D, a driver, had injured his father, a fellow worker, who had sued the company successfully for vicarious liability. The company, P, then sued D for breach of contract since there was a term that D would take reasonable care. D tried to argue that, since P was insured, there should be an implied term that P undertook to indemnify him against liability incurred in the course of employment. HL rejected the idea that such a term could be implied and upheld the decision to make P and D pay 50% each.
Viscount Simonds: No term could be implied because it fails to satisfy the objective bystander approach (no bystander would recognise its existence) which is bad for certainty, while to relieve all drivers from liability would make them more careless. Generally there is an implied term that the employee will use a basic degree of skill and care and this is a duty towards the employer.
Lord Somervell (dissenting): There will be recruitment problems if it becomes evident that drivers must bear the cost of their own negligence. Also it would be unfair to exempt professional drivers from liability when ordinary drivers will be exempted.