer
2. power in determining salary/remuneration
3. power of employer to control method of work
4. power to terminate workers service
But nowadays element of control no longer accurate test to determine
existence of employer-employee relationship
But this does not mean control test no longer valid
Must bear in mind that lack of control does not necessarily mean a
person is not an employee and not in contract of service with his
employer


2. Organisation Test
Easy to identify a contract of service but not easy to know
difference between contract of service and contract for
service
A common element is that in a contract of service the
person concerned works as part of an organisation and his
work forms an integral part of that organisation whereas in
contract for service though the work is done for the
organization it is not integrated into it but only accessory
to it
So if a worker is in business on his own account then it is
more likely that he will not be deemed to be an employee

3. Multiple Test
Control test difficult to apply due to lack of
control of employers over method in which work
is to be done
Organisation test is criticised for not being able to
present clear answer in many situations
These led courts to prefer 3
rd
test ie
multiple/mixed test

Ready Mixed Concrete Ltd v Minister of
Pensions and National Insurance (1968)
3 factors need to be fulfilled before a contract of
service is established
1. employee agrees that he will use his own
expertise and employer pays him either in
monetary form or other form of remuneration
2. employee agrees that he will be bound by
employers instruction
3. all other conditions in the agreement are
consistent with nature of the job
In Malaysia courts generally favour the
Control Test
Workers have been held to be non
employees on basis that defendant was not
responsible for payment of wages and did
not have control over manner in which work
was to be performed

Other factors : Not involved in determining
working hours, leave and selection of workers
Generally not difficult to determine whether
worker is employee or not eg for clerical staff, live
in domestic help, factory workers
Examples of independent contractors = house
builders, grass cutters, workers at car service
centres


Grey areas
i. Hospital staff
Some dissatisfaction associated with the
control test was the vicarious liability of
hospitals for the negligence of their staff
Surgeons and consultants are experts in
their own fields and it seems absurd to
describe the hospital as controlling the work
of these professionals
This uncertainty was settled when a series of cases
held that nurses, radiographers, house surgeons
and assistant medical officers were employees of
the hospital for purposes of vicarious liability
In Cassidy v Ministry of Health (1951) and Roe
v Minister of Health (1954) the courts held that if
negligence occurs in a hospital and the tortfeasor
cannot be identified the hospital will be
vicariously liable for the negligence
Cassidy v Ministry of Health (1951)
A hospitals liability for the professional
negligence of its permanent medical staff was
unequivocally established. In this case it was
unclear whether the negligence that resulted in the
plaintiffs injury was that of the assistant medical
officer, the house surgeon or one of the nurses.
The Court of Appeal held that it was unnecessary
to pin point whose negligence had caused the
harm, the hospital was vicariously liable for the
professional negligence of its staff
ii. Lending a Worker
If B who is As employee is lent to C and B
subsequently commits a tort, the general
principle is that A will be vicariously liable
for the tort committed by B unless A has
divested himself of all possession and
control
Mersey Dock and Harbour Board v Coggins
and Griffith (Liverpool) Ltd (1947)
A harbour authority hired out to X, a firm of
stevedores, a mobile crane with its operator. The
contract expressly provided that the operator was
to work for the time being as the servant of X
although the harbour authority retained the power
of dismissal. The question was whether the
harbour authority or X was vicariously liable to
the plaintiff who was injured by the negligence of
the operator
It was held that the harbour authority was
liable as it still control the manner in which
the crane was worked
3. The Tort must occur within the
course of employment

An employer will only be vicariously liable for the tort of
his employee if the tort occurs in the course of
employment
An act is within the course of employment if
1. it is expressly/impliedly allowed by the employer, or
2. when the employeee does something that is authorised
in an unauthorised manner, or
3. the employee does something that is closely connected
to what he is employed to do in the course of doing the job
A) Carelessness of worker in the performance
of his job
The commission of a careless act may still be
within the course of employment provided the
worker is not on a frolic of his own
Employer is liable if employee is careless with
regard to the mode of doing authorised work
Employer not liable if employee careless in doing
something that he is not employed to do in the first
place

Century Insurance Co. Ltd v Northern Ireland
Road Transport Board (1942)
The driver of a petrol lorry negligently threw
down a lighted match while petrol was being
transferred from the lorry to a tank. An explosion
and fire ensued
Viscount Simon : no doubt that his act was in the
course of employment-negligence in starting
smoking and throwing away a lighted match in
that moment is plainly negligence in the discharge
of the duties upon which he was employed

