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‘a frolic of his own’, then there will be no liability. Why, then, did the House of Lords hold that the patrolman who burnt down the factory in Photo Production v Securicor (above p 541) was acting in the course of his employment? 2 The course of employment requirement is possibly one of the most difficult questions in vicarious liability problems. One difficulty for practitioners and other problem solvers is that the vicarious liability issue can blind the lawyers to the existence of other duties, as indeed we have seen with the Keppel case itself (see p 537). Is the employer of firemen liable to the owner of a factory burnt down because the firemen were on a goslow for more money and took hours to get to any fire? The answer is to be found in the law reports (General Engineering Services v Kingston and St Andrews Corpn [1989] 1 WLR 69), but is it the right answer in the light (one hesitates to say blaze of light) of Photo Production? What if the employer was paying miserable wages to the firemen? Does insurance play a role? 3 Certainly, one educated reflex is the judgment of Diplock LJ in the great case of Morris v Martin (see p 80), even if the ratio decidendi of the case turns out to be somewhat irrational (the result depends on luck—which employee actually steals the goods). Diplock LJ saw that the duty problem went beyond that of vicarious liability and into the law of property; the facts, in other words, demanded a reflex that went beyond the law of tort. What role should vicarious liability have outside the law of tort itself? Does it have any role at all in contract or bailment? Did Diplock LJ, in other words, go far enough? LIABILITY FOR THINGS
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Rylands v Fletcher (1866) LR 1 Ex 265 Court of Exchequer Chamber; (1868) LR 3 HL 330 House of Lords

This was an action for damages by a landowner against his neighbour in respect of damage done by water escaping from a reservoir on the defendant’s land. The escape occurred as a result of negligent work carried out by the contractors who constructed the reservoir. The Court of Exchequer Chamber gave judgment for the plaintiff, and an appeal to the House of Lords was dismissed.