Storey v Ashton (1869) LR 4 QB 476 concerned an employer’s liability for an accident caused by a driver who had turned aside from his delivery work to undertake a colleague’s private errand. The Court of Queen’s Bench held that the employer was not liable.
Facts
Ashton, a wine merchant, sent a driver and a clerk with a horse and cart to deliver wine at Blackheath and bring back empty bottles. The driver was supposed to return to Ashton’s offices in the Minories, leave the bottles and then take the horse and cart to nearby stables.
On the return journey, when they were about a quarter of a mile from the offices, the clerk persuaded the driver to go in a different direction. They went towards the clerk’s home and then towards his brother-in-law’s house at Barnsbury to collect a cask which the clerk had sold. While travelling along City Road on that private errand, the driver ran over the plaintiff, a six-year-old child.
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At trial, the jury assessed damages at £80, but a verdict was directed for Ashton. The plaintiff was given permission to ask the court to enter the verdict in his favour if it decided that Ashton was legally responsible for the driver’s negligence.
The issue
Was the driver still acting in the course of his employment because he had not yet returned the bottles and horse and cart, or had he begun a separate journey outside that employment?
The plaintiff argued that the employer’s work remained unfinished and that the journey was merely a deviation on the way home. The defendant argued that the driver had stopped doing his work and was using the vehicle for an independent purpose.
The court’s reasoning
Cockburn CJ rejected the suggestion that entrusting a servant with a horse and cart made the employer responsible for every negligent use of it. Responsibility depended on whether the negligent act occurred in the course of the servant’s employment.
He expressly distinguished a longer route taken while carrying out the employer’s business from a new and independent journey. A deviation did not automatically end the employment connection: its extent and character were matters of degree. Here, however, the driver had embarked on a separate journey unconnected with Ashton’s business.
Mellor J emphasised that the driver had turned away from his duty when he was already close to the employer’s offices. Lush J likewise distinguished going home by a roundabout route from starting a new journey for the driver or his fellow employee. Hannen J concurred.
Decision and significance
The court discharged the plaintiff’s rule, leaving the verdict for Ashton in place. The employer was not liable for the driver’s negligence during this independent personal journey.
Although the report records that it was after business hours, the reasoning did not establish a rule that liability simply ended at a particular time. The decisive point was what the driver was doing when the accident happened. Nor was the continued presence of the employer’s bottles in the cart enough to make the private errand part of the delivery work.
Source: The Law Reports, Queen’s Bench, volume 4, pages 476–480, judgment of 7 May 1869.