B) Unauthorised mode of doing
something authorised/Mistake of
Worker

If employee commits mistake in the course
of performing his job the court will
generally hold the employer liable
The mistake will be construed as doing
something authorised in an unauthorised
manner

Bayley v The Manchester, Sheffield and Lincolnshire
Railway Co. (1873)
A porter in a companys service forcibly removed the
plaintiff from a train erroneously believing that he was in
the wrong carriage. It was the duty of porters to ensure that
passengers were in their right carriages. The company was
held liable. The porters tort was held to have been
committed within the scope of his employment since he
was doing clumsily what he was employed to do namely to
see that passengers were in the right carriages.
Lister v Hesley Hall Ltd (2001)
Employer was found vicariously liable for
their wardens acts of sexual abuse on boys
in a residential school
C. Tort committed in protection
of employers property
General rule : if worker commits tort to protect employers
property employer will be vicariously liable
But if employees conduct excessive employer may escape
liability
Poland v Parr & Sons (1927)
Facts : Defendants worker reasonably believed that a boy
was stealing sugar which belonged to his employer. He
struck the boy who fell and consequently had to have his
leg amputated
Held : defendants liable, though employers act was
somewhat excessive it was not sufficient to make it fall
outside the scope of employment
D. Worker delegating his
responsibility
Servant does not have power to delegate his
responsibility to a 3
rd
party even in emergency
situation
Thus employer not liable if 3
rd
party commits a
tort
But must contrast delegation with negligent
conduct
Ilkiw v Samuels (1963)
A lorry driver who was working for
defendant had allowed a 3
rd
party to drive
the lorry. The 3
rd
party was negligent and
accident occurred. Defendant was held
liable not for 3
rd
partys negligence but
because his employee was negligent in the
course of his employment by allowing a 3
rd

party to drive the lorry

E. Worker acting for his own
benefit
If worker does an act for his own benefit it does not
necessarily mean that he has acted outside the scope of his
employment
Zakaria b. Che Soh v Chooi Kum Loon & Anor.
Defendant was driver with research institute in Ipoh. After
sending the director home he drove home for lunch. An
accident occurred on the way. The court found the state
government liable. Though the purpose of the trip did not
have anything to do with his employer but it was
something that was expected to be done in the course of
his employment and thus the accident occurred within the
course of his employment

The test is whether the conduct of the
worker is reasonable in that it is not too
remote from the contemplation of both
parties as to take the act out of the
employment
For example if a driver had driven 100 km
for his lunch the employer would not be
vicariously liable
F. Acting against employers
express prohibition
If worker acts contrary to express prohibition of
his employer it does not necessarily mean that he
is acting outside the scope of his employment
If he has done something which he is not
employed to do it is more likely that the court
would construe him to be acting outside the scope
of his employment
But if he is doing something which is expressly
forbidden by his employer but the conduct was
related to the mode of performing his job the court
might construe it to be within the course of
employment
Twine v Beans Express
The employee acting contrary to his employers
instructions gave a lift to a 3
rd
party who was
subsequently injured due to the negligence of the
employee. The court held the employer not
vicariously liable as giving free lifts was not the
job the employee was employed to do and
therefore he was acting outside the scope of his
employment
G. Employee acting on a frolic of
his own
General principle : if employees act
intended to benefit himself alone that is
sufficient to prevent the tort from being
within the course of employment
Eg if employee uses his employers vehicle
for his own purpose, any tort that occurs
during that time cannot be the liability of
his employer
The classical formulation is that of Parke B
in Joel v Morrison (1834)
If the driver was going out of his way,
against his masters implied commands,
when driving on his masters business, he
will make his master liable; but if he was
going on a frolic of his own, without being
at all on his masters business, the master
will not be liable

D) Fraud of Worker

Lloyd v Grace, Smith & Co. (1912)
A firm of solicitors employed an administrative clerk who
was responsible for conveyancing matters. His duties were
not under the supervision of the defendants. The plaintiff
who had some difficulties in handling her property went to
the defendants office and the clerk fraudulently
transferred some of her properties into his own name. He
then disposed off the properties for his own benefit. The
House of Lords held the defendants vicariously liable due
to the position in which they had placed the clerk so as to
enable him to do what he did. His act was within the scope
of apparent or ostensible authority which had been given to
him by the defendants